ASOK KUMAR.K.A v. FERTILIZERS AND CHEMICALS TRAVANCORE LTD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY ,THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940** ## **WP(C).No. 2351 of 2019** ## **PETITIONER/S:** **ASOK KUMAR.K.A AGED 52 YEARS ASSISTANT GENERAL MANAGER(CIVIL), FERTILIZERS AND CHEMICALS TRAVANCORE LTD, UDYOGAMANDAL.P.O,ERNAKULAM-683501.** **BY ADVS. SRI.KALEESWARAM RAJ KUM.A.ARUNA KUM.THULASI K. RAJ SMT.MAITREYI SACHIDANANDA HEGDE SMT.RIYA RAYMOL IYPE SRI.ALAN PRIYADARSHI DEV SRI.VARUN C.VIJAY** ## **RESPONDENT/S:** **1 FERTILIZERS AND CHEMICALS OF TRAVANCORE LIMITED (GOVERNMENT OF INDIA ENTERPRISE), REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR,CORPORATE OFFICE,UDYOGAMANDAL,KOCHI-683501. 2 THE CHAIRMAN AND MANAGING DIRECTOR, FERTILIZERS AND CHEMICALS OF TRAVANCORE LTD, (GOVERNMENT OF INDIA ENTERPRISE), CORPORATE OFFICE,UDYOGAMANDAL, KOCHI-683501. 3 THE GENERAL MANAGER(UC) AND DISCIPLINARY AUTHORITY FERTILIZERS AND CHEMICALS OF TRAVANCORE LTD, (GOVERNMENT OF INDIA ENTERPRISE),CORPORATE OFFICE,UDYOGAMANDAL,KOCHI-683501. 4 CENTRAL VIGILANCE COMMISSION, REPRESENTED BY ITS SECRETARY,CENTRAL VIGILANCE COMMISSION,SATARKTA BHAWAN, GPO COMPLEX,BLOCK-A,I.N.A.NEW DELHI-110023.** **WP(C).No. 2351 of 2019 2** **5 THE CHIEF VIGILANCE OFFICER, THE FERTILISERS AND CHEMICALS TRAVANCORE LTD,CORPORATE OFFICE,UDYOGAMANDAL-683501, KOCHI,KERALA. 6 GENERAL MANAGER(HR), FERTILIZERS AND CHEMICALS OF TRAVANCORE LTD,CORPORATE OFFICE,UDYOGAMANDAL, KOCHI-6583501. BY ADVS. SMT.C.G.PREETHA, CGC SRI.M.GOPIKRISHNAN NAMBIAR SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 2351 of 2019 3** ## **JUDGMENT** ## This writ petition is filed seeking the following prayers:- _i) To declare that the petitioner is entitled to be promoted as Deputy General Manager with effect from 13.04.2016 by granting him all service benefits including arrears of salary and other allowances;_ _ii) To issue a writ of mandamus directing the respondents to issue orders promoting the petitioner as Deputy General Manager with effect from 13.04.2016 by granting him all service benefits including arrears of salary and other allowances;_ _iii) To issue a writ of mandamus directing the respondents 4 and 5 to issue clearance with respect to the petitioner for promoting him to the post of Deputy General manager with effect from 13.04.2016._ 2. Heard learned counsel for the petitioner and the learned Standing Counsel appearing for respondents 1 to 3, 5 and 6 and the learned Central Government Counsel appearing for the 4[th] respondent. 3. The petitioner, who was working as Assistant General Manager (Civil) in the 1[st] respondent Undertaking seeks promotion to the post of Deputy General Manager with effect from the date of Ext.P2 order of promotion dated 18.04.2016. It is contended that in March, 2016 the Departmental Promotion Committee (DPC) was convened for selection and promotion to the post of Deputy General Manager. The petitioner was also considered by the DPC. However, in Ext.P2, the petitioner's name was not included, but other persons who had been considered for promotion were granted promotion by the **WP(C).No. 2351 of 2019 4** order. It is stated that on enquiry, petitioner was informed that the issue of his promotion is retained in a sealed cover awaiting clearance from the Vigilance Wing of the FACT. It is long thereafter, Ext.P3 memo of charges was issued to the petitioner and disciplinary proceedings were conducted against the petitioner. As against the enquiry report, the petitioner submitted Ext.P4 explanation. It is stated that after considering the enquiry report as well as the explanation submitted by the petitioner, Ext.P5 order was issued by the 3[rd] respondent exonerating the petitioner from all charges. It is stated that thereafter, the petitioner had sought promotion to the post of Deputy General Manager with effect from the date on which his colleagues were promoted by Ext.P2, but the representations preferred were not considered. 4. The learned counsel for the petitioner would contend that the proceedings of the DPC could have been retained in a sealed cover and the promotion could have been deferred only if a charge memo had been issued against the petitioner or a criminal proceedings had been initiated by the filing of a charge sheet or if the petitioner had been placed under suspension. It is stated that none of these situations was available in the petitioner's case as on the date of the consideration by the DPC or on the date of Ext.P2 order promoting the colleagues and juniors of the petitioner. It is therefore contended that ## **WP(C).No. 2351 of 2019 5** going by the provisions of the Vigilance Manual as well as the Service Rules in force in the 1[st] respondent, the petitioner ought to have been promoted by Ext.P2 order itself. It is stated that since the disciplinary proceedings, which were initiated against the petitioner, have ended in Ext.P5 order of exoneration of all charges, the petitioner is entitled to promotion with effect from April 2016 as has been done in the case of other similarly situated persons. The learned counsel for the petitioner contended that the petitioner's promotion was held up due to the non availability of clearance from the Central Vigilance Commission which is completely untenable in view of the fact that the petitioner was working only in the post of Assistant General Manager and that the clearance from the Central Vigilance Commission is liable to be obtained only in case of disciplinary proceedings as against board level employees and officers at two stages below the board level. The petitioner submits that he is a fourth stage employee below board level and that the vigilance clearance as required is absolutely unnecessary in the petitioner's case. 5. The learned counsel for the petitioner would also place reliance on the decision of the Apex Court in _**Union of India and Others v. K.V.Jankiraman and others [(1991) 4 SCC 109]**_ as also the provisions of the Vigilance Manual applicable to the 1[st] respondent and the Office Memorandum issued with regard to Vigilance **WP(C).No. 2351 of 2019 6** Management in Public Sector Enterprises issued by the Central Vigilance Commission. It is stated that the issue has been specifically considered and the procedure for obtaining vigilance clearance from the Central Vigilance Commission is warranted only in case of specific employees as mentioned in the orders of the Central Vigilance Commission and that the petitioner being an Assistant General Manager is completely outside the purview of the procedure as provided. Relying on the decision of _Jankiraman's case_ (supra), it is contended that it is only on memo of charges being issued to the petitioner that the case of the petitioner could have been deferred and the sealed cover procedure could have been adopted. It is contended that as on the date of Ext.P2, there were no disciplinary proceedings pending against the petitioner. The petitioner had been informed that his case would be considered after the disciplinary proceedings proposed against him were concluded. It is contended that now that Ext.P5 exoneration has come into effect, there is no further justification not granted the petitioner the benefit of promotion with effect from the date of Ext.P2. 6. A detailed counter affidavit has been placed on record by the respondents. It is contended therein that the Central Bureau of Investigation conducted an investigation with regard to the irregularities in the renovation of the official residence of the Company **WP(C).No. 2351 of 2019 7** CMD and had submitted a note on 30.04.2015 pointing out certain irregularities. It is stated that the Director Vigilance, Department of Fertilizers had instructed the Chief Vigilance Officer of the Company to submit a detailed vigilance report in the matter. It is stated that the Chief Vigilance Officer of the Company had submitted a letter dated 28.01.2016 to the Department. It is further stated at paragraph 6 of the counter affidavit as follows:- _“6. In March 2016, the Departmental Promotion Committee of the Company considered and recommended the petitioner for promotion to the post of Deputy General Manager. As per the practice followed by the Company and in accordance with the direction of the Chairman & Managing Director, vide Circular dated 30.04.1990, promotion to a higher post in the Company is subject to the clearance of Company Vigilance. True copy of the Circular dated 30.04.1990 is produced herewith and marked as Exhibit R1(a). Accordingly, the then General Manager (HR&A), vide letter dated 04.04.2016, requested for Vigilance Clearance with respect to the petitioner, who was then occupying the position as Assistant General Manager(Civil), to promote him to the next level of Deputy General Manager. On receipt of the request for the Vigilance Clearance, the CVO of the Company pointed out that the petitioner figures in the investigation report based on CBI's self contained report to Department of Fertilizers dated 30.04.2015 and he is also placed in the ''Agreed list'' as suggested by CBI for the years 2015 & 2016. Thus, Vigilance Clearance was not granted for giving promotion to the petitioner.”_ 7. It is further contended that in view of the involvement of petitioner in the irregularities in carrying out repair and modification work of the CMD's official residence, disciplinary proceedings were initiated against the petitioner under the provisions of the FACT Employees (Conduct, Discipline & Appeal) Rules, 1977 and that Ext.P5 ## **WP(C).No. 2351 of 2019 8** order had been passed by the disciplinary authority. It is stated that since the first stage advice of the Central Vigilance Commission had been sought for in the matter of initiation of disciplinary proceedings as against the petitioner, the respondent company had sought second level advice also from the Central Vigilance Commission as per Ext.R1(d) communication. It is contended that in view of the fact that the second level clearance from the CVC was requested by the Company, the petitioner's case was not considered for promotion and that the case of the petitioner can be reconsidered and promotion granted with effect from the eligible date only if the second level clearance is obtained from the CVC. 8. It is further contended by the learned Standing Counsel for the 1[st] respondent that the petitioner had not challenged the refusal on the part of the respondents to promote him at the time when Ext.P3 proceedings had been issued and had accepted the contention that the disciplinary proceedings were liable to be concluded before his promotion is effected. It is therefore contended that the present prayer raised by the petitioner for promotion with effect from the date of Ext.P2 cannot be granted at this stage since the petitioner had participated in the disciplinary enquiry and had waited till the order of exoneration by Ext.P5. It is contended that since the initiation of the disciplinary proceedings as against the petitioner is preceded by first ## **WP(C).No. 2351 of 2019 9** level clearance from the CVC till exoneration of the petitioner by Ext.P5 is also await the second stage clearance from the CVC before it could be given effect to. 9. The learned Central Government Counsel appearing for the 4[th] respondent would contend that copy of Ext.R1(d) request for second stage clearance has not been received by the Central Vigilance Commission. It is contended that it is only in case such a request is received that the CVC will be able to take any further steps in the matter. 10. A reply affidavit has also been placed on record by the petitioner. It is stated that the inclusion of the petitioner in an alleged 'agreed list' was not done after discussing with the Chief Executive Officer of the Company and that the inclusion in any 'agreed list' on the basis of preliminary investigation conducted by the Vigilance Officer of the Company is not a ground on which the petitioner's promotion could have been withheld after him having been considered by the DPC and found suitable for such promotion. It is further contended that the Central Vigilance Commission has no manner of jurisdiction in a case like petitioner's, where the petitioner is only an Assistant General Manager and the mere action of the 1[st] respondent in having erroneously sought the advice of the Central Vigilance Commission at the first stage could not be a ground for the ## **WP(C).No. 2351 of 2019 10** respondents to contend that unless the exoneration of the petitioner gets the clearance of the CVC, the said exoneration could not be given effect to. It is contended that the petitioner alone was issued with memo of charges in respect of the offence alleged against him and since no other officer at board level or at two stages below board level was involved in the disciplinary proceedings along with the petitioner, there is absolutely no justification in seeking any clearance from the Central Vigilance Commission for the exoneration of the petitioner or further steps pursuant thereto. 11. I have considered the contentions advanced. It is not in dispute before me that the petitioner is an Assistant General Manager and that in his individual capacity there would be no requirement for clearance from the Central Vigilance Commission, either for the initiation of disciplinary proceedings as against him or for his exoneration in the disciplinary proceedings. The contentions of the respondents as set out in their counter affidavit and discernible from the arguments raised before me is to the effect that since Ext.P3 Memorandum of charges was pertaining to the irregularities in the maintenance and repair works of the CMD's official residence, the issue involves the CMD's as well and therefore the vigilance clearance would be necessary. It is further contended that since the first stage clearance had been sought for by the Company from the Central ## **WP(C).No. 2351 of 2019 11** Vigilance Commission, the second stage clearance for dropping of the proceedings would also be necessary before any action could be taken on the basis of the same. 12. On a consideration of the contentions advanced and on perusing the documents relied upon, including the vigilance manual of the 1[st] respondent, it is clear that it is only in respect of board level officers and group A level officers under the 1[st] respondent that the question of obtaining clearance or advice from the Central Vigilance Commission would apply. In the instant case, the petitioner is an Assistant General Manager. A reading of Ext.P3 Memorandum of charges would reveal that the charges against the petitioner were with regard to the irregularities committed in the tender for maintenance and repair work of the CMD's official residence. It is also revealed from Ext.P3 that there were no allegations raised against the CMD or any other group A officer or board level officer of the 1[st] respondent. Ext.P4 explanation furnished by the petitioner to the enquiry report appears to have been accepted in full by the disciplinary authority in Ext.P5. As a matter of fact, apart from considering the contentions and finding that the charges leveled against the petitioner had not been proved in the enquiry, the disciplinary authority states that the petitioner had completed the work well in time, which had ultimately resulted in a saving of Rs.25 lakhs to the Company, for a work ## **WP(C).No. 2351 of 2019 12** approximately of Rs.33 lakhs. Ext.P5 also states that the comments of the Vigilance have been taken into consideration while arriving at the conclusion to exonerate the petitioner. 13. Ext.P5 undoubtedly amounts to a complete exoneration. The petitioner would, on his exoneration from the charges be undoubtedly entitled to promotion with effect from the date when the persons who are considered along with by the DPC have been granted promotion by Ext.P2. The only reason stated for not promoting him is that the second stage clearance from the CVC had been sought for but had not been obtained. In view of the fact that no material is placed before me to show that any other class A employee or board level officer had been charged along with the petitioner, I am of the opinion that the contention raised that the second stage clearance from the CVC is to be obtained before Ext.P5 can be given effect to is completely devoid of merits. The further contention that the claim raised by the petitioner is belated also cannot stand in the way of the grant of promotion to the petitioner with effect from the date of Ext.P2. I am of the opinion that the denial of promotion to the petitioner is completely unjustifiable. The writ petition is therefore allowed. There will be a direction to the respondents to grant the petitioner promotion as Deputy General Manager with effect from the date when the persons who are **WP(C).No. 2351 of 2019 13** considered along with him had been granted promotion as per Ext.P2. All consequential benefits shall also be calculated and disbursed to the petitioner. The writ petition is ordered accordingly. **SD/ANU SIVARAMAN JUDGE** rmm **WP(C).No. 2351 of 2019 14** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE COMMUNICATION DATED 23.4.2013 ISSUED FROM THE OFFICE OF THE GENERAL MANAGER (UC'S OFFICE).** - **EXHIBIT P2 TRUE COPY OF THE OFFICE ORDER NO.CGM(HR)CO072 DATED 18.4.2016.** - **EXHIBIT P3 TRUE COPY OF THE MEMORANDUM OF CHARGES ISSUED BY THE 3RD RESPONDENT ON 13.9.2017 TOGETHER WITH ARTICLES OF CHARGES AND STATEMENT OF IMPUTATIONS OF MISCONDUCT.** - **EXHIBIT P4 TRUE COPY OF THE EXPLANATION DATED 23.7.2018 SUBMITTED BY THE PETITIONER AGAINST THE ENQUIRY REPORT** - **EXHIBIT P5 TRUE COPY OF THE ORDER NO.CGM(UC)-D.01.114 DATED 7.12.2018 ISSUED BY THE 3RD RESPONDENT** - **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 17.1.2019 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P7 TRUE COPY OF THE CIRCULAR NO.2/1/09 DATED 15.1.2009** - **EXHIBIT P8 TRUE COPY OF THE PERFORMANCE ASSESSMENT REPORT DATED 13.5.2017** - **EXHIBIT P9 TRUE COPY OF THE PERFORMANCE ASSESSMENT REPORT DATED 6.12.2017** - **EXHIBIT P10 TRUE COPY OF THE RELEVANT PAGES OF COMPENDIUM OF RULES & PROCEDURES FOR ALL DEPARTMENTS OF FACT.** ## **RESPONDENTS EXHIBITS** - **EXHIBIT R1(a):- TRUE COPY OF THE CIRCULAR DATED 30.04.1990 SHOWING THAT PROMOTION TO A HIGHER POST IN THE COMPANY IS SUBJECT TO THE CLEARANCE OF COMPANY VIGILANCE.** **EXHIBIT R1(b):- TRUE COPY OF THE LETTER DATED 11.12.2018 OF THE DEPUTY GENERAL MANAGER (HR) WITH THE HAND WRITTEN NOTE OF GENERAL MANAGER (VIGILANCE)** **WP(C).No. 2351 of 2019 15** **EXHIBIT R1(c):- TRUE COPY OF THE LETTER DATED 24.01.2019 OF THE GENERAL MANAGER (HR)** **EXHIBIT R1(d):- TRUE COPY OF THE LETTER 25.01.2019 OF THE CHIEF VIGILANCE OFFICER REQUESTING THE ADDL. SECRETARY, DEPARTMENT OF FERTILIZERS FOR OBTAINING THE SECOND STATE ADVICE FROM THE 4TH RESPONDENT (WITHOUT ANNEXURES)** ## **// TRUE COPY //** **P.A TO JUDGE**