Sritam Das and Others vs Mahanadi Coalfields Limited and Others

Dr. B.R. Sarangi, J—The petitioners, who are the employees of Mahanadi Coalfields Limited, have filed these petitions seeking to quash the memorandum dated 27.6.2009 issued by the Chairman-cum-Managing Director by which the authorities are proposing to impose penalty other than "Censure" against them at the behest of Central Vigilance Commission, Government of India, New Delhi under Rule 31 of the Conduct, Discipline and Appeal Rules, 1978.

The short fact of the case, in hand, is that the petitioners are working in different capacities under the Mahanadi Coalfields Limited, in short, ''MCL'', at Bharatpur OCP, Bharatpur Area, Talcher in the district of Angul, Odisha. The General Manager (P & IR), issued an interim circular dated 22.2.2008 inviting applications from different candidates, who have passed Diploma from recognized institute having Government/AICTE/SCTE recognition and successfully completed the course before the date of issue of circular for selection/placement to the post of Assistant Foreman(Tr.). The last date for submission of application was 10.3.2008. After receipt of the said application from the candidates on 9.3.2008 and 10.3.2008, the Personal Manager of Bharatpur Area forwarded the applications to the Area Personnel Manager and on 11.3.2008 the Area Personnel Manager duly forwarded the said applications to the Head Office of Mahanadi Coalfields Limited. All the applications were duly scrutinized by the Head Office of the MCL and on 27.4.2008 the written test was conducted at the headquarters of MCL. On 29.5.2008 the General Manager (P & IR) issued letter to the candidates for attending the viva voce test on 17.6.2008 at 10 A.M. in the DPs Conference Hall, 2nd Floor, Corporate Office, MCL with the terms and conditions mentioned therein. The unsuccessful candidates filed a complaint before the opposite parties stating that some of the candidates are not having diploma certificate duly recognized by AICTE/SCTE. On receipt of such complaint, the Chief Vigilance Officer, MCL, opposite party No. 4 started investigation. On 11.2.2009, the Chief Vigilance Officer issued a letter to the Senior Personnel Officer in respect of certifying the application of non-recognized Diploma certificate holders. In the said letter, it was stated that the Senior Personnel Officer certified the applications of 17 candidates without verifying the genuineness of diploma certificates of JRN Rajasthan Vidyapeeth, Pratap Nagar, Udaipur, Rajasthan, which is not recognized by AICTE/SCTE. All these petitioners were called upon to submit explanation within seven days of receipt of the letter dated 22.6.2009. The petitioners submitted their reply denying all the allegations made against them. On 16.4.2009 the Central Vigilance Commission, Government of India, issued an office memorandum to the MCL directing to initiate minor penalty proceeding against the petitioners and others with a view to impose penalty other than ''Censure''. On 27.6.2009, the Chairman-cum-Managing Director, MCL, opposite party No. 1 relying upon the aforesaid memorandum issued the impugned memorandum to the petitioners wherein it is proposed to take action against the petitioners under Rule 31 of the Conduct, Discipline and Appeal Rules, 1978 of the Coal India Limited and accordingly, the petitioners were called upon to show cause within a period of 10 days failing which it would be presumed that they have no representation/reply to make and the orders would be liable to be passed against them ex-parte. Against such memorandum dated 27.6.2009, the petitioners have approached this Court in these petitions.

Mr. G.A.R. Dora, learned Sr. Counsel appearing for the petitioners strenuously urged that since action has been taken at the behest of the Chairman-cum-Managing Director pursuant to office memorandum dated 15/16.4.2009 of the Central Vigilance Commission, the proposed action taken by Chairman-cum-Managing Director against the petitioners under Rule 31 of the Conduct, Discipline and Appeal Rules, 1978 is an empty formality inasmuch as the authorities have closed their mind for initiation of proceeding and impose penalty and therefore, the action taken by the Chairman-cum-Managing Director at the behest of the Central Vigilance Commission is liable to be quashed. In support of his contention, he has placed reliance on Nagaraj Shivarao Karjagi Vs. Syndicate Bank Head Office, Manipal and another, AIR 1991 SC 1507 : (1991) 63 FLR 133 : (1991) 2 JT 529 : (1992) 2 LLJ 149 : (1991) 1 SCALE 832 : (1991) 3 SCC 219 : (1991) 2 SCR 576 : (1991) 2 UJ 216 .

Mr. N.C. Sahoo, learned counsel appearing for the MCL states that the writ petitions are premature inasmuch as against the notice of show cause, the petitioners having submitted to the jurisdiction of the authority by filing their reply, the same have become infructuous inasmuch as pursuant to such reply being submitted by the petitioners, follow up action has to be taken by the authority. Therefore, against the such show cause notice, the writ petitions are not maintainable. In that view of the matter, the writ petitions should be dismissed as premature and not maintainable against the notice to show cause. In support of such submission, he has placed reliance on State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, AIR 1987 SC 943 : (1987) 54 FLR 524 : (1987) 1 JT 571 : (1987) LabIC 689 : (1987) 1 SCALE 457 : (1987) 2 SCC 179 : (1987) 2 SCR 444 : (1987) 2 UJ 55 .

Mr. T.K. Pattnaik, learned counsel for opposite party No. 4-Central Vigilance Commission supports the stand of Mr. N.C. Sahoo, learned counsel for the MCL and seeks for dismissal of the writ petitions.

On the basis of the facts pleaded above, it is apparently clear that the proceeding has been initiated pursuant to the memorandum issued by the Central Vigilance Commission dated 15/16.4.2009 wherein direction was given for initiation of proceeding with a view to impose penalty other than ''censure'' against the present petitioners. In adherence to the same, memorandum dated 27.6.2009 was issued by the Chairman-cum-Managing Director against the petitioners. The memorandum itself indicates that the opposite parties have acted in consonance with the direction issued by the Central Vigilance Commission. Accordingly, proceedings have been initiated against the petitioners. In any case, the memorandum having been issued inviting representations in the nature of show cause within a period of ten days of receipt thereof and if such representation is not filed, order is liable to be passed against the petitioners ex parte. In that view of the matter, learned counsel appearing for the petitioners stated that since the departmental authorities are not applying their mind in proper perspective and having acted at the behest of the Central Vigilance Commission, any proceeding initiated without application of independent mind cannot be sustained in the eye of law. Therefore, the same should be interfered with and as such the same should be quashed by this Court.

The apex Court in Nagaraj Shivarao Karjagi (supra) in paragraphs 17 & 19 held as follows:

"17. X x x x x The advice tendered by the Commission is not binding on the government. Similarly, in the present case, the advice tendered by the Central Vigilance Commission is not binding on the Bank or the punishing authority. It is not obligatory upon the punishing authority to accept the advice of the Central Vigilance Commission."

x x x The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of the misconduct proved. The authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. No third party like the Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. X x x x x x"

The authorities could not have initiated proceeding against the petitioners at the dictate of the Central Vigilance Commission.

The apex Court in paragraph 9 of the judgment in Shri. Brahm Datt Sharma and another (supra) has held as follows:

"The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a Govt. servant under a statutory provision calling upon him to show cause, ordinarily the Govt. servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the Govt. servant and once cause is shown it is open to the Govt. to consider the matter in the light of the facts and submissions placed by the Govt. servant and only thereafter a final decision -in the matter could be taken. Interference by the Court before that would be premature. The High Court in our opinion ought not to have interfered with the show cause notice."

In Ulagappa and Others Vs. Divn. Commr. and Others, AIR 2000 SC 3603(1) : (2000) 10 JT 206 : (1999) AIRSCW 4915 , the apex Court has held as follows:

" x x x x x x Under such facts and circumstances, we feel that the writ petition filed by the petitioner was premature and ought not to have been entertained by the High Court. Merely by issue of a notification dated 22-8-1997, none of the rights of the petitioner were affected. Therefore, a decision on the basis of the notification dated 22-8-1997 was totally unnecessary. In this view of the matter, the judgment and order of the High Court shall stand modified. x x x x x "

In The Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, AIR 2004 SC 1467 : (2004) 120 CompCas 467 : (2004) 91 ECC 299 : (2004) 112 ECR 501 : (2004) 164 ELT 141 : (2004) 1 JT 206 : (2004) 1 SCALE 330 : (2004) 3 SCC 440 : (2004) 50 SCL 93 : (2004) 2 SCR 399 : (2004) 1 UJ 744 : (2004) AIRSCW 416 : (2004) 1 Supreme 431 , the apex Court in paragraph 5 held as follows:

"This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, granted."

From the aforesaid facts and circumstances, it appears that the petitioners have approached this Court against the memorandum dated 27.6.2009 by which they have been called upon to file representations in the nature of show cause and in the counter affidavit filed by opposite party No. 2 in sub-para (N) of paragraph 6 of the counter affidavit it is stated that the petitioner in W.P.(C) No. 10267 of 2009 has already submitted the representation on 4.8.2009 and the matter is pending with the disciplinary authority. Once the petitioners have submitted to the jurisdiction of the disciplinary authority by filing show cause, it is open to the disciplinary authority to consider the same in accordance with law. Therefore, the writ petitions are premature at this stage. However, in view of the law laid down in Nagaraj Shivarao Karjagi (supra), the disciplinary authority is to act independently applying its mind without being influenced by the dictates of the Central Vigilance Commission of the Central Government.

For the foregoing discussions and keeping in view the ratio of the judgments mentioned supra, this Court is not inclined to entertain these writ petitions at the show cause stage. However, the same are disposed of with a direction to the disciplinary authority to deal with the representations/show cause filed by the petitioners pursuant to the memorandum dated 27.6.2009 independent of the recommendation made by the Central Vigilance Commission and conclude the proceeding in accordance with the provisions of law. No costs.