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2017 Supreme(Cal) 398
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
DIPANKAR DATTA, J.
Chander Bhusan Sood – Appellant
Versus
Coal India Limited & Others – Respondent
M.A.T. No. 167 of 2015 (Appellate Side)
Decided On : 21-04-2017
For the Appellant:Biswaroop Bhattacharya, Santanu Das, Advocates.
For the Respondents:R.N. Majumder, S.M. Obaindullah, N. Roy, P. Basu, Kumar Jyoti Tiwari, Advocates.
The crucial date for considering vigilance status varies according to the facts and circumstances of each case. In general, it is the date of recommendation by the Board or the date of denial of clearance by the CVC, whichever is earlier.
Headnote:
VIGILANCE CLEARANCE - APPOINTMENT ON SELECTION POST - DENIAL - GUIDELINES - CRUCIAL DATE - FAIRNESS AND REASONABLENESS - RELIEF - EQUITY.
Fact of the Case:
Mr. Sood, an employee of Coal India Limited (CIL), was recommended for appointment as Director (Technical), South Eastern Coalfields Ltd. (SECL) by the Public Enterprises Selection Board (Board). However, vigilance clearance was denied on the ground of initiation of minor penalty proceedings for alleged misconduct based on a statement made by him in 2010. Mr. Sood challenged the denial of vigilance clearance and the minor penalty proceedings in the High Court.
Finding of the Court:
The High Court held that the denial of vigilance clearance was unjust, unfair, and arbitrary. The Court found that the crucial date for considering vigilance status is the date of recommendation by the Board or the date of denial of clearance by the Central Vigilance Commission (CVC), depending on the facts and circumstances of each case. In this case, the Court found that there were no disqualifying factors present on the date of recommendation by the Board and that the CVC had no authority to deny clearance based on the subsequent initiation of disciplinary proceedings.
Issues: 1. Whether the denial of vigilance clearance was justified? 2. What is the crucial date for considering vigilance status? 3. What relief can be granted to the petitioner?
Ratio Decidendi: 1. The denial of vigilance clearance was not justified because there were no disqualifying factors present on the date of recommendation by the Board and the CVC had no authority to deny clearance based on the subsequent initiation of disciplinary proceedings. 2. The crucial date for considering vigilance status varies according to the facts and circumstances of each case. In general, it is the date of recommendation by the Board or the date of denial of clearance by the CVC, whichever is earlier. 3. In this case, the petitioner is not entitled to an order directing his appointment to the post of Director (Technical), SECL, but he is entitled to seek damages for the injustice he has suffered.
Final Decision: The High Court set aside the order denying vigilance clearance and dismissed the appeal. The Court also directed that the order of penalty imposed on the petitioner should not be given effect for a further period of 3 weeks to enable him to seek relief in an appropriate proceeding.
1. Aggrieved by dismissal of his writ petition [W.P. 10654(W) of 2013] by a learned judge of this Court vide judgment and order dated January 30, 2015, Mr. Chander Bhusan Sood, the writ petitioner (hereafter Mr. Sood), carried the same in appeal. The learned judge presiding over the appellate Bench did not agree with His Lordship’s companion learned judge that the appeal ought to be dismissed and the judgment and order under challenge upheld. By an order dated July 29, 2015 the appellate Bench directed the appeal to be placed before the Hon’ble the Chief Justice for appropriate order. The learned judge to whom the appeal was assigned having been transferred to another high court, the Hon’ble the Acting Chief Justice by an order dated February 13, 2017 reassigned the appeal to me. In compliance therewith, the appeal was placed before me and by this judgment and order I propose to dispose of the appeal finally.
2. Mr. Sood invoked the writ jurisdiction of this Court feeling aggrieved by denial of vigilance clearance that cost him an appointment on the post of Director (Technical), South Eastern Coalfields Ltd. (hereafter SECL) despite being recommended by the Public Enterprises Selection Board (hereafter Board). Clearance was denied on the ground of initiation of minor penalty proceedings for alleged misconduct based on a statement made by him on December 20, 2010. He challenged the office memorandum dated January 3, 2013 issued by the Director, Central Vigilance Commission (hereafter CVC) containing the advice for initiation of minor penalty proceedings, memorandum dated February 19, 2013 (the charge-sheet) as well as communications dated March 20, 2013 and March 28, 2013 issued by the CVC and the Under Secretary (VIG), Ministry of Coal, Government of India respectively, purportedly denying vigilance clearance in respect of his appointment on the post of Director (Technical), SECL.
3. A brief recital of the facts leading to issuance of the memoranda and the communications under challenge in the writ petition would be apposite to comprehend the controversy, resolution whereof was sought for by Mr. Sood.
4. Disciplinary proceedings had been initiated against Mr. Sood by a memorandum of charge-sheet dated January 27, 2004, while he was posted as Assistant General Manager, Kunustoria Area, Eastern Coalfields Limited (hereafter ECL). The charges were found established and the disciplinary authority by his order dated January 28, 2005 imposed the penalty of ‘censure’ on Mr. Sood. Such order was not immediately challenged in any departmental appeal by Mr. Sood; however, it was challenged by him in an appeal presented before the Chairman-cum-Managing Director of Coal India Limited (hereafter CIL) on January 4, 2007. To explain the belated presentation of the appeal, Mr. Sood pleaded ignorance of an order imposing penalty of censure on an officer being an impediment in the way of his future promotion. As soon as he became aware thereof, he wasted no time in carrying the order of censure in appeal. Despite this being the plea of Mr. Sood, on March 9, 2007 he was promoted to the post of Chief General Manager in M-3 Grade. Time passed by but the decision on Mr. Sood’s appeal was nowhere in sight; the appeal was not being decided either way for a sufficiently long period of time. To expedite a decision on the appeal, Mr. Sood had requested a Mr. A. K. Hazra, the then Deputy C.E. (Excavation), Sonepur Bazari Area, ECL to follow up processing of disposal of the said appeal. It was found that Mr. Hazra had tried to offer money to Mr. B. N. Mishra, the then Deputy General Manager (Vigilance), CIL and had later on submitted a statement on April 7, 2008 of such attempt having been made to offer money to Mr. Mishra at the behest of Mr. Sood. Mr. Sood having been confronted with such statement of Mr. Hazra wrote a letter dated December
