Central Administrative Tribunal - Delhi
S.I. (Exe.) Rajesh Malik vs Govt. Of Nct Of Delhi on 25 October, 2011
Central Administrative Tribunal Principal Bench OA No.2359/2011 New Delhi, this the 25th day of October, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) S.I. (Exe.) Rajesh Malik, PIS No.16950238, S/o Shri N.S. Malik, R/o 246, Plot No.11, Sector-3, Dwarka, New Delhi. .... Applicant. (By Advocate : Shri Yashpal Rangi) Versus 1. Govt. of NCT of Delhi, Through Commissioner of Police, Police Head Quarters, I.P. Estate, New Delhi. 2. Joint Commissioner of Police, Headquarters, PHQ, I.P. Estate, New Delhi. Respondents. (By Advocate: Ms. Rashmi Chopra) : O R D E R :
Dr. Ramesh Chandra Panda, Member (A) Shri Rajesh Malik, the applicant herein, was appointed as Sub Inspector (Executive) in Delhi Police on 10.05.1995. On completion of 12 years of regular service he was granted first financial upgradation under Accelerated Career Progression Scheme (ACP Scheme) w.e.f 10.05.2007. At that point of time, a Criminal case No.RC-2(S)/2004/SIU-1/CBI was pending before the Chief Metropolitan Magistrate, Delhi and the case continues to be at the same stage even now. It is the case of the applicant that his batch mates and juniors were considered for promotion to List-F (Exe.) by the Departmental Promotion Committee (DPC) and his juniors have been admitted to the Promotion List-F w.e.f. 24.05.2011. It is further the case of the applicant that during his entire service he has neither received any charge memo in a departmental enquiry nor any charge has been framed against him in any criminal case except one Censure received in the year 2000. He is also not under suspension. It is stated that Censure was awarded to him on the same set of facts as alleged in the RC No.02/2004 dated 31.03.2004. . It is admitted fact that the said case is still pending and till date no charges have been framed by the Trial Court, despite filing of the report by the Police under Section 173 Cr. PC on 30.06.2005. The position continues to be the same. In this background, it is averred that when the applicants case along with his batch mates was considered for promotion, the recommendation of the DPC has been put in the sealed cover on the basis of the Guidelines in Para 2 (iii) of the OM No.22011/4/91 Estt.(A) dated 14.09.1992 issued by the Department of Personnel & Training. Aggrieved by the action of the respondents, applicant submitted his representation on 6.06.2011 (Anexure-A9). The same has been decided in the Confidential Note dated 04.07.2011 (Page-75) to inform him that the sealed cover procedure adopted by the DPC dated 24.05.2011 in his case was correct in accordance with Clause 5 of SO No.378/2009 read with Rule 5 (iii) of Delhi Police (Promotion and Confirmation) Rules. Feeling aggrieved by the said action of the respondents in putting the applicants case of promotion in the sealed cover he has come to this Tribunal with prayers: (i) to quash and set aside the impugned order dated 28.05.2011; (ii) to grant all consequential benefits and (iii) to direct the respondents to open the sealed cover in respect of the recommendation of the DPC and if found fit he should be promoted to the post of Inspector from the date his immediate junior was promoted.
2. Highlighting the above facts of the case, Shri Yash Pal Rangi, learned counsel for the applicant would submit that the applicant was free from charges in criminal and departmental proceedings. He is also not under suspension. Hence, the conditions stipulated in the OM dated 14.09.1992 would not be applicable in the applicants case to put the recommendation of the DPC in a sealed cover. Further, he submits that there is no sanction for prosecution under Section 197 Cr. PC and under Section 140 of the Delhi Police Act against the applicant before even filing the Challan under Section 173 Cr.PC. Further he would draw our attention to the fact that during the pendency of the criminal case where charges have not yet been framed by the Trial Court, the applicant was granted first financial upgradation under ACP Scheme w.e.f. 10.05.2007. The conditions applicable then for sanction of financial upgradation under ACP Scheme are same at the time for the regular promotion to the Inspector grade. Hence, he would submit that the case of the applicant not being attracted under the OM dated 14.09.1992 and as the applicant is not facing any charges under criminal or departmental proceedings and was not under suspension, his sealed cover should be opened and if found fit, should be promoted.
3. The respondents having received the notice from the Tribunal have entered appearance and have filed their reply affidavit on 26.09.2011. Ms. Rashmi Chopra, learned counsel for the respondents, would contend that the applicant was facing a criminal case and the provisions of Standing Order on the subject of sealed cover in Delhi Police covers the applicants case. Therefore, the recommendation of the DPC in case of the applicant has been put correctly in sealed cover. She submits that the Clause 5 of the SO 378 of 2009 prescribes that if any officer of Delhi Police is facing departmental enquiry or under suspension or pendency of criminal case shall be kept in sealed cover. A DE shall be deemed to have been initiated only when the summary of allegations have been served on the delinquent officer and in a criminal case from the date the charge sheet has been filed in the court. Ms. Rashmi Chopra would contend that the charges have been filed in the court in the case of applicant under Section 173 of Cr.PC as far back as in 2005. Therefore, the case attracts the sealed cover procedure prescribed under Clause 5 of the Standing Order No.378/2009 of Delhi Police. She further submits that the applicants name exists on the agreed secret list of doubtful integrity w.e.f. 28.05.2004 and continued w.e.f. 24.05.2011. Ms. Chopra would, therefore, submit that the recommendations of the DPC held on 24.05.2011 in respect of the applicant were kept in a sealed cover in accordance with Rule 5 (iii) of Delhi Police (Promotion and Confirmation) Rules, 1980 and Clause 5 of the SO 378/2009 dealing with the DPC guidelines issued by the Commissioner of Police. She would, therefore, urge that this was a fit case to be dismissed.
4. Having heard the contentions of the rival parties, with the assistance of the counsel, we perused the pleadings. The controversy in the present case is in a narrow compass. Whether the sealed cover procedure adopted by the DPC in its meeting held on 24.05.2011 in case of the applicant is legally tenable?
5. The counsel for respondents argued that the applicants case was covered under Rule 5(iii) of Delhi Police (Promotion and Confirmation) Rules, 1980. The said Rule prescribes that if a departmental enquiry or a criminal case has been initiated against any person belonging to Delhi Police, in his case sealed cover procedure should be followed by the DPC. She also relied on the Standing Order No.378/2009 for the same purpose. A close perusal of the Rule 5 (iii) of the Delhi Police (Promotion & Confirmation) Rules, 1980 reveals that in case of officers who are under suspension or facing departmental enquiry, criminal proceedings, their suitability for promotion list should be assessed at the relevant time by the Departmental Promotion Committee. If the DPC on consideration of the case of an officer reached the finding that the officer had not been suspended or his conduct had not come under investigation, he would have been recommended for selection. At the time of preparing the promotion list by selection the Departmental Promotion Committee should also take a view as to what the officers position in the list, would have been but for his suspension or departmental enquiry or criminal case. The findings should be recorded separately and attached to the proceedings in a sealed cover. A departmental enquiry shall be deemed to have been initiated after the summary of allegation has been served. In the present case the criminal case has been registered and report under Section 173 of Cr.PC has been filed before the Court but the prosecution has not been sanctioned, nor have the charges been framed by the Trial Court. Therefore, rule position does not support the case of the respondents even to put the DPC recommendation in respect of the applicant in the sealed cover.
6. Another limb of the argument was that the Standing Order No.378/2009 prescribes that the memo of challan if filed in the criminal case against an officer of Delhi Police, the sealed cover procedure should be adopted by the DPC while considering promotion of such officer. The said Standing Order indicates that the date from which the Challan has been filed is the crucial date. It is noted that the Challan has been filed under Section 173 of Cr. PC as far back as in the year 2005. So far, for about 6 years the charges have not been framed against the applicant by the Trial Court. Mere pending of a criminal case cannot be a justifiable ground to put DPC recommendation under sealed cover.
7. Admittedly, the applicant was granted first financial upgradation under ACP Scheme in the year 2007. It must be noted here that the principles and norms to be followed in granting first financial upgradation under ACP Scheme are same as those applicable in case of promotion. In case of applicant, if he was found suitable to be granted first financial upgradation under ACP Scheme, he would be equally suitable to be considered for promotion and mere filing of Challan will not stand on his way to put the DPC recommendation in the sealed cover.
8. The Instructions, Guidelines and OMs issued by the DOP&T dated 14.9.1992 clearly indicate that unless charges have been framed against the officer either in criminal or departmental proceedings or the officer is under suspension, the DPC recommendations cannot be kept in a sealed cover. The applicants case in the instant OA does not come under any of the conditions envisaged in the DOP&T OM. As such, from the angle of extant DOP&T Guidelines, the applicants case is not a fit case to be put in the sealed cover but should be opened.
9. There is yet another angle to the entire controversy. This is well settled position in law that has been set by the Honble Supreme Court in the case of Union of India versus K.V. Janakiraman, [AIR 1991 SC 2010], that no promotion can be withheld merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of issue of charge-sheet in departmental or criminal proceeding or the person concerned is not under suspension. We may reproduce below the relevant paragraph in the subject in K. V. Janakiramans case (supra) 16. 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 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. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. The Honble Supreme Court relying on the above ratio has reiterated in its judgment in Union of India and Others versus Sangram Keshari Nayak [2007-6-SCC-704]. DPC is required to consider the cases of all persons, who are otherwise eligible in terms of the Recruitment Rules as on the relevant crucial date and are in the zone of consideration. If, however, the case of the applicant in the zone of consideration is covered by any of the three situations, referred to above, only this fact is to be furnished to the DPC so that the recommendations could be placed in sealed cover. Where none of the three situations has arisen, sealed cover procedure cannot be resorted to by the DPC. If no charge sheet has been issued in departmental proceedings or charges have not been framed in criminal prosecution pending against the Government servant concerned or was not under suspension at the time of meeting of the DPC, the recommendation of the DPC in respect of the Government servant cannot be placed in the sealed cover.
10. Having considered the totality of facts and circumstances of the case and guided by the law set by the Honble Supreme Court and taking into account the fact that the applicant has been granted first financial upgradation under ACP Scheme when the criminal case is still existing against him, we are of the considered opinion that it is not correct to put DPC recommendations of the applicant in sealed cover. It is noticed that irregular procedure has been adopted in putting DPC recommendation in sealed cover for his promotion to List-F. Thus, we order that the sealed cover shall be opened, and if the applicant is found fit, he shall be promoted to the List-F w.e.f. the date his immediate junior was promoted. Consequently, he would be entitled to get his seniority and increments etc. and also back wages, as putting his case in the sealed cover is mainly due to the illegal decision of the DPC and also the respondents.
11. In the result, the OA having merits is allowed in terms of our above directions, leaving the parties to bear their own costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/