SCA/7191/1995 of B K JAIN Vs O N G C LIMITED on 6 December 1995

ORAL JUDGMENT:

The petitioner, who was holding the post of DeputyDirector (MM) in Oil and Natural Gas Corporation Ltd.,('ONGC' for short) has filed this petition under Article 226of the Constitution of India praying therein that the orderdated 27-7-1995 or of any other date, cancelling the promotion of the petitioner to the post of Deputy Director(MM) with effect from 1-1-1987 and reverting him to the postof Stores & Purchase Officer be quashed and set aside. Ithas further been prayed that the respondents be directed torelease the promotion order dated 15-10-1992 of thepetitioner with effect from 1-1-1992 on the post of SeniorDeputy Director (MM) with all consequential benefitsincluding arrears of difference of pay with interest.

2. During the pendency of this writ petition, it is not in dispute between the parties that the petitioner hasalready retired from the service of ONGC on 30th November,1995. Learned counsel for the petitioner made statementthat he does not press the writ petition to the extent itrelates to prayer 'B' in para 19 of the writ petition, thatis, to the extent of claiming promotion on the post ofSenior Deputy Director (MM) with effect from 1-1-1992.Order accordingly.

3. This writ petition has been filed by the petitioneron 22-8-1995 and at that point of time though he has statedthat the order of his promotion dated 5-10-1989 on the postof Deputy Director (MM) has been cancelled he has not fileda copy of the order along with writ petition. In para 9 ofthe writ petition the petitioner averred that he has come toknow that the order has been passed by the competentauthority on 27-7-1995 reverting the petitioner from thepost of Deputy Manager (MM) to the post of Stores & PurchaseOfficer by cancelling the order dated 5-10-1989, but he hasnot been served with the aforesaid order, and as per hisinformation the same has been despatched by the DehradunOffice. It has been prayed that the respondents may bedirected to produce the said order in this Court.

4. The order of reversion is dated 28-7-1995. Thoughthe petitioner had known all the facts and the contents ofthe said order and even about despatch of the same fromDehradun Office, he has not waited for receipt of the orderand in hot haste approached this Court. Filing of the writpetition without accepting the order of reversion, thoughhaving full knowledge of the same, is highly unjustified andunreasonable. It is in fact an attempt to abuse the processof the Court. The petitioner, it appears from the readingof the averments, has tried to hide that order from thisCourt. It was a concluded order. Admittedly the petitionershould have waited for the order and after receiving thesaid order should have filed the writ petition. Afterfiling of the writ petition, the petitioner brought thematter on 23-8-1995 by way of urgent circulation. Then thepetitioner filed an application for amendment of the writpetition, and along with the amendment application he filed

a copy of the said order dated 28th July, 1995. This courtdoes not appreciate this conduct of the petitioner of hideand seek. As the matter has been admitted I do not considerit to be a case where the writ petition should be dismissedon this ground, otherwise I would have taken serious view ofthe matter. Not only the Court has admitted the matter, buthas granted interim relief, and after availing full benefitof the interim relief the petitioner has retired fromservice of ONGC.

5. The facts which are not in controversy between theparties need to be briefly stated. Three vigilance caseswere pending against the petitioner, the details of whichare as follows:

(1) F.No. 5/3/84 RC/147/84 Ahmedabad dated 1-2-1984

(2) F.No.5/1/84/Vigilance (RC/42/83)/Ahmedabad, dated 16-12-1983.

(3) F.No.16/71/89 Vigilance.

In none of the vigilance cases the C.B.I. filed any chargesheet against the petitioner,and only departmental action isproposed. In one of the cases, action for major penalty hasbeen proposed, but only on completion of criminal case filedagainst Suresh Kumar Kantilal, G.B.Chandrama and J.N.Sejpal. It is not in dispute that that criminal case ispending and as such no charge sheet whatsoever was given inrespect thereof. In one case charge sheet was given on22-8-1987 which culminated in the order dated 31stMarch,1994 by which penalty of withholding of one gradeincrement without future effect has been imposed on thepetitioner. Copy of the said order imposing penalty isannexure-I to the reply affidavit filed by the respondent.In another case charge sheet was given to the petitioner on7-12-1994 which also culminated in order of penalty dated9-5-1995, whereby the disciplinary authority has imposed thepenalty of withholding of next promotion to the petitioner.Copy of this order has been produced along with the replyaffidavit at annexure-II. Learned counsel for thepetitioner stated that the petitioner has already filedappeal against both the aforesaid orders of penalty whichare pending for disposal before the appellate authority.

6. Though three vigilance cases were pending forinvestigation and in one case charge sheet has been given tothe petitioner for departmental inquiry on 22-8-1987, but byorder dated 5-10-1989 the petitioner was promoted to thepost of Deputy Director (MM) with effect from 1-1-1987. So far as further promotion is concerned, the facts relatingthereto need not be given as the petitioner's counsel hasalready given up the challenge in that regard. By amendingthe petition, order annexure-H dated 28-7-1995 was produced,by which the respondents have withdrawn the adhocappointment given to the petitioner to the post of DeputyDirector (MM) with effect from 1-1-1987. The reasons forcancellation of the promotion have been given in para 2 ofthe said order, which stated that Shri B.K.Jain was involvedin three vigilance cases and disciplinary proceedings werepending against him. A penalty of withholding of oneincrement without cumulative effect with effect from13-3-1994 was also imposed on Shri H.K.Jain in one of thedecided vigilance cases and other two cases are stillpending.

7. In the writ petition the learned counsel for the

7. In the writ petition the learned counsel for the petitioner raised several contentions, challenging thevalidity, legality and correctness of the order dated 28thJuly, 1995, but I do not consider it necessary to refer toall those contentions, except one which, according to me, issufficient to allow this writ petition. One of thecontentions which has been raised by the learned counsel forthe petitioner is that the order dated 28th July, 1995 hasbeen passed without giving notice or an opportunity ofhearing to the petitioner. In support of this contentionthe petitioner has placed strong reliance on the decision ofthis Court in P.N. Parikh vs. Oil and Natural GasCommission ( special civil application No.3855 of 1991)rendered on 19-12-1991. Learned counsel for the petitionercontended that the petitioner has been promoted to thehigher post with effect from 1-1-1987 which has given avaluable right to him, and he could not have been deprivedof the said right without giving any opportunity of hearing.It has further been contended that the order of reversion ofthe petitioner dated 28th July, 1995 has resulted in civilconsequences. The petitioner's status will be lowered downwhich will further result in lower downing of his pay andconsequential monetary loss and other retirement benefits.The petitioner has been given promotion from 1-1-1987 andthis promotion has been ordered to be cancelled vide orderdated 28th July, 1995 with retrospective effect and thiswill further result in serious monetary loss, leaving apartthe question of lowering down of his status. While passingsuch an order which results in civil consequences theprinciples of natural justice have to be followed.

8. On the other hand Mr. Rajani Mehta, learned counselfor the respondents has contended, relying on GovernmentO.M. dated 12-1-1988, that it was only an adhoc appointmentof the petitioner which has been given pending decision of the vigilance inquiry. He contended that as per clause 6.4of the said Memorandum adhoc promotion given to thepetitioner has to be brought to an end as in one of thevigilance inquiry the petitioner was penalised. Referringto the order of promotion of the petitioner Mr. Mehta hascontended that the promotion order was made with specificcondition that the appointing authority reserved its rightto cancel adhoc appointment and to revert the officer to hissubstantive grade at any time without assigning any reasonand without prejudice to any departmental action pendingagainst him. Mr. Mehta further contended that therespondents have not committed any illegality whatsoever inpassing the order dated 28th July,1995, and that the same isin consonance with the O.M. dated 12-1-1988 and as per thethe terms of the order of promotion of the petitioner. Sofar as the contention of the learned counsel for thepetitioner regarding violation of the principles of naturaljustice is concerned, Mr. Mehta contended that as perclause 6.4 of the Memorandum dated 12-1-1988 and the specialconditions as incorporated in the promotion order, no noticeor opportunity of hearing was required to be given to thepetitioner.

9. I have considered the submissions which have beenmade by the learned counsel for the parties. I do not wantto express any opinion on merits of the case as well as thecontentions which have been raised by Mr. R.H. Mehtasupporting the order dated 28th July, 1995 as it may eitherway prejudice the parties on remand of the matter before theauthority for passing fresh order after following theprinciples of natural justice. Learned counsel for thepetitioner strongly pressed that the order dated 5-10-1989is not an order of adhoc appointment by promotion, but itwas regular promotion. Mr. Supehia, learned counsel forthe petitioner has relied on the decision of the SupremeCourt in the case of Union of India vs. K.V.Janakiraman,reported in JT 1991 (3) SC 527, and argued that on the day,i.e. on 1-1-1987 from which promotion was given to thepetitioner, no charge sheet was served upon him, nor anycharge sheet was submitted against him in criminal court andas such even as provided in Circular dated 12-1-1988 thisplea would not have been available to the respondents.Again I may make it clear that it is not proper for thisCourt to express any opinion on the merits of thecontentions raised by Mr. Supehia where it considers tosend the matter to the authority to pass fresh order afternotice to the petitioner.

10. The petitioner has been given promotion under orderdated 5-10-1989 with effect from 1-1-1987 to the post ofDeputy Director (MM), whereas at the verge of his retirement this promotion is sought to be taken back with retrospectiveeffect and not with prospective effect. It will certainlyentail civil consequences. When order dated 5-10-1989 waspassed, in one of the vigilance cases charge sheet wasalready given, and two other cases were pendinginvestigation. The promotion was given with effect from1-1-1987, and the petitioner and the respondents have notgiven out in the respective pleadings or during the courseof argument what signification this date has in the matter.When the promotion has been related back to 1-1-1987, i.e.the date on which in none of the vigilance cases chargesheet was submitted or any charge sheet for departmentalenquiry was given, it cannot be said to be proper,reasonable and fair to take away the promotion withretrospective effect, without giving any notice oropportunity of hearing to the petitioner. The petitionerhas been protected at the interim stage in this case and heretired from service of the Corporation from the post ofDeputy Director (MM). In the peculiar facts of this case,when promotion is sought to be taken away with retrospectiveeffect, it is expected of the respondents to have followedthe principles of natural justice.

11. In the result the writ petition succeeds in part and the same is allowed partly. The order dated 28th July,1995produced at annexure-H to the writ petition is quashed andset aside. It is made clear that it shall be open to therespondents to consider the matter afresh and passappropriate orders in accordance with law after giving fullopportunity of hearing to the petitioner. It shall also beopen to the petitioner to raise all the grounds in supportof his claim as and when the respondents proceed to drawfresh proceedings in this respect against him. Rule madeabsolute to the aforesaid extent with no order as to costs.

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