Mr. Anup Kumar Advocate v. NTPC LTD ORS Through

Judgment

1. By way of this petition under Article 226 of the Constitution, the petitioner assails the actions of his employer – National Thermal Power Corporation Limited [“NTPC”], the respondents herein, in failing to consider him for promotion, and denying him various allowances, for a period during which he was under suspension, the suspension having subsequently been revoked. A. FACTS:

2. The petitioner was appointed as a Steno-Typist [Grade W-4] in NTPC on 25.03.1987 and promoted to the post of Stenographer [Grade Signature Not Verified Signed By:SOMYA SATIJA Signing Date:14.05.2025 19:08:37 W.P.(C) 14437/2006 W-5] pursuant to a departmental examination, with effect from

23.12.1988. He was thereafter recommended for promotion to the post of Senior Stenographer [Grade W-6], pursuant to a Departmental Promotion Committee [“DPC”] held prior to his suspension. However, the recommendations of the DPC were kept in the sealed cover as he was suspended before the said order for promotion could be given effect.

3. By an order dated 20.02.1993, the petitioner was suspended, relying upon a report to the effect that, on 30.12.1992, he was caught red- handed by officials of the Central Bureau of Investigation [“CBI”] while demanding/accepting a bribe from a candidate for recruitment in the services of NTPC. It was stated in the letter of suspension, that the petitioner was required to mark his attendance in the Security Office at the main gate of NTPC’s plant every day at 08:30 AM, in the register kept for this purpose. He was to be paid subsistence allowance during the period of suspension.

4. Criminal proceedings were instituted against the petitioner by the CBI under Section 120-B of the Indian Penal Code, 1860, and Section 13(2) read with Section 13(1)(d) and Section 7 of the Prevention of Corruption Act, 1988. The criminal proceedings resulted in an order of acquittal of the petitioner and one co-accused, by the judgment of the Special Judge dated 20.11.2001. The operative portion of the judgment of the Criminal Court reads as follows: “29. In view of the legal position as discussed above, I feel hesitant to agree with the Ld. Public Prosecutor that their case can still be held proved on the basis of testimonies of PW-12 Sh. B.N. Gupta and the T.L.O. Sh. S.K. Peshin. Cumulative effect of my above discussion is that prosecution has failed to produce cogent and clinching evidence either with regard to initial demand, subsequent demand, acceptance Signature Not Verified Signed By:SOMYA SATIJA Signing Date:14.05.2025 19:08:37 W.P.(C) 14437/2006 of bribe by accused-persons either for themselves or for any other including their co-accused Sh. J.S. Arora who had already been discharged by my Ld. Predecessor. The evidence regarding recovery as has come on the record through Sh. B.N. Gupta of Sh. S.K. Peshin alone is incapable of attracting the legal presumption available to the prosecution u/s 20 of the Act, as it could not be established in this case if any demand was made Complainant, or either of the two accused accepted the tainted money. Testimonies of PW-12 and PW-15 alone are not sufficient to prove the case of the prosecution beyond reasonable doubt. Hence giving benefit of doubt in this case, I acquit both the accused of the respective charges framed against them. They are already on bail their bail bonds stands discharged. Can property be returned to the rightful owners after expiry of period of appeal or result thereof, if any, preferred, whichever may be letter. The bottles containing washes be destroyed in accordance with the Rules, applicable in the facts of the case.1” illegal gratification

5. Pursuant to this judgment, the petitioner’s suspension was revoked on 06.04.2002, pending further examination of the implications of the judgment. A further Office Order was issued on 12/14.05.2003, dealing with the treatment of the suspension period of the petitioner, and with his entitlement to consequential benefits. As the adjudication of the present case turns upon the said Office Order, it is reproduced in full hereinbelow: “Consequent to revokation of Suspension vide Office Order Ref. No. 08/NCPS/GM/2002 1335 dated 06/08.04.2002, the following decisions have been taken with regard to treatment of Suspension period, fixation of pay & allowances, increments, Leave various allowances etc., in respect of Sh. Sudhir Dhaka, Emp. No. 80080, Stenographer, TA:

1. The period of Suspension i.e. 20.02.1993 to 07.04.2002 shall count as period spent on duty and will be paid full Pay & allowances and also be entitled to draw annual increments on due date (as it was prior to suspension) as per Pay Fixation Rules. While making payments of arrears of Pay & allowances, the Subsistence allowances already paid may be adjusted against the amount of arrears. 1 Emphasis supplied. Signature Not Verified Signed By:SOMYA SATIJA Signing Date:14.05.2025 19:08:37 W.P.(C) 14437/2006

2. He will not be entitled to draw allowances benefits like washing allowances, Generation/Construction Incentives, Ex-gratia, Earned Leave (EL)/Half Pay Leave (HPL).

3. He will be considered for Promotion w.e.f 01.01.1993 against DPC held on 22.12.1992 and thereafter he will be considered for next promotion in July 2003.2”

6. The petitioner has filed this writ petition assailing the aforesaid Office Order, to the extent that it denies him the benefit of certain allowances, and also seeking promotion to the supervisory cadres S-1, S- 2 and S-3 from 01.01.1998, 01.04.2001, and 01.04.2004 respectively, instead of promotion to higher grades in the workman cadre [Grades W-8 and W-9] from 01.07.2001 and 01.07.2006 respectively. B. SCOPE OF LITIGATION AND RELEVANT RULES:

I have heard Mr. Anup Kumar Sharma, learned counsel for the petitioner, and Mr. Puneet Taneja, learned Senior Counsel for NTPC.

8. Learned counsel for the parties have canvassed arguments with regard to the petitioner’s entitlement on the following counts, for the period of suspension: a) Consideration for promotion; b) Earned leave and half-pay leave; c) Generation incentive; d) Livery and washing allowance; e) Conveyance allowance; f) Ex-gratia payment.

9. The petitioner was admittedly in the workman cadre. The undisputed position is that his entitlements would be governed by NTPC’s Standing Orders, which have been placed on record with the writ Signature Not Verified Signed By:SOMYA SATIJA Signing Date:14.05.2025 19:08:37 W.P.(C) 14437/2006 petition. Although various acts of misconduct, procedural provisions and penalties for misconduct, are provided in Rules 26 to 28 of the Standing Orders, those provisions are not relevant here, as the petitioner’s suspension was not on account of disciplinary proceedings, but due to pending criminal proceedings. This situation is contemplated in Rule 28 (g), which provides as follows: “28(g) Subject to the provisions contained in clause (d) and (e) above, the company reserves the right to suspend a workman accused in a Court of Law for any criminal offence involving moral turpitude until the disposal of the trial.”

10. Rule 28(g), in turn, refers to clauses (d) and (e) of the same Rule. Clause (d) deals with payment of subsistence allowance, which is not the matter of controversy in this case. Rule 28(e), however, is of some significance as it deals with the consequence of the final order on the treatment of the employee’s suspension period. The Rule provides as follows: “If, after enquiry, a workman is found guilty of the misconduct alleged against him or some other misconduct brought out in the course of the enquiry and punishment is awarded, the workman shall not be entitled to any remuneration for the period of suspension pending enquiry other than the subsistence allowance already paid to him. If a penalty other than dismissal or removal is imposed on him, the punishing authority shall by order decide as to how the period of suspension shall be treated. If, however he is not found guilty of the alleged misconduct or any other misconduct he shall be reinstated in his post and shall be paid the difference between the subsistence allowance already paid and the emoluments consisting or pay and allowances which he would have received if he had not been suspended, the period of suspension being treated as duty.”3 2 Emphasis supplied. 3 Emphasis supplied. Signature Not Verified Signed By:SOMYA SATIJA Signing Date:14.05.2025 19:08:37 W.P.(C) 14437/2006

11. These provisions have been further explained in NTPC’s Human Resources Policy Manual entitled “Guidelines for Disciplinary Procedure” [“Policy Manual”]. Clause 8.2 thereof provides for suspension in three circumstances – pending domestic enquiry, pending a court case, and as a punishment. It is undisputed that, in the present case, no disciplinary proceeding was ever commenced by NTPC against the petitioner. The petitioner’s suspension was in exercise of powers under Clause 8.2 (b), which reads as follows: “8.2 When to Suspend: The suspension of an employee from duty often arises under the following three different types of situations: (b) Suspension Pending Court’s Order : The disciplinary authority has a right to keep an employee under suspension, if he is accused in a court of law of any criminal offence, until the disposal of the trial. (See Annexure ‘F-2’ ).”

12. Clause 8.3 of the Policy Manual deals with the “Status of Suspended Employee”. The following clauses thereof are of relevance in the present case: “Status of Suspended Employee: (d) No leave shall be granted to a suspended employee during the period of suspension. (f) If it is decided after the conclusion of enquiry not to remove the suspended employee from service, he will be simply allotted the job treating the period of suspension as on duty or leave as decided by the disciplinary authority.” 4

13. Clause 8.4(e) further provides as follows: 4 Emphasis supplied. Signature Not Verified Signed By:SOMYA SATIJA Signing Date:14.05.2025 19:08:37 W.P.(C) 14437/2006 “8.4 Subsistence Allowance: Subsistence allowance is the payment made to an employee who is kept under suspension pending enquiry/ court’s order only, as under: (e) If the suspended employee is found not guilty of the misconduct, he shall be paid the difference between the subsistence allowance already paid and the emoluments consisting of pay and allowances which he would have received if he had not been suspended.5”

14. It is in context of these provisions that the petitioner’s entitlement on the above counts must be considered. C. CONSIDERATION FOR PROMOTION:

15. Prior to the petitioner’s suspension, he was working in the Workman cadre at Level W-5, i.e. at the post of Stenographer. It is the petitioner’s grievance that, during the period of his suspension, he would have been entitled to consideration for promotion to higher grades in the Workman cadre and, in fact, to speedier merit-based promotions to the Supervisory cadre. He contends that he would have been entitled to promotion to the Supervisory cadre at S-1 Level from 07.11.1998, S-2 Level from 01.04.2001, and S-3 Level from 01.04.2004. Instead, the petitioner was promoted to W-8 Level in the Workman cadre with effect from 01.07.2001, and W-9 Level with effect from 01.07.2006.

16. The contention of NTPC, however, is based upon its Policy for Promotion of Employees in the Workman Category, a copy whereof has been placed on record with its written submissions dated 26.03.2024. The contentions of the said Policy are undisputed and not under challenge.

17. The following Clauses of the Policy have been cited by Mr. Taneja: “2.0 General Principles: 5 Emphasis supplied. Signature Not Verified Signed By:SOMYA SATIJA Signing Date:14.05.2025 19:08:37 W.P.(C) 14437/2006 The following factors will be taken into account in promotion from one grade to the next higher grade:

2.1 Promotions will be effected only against vacant sanctioned posts.

2.8.2 No employee under suspension or against whom disciplinary or vigilance proceedings have been initiated shall be promoted until he is unconditional reinstatement or exoneration, he will be allowed promotion with retrospective effect, but the financial benefit accruing due to the promotion will be allowed with effect from the date his promotion order is issued and no arrears will be payable on this account unless specifically mentioned otherwise in the promotion order.6”

18. Factually, NTPC’s case is that an employee in W-6 Grade, may be promoted to W-7 Grade or to S-1 Grade, the latter being available only upon qualification in a written test, trade test, and interview. The petitioner was not eligible for consideration for promotion during the period of suspension, applying Clause 2.8 (2) of the aforesaid Promotion Policy. After revocation of his suspension, he was considered for promotion in the year 2003 and was, in fact, promoted to W-7 Grade retrospectively from 01.01.1997, and subsequently to W-8 Grade with effect from 01.07.2001. He could not be considered for direct promotion to S-1 Grade after revocation of his suspension, as there was no vacancy available in the said Grade in the year 2003. He was, in fact, given a further promotion to W-9 Grade, with effect from 01.07.2006.

19. Having considered the aforesaid Policy, and the undisputed factual position narrated above, I do not find any infirmity in NTPC’s decision on this aspect. The Policy – which, as sated above, remains unchallenged – is that the petitioner could not be considered for promotion during the 6 Emphasis supplied. Signature Not Verified Signed By:SOMYA SATIJA Signing Date:14.05.2025 19:08:37 W.P.(C) 14437/2006 period of his suspension. After revocation of his suspension, he was, in fact, considered and granted seniority-based promotions retrospectively. The merit-based promotion could not immediately be offered due to lack of vacancies in the promoted post. In these circumstances, NTPC’s action was in accordance with its Promotion Policy and does not call for interference by the writ Court. D. EARNED LEAVE AND HALF PAY LEAVE:

20. The petitioner seeks encashment of earned leave and half pay leave for the period that he was not actually on duty.

21. Mr. Taneja, however, relies upon Clause 8.3 of the Policy Manual extracted above, which prescribes that a suspended employee would not be granted any leave. He submits that NTPC’s Leave Rules also indicate that leave is earned only by a person who is in actual service. He relies, for this purpose, upon the following clauses of the said Leave Rules: “10.1 EARNED LEAVE:

10.1 Earned leave means leave earned in respect of periods of services with the Corporation and granted on full pay or stipend in case of trainees/Apprentices other than Act Apprentices.

10.3 In respect of an employee who joins the service of the Company at any time between the uniform dates i.e. 1st April and 1st October, earned leave account will be credited on pro-rata basis for every completed month of service till the close of the half year in which he is appointed. The period of earned leave so calculated will be rounded off to the next higher figure. From the next half year onwards, the employee will be governed by the Rules as above.

12.0 HALF-PAY LEAVE:

12.1 Half-pay leave, means leave on half-pay earned in respect of service with the Company and can be granted to an employee for any reasons including on medical grounds. The half-pay for this purpose shall be treated as half of the basic pay plus DA admissible on such Signature Not Verified Signed By:SOMYA SATIJA Signing Date:14.05.2025 19:08:37 W.P.(C) 14437/2006 half basic pay. All other allowances would be paid in full. Half pay leave is not admissible to Trainees/Apprentices and employees on contract.7”

22. The decisions of the Supreme Court have been cited, which deal with the question of grant of pay and allowances to an employee whose suspension was on account of pending criminal proceedings, and is revoked upon acquittal. In Union of India v. K.V. Jankiraman8, which was referred to by Mr. Sharma, the Court was concerned with an employee’s entitlement to salary in a promotional post, which he would have attained during the period of suspension. The Court held that the employer is vested with the power to address this question, based on all the facts and circumstances of the case, including the nature of the employee’s ultimate exoneration.

23. This judgment was followed in Greater Hyderabad Municipal Corporation v. N. Prabhakar Rao,9 cited by Mr. Taneja. The Court interpreted Rule 54-B of the Fundamental Rules of Andhra Pradesh Government, which provided for the circumstances in which the authority reinstating the employee would direct payment of full pay and allowances, and those in which it would have the discretion to pay only part of the pay and allowances. It was observed as follows: “9. The rationale, on which sub-rule (3) of F.R. 54-B is based, is that during the period of suspension an employee does not work and, therefore, he is not entitled to any pay unless after the termination of the disciplinary proceedings or competent authority is of the opinion that the suspension of the employee was wholly unjustified. This rationale has been explained in clear and lucid language by a three-Judge Bench of this Court in the criminal proceedings