Orissa High Court
State Of Odisha And Others vs Purna Chandra Das And Others on 29 August, 2016
Author: Indrajit Mahanty
Bench: Indrajit Mahanty
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THE HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.22560 of 2015
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
---------------
State of Odisha & others ... Petitioners
-Versus-
Purna Chandra Das & others ... Opp. Parties
For Petitioners : Mr. M.S. Sahoo
Additional Government Advocate
For Opp. Parties : M/s. J. Das & S. Mohanty
(For Opposite Party No.1)
PRESENT:
THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY
&
THE HON'BLE DR. JUSTICE D.P. CHOUDHURY
___________________________________________________
Date of hearing: 03.08.2016 Date of Judgment: 29.08.2016
___________________________________________________
Dr. D.P. Choudhury, J. Challenge has been made to the order passed by the
learned Odisha Administrative Tribunal, Bhubaneswar
(hereinafter called 'the Tribunal') passed on 23.11.2015 in O.A.
No.1129 of 2015.
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FACTS
2. The factual matrix leading to the case is that the
opposite party No.1 who was applicant before the Tribunal, had
entered into Government service on 6.5.1981 as Inspector of
Factories and Boilers under the administrative control of the
Government in Labour and Employees State Insurance
Department. He was promoted to the post of Deputy Director of
Factories & Boilers vide office order No.11380 dated 13.12.2004
and was allowed to continue in the said post on regular basis
vide office order No.8452/LE dated 5th July, 2007. On the
recommendation of the Odisha Public Service Commission, the
opposite party No.1 in the present case who was applicant was
promoted to the post of Joint Director of Factories and Boilers
vide office order No.10893/LE dated 17.10.2008.
3. It is stated that in 2010 after amendment of the
Orissa Factories and Boilers Inspection Service Rules, 1984 the
opposite party No.1 came to the cadre of Joint Director of
Factories and Boilers, Level-II. He was also allowed to remain in-
charge of the Director of Factories and Boilers, Orissa vide order
dated 11.6.2013 after superannuation of the earlier Director.
4. It is stated that the opposite party No.1 was charge-
sheeted in Sambalpur Vigilance P.S. Case No.16 dated
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31.3.2003. So, D.P.C. being held on 11.6.2012 for his promotion
to the post of Joint Director of Factories and Boilers of Level-I,
the opinion of the D.P.C. was kept in sealed cover. For that the
opposite party No.1 made representation on 30.3.2015 to
promote him on ad hoc basis to the post of Joint Director of
Factories and Boilers, Level-I by opening the sealed cover. As the
representation of the opposite party No.1 was not successful, he
filed application before the Tribunal and the Tribunal acceding to
his request directed the petitioner No.1 to open the sealed cover
and give him promotion on ad hoc basis in view of the
Government in General Administration Department Office
Memorandum No.1464 dated 4.7.1995. Against that order,
present writ application has been filed by the petitioners
challenging the same.
SUBMISSIONS
5. Mr. M. Sahoo, learned Additional Government
Advocate submitted that the Tribunal has committed material
irregularity by not considering the counter affidavit filed by the
State in which it is specifically stated that during pending of
vigilance case the opposite party No.1 should not be given any
type of promotion. He further submitted that the Tribunal has
over looked the fact that after the meeting of first D.P.C. held on
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11.6.2012 again after two years the case of opposite party No.1
was considered on 4.8.2014 but in view of the allegation of the
opposite party No.1 in the pending vigilance case the
Government decided not to extend the benefit of ad hoc
promotion. Learned Tribunal has committed error by applying
the wrong proposition of law and relied upon the decisions of the
Hon'ble Apex Court which are not applicable to the present case.
While applying the decision of the Hon'ble Apex Court the
Tribunal has failed to consider that the decision of the Hon'ble
Apex Court relates to Departmental Proceeding but not to a
pending criminal case. Learned Tribunal has committed error
apparent on the face of record by not following the observations
of the Hon'ble Supreme Court in Bhajan Singh v. State of
Uttarakhand: (2013) 14 SCC 32 wherein the Hon'ble Court
following the case of Union of India & others v. K.V.
Janakiraman & others: (1991) 4 SCC 109 deprecated the
non-consideration of the relevant rules (in the present case
circulars) while considering the case of an employee for
promotion.
6. Mr. Sahoo, learned Additional Government Advocate
also submitted that the learned Tribunal has erred in law by
deciding the case against the law laid down by the Hon'ble
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Supreme Court in State of M.P. v. J.S. Bansal and another:
(1998) 3 SCC 714 because the decision in J.S. Bansal's case
has been rendered after considering all the earlier decisions of
the Hon'ble Apex Court. Learned Tribunal has committed error by
following the decision in State of Punjab & others v. Chaman
Lal Goyal: (1995) 2 SCC 570 as the said decision has relied
application of the ratio of the facts and circumstances of that
case and said decision is not applicable to the present case
where there is circular of G.A. Department governing the sealed
cover procedure during pendency of the vigilance case which is a
criminal case whereas in Chaman Lal Goyal's case (supra) it is a
matter only relating to Departmental Proceeding and not a
vigilance case. Learned Additional Government Advocate,
therefore, submitted to set aside the order of the learned
Tribunal by allowing the writ petition.
7. Per contra, Mr. J. Das, learned Senior Advocate
submitted that the order of the Tribunal is in consonance with
the decision of the Hon'ble Apex Court and following the circular
of the State Government in G.A. Department issued in 1995.
According to him although the charge-sheet in vigilance case has
been submitted in the concerned court in 2003 but the case has
not been decided so far. Taking into such fact into consideration,
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the Tribunal has not committed any error by directing the
petitioner No.1 to give promotion to the opposite party No.1 on
ad hoc basis. He also submitted that the opposite parties have
kept the present opposite party No.1 in-charge of a Director
since last two years and in the review D.P.C. there is nothing
found against him or his character and no other departmental
illegality or irregularity reported against him for which the
Tribunal after considering the facts has rightly directed to give
promotion on ad hoc basis.
8. Mr. Das, learned Senior Advocate submitted that
there is well settled law in the case of Union of India & others
v. K.V. Janakiraman & others: (1991) 4 SCC 109 where the
Hon'ble Apex Court have been pleased to observe that sealed
cover procedure is to be followed only when charge memo in a
disciplinary proceeding or a charge-sheet in a criminal
proceeding is issued to the employee. According to him, in
Chaman Lal Goyal's case (supra) as the Departmental
proceeding was pending long since, the Hon'ble Apex Court
deprecated the long pendency of the Departmental enquiry and
directed to consider for promotion without reference to and
without taking into consideration the charges of pending enquiry
and if he is found fit for promotion, he should be promoted
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immediately. Not only but also the said decision has also been
followed by this Court in State of Orissa and others v.
Basanta Kumar Mohanty vide W.P.(C) No.10101 of 2015.
Thus, he submitted that there is no illegality with the order of
the learned Tribunal. He also drew our attention to the circular
issued by the petitioners in 1995 where it is clearly mentioned
that the delinquent would be considered for ad hoc promotion
subject to certain conditions when it is not known to the extent
of period that vigilance case will run to be concluded. Thus, Mr.
Das submitted to confirm the order of the Tribunal and dismiss
the writ application.
9. The point for consideration:-
(i) Whether the opposite party No.1 is entitled for ad hoc
promotion.
DISCUSSIONS
POINT NO.(i) :
10. It is the admitted fact that opp. Party no.1 got
promotion to the post of Joint Director of Factories & Boilers vide
office order no.10893/LE dated 17.10.2008. It is not in dispute
that after the Orissa Factories & Boilers Inspection Service Rules,
1984 came to be amended in 2010, opp. Party no.1 came to the
cadre of Joint Director of Factories & Boilers Level-II. It is also
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not in dispute that he was considered for promotion by the DPC
held on 11.6.2012 to the post of Joint Director of Factories &
Boilers of Level-I and his case was kept in sealed cover because
of pendency of Vigilance case against him vide Sambalpur
Vigilance P.S. Case No.16 dated 31.3.2003 by following the G.A.
Department resolution No.3928 dated 18.2.1994.
11. The learned Tribunal has directed to open the sealed
cover and to promote opp. Party no.1 on ad hoc basis to the post
of Joint Director, Level-I on the application made by him. On
perusal of the impugned order it appears that the Tribunal has
passed the order by relying upon the G.A. Department office
Memorandum dated 4.7.1995 and the decision of the Hon'ble
Apex Court in State of Punjab v. Chaman Lal Goyal (supra)
and the decision of this Court in W.P.(C) No. 10101 of 2015
(State of Orissa and others v. Basanta Kumar Mohanty).
12. In the case of Union of India and others v. K.V.
Janakiraman & others (supra), where Their Lordships have
observed about the sealed cover procedure at para-16 as
follows:-
"On the first question, viz., as to when for the
purposes of the sealed cover procedure the
disciplinary/criminal proceedings can be said to
have commenced, the Full Bench of the Tribunal
has held that it is only when a charge-memo in
a disciplinary proceedings or a charge sheet in a
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criminal prosecution is issued to the employee
that it can be said that the departmental
proceedings/criminal prosecution is initiated
against the employee. The sealed cover
procedure is to be resorted to only after the
charge-memo/charge-sheet is issued......"
13. With regard to the aforesaid decision it is made clear
that the sealed cover procedure is to be resorted to after the
charge memo in the Disciplinary Proceeding or charge sheet in
the criminal proceeding is issued. But there is a circular of the
G.A. Department issued in 1994. Pargraphs-3 and 8 of the said
office memorandum is produced below for better appreciation:-
"3. Promotion of officers to the various posts/services
At the time of consideration of cases of officers
for promotion, details of such officers in the zone of
consideration falling under the following categories
should be specifically brought to the notice of the
concerned Screening Committee:
(i) Government servants under suspension
(ii) Government servants in respect of whom a
charge-sheet has been issued and disciplinary
proceeding are pending; and
(iii) Government servants in respect of whom
prosecution for criminal charge is pending.
xxx xxx xxx
8. It is necessary to ensure that the disciplinary
case/criminal prosecution instituted against any
officer is not unduly prolonged and all efforts to
finalise expeditiously the proceeding should be taken
so that the need for keeping the case of officers in a
sealed cover is limited to the barest minimum. It
has, therefore, been decided that the appointing
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authorities concerned should review comprehensively
the cases of Government servants, whose suitability
for promotion to a higher grade has been kept in a
sealed cover on the expiry of 6 months from the date
of convening of the first Screening Committee which
had adjudged his suitability and kept its findings in
the sealed cover. Such a review should done
subsequently also every six months. The review
should, inter alia, cover the progress made in the
disciplinary proceedings/criminal prosecution and
further measures to be taken to expedite their
completion."
14. From the aforesaid Circular issued the sealed cover
procedure is well understood. The aforesaid Circular has been
clarified by another clarification issued by the G.A. Department
dated 15.1.1999, where it has been mentioned that sealed cover
procedure is to be adopted only after the charge sheet is issued
to the employee and not before it. The clarification was issued
basing on the decision of the Hon'ble Apex Court in the case of
Union of India and others v. K.V. Janakiraman (supra).
Again the G.A. Department issued another Circular dated
28.5.2012, where another clarification was issued that sealed
cover procedure shall be followed in all criminal cases where
cognizance has been taken by the Court. So, the last one is the
clarificatory circular issued by the State Government stating
about the observance of the sealed cover procedure. Of course
such Circular has not been challenged in this case even if the
Hon'ble Apex Court has observed about the sealed cover
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procedure and the same has been clarified by the State
Government in their Circular dated 15.1.1999.
15. Now adverting to the present case, it is found that
since 2003 the charge sheet against opp. Party no.1 has been
filed in the Sambalpur Vigilance Case. After that the D.P.C. was
held on 11.6.2012 under the Chairmanship of the then Chief
Secretary for considering promotion to the post of Joint Director
of Factories & Boilers, Level-I and in that proceeding the case of
opp. Party no.1 was considered, but his case was kept in a sealed
cover as opp. Party no.1 has been charge-sheeted in Sambalpur
Vigilance P.S. Case No.16 of 2003 which is sub-judice before the
Special Judge (Vigilance), Sambalpur. On the other hand, it is
found from the copy of the charge-sheet that opp. Party no.1 has
been charged by the Special Judge (Vigilance), Sambalpur for
commission of criminal misconduct of possessing the assets
worth of Rs.15,46,681/- which is disproportionate to his known
source of income punishable under Section 13(1)(e) read with
Section 13 (2) of the Prevention of Corruption Act, 1988. From
the aforesaid material, we are of the view that sealed cover
procedure has been rightly followed by the Department.
16. It is admitted fact that the Vigilance case is pending
and not disposed of, for which the sealed cover procedure is
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continuing. At this juncture the observation of the Tribunal with
regard to their finding basing on the Circular issued by the G.A.
Department on 4.7.1995 and the decision of the Hon'ble Apex
Court in State of Punjab v. Chaman Lal Goyal (supra) requires
discussion.
17. On going through the decision of State of Punjab v.
Chaman Lal Goyal (supra) it appears that the case relates to
only the pendency of the Disciplinary Proceeding where enquiry is
not concluded, but there was no any criminal case or criminal
misconduct on the issue. So, the submission of the learned
Additional Government Advocate that the fact and circumstances
of the present case do not warrant the applicability of the
decision of State of Punjab v. Chaman Lal Goyal (supra) and
the decision of this Court in W.P.(C) No. 10101 of 2015 (State of
Orissa and others v. Basanta Kumar Mohanty) will not apply
has got force.
18. It is pertinent to note Para-2 of the Circular of G.A.
Department dated 4.7.1995 which reads as follows:-
"2. The Government, after careful consideration
of all the aspects and in partial modification of
the instructions contained in G.A. Department
Office Memorandum No.3928-Gen., dated the
18th February, 1994 referred to above, have
been now pleased to decide as follows:-
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(i) The disciplinary authorities, while framing
charges against a delinquent Government
Servant, should carefully consider the
circumstances while deciding whether the
delinquency merit framing of charges u/r 15 u/r
16 of O.C.S. (CCA) Rules, 1962. In the cases,
where a minor penalty proceedings have been
drawn up u/r 16 of O.C.S. (CCA) Rules, 1962,
the "Sealed Cover" procedure shall not be
applicable.
(ii) Where, the major penalty proceedings
have been drawn up u/r 15 of O.C. S. (CCA)
Rules, 1962, the procedure envisaged in G.A.
Department Office Memorandum No.3928, dated
the 18th February, 1994 should be followed.
(iii) In the case, where criminal
prosecution/disciplinary cases against the
delinquent Government employees, have not
come to an end even after the expiry of two
years from the date of the meeting of the first
Departmental Promotion Committee, the
Appointing Authority may review the withheld
promotion cases (provided the delinquent
Government employees are not under
suspension) to consider the desirability of giving
the ad hoc promotion keeping in view the
following aspects:-
(a) Whether the promotion of the employee
will be against the public interest
(b) Whether the charges are grave enough
to warrant continued denial of promotion.
(c) Whether there is likelihood of the case
coming to a conclusion in the near future.
(d) Whether the delay in the finalization of
the proceedings, departmental in a Court of
Law, is not directly or indirectly attributable to
the employees concerned.
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(e) Whether there is any likelihood of
misuse of the Official position that the employee
may occupy after ad hoc promotion, which may
adversely after the conduct of the departmental
case/criminal prosecution.
In case the Appointing Authority considers
that it would not be against the public interest to
allow ad hoc promotion to the employee
concerned, his case should be placed before the
next D.P.C. to be held in the normal course to
decide whether the employee is suitable for
promotion on ad hoc basis. If the employee is
considered suitable, on the basis of the totality
of his record of service, without taking into
account the pending disciplinary case/criminal
prosecution against him, an order of promotion
may be issued making it clear that:-
(i) the promotion is being made purely on
ad hoc basis and the ad hoc promotion will not
confer any right for regular promotion; and
(ii) The ad hoc promotion shall survive until
further orders.
(iii) If should also be indicated in the orders
that the Government reserve the right to cancel
the ad hoc promotion at any time and revert the
employee to the post from which he was
promoted without assigning any reason
therefore.
Which he was promoted assigning any reason
therefore.
All other conditions contained in the aforesaid
Office Memorandum remain unchanged.
SANTOSH KUMAR
Special Secretary to Government"
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19. In terms of the above Circular the petitioners have
considered the case of present opp. party no.1 for his ad hoc
promotion and the same have been already discussed by the
Tribunal in the impugned order. The learned Tribunal has
observed adversely to the points raised by the Review D.P.C.
held in 2014 denying ad hoc promotion to opp. Party no.1. The
Tribunal has noted that although there is nothing against opp.
Party no.1 and he was kept in charge of the Director for last two
years it is not known as to how the authority did not recommend
for ad hoc promotion. In fact the authority has not placed the
case in the Review D.P.C., but placed the matter before the
appointing authority to obtain consent if at all the case of opp.
Party no.1 can be considered by the next D.P.C. to allow ad hoc
promotion. Of course the G.A. Department Circular has given
certain circumstances enumerated in clause-3 of paragraph-2 of
the G.A. Department Circular dated 4.7.1995 to be considered by
the appointing authority before allowing to consider the case for
ad hoc promotion by the next D.P.C. The observation of the
Principal Secretary of the concerned Department has been
highlighted by the Tribunal but the observation of the appointing
authority is not available in the impugned order. However, it is
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only available from the counter filed before the Tribunal that the
Government decided not to extend ad hoc promotion.
20. From the noting of the Principal Secretary of the
concerned Department, it appears that note has been put up
before the appointing authority (Hon'ble the Chief Minister) with
some adverse remarks to the extent that promotion of the Officer
would not be in the public interest because of serious criminal
charges in the Vigilance case for possessing disproportionate
assets by opp. party no.1, but the concerned Officer has failed to
follow the paragraph-2 of circular which states that while
considering the Officers for promotion on ad hoc basis the totality
of his service record should be verified without taking into
account the pending Disciplinary case/criminal prosecution
against him. When the Circular directs to consider the case bereft
of the criminal proceeding or disciplinary proceeding as the case
may be, the question of keeping the case of opp. Party no.1 away
from consideration for ad hoc promotion on the ground of
pendency of criminal case (vigilance) is absolutely groundless
and it cannot be said that it is against the public interest. It has
to be remembered that records of the Officers must be verified
and the post required to be filled up on ad hoc promotion
whether required in the public interest and whether the criminal
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proceeding or Department proceeding is likely to be concluded in
near future and whether the post to be occupied will be misused
by the concerned person.
21. The noting of the concerned Principal Secretary is
clear enough in all respect and particularly it has been observed
that the opp. Party no.1 has been kept in charge of the Director
and no adverse has been reported so far. Considering all such
aspects we are of the opinion that it is a fit case where the case
of opp. party No.1 should be placed before the appointing
authority to be considered for ad hoc promotion and to follow
necessary consequences thereof as per the Circular dated
4.7.1995 bereft of the criminal case pending against him. Point
No.(i) is answered accordingly.
CONCLUSION:
22. The Circular dated 4.7.1995 does not disclose about
opening of sealed cover because the said Circular relates to ad
hoc promotion but not for regular promotion. The operative
portion of the impugned order reads thus:-
"Relying on the decisions referred to above,
since there has been inordinate delay in disposal of
the Vigilance case and it is not known to when the
criminal case is likely to be disposed of, a government
servant cannot be asked to wait for an indefinite
period to get promotion. Accordingly the O.A. is
allowed and respondent No.1 is directed to open the
sealed cover in respect of promotion of the applicant
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to the rank of Joint Director of Factories & boilers
Level-I as per the decision of the DPC held on
11.6.2012 vide Annexure-4 and give effect to the said
decision of the DPC. It is however, made clear that
promotion, if any, given to the applicant is only adhoc,
subject to the final result of the vigilance case pending
against him and the respondent No.1 is at liberty to
pass appropriate order modifying the order of
promotion as per rule after conclusion of the said
vigilance case. The benefit of adhoc promotion be
extended to the applicant with effect from the date of
decision, within a period of one month from the date
of receipt of a copy of this order."
23. Although the operative portion of the impugned order
speaks about giving promotion on ad hoc basis, but directed to
open the sealed cover and give promotion to opp. Party no.1
basing on the decision of the D.P.C. held on 11.6.2012 vide
Annexure-4. The Circular dated 4.7.1995 does speak about
opening of sealed cover. We are, therefore, of the opinion that
the operative portion of the order of the Tribunal needs
modification. We, therefore, direct the appointing authority to
consider the case of opp. Party no.1 for ad hoc promotion by
following the Circular dated 4.7.1995 as more than two years
have been elapsed from the last D.P.C. held on 11.6.2012. We
further direct that the appointing authority would then send the
case of opp. party no.1 to be considered by the Review D.P.C. In
the event the D.P.C. considers him for ad hoc promotion bereft of
pending criminal (vigilance) case, necessary consequential order
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will be passed as per the Circular dated 4.7.1995. The entire
exercise be completed within a period of two months from the
date of this order. The order of the Tribunal is modified to the
extent observed above.
The writ application is disposed of accordingly.
...................................
Dr. D.P. Choudhury, J.
I. Mahanty, J.I agree.
.................................. I.Mahanty, J.
ORISSA HIGH COURT: CUTTACK Dated the 29th August, 2016/Kar