Pending Statutory Disciplinary Appeal Permits Promotion To Be Kept In Abeyance; Calcutta High Court
Sanchayita Lahkar'
The High Court of Calcutta, Single Bench of Justice Partha Sarathi Chatterjee dismissed a writ petition by a senior employee of a state government undertaking challenging the decision to reopen his statutory disciplinary appeal and to defer his promotion despite his first position in the merit list. The Court held that a high rank in a selection panel does not, by itself, confer an indefeasible entitlement to promotion. It also held that promotion may be kept in abeyance where a statutory disciplinary appeal, treated as a continuation of the disciplinary proceedings, is pending consideration. Accepting the Board’s decision to have the appeal heard afresh by the competent authority, the Court declined to issue any direction for promotion and upheld the Selection Committee’s decision to keep the promotion on hold until the proceedings conclude.
The writ petition arose from a challenge to decisions taken by a State public sector undertaking concerning disciplinary proceedings and promotion. The petitioner, an employee of the Corporation, questioned the resolution of the Board of Directors directing a rehearing of his statutory appeal against a penalty imposed under the applicable Staff Regulations. He also assailed the decision of the Selection Committee to defer consideration of his promotion to a higher post, despite his securing the highest position in the merit list during a departmental promotion process.
The dispute stemmed from a complaint made by a contractual employee, leading to disciplinary proceedings against the petitioner. Following an enquiry, a penalty of reduction in pay was imposed. The petitioner preferred a statutory appeal, pursuant to which an order was issued revoking the penalty and restoring his service benefits. This order was subsequently implemented. Nearly two years later, during a promotion exercise, the Board revisited the validity of the appellate order on the ground that it had been passed by an authority not competent under the Staff Regulations. The Board resolved to recall the order and directed a fresh hearing of the appeal by a retired Judge. Consequentially, the petitioner’s promotion was kept in abeyance. The petitioner contended that such reopening and withholding of promotion were arbitrary, without jurisdiction, and violative of constitutional guarantees.
The Court recorded the core questions as: "the pivotal issue for consideration in the present case is whether the Board of Directors was justified in recalling the order of the Executive Director dated 13.07.2020… and in directing a fresh hearing of the appeal; and further, whether the Selection Committee and/or the Departmental Promotion Committee was justified in withholding the promotion of the petitioner until a decision is taken by the Appellate Authority."
On the manner prescribed for deciding disciplinary appeals, the Court stated: "Indisputably, it is a well-settled proposition of law that, where a power is conferred by a statute or a piece of legislation to do a certain thing in a certain manner, the thing must be done in that manner or not at all, and that other modes of performance are necessarily forbidden…" It then noted: "the statutory appeal was neither heard nor disposed of in the manner mandated by the Staff Regulations or by the authority prescribed by the Board of Directors."
On jurisdiction, the Court observed: "the Executive Director had no jurisdiction to dispose of the appeal." It concluded: "Consequently, the order dated 13.07.2020… is a nullity and void ab initio, fortified by the settled principle that an order passed by an authority lacking inherent jurisdiction is null and void."
Dealing with recall versus review, the Court stated: "It is a settled proposition of law that a Court, Tribunal or quasi-judicial authority possesses inherent power to recall an order passed without jurisdiction…" It added: "this Court finds no reason as to why… the same cannot be exercised by an administrative authority as well." The Court further recorded: "the power of recall is distinct from the power of review." It explained: "where an order… is passed without jurisdiction, it is fundamentally flawed and void ab initio, and such an order cannot be permitted to stand…"
On consequences of a void order, the Court stated: "Since an order passed without jurisdiction is void, any action taken pursuant thereto… is also devoid of any legal basis." It also recorded: "the issue of an order having been passed by an authority lacking jurisdiction can be raised at any point of time." On estoppel, the Court stated: "an action taken by an authority lacking jurisdiction is not binding… and consequently… cannot be said to be estopped from recalling such order…"
On the promotion question during pendency of the appeal, the Court recorded: "since the statutory appeal, which is a continuation of the disciplinary proceeding, is pending consideration… promotion… may legitimately be kept in abeyance." Finally, it concluded: "the contentions advanced by the petitioner are devoid of merit and cannot be accepted.”
The Court directed that “the writ petition is dismissed. There shall be no order as to costs.” Upon a stay request made after pronouncement, the Court stated, “I do not find any scope to pass an order staying the operation of this judgment dismissing the writ petition.” Accordingly, “the prayer for stay is considered but rejected.”
Advocates Representing the Parties
For the Petitioners: Mr. Indranil Roy, Senior Advocate; Mr. Sunit Kumar Roy, Advocate; Ms. Susmita Mondal, Advocate
For the Respondents: Mr. N. C. Behuni, Senior Advocate; Mr. Kamal Kumar Chattopadhyay, Advocate; Ms. Rimi Chatterjee, Advocate
Case Title: Debanjan Guha v. State of West Bengal & Others
Case Number: WPA 21881 of 2022
Bench: Justice Partha Sarathi Chatterjee
