Delhi High Court
Union Of India & Ors. vs Doly Loyi on 26 April, 2013
Author: V.Kameswar Rao
Bench: Pradeep Nandrajog, V.Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on April 23, 2013
Judgment Delivered on April 26, 2013
+ W.P.(C) 7960/2012
UNION OF INDIA AND ORS ..... Petitioners
Represented by: Mr.R.V Sinha and Mr.R.N
Singh, Advocates
versus
DOLY LOYI ..... Respondent
Represented by: Mr.S.K Gupta, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.
1. The challenge in this writ petition by the petitioners is to the order/ judgment dated 07.03.2012 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal) in O.A No. 3716/2011, whereby the Tribunal had allowed the O.A by quashing order dated 15.09.2011 and directed the petitioners to open the sealed cover adopted in the case of the respondent in the matter of promotion to the post of Commissioner, Income Tax and awarded back wages with costs quantified at `10,000/-.
2. Brief facts which are not disputed are that the respondent was appointed as Assistant Commissioner of Income Tax on 16.12.1987. Thereafter he was promoted as Deputy Commissioner of Income Tax, Joint W.P(C) No. 7960/2012 Page 1 of 10 Commissioner of Income Tax and Additional Commissioner of Income Tax in December, 1991, July, 2001 and November, 2001. That on 31.05.2001 the CBI registered an FIR no. RC-1(A)/2001/CBI/ACU-VI/New Delhi, dated 31.05.2001, under Section 120-B IPC read with Section 13(2) & 13(1) (d) of Prevention of Corruption Act, 1988. Sanction to prosecute the respondent was accorded twice, one on 02.06.2006 and the other one on 25.09.2008. It appears that the first one was accorded by the Government of Arunachal Pradesh, whereas the second one by and on behalf of the President of India. Since the respondent had attained eligibility for promotion to the post of Commissioner, Income Tax, his case was considered for promotion to the said grade. As the vigilance clearance was withheld in his case in view of para 2(iii) of DOP& T O.M dated 14.09.1992, the recommendations of the DTC were kept in sealed cover and he could not be promoted along with his batch mates.
3. The respondent filed O.A No. 08/2011 before the Tribunal, Gawahati Bench challenging the aforesaid actions of the petitioners. The Gawahati Bench disposed of the said O.A vide order dated 28.06.2011 and directed the petitioners herein, to consider the case of the respondent herein, in the light of the decision rendered by Supreme Court reported as 2007 (2) SCC (L & S) 587 Union of India & Ors. Vs. Sangram Keshari Nayak and directed the petitioners to pass a reasoned order within a period of two months. The petitioners accordingly considered the case of the respondent vide order dated 14.09.2011, in the light of the directions of the Gawahati Bench, of the Tribunal and by distinguishing the case of Sangram Keshari Nayak (supra) concluded that there is no case for opening the sealed cover.
4. This order dated 15.09.2011 was challenged by the respondent before the Tribunal by filing O.A no. 3716/2011. Based on the pleadings of the W.P(C) No. 7960/2012 Page 2 of 10 parties, the learned Tribunal was pleased to allow the O.A and passed orders which have been already referred above.
5. The Tribunal in its impugned order/ judgment dated 07.03.2012 had framed a question for its determination which was, whether sanction for prosecution against the respondent could be a good ground for putting his case in sealed cover. The Tribunal held that the issue is no more resintegra. It relied upon its own judgment in O.A No. 1919/2008 in the matter of B.S Bhola IPS vs. Union of India decided on 11.08.2009 and also judgment in O.A No. 1185/2007 in the matter of Om Prakash vs. Union of India decided on 03.06.2008 which has since been affirmed by this court in Civil Writ Petition No. 7810/2008. In the judgment of the Om Prakash (supra), the relevant portion of which has been extracted by the Tribunal, this court has held as under:
"Even a casual perusal of the above two paragraphs of the Office Memorandum dated 14th September, 1992 shows that there is no provision made therein for adopting the sealed cover procedure or a deemed sealed cover procedure in cases in which only sanction is accorded for prosecution. This is in stark contrast to such a specific mention and provision made in the Office Memorandum dated 12th January, 1988.
It appears to us that the Central Government, while framing the Office Memorandum dated 14th September, 1992 specifically and consciously deleted the requirement of a sealed cover procedure or a deemed cover procedure in respect of Government servants in respect of whom sanction for prosecution is granted. It is not clear why the Central Government has taken such a view, but it is not for us to comment on this or on the correctness of the view consciously taken by the Central Government.W.P(C) No. 7960/2012 Page 3 of 10
Under these circumstances, it appears to us quite clear that since there is no rule or Office Memorandum which entitles the petitioner to withhold the physical promotion of the respondent only because sanction for his prosecution has been granted, the Tribunal took the correct decision in allowing the OA filed by the respondent.
We are in agreement with the view expressed by the Tribunal that in the absence of any rule permitting the withholding of the respondent s promotion a direction should be issued to the petitioner to give effect to the recommendations of the DPC and to promote the respondent from the date his juniors were promoted with all consequential benefits as may be admissible under the Rules.
6. From the perusal of the conclusion arrived at by this Court in Om Prakash (supra), it is seen that there is no rule or office memorandum, which entitles the petitioner in that case, to withhold the physical promotion of the respondent only because sanction for his prosecution has been granted.
7. We have heard learned counsel for the parties.
8. Mr.R.V Sinha, learned counsel for the petitioners would submit that CBI has lodged an R.C No. 1(A)/2001/CBI/ACU-6, New Delhi dated 31.05.2001, under Section 120-B IPC read with Section 13(2) & 13 (1) (d) of the P.C Act, 1988 and the petitioners had rightly invoked Clause 2 (iii) of the O.M dated 14.01.1992. In support of his contention, he relies upon the judgment by this court on 07.02.2011 in Writ Petitions No. 6536/2010 & 2124/2010, titled as R.R. Sahay vs. Union of India & Ors. and Mohd. Rafiq Hussain vs. Union of India & Ors. He also makes a reference to another judgment of this court dated 02.02.2011 passed in Writ Petitions No. 3793/2011 and 1470/2011, titled as Union of Inida vs. Inspector Jawahar Lal & Ors. and Union of India vs. Binod Shahi.
9. On the other hand, Mr.S.K Gupta, learned counsel for the respondent W.P(C) No. 7960/2012 Page 4 of 10 would rely upon the instruction issued by DOP&T dated 02.11.2012 (Annexure P5), wherein DOP& T clarified O.M. dated 14.09.1992 in the following manner:
As regards the stage when prosecution for a criminal charge can be stated to be pending, the said O.M. dated 14.09.1992 does not specify the same and hence the definition of pendency of judicial proceedings in criminal cases given in Rule 9 (6)(b)(i) of CCS (Pension) Rules, 1972 provides as under :-
" (b) judicial proceedings shall be deemed to be instituted -
(i) in the case of criminal proceedings on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made".
10. We are also faced with the same question in this case. It is not in dispute that the petitioners herein had kept the DPC proceedings with respect to the respondent in a sealed cover as the same falls within the scope of para 2(iii) of DOP&T dated 14.09.1992. This O.M dated 14.09.1992 was issued by the DOP& T pursuant to the judgment of the Supreme Court reported as AIR 1991 SC 1210 Union of India vs. K.V Jankiraman. It may be necessary to state here that the O.M dated 12.01.1998 stipulated that the sealed cover procedure could be adopted, with regard to a government servant in respect of whom prosecution for a criminal charge was pending, or sanction for prosecution has been issued, or a decision has been taken to accord sanction for prosecution. The O.M dated 14.09.1992 which superseded the O.M dated 12.01.1998 did not contain any stipulation where the sealed cover procedure could be adopted, when sanction for prosecution W.P(C) No. 7960/2012 Page 5 of 10 has been issued, or decision has been taken to accord sanction for prosecution. Clause 2 (iii) of O.M dated 14.09.1992 stipulated that sealed cover procedure can be adopted only if the prosecution for criminal charge is pending against government servant. The said Clause came up for interpretation before this court in W.P(C) no. 3793/2011 and W.P(C) 1470/2011 decided on 02.12.2011, wherein this court has held as under:
10. We have to interpret the expression "prosecution for a criminal charge is pending". The emphasis is on the word "prosecution" meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this Clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it would not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme Court in State, CBI vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words:-
29. It is in the aforementioned context, interpretation of the word prosecution assumes significance. The term prosecution would include institution or commencement of a criminal proceeding. It may include also an inquiry or investigation. The terms prosecution and cognizance are not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.
30. "In initio" means in the beginning. The dictionary meaning of "initiation" is cause to begin. Whereas some statutes provide for grant of sanction before a prosecution is initiated, some others postulate grant of sanction before a W.P(C) No. 7960/2012 Page 6 of 10 cognizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.
11. The Court had drawn distinction between the terms „prosecution‟ and „çognizance‟. Cognizance comes even at a stage later than prosecution when after the challan/ charge sheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the Police Officer on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.
12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the charge-sheet in the court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may W.P(C) No. 7960/2012 Page 7 of 10 have been different but would not so when the investigation is complete and even the charge sheet is filed in the competent court. Obviously, the filing of the charge sheet, it can safely be said that the officer has come under a cloud before promotion.
13. If one goes into the historical facts leading to the issuance of the aforesaid O.M, the original can be traced to the historic judgment of Apex Court in Union of India vs. K.V Jankiraman, AIR 1991 SC 2010. The Court in that case expressed its concern while take note of the O.M contained in 30.01.1982 as the situation was that Union of India could not denied the promotion or years together even on account preliminary investigation continuing endlessly and when no departmental action was initiated either or charge sheet before the competent court filed. In such a situation, the court find equities in favour of the government servant. This led to the amendment in the O.M dated 12.01.1988 was issued and this was also superseded by the O.M dated 14.09.1992. Once the equities are to be balanced and where situations are different denying promotion to the government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. For framing of the charge, ball is in the court of law. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of charge sheet the government servant has come under cloud. If such a situation is allowed, any such government servant who is due for promotion can prolonged the framing of the charge by the court of law and in the mean time get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S Srivastava vs. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714. In this case, this W.P(C) No. 7960/2012 Page 8 of 10 Court relying on Union of India vs. K.V Janakiraman 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there is a criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be heard to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.
14. We are, therefore, of the opinion that when the charge-
sheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of O.M dated 14.09.1992 would thus get attracted.
11. In view of what has been held by this court in the aforesaid two writ petitions, it is clear that mere issuance of sanction order, the DPC proceedings could not have been put in sealed cover. Even, if the sanction order issued with the approval of the Finance Minister, Government of India, on 22.09.2008 is considered, it is seen that no sanction order was in place when the DPC had met. A further question that could arise is whether registering a regular case by the CBI would entail invocation of Clause 2
(iii) of the O.M dated 14.09.1992 and thereby putting the DPC proceedings in the sealed cover. Going by what has been held by this court in writ petitions no. 3793/2011 and 1470/2011, when the charge sheet is filed in the court of law, it should be treated that prosecution for a criminal charge against a such person is pending, and Clause 2 (iii) of O.M dated 14.09.1992 would get attracted. In the present case, the chargesheet was filed by the CBI before the Special Judge only on 25.10.2008, as per the statement of relevant facts filed by the respondent at the time of arguments and the cognizance of W.P(C) No. 7960/2012 Page 9 of 10 which was taken in the month of November, 2008. Hence, Clause 2 (iii) of the O.M dated 14.09.1992 would not be attracted. In fact a perusal of the O.M dated 02.11.2012 relied upon by Mr.S.K Gupta would show that the ground on which the petitioners have invoked the sealed cover is unsustainable. Hence, we are of the view that apart from reasoning given by the Tribunal in allowing the O.A, what has been stated by us in para 10 as well as in this paragraph, would be an additional reason to grant relief to the respondent herein and the present petition filed by the petitioners have no merit and the same is dismissed.
12. No costs.
(V.KAMESWAR RAO) JUDGE (PRADEEP NANDRAJOG) JUDGE APRIL 26, 2013 km W.P(C) No. 7960/2012 Page 10 of 10