JUDGMENT
A.K. Mathur, C.J.
1. This is an appeal directed against the order passed by the learned single Judge dated 25th August, 2000 whereby the learned single Judge has allowed the writ petition and directed the respondent No.4, the Disciplinary Authority to complete the disciplinary proceeding in accordance with law and till disposal of the disciplinary proceeding, the respondent No. 2 was restrained to interfere with the proceeding initiated against the petitioner.
2. The brief facts which are necessary for disposal of the appeal are that the petitioner was appointed as Assistant Colliery Manager, Kendua D Colliery of M/s East India Coal Co. Ltd. and was posted at Kendua, Dhanbad, Bihar. Thereafter, he resigned and joined Marine Coal Co. Bengal (P) Ltd. After the passing of the Coal Mines Nationalisation Act. 1972 the Government of India took over all the companies and formed Coal India Limited (hereinafter referred to as CIL) under the provisions of Companies Act, 1956. After taking over of the said Colliery, the same was amalgamated with other collieries and was renamed as Gopalichuck Colliery. Then the Government of India de-centralised the work of collieries and formed another company named Bharat Coking Coal Limited (hereinafter referred to as BCCL) which is wholly owned as a subsidiary of Coal Limited and the Gopalichuck Colliery was transferred to the said new company. The petitioner is in administrative control of BCCL, respondent No. 3. It is
alleged that the Disciplinary Authority of the petitioner is respondent No.4, Chairman cum Managing Director, BCCL. The petitioner is presently serving with BCCL, respondent No.3, a subsidiary of CIL. The petitioner was served with a charge sheet on 24th February, 1997 by the General Manager, Lodhna Area along with other officers for certain acts of omission and commission. The petitioner along with other officers were charge sheeted for shortage of huge quantities of coal. An inquiry was conducted and the petitioner along with other officers were found guilty However, no punishment was awarded to the petitioner by the disciplinary authority. But before award of any punishment the petitioner approached this Court by filing the present writ petition. The petitioner is working in Executive Grade-6.
3. It was contended that according to Coal India Executives Conduct Discipline and Appeal Rules. 1978 (hereinafter referred to as Rules of 1978) it is only respondent No. 4 i.e. Chairman cum Managing Director. BCCL is the Disciplinary Authority, who alone can award major penalty under Clause 27(ii) (b) to (d) and not the respondent No.2, Chairman Cum Managing Director of CIL who is the Appellate Authority. Therefore, the issue which was raised before the learned single was that the Chairman cum Managing Director of CIL is not a disciplinary authority and he is not competent to impose any punishment on the basis of the report of the inquiry and it is only Chairman cum Managing Director, BCCL, subsidiary of CIL atone is competent to pass the order. The learned single Judge held that it is the respondent No.4 that is Chairman cum Managing Director of BCCL is the disciplinary authority and he alone is competent to impose a penalty and not the respondent No.2, the Chairman cum Managing Director of CIL who is the appellate authority in this matter. Aggrieved against this order passed by the learned single Judge dated 25th August. 2000 the present appeal has been filed by BCCL.
4. Therefore, in this background the question before us is whether the Chairman cum Managing Director, CIL is competent to impose the punishment or the Chairman cum Managing Director, BCCL, a subsidiary body of CIL. The whole issue on the interpretation of the Rules therefore, we shall advert to the Rules first.
5. The service condition of the petitioner is governed by Coal India Executives Conduct, Discipline and appeal Rules (hereinafter referred to Rules). We are concerned in the present case is Chapter III under the heading “DISCIPLINE”. Rules 27 deals with the nature of penalties, minor and major penalties have been enumerated in the said Rule which reads as under :
“Rule 27.0 — Nature of Penalties.-
(i) Minor Penalties
(a) Censure;
(b) Withholding increment, with or without cumulative effect;
(c) Withholding promotion, and
(d) Recovering from pay of gratuity of the whole of or part of any pecuniary loss caused to the Company by negligence or breach of orders or trust.”
(ii) Major Penalties
(a) Reduction to a lower grade or post or stage in a time scale;
(a) Note:xxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(b) compulsory retirement;
(c) Removal from service: and
(d) Dismissal.
Note : xxxxxxxxx xx xxxxxxxxxxxxxxxx ”
6. Rule 27(2) deals with the authority competent to impose punishment, it provided;
“Subject to the provisions in sub-rule (iii) below, the authorities specified in column 3 of the Schedule appended to these rules may impose the penalties specified in column 4 upon employees in different grades of pay shown in column 1 of the schedule.”
7. Rule 28 provides for disciplinary authority. It says:
” Authority competent to impose penalty as specified in col. 4 of the Schedule or authority higher then it or any other authority to whom powers have been delegated may impose any of the penalties mentioned under Rules 27 herein above.”
8. Rule 29 deals with procedure for imposing major penalties.
9. Rule 30 deals with action on the inquiry report, which reads as under:
“30.0 Action on the inquiry Report
The Disciplinary Authority, if it is not itself the inquiring Authority may, for reasons to be recorded by it in writing remit the case to the inquiring Authority for fresh or further inquiry and report and the inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 29.3 as far as may be.
30.1 The Disciplinary Authority shall, if it disagrees with the findings of the inquiring Authority on any article of change, record its reasons for such disagreement and record its own finding on such charge, if the evidence on record is sufficient for the purpose.
30.2 If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Rule 27 should be imposed on the employee it shall, notwithstanding anything contained in Rule 31 make an order imposing such penalty.
30.3 if the Disciplinary Authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the employee concerned.”
10. Now in terms of Rule 27(2) we have to examine who are the competent authority to impose penalties as mentioned in the schedule appended to this Rule. In terms of item No. 2(b) of the Schedule to Rule 27 all officers in the grade of E-1 to E-9 posted in subsidiary companies, the disciplinary authority is Chairman cum Managing Director, Coal India Limited who can impose all penalties and the appellate authority is Board of Directors of Coal India Limited. Item No. 3 of the Schedule provides that for Officers in Grades E-1 to E-9 posted in subsidiary companies, the disciplinary authority is Chairman cum Managing Director of the concerned subsidiary company, who can impose all penalties except those mentioned in Rule 27(1)(ii)(b) to (d) that is major penalties that is compulsory retirement, removal from
service and dismissal and the appellate authority is Chairman cum Managing Director of Coal India Limited for such penalties. It means that the officer in grade E-1 to E-9 posted in subsidiary companies, the Chairman cum Managing Director of such subsidiary company can impose penalties except major penalties as mentioned above i.e, compulsory retirement, removal and dismissal, for other penalties imposed by CMD of subsidiary company the appellate authority shall be Chairman cum Managing Director of CIL. Item No. 2 and 3 of the Schedule to Rule 27 is reproduced as hereunder:
Schedule Under Rule 27.0
Sl.
Grade of Employee
Disclplinary Authority
Penalties which it may Impose
Appellate authority
2.
(a) All officers in grades E-1 to E-9 posted In CIL Headquarters, North Eastern Coalfields, Dankuni Coal Complex Regional/Branch/ Sales/Liaison Offices and any other allied office(s) /establishments under the direct administrative control of Coal India Ltd.
Chairman cum Managing Director. Coal India Ltd.
(a) all penalties
Board of Coal India
(b) All Officers in Grade E-1 to E-9 posted in subsidiaries.
Chairman cum Managing Director, Coal India Ltd.
(b) all penalties
Board of Directors, Coal India Ltd.
3.
Officers in Grade E-1 to E-9 posted in subsidiary companies
Chairman cum Managing Director of the concerned Subsidiary company.
All penalties except II(b) and II(d)
Chairman cum Managing Director. Coal India Ltd.
11. Now Adverting to the facts of the present case it is admitted position that no final punishment was passed by any of the authorities and before that could be done the petitioner has rushed to file this writ petition and obtain the aforesaid order. However, the view taken by the learned single Judge on the basis of the Rules does not appear to be well founded. The admitted fact is that the petitioner is an executive Grade 6 and he is in administrative control of BCCL therefore the disciplinary authority for imposing the minor penalties is the Chairman cum Managing Director of the subsidiary company, who is competent to impose penalty but so far as major penalties are concerned i.e. the penalties mentioned in Rule 27(1) (ii) (b) to (d) the competent authority is Chairman cum Managing Director of Coal India Limited who can impose major penalties like; compulsory retirement; removal from service: and dismissal as mentioned in Rule
27(1)(ii)(b) to (d). For all these major penalties it is the Chairman cum Managing Director of Coal India Limited is competent as per item No. 2(b) of the Schedule to Rule 27 and for the minor penalties as per item No. 3 it is Chairman cum Managing Directors of the concerned subsidiary companies. For such minor penalties other than as mentioned above that is major penalties the appellate authority is the Chairman cum Managing Director of Coal India Limited. Therefore, the view taken by the learned single Judge on the basis of these facts appear to be erroneous. For major penalty to officers from Executive Grade E-1 to E-9, the Chairman cum Managing Director of Coal India Limited is the competent authority and the appellate authority for such penalties is the Board of Directors of Coal India limited. However, erroneously the learned single Judge held that for the petitioner the disciplinary authority is the Chairman cum Managing Director of the subsidiary company and he alone is competent to take disciplinary action against the petitioner. But the major penalties that is: compulsory retirement; removal from service; and dismissal can be imposed by the Chairman Managing Director of Coal India Limited only.
12. It was contended that the disciplinary authority who is not competent to pass major penalty cannot initiate any inquiry for a major penalty. The contentions urged by the learned counsel is without any basis. Any disciplinary authority can initiate a disciplinary proceeding for indiscipline and he can pass the penalties which is within its competence and if it is not in his competence then the matter can be placed for passing appropriate orders before the competent authority. The learned counsel tried to persuade us with reference to The Railway Servants (Discipline and Appeal) Rues, 1968 and other disciplinary rules where a specific provision has been provided that a charge sheet can be issued by the authority who is competent to impose any punishment i.e. major or minor penalty. In the present case also Rule 28 deals with disciplinary authority where it is specified that the disciplinary authority can impose any penalty as specified in col. 4 of the Schedule or authority higher then it or any other authority to whom powers have been delegated may impose any of the penalties mentioned under Rules 27. That shows that the disciplinary authority can initiate a disciplinary proceeding but as far as imposing penalty is concerned, the competent authority alone will have the right to impose such penalty. Since the matter was considered to be of very serious nature, therefore, the managing director of the subsidiary company has referred the matter to the Chairman cum Managing Director of Coal India Limited for imposing appropriate order in accordance with law. The learned counsel has also invited our attention to some of the notings on the file and in that it appears that a lenient view was taken by the Chairman cum Managing Director of the subsidiary company but no order was passed and later on the matter was sent to the Chairman cum Managing Director of Coal India Limited looking to the gravity of the charges. Simply because some favourable notes have been recorded by some of the disciplinary authority that is not conclusive of the matter. The notes on the note sheet cannot be said to be an order till an order is passed by the competent authority and communicated to the incumbent. Nothing of this kind happened here and after re-consideration of the matter by the Chairman cum Managing Director of the subsidiary company he thought it proper to refer the matter
to the Chairman cum Managing Director of Coal India Limited to impose appropriate punishment. This approach of the authority cannot be said to be against the Rules. In this connection reference may be made to the decision of the apex Court in the case of Inspector General of Police v. Thavasiappan . In this case the question was with regard to the initiation of departmental enquiry under Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. Their Lordships after considering the matter with reference to the provisions of the Rules held that the Rules are not derogatory from the power or otherwise competent authorities like the appointing authority, disciplinary authority or controlling authority to initiate departmental inquiry against any of the subordinate for the delinquency. The Chairman cum Managing Director of the subsidiary company is the disciplinary authority and he is competent to initiate disciplinary proceedings against the petitioner.
13. The learned counsel for the appellant next submitted that when the disciplinary authority has issued a charge sheet at the time the appellate authority was fixed and it cannot be changed subsequently. The contention of the learned counsel for the appellant is not acceptable. In the present case the appellate authority for major penalties is the Board of Directors of Coal India Limited, therefore, the contention of the petitioner that the appellate authority is the Chairman cum Managing Director of Coal India is not correct, it is only appellate authority if a minor penalty is imposed by the Chairman cum Managing Director of the subsidiary company, the Chairman cum Managing Director of CIL is competent to levy major penalty and the appellate authority for that matter is the Board of Directors of Coal India Limited. Therefore, the contention of the learned counsel is devoid of merit.
14. In this connection learned counsel has invited our attention to a decision of the apex Court in the case of H.K. Dada (India) Ltd. v. State of M.P. . It is a case under C.P. and Bearer Sales Tax Act and related to amendment of section 22(1) proviso. There the question was whether the right to appeal under the old act exists or after the amendment whether that right has come to an end. In that context their Lordships held that a right which has accrued to by virtue of unamended provisions cannot be taken away by amended provision and the Appellate Authority will have jurisdiction to decide the appeal. In the present case as mentioned above the appellate authority at the time when the charge sheet was served on the appellant was the Board of Directors of CIL because major penalties like compulsory retirement from service, removal from service and dismissal can alone be imposed by the Chairman cum Managing Director of CIL and not the Chairman cum Managing Director of the subsidiary company. Therefore, this case has no application to the present case.
15. Similarly in the case of Thyssen Stahlunion GMBH v. Steel Authority of India the question was whether the Arbitration Act, 1940 will apply or the Arbitration and nclliation Act, 1996 will apply after repeal of the Arbitration Act, 1940. In that context their Lordships observed that once an arbitral proceeding has commenced under the 1940 Act then the right to enforcement of the award would be “right
accrued” and the case will be governed by the Act of 1940. This case is also of no avail to the appellant for the same reason as aforesaid as the appellate authority in the case of the appellant right from the beginning for major penalty was the Board of Directors of CIL.
16. The case of Ramesh Singh v. Cinta Devi is under the Motor Vehicles Act, 1988. There also the question arose with regard to the deposit of requisite amount as precondition for entertaining the appeal under section 110-D of the Act of 1939 and it was interpreted that the appeal is maintainable without requiring the appellant to make the requisite as under the Act of 1988 as per sub-section (4) of section 217 prescribed the general application of section 6 of General Clause Act. It does not expressly or by necessary implication make the proviso to section 173 of the new Act retrospective in operation. Therefore, this case is also not applicable for the same reason as mentioned above.
As a result of the above discussion we are of the opinion that the view taken by the learned single Judge is not correct and the same is set aside. The appeal is allowed and the writ petition filed by the petitioner is dismissed with cost assessed at Rs. 5000/-.
G.C. Gupta, J.
1. I agree.
5.7.2001.
Prayer for stay of operation of this Judgment/Order is considered and refused.
Urgent xerox certified copy of this Judgment/Order to be issued to the parties if applied for.
2. Appeal allowed