M.Y.EQBAL,J. - (1.) I have heard Mr. A.K. Sahani, learned counsel for the petitioner, Mr. M.M. Banerjee, learned counsel for the respondent -Coal India Ltd. and Mrs. Ritu Kumar, learned counsel for the respondent -Central Coalfields Ltd.
(2.) IN this writ application the petitioner has prayed for issuance of writ of mandamus commanding upon the respondents to consider and accord promotion to the petitioner in E -3 and E -4 grade from the date of his eligibility on cluster basis maintaining inter se seniority with all consequential benefits and also to pay arrears of salary since 1.7.1993 to 20.6.1995, 1.8.1996 to 16.4.1998 and 17.4.1998 to September, 1998. Petitioner's case is that he was appointed on the post of Junior Executive Trainee in 1985 and his services were confirmed in 1990. Petitioner applied for leave from 8.6.1993 to 22.6.1993 which was extended from time to time and on the expiry of leave period, petitioner submitted his joining on 23.9.1993. It is contended that although medical board was constituted and the board issued a certificate of fitness of the petitioner for his joining in his duty but he was not allowed to join. Consequently petitioner filed CWJC No. 321 of 1995 (R), which was disposed of on 9.5.1995 directing the petitioner to file fresh application before the Chairman, Central Coalfields Ltd. and the Chairman was also directed to pass speaking order within six weeks. How -ever, the petitioner was directed to report for his duty on 10.6.1995. Petitioner accordingly resumed his duties on 12.6.1995. Petitioner submitted his representation claiming his arrears of salary and other benefit, which was denied by the respondents vide letter dated 1.8.1995. Petitioner's further case is that by notice dated 09/13 -8 -1996, petitioner was asked to submit his representation against the proposed punishment of termination of his service. Petitioner then filed CWJC No. 4093/1996 (R) for quashing the said notice. In the said writ application, the respondents filed counter affidavit annexing a copy of the order dated 16.4.1997 passed by the Chairman cum -Managing Director of respondent No. 1, Coal India Ltd. removing the petitioner from the services. In the meantime, CWJC No. 4093/1996 (R) was disposed of and the letter dated 26.4.96 was quashed. Petitioner then filed representation dated 11.3.1998 before the respondents and the General Manager (Personnel) of Coal India Ltd. by order dated 2.4.1998 permitted the petitioner to join his duties. Petitioner's further case is that upon completion of three years of service and on the basis of cluster system, petitioner became entitled for promotion to E -3 cadre which fell due in May 93. Thereafter, next promotion to the petitioner to the post of E -4 grade fell due in the month of May 96. Petitioner alleged that he was not given opportunity for consideration of his case for promotion to next higher E -4 grade. Even after permitting the petitioner to join his service, his salary for the aforementioned periods have not been paid to him.
(3.) IN the counter -affidavit filed by the respondents it is stated that petitioner was appointed on 16.5.1985 and was posted at Rajrappa Project of Central Coalfields Ltd. Petitioner was habitual absentee and was on long unauthorised absence from 23.6.1993. A Memorandum dated 30.12.93 was issued to the petitioner for his long absence and after having not satisfied with the reply submitted by the petitioner, an inquiry committee was constituted. The charges levelled against the petitioner was duly established. Before passing final order by the disciplinary authority, a copy of the inquiry report was duly served to the petitioner vide letter dated 13.8.96. However, petitioner was allowed to join his duty with effect from 12.6.1995, pending finalisation of inquiry vide letter dated 17.6.1995. It is stated that in pursuance of order dated 9.5.1995 passed by this Court in CWJC No. 321/ 1995 (R) respondents after hearing the petitioner passed speaking order on 1.8.95 advising him to properly attend the inquiry proceeding. In spite of the said advice of CMD, CCI, petitioner did not attend the inquiry proceeding and the inquiry 'was proceeded ex -parte. It is stated that as the charges levelled against the petitioner were proved, the respondent Coal India, Ltd. Wide letter dated 16.4.1997 imposed major' penalty of rated moval from service of the company. Howeever, in compliance of the order dated 19.1.1998 passed in CWJC 'No. 4093/96 (R), petitioner was allowed to join his duties and the period of absence of the petitioner was treated as "DIES -NON" with stipulation that he will not be entitled for any benefit of the said period. So far claim of the petitioner for promotion is concerned, it is stated that the promotion of departmental executive is determined on the basis of minimum qualification and maximum period of service in a particular grade as indicated in the respective cadre scheme. Unless otherwise stipulated in the relevant cadre scheme, an executive has to put in a minimum of three years service in a particular cadre before he became liable for consideration for promotion to the next higher grade. It is contended that the services of the petitioner for the purpose of promotion has been counted with effect from 2.4.1998 i.e. the date when the petitioner was allowed to resume his duties with immediate effect without any backwages.;