Central Administrative Tribunal - Delhi
Pradeep Kumar vs Commissioner Of Police on 31 August, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.877 of 2011
Orders reserved on 27.8.2012
Orders pronounced on 31.8.2012
Honble Dr. Veena Chhotray, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
Pradeep Kumar
S/o Late Sh. Rattan Lal,
R/o H.No.C-25, Type-III,
Police Lines, Pitampura,
Delhi-34.
.... Applicant
( By Advocate Shri Ajesh Luthra )
VERSUS
1. Commissioner of Police,
PHQ, MSO Building,
IP Estate, New Delhi.
2. Jt. Commissioner of Police,
(Headquarter)
PHQ, MSO Building,
IP Estate, New Delhi.
.. Respondents
( By Advocate Mrs. Harvinder Oberoi )
O R D E R
Dr. Dharam Paul Sharma, Member (J) :
The applicant, a Sub Inspector (Exe.) in Delhi Police, has filed this Application seeking the following reliefs:-
(a) quash the order No.3869/CB-I/PHQ dated 27.1.2010 to the extent it includes the name of the applicant in the list of such officers in whose cases seal cover procedure has been adopted and direct the respondents to open the seal cover in respect of applicant and effect the recommendation contained therein and grant him promotion by inclusion of his name in Promotion List F w.e.f. the date of his juniors with all consequential benefits award costs of the proceedings and pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
2. Brief facts of the case are that a case FIR No.31/2000 under Section 7 of POC Act read with 385 IPC and 201/34 IPC P.S. A.C. Branch, Delhi was registered against the applicant and another Head Constable while they were posted at PS Roop Nagar. In the said criminal case, the charge sheet was filed in the court of A.S. Yadav, Special Judge, Tis Hazari on 2.5.2007. The learned Court has framed the charge on 18.10.2010 in the said case. The name of the applicant along with other eligible persons was considered by the Departmental Promotion Committee for admission to promotion list F (Exe.) w.e.f. 19.01.2010. Vide Order dated 27.1.2010, as at Annexure A/1, the name of the applicant has been shown at Serial No.51 in the list of Sub Inspectors (Exe.) whose names have been kept in the sealed cover in accordance with Rule 5 (iii) of the Delhi Police (Promotion & Confirmation) Rules, 1980 which would be announced after finalization of criminal case pending against him. This is being challenged by the applicant in this Application primarily on the ground that on the date on which DPC considered the name of the applicant for promotion, neither he has been issued any Memorandum of chargesheet for holding of any departmental inquiry against him nor the charges in the criminal case have been framed against him and, therefore, the recommendations of the DPC with regard to his promotion ought not to have been kept in the sealed cover. In support of his claim, the applicant has relied upon the cases of Union of India and others vs. K.V. Jankiraman and others, (1991) 4 SCC 109, R.S. Srivastava vs. Managing Director & Acting Chairman, G.I.C., 1999 (5) SLR 714, B.S. Bola, IPS vs. Union of India (OA NO.1919/2008 decided on 11.8.2009) and Deb Singh Bhakuni vs. Union Public Service Commission and others (OA No.3448/2009 decided on 7.4.2010).
3. Opposing the applicants claim in their counter reply, the respondents have relied upon the Standing Order No.378/2009 which inter alia provides that criminal case is deemed to be pending against a police officer from the date on which the chargesheet has been filed in the Court.
4. The only question that arises for consideration in this Application is as to whether the respondents have rightly kept the result of the DPC in respect of the applicant herein in a sealed cover in view of the fact that investigation in the criminal case against the applicant had been completed and challan has been filed in the criminal Court as far back in 2007 and the matter was at the stage of framing of charge at the time when DPC considered the case of the applicant. The charge has subsequently been framed on 18.10.2010. The case of the applicant, thus, is that the criminal case against him would be deemed to be pending upon framing of the charge by the court in the criminal case on 18.10.2010 and therefore, his case should not have been kept in sealed cover. As against this, the stand of the respondents is that filing of the charge is good enough to keep the result of the DPC in a sealed cover. The matter was heard on 3.7.2012 when the applicant, relying upon the cases referred to above, pleaded that the case of the applicant could not have been kept in the sealed cover, as neither any disciplinary case nor criminal case was pending against him on the day the DPC was held. Relying upon the cases referred to above, the sole plea of the applicants counsel has been that departmental proceedings/criminal case would be deemed to be pending against the applicant only upon issuance of the chargesheet in departmental inquiry or, as the case may be, framing of the charges in a criminal case. Since none of these conditions is satisfied in his case, his case could not have been legally kept in a sealed cover. After hearing both the parties, the case was reserved for orders. However, subsequently, we came across certain cases holding a contrary view, which have been decided after the cases relied upon by the applicants counsel during the course of hearing as referred to above. In view of this, the matter was again fixed for hearing under the heading For Being Spoken To on 5.7.2012 when we passed the following orders:-
Arguments and counter arguments in the OA 877/2011 were heard on 3.7.2012 and the OA reserved for orders. However, subsequently we have come across certain judgments of the High Court as well as the Tribunal for which it is considered desirable to give an opportunity to the applicants counsel to respond. He seeks a short adjournment for this purpose. Let the matter be listed for hearing on this limited point on 13.7.2012. The matter appeared thereafter on a number of occasions when the applicants counsel sought time for making his submissions and the Application was finally heard on 27.8.2012.
5. The learned counsel for the applicant Shri Ajesh Luthra submitted that the judgment of the Honble Supreme Court in the case of K.V. Jankiraman (supra) would have precedence over all other cases of subordinate courts for it being the decision of the Apex Court. It will, therefore, be expedient to see as to how the case of K.V. Jankiraman (supra) has been dealt with by the High Court of Delhi while holding a contrary view. As a matter of fact, this aspect has been expressly dealt with by the Delhi High Court in Writ Petition Nos.3793/2011 & 1470/2011 decided on 2.12.2011 in the cases of Union of India vs. Inspector Jawahar Lal & ors. and Union of India vs. Binod Shahi respectively. In this regard, we may refer to Para 13 of the said judgment which reads as follows:-
13. If one goes into the historical facts leading to the issuance of the aforesaid O.M., the original case be traced to the historic judgment of Apex Court in Union of India vs. K.V. Jankiramna, AIR 1991 SC 2010. The Court in that case expressed its concern. While taking note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet 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 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation 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 chargesheet, 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 chargesheet 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 charge by the Court of law and in the meantime 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 v. Managing Director and Acting Chairman, GIC, 1999 (5) SLR 714. In this case, this Court relying on Union of India vs. K.V. Janakiraman, 1991 95) 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 case, he will get all the benefits and till such time, the petitioner cannot be held to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.
6. It may thus be seen that there have been changes in the applicable rules over the last two decades since 1991 when the K.V. Jankiraman case (supra) was decided and the changed scenario warranted corresponding changes in the legal position on the subject.
7. Following the Delhi High Court judgment dated 2.12.2011 as referred to above, this Tribunal has upheld the adoption of sealed cover procedure in cases where the challans in criminal cases have been filed though the charges have not been framed. Reference in this regard may be made to the cases of Mahesh Kumar Sharma vs. Lt. Governor of Delhi and anr. in OA No.3332/2011 decided on 7.5.2012 and P.N. Sharma vs. Union of India and others in OA No.1775/2011 decided on 22.5.2012. The position that emerges from the aforesaid cases is that when the challan in the court of law is filed against a person then it would be treated as a criminal case against such person is pending and sealed cover procedure would be attracted.
8. In view of this, we do not find any merit in the present Application and the same is accordingly dismissed with no order as to costs.
(Dr. Dharam Paul Sharma) (Dr. Veena Chhotray)
Member (J) Member (A)
/ravi/