If Censure Is Awarded To An Executive After Holding Of DPC, His Recommendation For Promotion Cannot Be Given Effect: Calcutta High Court Rejects Employee's Appeal

The Calcutta High Court while dismissing an Appeal filed by an employee observed that if Censure is awarded to an executive after holding of DPC, his recommendation for promotion cannot be given effect to but he will be considered for promotion by the next DPC when it meets next.

The Court was considering an Appeal against a Writ Petition whereby the Petitioner's challenge to the chargesheet and claim for the promotion with effect from December 24, 2013 was rejected.

The division bench of Justice Tapabrata Chakraborty and Justice Reetobroto Kumar Mitra observed, "The appellant ventilated his claim for promotion from E4 to E5 grade with effect from 24.12.2013. Such prayer was rightly turned down by the competent authority on 16.11.2022 placing reliance upon a circular dated 05.10.2007 which provides that if Censure is awarded to an executive after holding of DPC and whose name was in the recommended panel by the said DPC, the recommendation in respect of the concerned executive cannot be given effect to but he will be considered for promotion by the next DPC when it meets next."

The Appellant was represented by Senior Advocate Soumya Majumder while the Respondent was represented by Advocate Shiv Shankar Banerjee.

Facts of the Case

A disciplinary proceeding was initiated against the Appellant by a chargesheet dated November 27, 2013 and accordingly, an order of penalty of withholding increment for a period of two years without cumulative effect vide memo dated February 03, 2014 came to be passed. The Statutory Appeal against the same was disposed of by ordering moderation of the penalty imposed by the DA to Censure.

The Appellant thereafter submitted a representation dated April 06, 2015 demanding promotion with effect from December 24, 2013 in view of moderation of penalty to Censure without indicating any duration of time and as he was the second senior most in Grade E-4. Upon considering the said representation, the competent authority approved his promotion with effect from August 24, 2014 with notional seniority and notional fixation at par with those promoted in August, 2014. Aggrieved thereby, the Appellant preferred a Writ Petition challenging the chargesheet and claiming promotion with effect from December 24, 2013. The said Writ Petition was disposed of by a judgment dated September 27, 2022 without interfering with the chargesheet but directing the Respondents to consider the Appellant’s claim for promotion as contained in his representation.

Senior Advocate for the Appellant submitted that the contents of the judgment impugned in the present appeal are self-contradictory as upon arriving at a finding that the Appellant was entitled to be considered for promotion, the Court relegated the issue of promotion for consideration to the competent authority, as prayed for in the Appellant’s representation, but surprisingly refused to interfere with the order of punishment of Censure.

The Counsel submitted that the single Judge while relegating the issue of promotion for consideration to the competent authority categorically observed that the AA in its order had arrived at a finding that the delay in payment of gratuity to the ex-workman was not deliberate and that there was also no previous complaint against the appellant in his service record. The Court observed that the Appellant ‘was in fact considered for promotion and was second senior most in the list prepared in December, 2013’ and in view of that the Appellant waited for favourable consideration of his claim for promotion. However, the Authority rejected his claim for promotion and the said order being violative of the directions contained in the judgment impugned is a nullity.

He averred that the single judge erred in law in observing that no legal right of the Appellant was violated ‘in considering his promotion in July, 2015 with effect from August, 2014’. The Counsel argued that under the Conduct Discipline and Appeal Rules of Coal India Limited, Censure is the lowest grade of penalty and withholding of promotion is higher than Censure and therefore upon imposing the penalty of Censure, the authorities have also deprived the Appellant of promotion and such act tantamounts to imposition of two penalties.

Counsel for the Respondent on the other hand submitted that an incumbent against who a DP has been initiated and he is also placed in the select list by a DPC, the promotion can be considered ‘only after completion of the proceedings and his complete exoneration of the charges’ and that such an officer may be promoted ‘with prospective effect’.

Reasoning By Court

The Court at the outset stated that the sole contentious issue which arises for consideration is as to whether the Appellant can reinvigorate his claim for promotion with effect from December 24, 2013, as refused by the order dated November 16, 2022, having accepted the judgment impugned in the present Appeal by which the issue of promotion was relegated to the authorities for consideration.

The Court rejected the argument that the Appellant had been made to suffer two penalties and noted that since the entitlement of the Appellant towards promotion was subject to the DP and the promotion process undertaken during pendency of DP would follow the sealed cover procedure, i.e., the result of the promotion process is kept undisclosed to theemployer as well as the employee by the DPC.

It held that if Censure is awarded to an executive after holding of DPC, his recommendation for promotion cannot be given effect to but he will be considered for promotion by the next DPC when it meets next.

"Indisputably, on the date of recommendation by DPC a DP was pending against the appellant. Pursuant to moderation of penalty dated 03.02.2014 to Censure vide memo dated 23.03.2015, the appellant’s promotion was rightly recommended from August, 2014. Such explanation stands fortified by the circulars dated 19/27 June, 1979 and 05.10.2007. In view thereof, the order dated 16.11.2022 was rightly not interfered with by the learned single Judge in the writ petition being WPO 1348 of 2023 and in the appeal being APO 50 of 2024," the Court observed.

The Appeal was accordingly dismissed.

Cause Title: Dibyajyoti Ghosh vs. The Coal India Ltd. & Ors.

Appearances:

Appellant- Senior Advocate Soumya Majumder, Advocate Partha Ghosh, Advocate Amal Kumar Datta, Advocate Simran Sureka, Advocate Debashis Das, Advocate Bratin Suin

Respondent- Advocate Shiv Shankar Banerjee, Advocate Abhishek Chakraborty

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