JUDGMENT:

S.B. SINHA, J.

Leave granted.

These two appeals involving similar questions of law and facts were taken up for hearing together and are being disposed of by this common judgment.

Respondents herein were employees of Mahanadi Coalfields Ltd., a Government Company within the meaning of Section 617 of the Companies Act. Coal India Limited admittedly is the holding company of Mahanadi Coalfields Ltd. Appellant No. 1 framed rules laying down terms and conditions of service of its Executive Officers. The Executive Cadre of the Officers of Appellant No. 1 is divided in various grades namely Gr. E/1 to Gr. E/8. Indisputably, promotion from A/3 to A/4 grades is governed by the rule of Seniority-Cum-Merit. For the purpose of considering the cases for promotion of the eligible officers from Grade E/3 to E/4, a departmental promotion committee held its meeting in April-May, 1999.

Respondents were, however, not promoted inter alia on the premise that the General Manager (Vigilance) of the Mahanadi Coalfields Ltd. intimated to the concerned authority that vigilance cases were pending against them. Orders of promotion were issued in favour of the officers who were admittedly junior to them on 31.8.1999. When despite representation, they were not promoted on the ground of pendency of vigilance cases, they filed writ petitions before the Orissa High Court praying inter-alia for notional promotion with effect from the date their juniors were promoted.

During pendency of the Writ Petitions namely in June, 2002, charge sheets were issued and upon a disciplinary proceeding having been initiated, a penalty of reduction of pay by one stage for a period of one year without cumulative effect was imposed upon the respondents in July, 2003.

Before the Orissa High Court as also before this Court, reliance has been placed by the appellants on office memorandums dated 19/27th June, 1979. Upon taking into consideration the said office memorandum as also subsequent memorandums and in particular the one dated 8.1.1981, the High Court held;

"15. Taking into consideration of the entire factual matrix of the case and keeping in view the ratio decided by the Apex Court in different cases, so far as the present petitioner is concerned, the ratio decided in the case of Union of India Vrs. K.V. Jankiraman and Union of India-Vrs.-Dr.(Smt.) Sudha Salhan has to be followed and since the concerned employees in the cases of Delhi Development Authority-Vrs. H.C. Khurana (AIR 1993 S.C. 1488), Union of India vrs.-Kewal Kumar (AIR 1993 SC 1585) and Union of India vrs- R.S. Sharma (AIR 1993 S.C. 2337) stand on a different footing than the present petitioner, the ratio decided in those cases cannot be followed in the case of the present petitioner. In the case of R.S. Sharma the order of the Tribunal directing to open the sealed cover and giving effect to the recommendation made by the DPC on the ground of non-service of charge memo, was set aside keeping in view the Rules/Circulars/O.M. in force more particularly clause-iv of the O.M. wherein it is provided that during the pendency or "investigation on serious allegation of corruption, bribery or similar grave misconduct is in progress either by the CBI or any agency, departmental or otherwise", sealed cover procedure can be resorted to till the proceeding is over in all respect. But in the instant case on the basis of O.M./Circular/Rules followed by the MCL/Coal India, the sealed cover was opened and the petitioner was given promotion to next higher grade (Grade-4) since the so called investigation was not completed within two years from the date the immediate junior to the petitioner was promoted.

This particular office memorandum has been issued may be with the intention to check prolonged enquiry covering a period of more than two years in respect of certain allegations against an employee, so that the concerned employee shall not be harassed or debarred from getting benefit on the recommendation of DP