- (1.) The writ petitioner in this proceeding challenges, in substance, legality of a disciplinary proceeding initiated against him on 31 March 2008 by issuing memorandum of charges. THE petitioner also seeks release of his retiral benefits including leave encashment, gratuity and other dues which under normal circumstances he would have been entitled to on superannuation. Such benefits appear to have been withheld because of pendency of the said proceeding. 31 March 2008 was the date on which the petitioner was to retire from his service in Coal India Limited (CIL). At that point of time he was working as the Chief General Manager (Personnel) of the said company. It has been pleaded in the petition that at about 12.35 p.m. on that date the petitioner was served with a memorandum bearing reference no. CIL/VIG/05245/VD-69(CVC)/1934. This memorandum was in the nature of a charge sheet and he was directed to submit within ten days from the receipt of the memorandum the written statement of his defence.
(2.) The memorandum contains seven articles of charge. Allegations against the writ petitioner is that he, in collusion with certain other officers of the CIL, had arranged certain work order to be issued in favour of a firm, M/s. Institute of Educational and Psychological Management, Calcutta, for undertaking the job of conducting written examination and allied matters pertaining to selection of departmental candidates from non-executive to executive cadre in different disciplines within the organisation. THE first four articles of charges relate to allegations of manipulation in selection process and award of the contract to the said firm. Articles V and VI of the memorandum of charges relate to allegations of showing favour to them in terms of release of payment subsequent to their engagement. Article VII contains complain of corrupt practices undertaken by the said firm in the matter of setting of question papers in conducting the examination and favouring certain examinees with approval of the petitioner. For the purpose of the present proceeding, Articles V and VI of the memorandum of charges are of relevance. THEse articles provide:- "Articles - V Whereas, it is alleged that in furtherance of above Shir D.P. Roy in his official capacity as General Manager (Personnel). CIL issued a defective work order to M/s. IEPM, Kolkata vide No. CIL/C5A(i)/50254/07/06/2534-2078 dated 09.04.2007 with vested interest and intent to favour the party in as much as that the clause of part payment, not exceeding 30% after completion of each stage of work as detailed in 3 stages in the TCR approved by the Chairman, CIL was not incorporated in the work order to accord undue favour to the party and which was subsequently en-cashed in favour of the party by certifying full payment of part bills instead of part payment (30% of the bill) as detailed in imputation of charge against Article V at Annexure-II. THE aforesaid acts of commission and omission on the part of Shri. D. P. Roy, the then GM (P), CIL now CGM (P), CIL, besides being tantamount to non-fulfillment of duties and obligations as contained under Clauses 4.1(i), 4.1(iii), 4.1(iv), 4.3 and 4.6 of Coal India Executives' Conduct Discipline and Appeal Rules 1978 (amended upto April 2000), also amount to misconduct in terms of Clause 5.0(1), 5.0(5), 5.0(6), 5.0(17), and 5.0(26) of the said Rules. ARTICLE VI Whereas, it is alleged that in furtherance of above, Shri. D.P. Roy in his official capacity as General Manager (Personnel), CIL and as a part of a nexus, allowed submitting of bills of first two stages by the party for amounts Rs.1,71,108/- and Rs.2,19,496/- respectively which was got certified by Shri. D.P. Roy through Shri Rajpal Yadav, PM (R) for full payment instead of part payment of 30% against each bill amounting to Rs.51,332/- and Rs.65,848/- respectively and thereafter he himself certified the said bills for full payment and thereby accorded undue financial gain to the party with vested interest as detailed in imputation of charge against Article-VI at Annexure-II. THE aforesaid acts of commission and omission on the part of Shri. D.P. Roy, the then GM (P), CIL now CGM (P), CIL, besides being tantamount to non-fulfillment of duties and obligations as contained under Clauses 4.1(i), 4.1(iii), 4.1(iv), 4.2, 4.6 of Coal India Executives' Conduct Discipline and Appeal Rules 1978 (amended upto April 2000), amount to misconduct in terms of Clause 5.0(1), 5.0(5), 5.0(17), 5.0(21) and 5.0(26) of the said Rules." It has been alleged in the memorandum of charges that the acts of commission and omission complained against the petitioner tantamount to non- fulfillment of duties and obligations contained in various clauses in the Coal India Executive's Conduct Discipline and Appeal Rules 1978 (the Rules) and constitute misconduct. Clauses 5.0(1), 5.0(5), 5.0(6), 5.0(9), 5.0(17), 5.0(21) and 5.0(26) of the said Rules have been specified in the memorandum of charges in terms of which charges of misconduct against the petitioner has been brought. The petitioner responded to the said memorandum on 11 April 2008 requesting the disciplinary authority, being the Chairman-cum-Manager Director of the organisation to withdraw the memorandum of charges and also for release of payment of gratuity and other dues. In this communication of 11 April 2011, the petitioner objected to continuation of the disciplinary proceeding on the ground that such proceeding ought not to continue as no order of dismissal could be passed after retirement of the petitioner. Such contention of the petitioner was based on the reasoning that there was no charge against him of causing any pecuniary loss to the employer. This communication was followed by a detailed defence statement, in which charges levelled against the petitioner was denied.
(3.) Before me, arguments have been advanced on behalf of the petitioner by Mr. Bandopadhyay, learned Senior Counsel and he has emphasised that in the case of the writ petitioner, disciplinary proceeding could not continue as there was no charge against him of causing any pecuniary loss to the employer. He has relied on two authorities in support of this submission. The first one is a decision of the Supreme Court in the case of Jaswant Singh Gill Vs. Bharat Coking Coal Ltd. and Ors., 2007 1 SCC 663. The other authority is a decision of a Division Bench of this Court in the case of Kamal Kr. Majumder Vs. Union of India and Ors., 2008 1 CalHN 951. Cil has contested this writ petition by filing affidavit. Their case is that under Clause 34.2 of the said Rules, it is permissible for the Company to continue disciplinary proceeding if initiated prior to superannuation of the concerned employee. Further case of Cil is that because of clearance of certain bills in violation of the prescribed norms, particulars of which have been disclosed in Articles V and VI of the memorandum of charges, the Company had suffered financial loss. This has been pleaded in paragraph 7 of the said affidavit and the relevant part of that paragraph which deals with this aspect of the matter states:- "That in furtherance to the above charge, at Article-VI, Annexure-I and Annexure-II of the said Memorandum, the petitioner has been charged of allegedly causing undue financial gain to the said party inasmuch as that- The party submitted 1st bill of Rs.1,71,108/- dated 11.08.2007. According to the actual payment terms as recommended by the tender committee and approved the Chairman, Cil as aforesaid, 30% of the bill amount i.e., Rs.51,332/- only was allowed to be passed for payment. But, on the strength of such defective work order as aforesaid issued by the petitioner and subsequent processing of the said bill by his immediate subordinate officer i.e. Shri Rajpal Yadav, Personnel Manager and by certifying the bill for payment by Shri D.P. Roy (Petitioner), undue financial gain was extended to the party since the party was paid full amount of Rs.1,71,108/- instead of 30% of the billed amount i.e. Rs.51,332/-. Thus, an excess payment of Rs.1,19,776/- was unduly paid to the party, causing a resultant financial loss to the company. Subsequently, the said party i.e. M/s. IEPM submitted 2nd bill dated 8.10.2007 for an amount of Rs.2,19,496/-. According to the actual payment terms as recommended by the tender committee and approved the Chairman, Cil, 30% of the billed amount i.e. Rs.65,848/- was payable. But, on the strength of such defective work order as aforesaid issued by the petitioner and subsequent processing of the said bill by his immediate subordinate officer e.g. Shri Rajpal Yadav, Personnel Manager and by certifying the bill for payment by Shri D.P. Roy (Petitioner), undue financial gain was extended to the party since the party was paid in full amount of Rs.2,19,496/- instead of 30% of the billed amount i.e. Rs.65,848/-. Thus, an excess payment of Rs.1,53,648/- was unduly paid to the party, causing a resultant financial loss to the company. Thus, in all the company was put causing a resultant financial loss of Rs.2,73,424/- by the acts as alleged at Article-VI of the charge read with Article-V of the charge levelled against the petitioner as per the memorandum of disciplinary proceeding as aforesaid.";