Punishment Of Censure, Claim For Promotion During Disciplinary Proceedings Rightly Rejected : Calcutta Hc

A Division bench of the Calcutta High Court comprising of Justice Tapabrata Chakraborty & Justice Reetobroto Kumar Mitra held that employee against whom disciplinary proceedings were pending at time of recommendation for promotion can be granted promotion only prospectively after the conclusion of proceedings. Background Facts A disciplinary proceeding was initiated by DPC against the appellant by a chargesheet dated 27.11.2013. The authority passed an order of penalty of withholding increment for a period of two year vide memo dated 03.02.2014. Thereafter, the appellant preferred an appeal on 03.02.2014 which was disposed of by the appellate authority vide memo dated 23.03.2015 ordering for moderation of the imposed penalty to “Censure”. The appellant thereafter submitted a representation dated 06.04.2015 demanding promotion with effect from 24.12.2013 in view of moderation of penalty to Censure. Upon considering the representation, the competent authority vide memo dated 08.04.2015 approved his promotion with effect from 24.08.2014 with seniority and fixation at par with those promoted in August, 2014. Aggrieved by it, the appellant preferred a writ petition challenging the chargesheet and claiming promotion with effect from 24.12.2013. The petition was disposed of by a judgment dated 27.09.2022 without interfering with the chargesheet but directing the respondents to consider the appellant's claim for promotion. The respondents thereafter considered the appellant's representation and passed an order on 16.11.2022 promoting appellant w.e.f. the year 2014. Challenging the said order the appellant again preferred writ petition and appeal which were dismissed by the single judge. Aggrieved by the same, the appellant filed appeal against the order of the single judge. It was submitted by the appellant that even after the order of the appellate authority to promote the appellant, the competent authority did not change the punishment of Censure. It was further argued by the appellant that single judge wrongly upheld the promotion of appellant from August, 2014 because after moderation of penalty to Censure, there was no time bar for consideration of promotion. It was further argued by the appellant 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. Upon imposing the penalty of Censure, the authorities have also deprived the appellant of promotion and such act amounts to imposition of two penalties. On the other hand it was contended by the respondents that the appellant accepted the promotion in terms of the directions contained in the judgment on 27.09.2022, therefore, appellant cannot again turn back and challenge the same after the judgment has been implemented. It was further contended that the order dated 16.11.2022 was valid, as it was based on applicable circulars which stated that if a disciplinary proceeding is pending against an officer, even if selected by the DPC, promotion can be granted only after full exoneration and with prospective effect. Findings of the Court It was observed by the court that the appellant had not been made to suffer two penalties since the entitlement of the appellant towards promotion was subject to the disciplinary proceeding. Further the Court did not find any fault in the decision-making process towards imposition of the penalty of Censure upon the appellant. While considering claim for promotion, it was observed by the Court that once a penalty has been imposed, the recommendation of DPC could not have been given effect to during the pendency of the disciplinary proceeding. It was further observed that the appellant can be considered for promotion on a prospective basis from a date after the conclusion of the disciplinary proceeding. Therefore, it was observed by the Court that 'no legal right of the petitioner was violated in considering his promotion in July, 2015 with effect from August, 2014'. It was held by the court that the prayer of appellant for promotion with effect from 24.12.2013 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 by DPC to an executive, the promotion cannot be given effect to in respect of the concerned executive. It was further held that on the date of recommendation by DPC, a disciplinary proceeding was pending against the appellant, therefore, pursuant to moderation of penalty to Censure, the appellant's promotion was rightly recommended from August, 2014. With the aforesaid observations, the appeal was dismissed. Case Name : Dibyajyoti Ghosh v. The Coal India Ltd. & Ors. Case No. : MAT 1751 of 2024 Counsel for the Appellant : Soumya Majumder, Ld. Sr. Adv., Partha Ghosh, Amal Kumar Datta, Simran Sureka, ...

Punishment Of Censure, Claim For Promotion During Disciplinary Proceedings Rightly Rejected : Calcutta Hc

Namdev Singh

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