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2015 Supreme(Gau) 1136
GAUHATI HIGH COURT
Ujjal Bhuyan, J.
Niresh Ranjan Deb - Appellant
Versus
Oil India Limited & Ors. - Respondent
Writ Petition (C) Nos.3379 and 1929 of 2010
Decided On : 09-03-2015
For the Appellant : Mr. S.S. Dey, Mrs. S. Borpatragohain, Mr. K.K. Handique, Mr. T.C. Chutia, Advs.
For the Respondent:Mr. S.N. Sharma, Sr. Advocate, Ms. P. Khound, Adv.
Headnote:
OIL EXECUTIVES CONDUCT, DISCIPLINE & APPEAL RULES, 1982 - Rule 5(5.1 and 5) - Claimed promotion to Grade - Pendency of a vigilance enquiry sealed cover procedure was adopted in case of the petitioner - Departmental proceeding was initiated against the petitioner where after, penalty of stoppage of one increment was imposed on the petitioner - Court held that since punishment was imposed on the petitioner the sealed cover proceeding could not be given effect to and the petitioner cannot claim promotion- Held, A perusal of the departmental proceeding would go to show that the petitioner was provided due procedural safeguards, which he had availed both within the enquiry and before and after the enquiry - Considering that the charge of acquiring disproportionate wealth has been proved, Petitioner has raised the plea of mala fide against the respondents while dealing with the petitioner - Apex Court in a catena of judgments has explained that malice, which is a state of mind, is easier to allege but difficult to prove - From the materials on record, Court is unable to discern any nexus between initiation of the departmental proceedings and denial of promotion to the petitioner - A mere coincidence cannot be cited as an incidence of malicious behaviour on the part of the respondents - Neither malice in fact nor malice in law is discernible from pleadings or from the documents on record. In such circumstances, Court is not inclined to accede to the prayer of the writ petitioner – Petition dismissed.
Subject matter of both the writ petitions being inter related, those were heard together and are being disposed of by this common order.
2. Petitioner is an Officer serving in Oil India Limited (OIL). While he was serving in Grade-B he claimed promotion to Grade - C in the year 2001. Because of pendency of a vigilance enquiry sealed cover procedure was adopted in case of the petitioner. Thereafter, departmental proceeding was initiated against the petitioner where after, penalty of stoppage of one increment was imposed on the petitioner. It may be mentioned that during that stage 2 (two) writ petitions came to be filed before this Court being WP(C) No.4077 of 2001 and WP(C) No.2456 of 2006. Both the cases were disposed of by a common order dated 15.05.2007. This Court held that since punishment was imposed on the petitioner the sealed cover proceeding could not be given effect to and the petitioner cannot claim promotion from Grade-B to Grade-C in the promotion exercise, which was earned out in the year 2001. However, from the affidavit filed by OIL, this Court observed that it was open to the respondents to consider the case of the petitioner in the next DPC. On a submission made on behalf of the petitioner, the 2 (two) writ petitions were disposed of by directing the respondents to consider the case of the petitioner for promotion from Grade-B to Grade-C in the next DPC in the normal course provided the petitioner cooperated with the selection process in terms of the relevant rules and regulations. Petitioner was also given opportunity to submit representation before the respondents highlighting his grievance.
3. According to the petitioner, he was thereafter, asked to appear in the written test and viva-voce by the DPC on 10.12.2007 for promotion to Grade-C. But immediately thereafter, memorandum dated 29.11.2007 was issued under Rule 25 of the OIL Executives Conduct, Discipline and Appeal Rules, 1982, as amended, asking the petitioner to show-cause as to why a departmental enquiry should not be conducted against him on the charges which were framed. As per the statement of articles of charge appended to the memorandum dated 29,11.2007, the basic charge against the petitioner was acquiring property and wealth disproportionate to his known source of income during the period from 01.03.1995 to 31.03.2001. In fact, the assets and property, which were allegedly acquired disproportionate to his known source of income was quantified at Rs.8,54,887.00.
4. It was at that stage that petitioner moved this Court by filing WP(C) No.1929 of 2010, challenging the legality and validity of the memorandum dated 29.11.2007.
5. Contention of the petitioner is that it was a deliberate act on the part of the respondents to deprive the petitioner of his due promotion. Allegations pertain to the period from 1995 to 2001 which was prior in point of time to the promotion exercise carried out in the year 2001 and the earlier departmental proceeding. Therefore, resurrection of such stale allegations is not justified and appears to be motivated. Allegation of mala fide and improper exercise of power has been levelled against the respondents.
6. Respondents have filed a common affidavit. While denying the allegation of mala fide and improper exercise of power, it is stated that in the promotion exercise carried out in the year 2001, petitioner's case was put in sealed cover in view of the departmental proceeding initiated against him. Charge memo was issued on 29.07.2002 under Clauses-5.4 and 5.20 of the Conduct Rules, 1982 for violation of Rules 13(1), 13(2) as well as Rule 16 (3) of the Conduct Rules. Following a domestic enquiry, wherein, the charges of misconduct were proved, the disciplinary authority imposed minor penalty on the petitioner on 05.11.2003, withholding his promotion to the next higher grade for a period up to 31.12.2005. In view of the penalty imposed, the sealed cover procedure became in fructuous and was no longer va
