Jammu & Kashmir High Court - Srinagar Bench
Imran Mattoo (Age: 40 Years) vs Union Territory Of Jammu & on 19 July, 2024
Author: Wasim Sadiq Nargal
Bench: Wasim Sadiq Nargal
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No. 1386/2024
CM No. 3750/2024
Reserved on:03.07.2024
Pronounced on: 19 .07.2024
Imran Mattoo (Age: 40 years)
S/O Nazir Ahmad Mattoo
R/O Fateh Kadal, Srinagar
At Present: Hyderpora, Srinagar.
...Petitioner(s)
Through: Mr. G.A. Lone, Advocate with
Mr. N.A. Baba, Advocate.
V/s
1. Union Territory of Jammu &
Kashmir through Principal
Secretary, Department of Home
Affairs, Civil Secretariat Srinagar/
Jammu.
2. Sr. Suptd. of Police,
Anti-Corruption Bureau, Srinagar.
3. J&K Bank Limited, Srinagar
Through its Chairman cum
Managing Director Corporate Hqrs.
M.A. Road, Srinagar.
4. President,
Human Resource Development
Department, J&K Bank Limited,
Corporate Hqrs. M.A. Road,
Srinagar.
...Respondent(s)
Through:
Page 1 of 16 WP(C) No. 1386/2024
CORAM: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE.
JUDGMENT
1. Through the medium of the instant writ petition filed under Article 226 of the Constitution of India, the petitioner prays for the following reliefs:
(1) Writ of Certiorari, to quash order dated 07-03-2022 (Annexure-I) as also the case/Police Report filed under section 173 CrPC. arising out of FIR No. 10 of 2019 pending before Special Judge, Anti-Corruption in so far as it relates to the petitioner and direct the name of the petitioner to be removed from the arena of the accused and drop criminal proceedings against him.
(2) WRIT OF MANDAMUS directing the respondent Bank to grant the promotion to the petitioner which has been kept under sealed cover due to pendency of the case as envisaged in order dated March 07, 2022 bearing reference No. JKB/HRD/RECTT/2022-751 Circular ID 13959 with further directions to pay all the benefits of status and salary as Executive (Scale- II) to the petitioner from 7thof March, 2022 by putting him in the pay scale of ₹. 48170-1740/1- 49910-1990/10-
69810; and (3) Any other writ, order or direction, which the Hon'ble Court may deem fit and proper in the circumstances of the case, may also be passed.
2. The short submission which has been advanced by the learned counsel appearing on behalf of the petitioner is that, in continuation to Order No HRD/RECTT/2015-502 dated 9th of September, 2012 and pursuant to successful completion of probation period, the petitioner was Page 2 of 16 WP(C) No. 1386/2024 confirmed in the services of respondent Bank along with others in the pay scale of Rs. 23700-980/7-30560-1145/2-32850-1310/7-42040 with effect from 1st of September, 2016. The learned counsel for the petitioner submits that on the basis of merit and suitability and in accordance with the rules, it was decided on 7th March, 2022, to accord promotion to the petitioner and other eligible candidates as Executive (Scale-II) with immediate effect and the case of the petitioner was also considered and as per the information, the petitioner was found fit and entitled to the grant of promotion as Executive (Scale-II) with immediate effect but the case of the petitioner was kept in sealed cover due the pending proceedings against him as per Rule 326 of The Jammu and Kashmir Bank Limited OfficersService Manual - 2000 [for short "OSM 2000"].
3. The learned counsel appearing on behalf of the petitioner submits that the petitioner's grievance is that despite being meritorious and entitled to the promotion, the case has been kept in sealed cover because of pendency of the criminal proceeding against him. It is submitted that the case registered has resulted in charge sheet presented before the Special Judge Anti-Corruption in the form of Police Report under Section 173 CrPC and the case is pending without any progress and the petitioner continues to suffer and has remained stagnated without getting the benefit of promotion.
4. The learned counsel for the petitioner submits that in accordance with the Office Memorandum issued by Govt. of India, Department of Personal and Training, it is necessary to ensure that the disciplinary case or Page 3 of 16 WP(C) No. 1386/2024 criminal prosecution instituted against any Government servant, is not to be unduly prolonged and all efforts to finalize the proceedings expeditiouslyshall be taken so that the need for keeping the case of a Government servant in a sealed cover is limited. He further submits that the respondent Bank has not at any point of time, reviewed his case of promotion kept under sealed cover and he continues to work and discharge his functions sincerely, with dedication in the bank. The learned counsel for the petitioner pleads that the sealed cover procedure adopted in the case by the respondent Bank with regard to the promotion of the petitioner violates the statutory and fundamental rights of the petitioner, as the petitioner has not been shown the order or the reasons given for withholding his promotion by adopting the sealed cover procedure. He further pleads that the principles of natural justice have been violated, rendering the sealed cover procedure invalid and the petitioner is entitled to promotion from the selection authority, which held him to be entitled to such promotion, with all necessary emoluments available to him on such promotion.
5. Heard learned counsel for the petitioner at length and perused the material on record.
6. The case was heard at length and reserved for judgement on 3rd July, 2024, however, Mr. G. A. Lone, the learned counsel appearing on behalf of the petitioner thereafter made a request on 4 th July, 2024, seeking withdrawal of the petition, which request was declined by this Court and pursuant thereto, the learned counsel for the petitioner provided brief synopsis and the judgments relied upon, to this Court. Page 4 of 16 WP(C) No. 1386/2024
7. The petitioner appears to have gladly and voluntarily accepted the order passed by the respondent dated March 7, 2022 for more than two years and has filed the instant writ petition after a period of two years. There has not been plausible explanation behind the delay in approaching this court.
8. The order which has been issued by the respondent Bank, is perfectly in accordance with Rule 326 of OSM 2000. For facility of reference, Rule 326 of OSM 2000 is reproduced as under:
326-A i.) Minor penalty: An officer who has been imposed three minor penalties during the preceding three years will not be eligible for promotion for a period of one year from the date on which the third penalty was imposed or for the period specified in the order of punishment whichever is longer.
ii.) Major penalty: An officer who has been imposed more than three minor penalties or one major penalty during the preceding three years will not be eligible for promotion for a period of three years from the date on which the fourth minor or major penalty was imposed or the period specified in the order of punishment whichever is longer.
iii.) Promotion of officers whose conduct is under investigation, who are under suspension or who have been charge sheeted a. Officers whose conduct is under investigation and who have not been suspended. The mere fact that there are complaints against an officer which are subject of inquiry by the department or otherwise shall not be a ground for treating the said officer as one whose conduct is under investigation unless a prima facie case Page 5 of 16 WP(C) No. 1386/2024 is established and the competent authority on consideration of the result of investigation by the department or otherwise has formed an opinion that charge sheet may be issued to the officer on specific imputations where departmental action is contemplated and that sanction for prosecution may be accorded where prosecution is proposed. Until the competent authority arrives at such conclusion the officer will have to be treated at par with other officers in the matter of promotion.
b. Officers against whom it has been decided to issue a charge sheet or permission has been granted for prosecution or who have been suspended and/or who are facing disciplinary proceedings.
Officers falling under this category will be considered for promotion, if otherwiseeligible, but the promotion, if recommended shall be deferred till the outcome of proceedings and their cases shall be dealt in accordance with the sealed cover procedure detailed below:
Sealed cover procedure:
An officer in whose case sealed cover procedure is attracted will also be considered for promotion, if otherwise eligible, but the promotion, if recommended shall be deferred till the outcome of the proceedings. The assessment of the promotion committee in respect of such officers shall be recorded in a separate sheet which shall be signed by all the members of the promotion committee and such sheets shall be kept in a sealed cover. The cover will be superscribed as:Page 6 of 16 WP(C) No. 1386/2024
Assessment of promotion committee regarding suitability for promotion to the grade of _________in respect of Mr. _______. Not to be opened till the termination of disciplinary case/criminalprosecution/investigation against Mr.________.
In the main assessment sheet, the entry against the name of the officer falling under above categories, shall be recorded as the assessment contained in sealed cover. The sealed cover shall be kept in the custody of Chairman.
The procedure outlined above, will be followed for the subsequent selection also till the disciplinary case/criminal prosecution/investigation pending or contemplated against the officer concerned is concluded.
As and when departmental/criminal proceedings instituted against such an officer are completed, resulting in his/her exoneration, sealed cover(s) shall be opened and the promotion, if due, will be given effect from the date on which it would have been given otherwise but for pending disciplinary action. On the contrary, if the proceedings culminate in imposition of any punishment, his case shall be dealt as under:
i) If minor penalty is imposed and provided that not more than one minor penalty had been imposed on the concerned officer during the three years preceding the date on which this punishment was imposed, in this case also the sealed cover will be opened and the promotion, if due, will be given effect notionally from the date on which it would have been given otherwise but for pending disciplinary action without providing any monetary benefits retrospectively. However, if the minor penalty imposed is of withholding of promotion, then, if Page 7 of 16 WP(C) No. 1386/2024 otherwise approved for promotion, the promotion shall be released only after the expiry of the period stipulated by the disciplinary authority.
ii) Further, if he had already been imposed more than one minor penalty during the preceding 03 years, he shall be treated as not eligible for promotion in accordance with the provisions (i) & (ii) of rule 326-A and sealed cover shall be opened and cancelled with these remarks.
iii) If the proceedings culminate in imposition of major penalty, the sealed cover shall not be opened and the officer shall be treated as not eligible for promotions as per provision (ii) of rule 326-A.
iv) An officer who has been approved for promotion by the Promotion Committee but in whose case any of the circumstances mentioned in 326-A (iii) (b) above arise after he has been considered by promotion committee but before he has been offered promotion in accordance with the recommendations of promotion committee, it will be considered as if his case has also been placed in a sealed cover and provision pertaining to sealed cover procedure shall be applicable to his case also.
9. In terms of Rule 326 of OSM 2000, an officer in whose case sealed cover procedure is attracted will also be considered for promotion, if otherwise eligible, but the promotion if recommended, shall be deferred till the outcome of the proceedings. The assessment of the promotion committee in respect of such officers shall be recorded in a separate sheet which shall be signed by all the members of the promotion committee and such sheets shall be kept in a sealed cover. In the instant case, the Page 8 of 16 WP(C) No. 1386/2024 proceedings against the petitioner are pending as on date, therefore, in terms of Rule stated supra, the respondents have rightly kept the promotion of the petitioner in sealed cover and same can be opened only after culmination of the criminal proceedings.
10. In the instant case, admittedly, charge sheet has been filed against the petitioner before the court of competent jurisdiction and the same is pending consideration. As a consequence, the respondent Bank has rightly invoked the provisions of Rule 326 of OSM 2000 and issued the order impugned dated March 7, 2022, whereby the promotion of the petitioner has been kept in sealed cover and the said order was gladly and voluntarily accepted by the petitioner for more than two years without any demur.
11. The petitioner has filed the instant writ petition, challenging the said order, without explaining the intervening delay. Since the order of keeping the promotion of the petitioner in sealed cover, has been issued in conformity with Rule 326 of OSM 2000, no fault can be found with the same, more particularly when the petitioner has not raised any grouse against the said rule, which gives power to the Bank to apply the sealed cover procedure till outcome of the proceedings and defer the promotion. In absence of any specific challenge to the aforesaid Rule, which gives power to the Bank to apply the sealed cover procedure, no fault can be foundwith the action of the respondents with regard to the issuance of order impugned, which has been accepted by the petitioner for two long years, as no grievance was ever raised by the petitioner during this intervening period. Page 9 of 16 WP(C) No. 1386/2024
12. Even otherwise also, the relief claimed by the petitioner insofar as seeking quashment of Order dated 7th March, 2022 as also the case/Police Report filed under Section 173 of CrPC arising out of FIR No. 10 of 2019 pending before the Special Judge, Anti-Corruption Court is concerned, the same cannot be granted by this Court in the instant petition, which is subject matter of criminal court where the matter is being adjudicated and the challan has been produced.
13. It is nobody's case that the delay in culmination of the criminal proceedings has occurred on behalf of the respondent Bank or prosecution, which could be the basis for reviewing the sealed cover procedure. In any event there is no provision for reviewing the said sealed cover procedure as envisaged under OSM 2000. Further, this Court cannot assume the role of the court of criminal jurisdiction in order to determine, whether offence is made out against the petitioner or not, nor this Court can record a finding whether it is a case of no evidence against the petitioner or not. These issues fall within the domain of the trial court where challan has been produced. It is an admission on part of the petitioner that his promotion case has been deferred by resorting to sealed cover procedure due to the pending criminal proceedings against him by resorting to Rule 326 of OSM 2000 and in absence of any specific challenge to the said rule by the petitioner and after having accepted the impugned order dated 7th March, 2022 for more than two years, without raising any grouse, it does not lie in the mouth of the petitioner to agitatenow at this belated stage that the said order is bad in the Page 10 of 16 WP(C) No. 1386/2024 eyes of law or it is a case of no evidence, whenadmittedly, criminal proceedings are pending and not finalized as yet.
14. As per rules, an officer in whose case sealed cover procedure is attracted, will also be considered for promotion, if otherwise eligible, but the promotion, if recommended shall be deferred till the outcome of the proceedings. As and when criminal proceedings instituted against the petitioner are completed, and in case it results in his exoneration, sealed cover shall be opened and the promotion, if due, will be given effect from the date on which it would have been given otherwise but for pending proceedings. On the contrary, if the proceedings culminate in imposition of any punishment, then his case shall be dealt as per the procedure prescribed under Rule 326 of OSM 2000. Thus, the sealed cover procedure will be lifted only after culmination of the proceedings and not otherwise. Thus, no prejudice has been caused to the petitioner, which could be the basis for filing the instant petition. The same is premature and devoid of any merit and, therefore, deserves dismissal.
15. The assertion of the petitioner that the case which is pending before the criminal court is fabricated and false and has no legal basis to stand the judicial scrutiny, on the basis of material collected during the course of the investigation and is a part of report filed under Section 173 of the Criminal Procedure Code, which can be gone into by the court, where trial is pending and not by this Court in the instant petition, which has been preferred under Article 226 of the Constitution of India. Thus, the challenge thrown by the petitioner to the order impugned dated 7th March, Page 11 of 16 WP(C) No. 1386/2024 2022,whereby, the order of promotion of the petitioner has been kept in sealed cover under Rules 326 of OSM 2000 and also to the police report filed under Section 173 of Criminal Procedure Code arising out of FIR No. 10/2019, pending before the Special Judge, Anti-Corruption, Srinagar, is ill founded and the instant petition which is devoid of any merit, deserves dismissal.
16. I am fortified by the law laid down by the Hon'ble Apex Court in Harsh Kumar Sharma, IFS vs. State of Punjab and another (2017) 4 SCC366, which reads as under:
"16. The employee in respect of whom chargesheet has been issued and the disciplinary proceedings are pending or in respect of whom prosecution for criminal charge is pending, his assessment is to be kept in a sealed cover and is not to be given effect to. The question is as to when prosecution for criminal charge is treated to have been 'pending'. This aspect came up for consideration in K.V. Jankiraman's case and the Court held that sealed cover procedure is to be resorted to only after the charge memo/chargesheet is issued, as is clear from the following passage in para 16 of the judgment:
"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. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to Page 12 of 16 WP(C) No. 1386/2024 prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge- sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy..."
"17. In view of the aforesaid law laid down by this Court, the crucial aspect is as to whether the prosecution for criminal charge was pending against the appellant when the DPC meeting was held. In K.V. Jankiraman's case, this Court gave imprimatur to the order of the CAT holding that if the chargesheet is filed in a criminal court, sealed cover procedure can be resorted to. This was conclusion No.4 of the CAT judgment, which was upheld by this Court, and this conclusion reads as under:
"(4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-
sheet filed before the criminal court and not before;"
"20. Therefore, move on the part of the DPC to resort to the sealed cover procedure is justified. ......"
17. It has been held in catena of judgments that mere pendency of criminal proceedings cannot be made the basis or come in the way of the promotion of a person who is otherwise eligible unless the charge- memo/charge-sheet has been issued to the delinquent employee. However, it is a settled legal proposition that the criminal proceedings commence only Page 13 of 16 WP(C) No. 1386/2024 when a charge-sheet is issued to the delinquent. As regards the instant case is concerned, the charge sheet has already been issued against the petitioner.
18. The Hon'ble Supreme Court in case titled Union of India Vs. Anil Kumar Sarkar 2013 (4) SCC 161 has made following observations with respect to the issue in hand the relevant para of which is reproduced as under:
"17. ... The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge- memo/charge-sheet has already been issued to the employee...."
19. Further in case titledC.O. Arumugam And Ors. vs State Of Tamil Nadu And Ors.1991SUPP(2)SCC19Hon'bleApex Court in Para 5 has observed as follows: "5. As to the merits of the matter, it is necessary to state that every civil servant has a right to have his case considered for promotion according to his turn and it is a guarantee flowing from Article 14 and 16(1) of the Constitution. The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principle. The promotion of persons against whom charge has been framed in the disciplinary proceedings or charge-sheet has been filed in criminal case may be deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found Page 14 of 16 WP(C) No. 1386/2024 suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted."
20. The learned counsel for the petitioner has relied upon a judgment of High Court of Orrisa at Cuttack in case titled "Nihar Ranjan Choudhary Vs State of Odisha & Another" bearing "WP(C) No. 21793 of 2021"
which is not applicable to the case in hand, as the facts of the instant case are distinct from the facts of the above said case, to the extent that charges were not framed in that case and sealed cover was pending. The other judgments relied upon by the learned counsel appearing on behalf of the petitioner are also not applicable to the case in hand.
21. Since the conduct of the petitioner is under investigation and the proceedings are pending before the criminal court, the respondents have rightly passed the order impugned and no fault can be found therewith. As per Rule 326, as and when departmental/criminal proceedings instituted against such an officer are completed and if it results in his exoneration, sealed cover(s) shall be opened and the promotion, if due, will be given effect from the date on which it would have been given otherwise but for pending disciplinary action. Thus, in pursuance of the said rule, the cause of action has not yet accrued to the petitioner to have approached this Court to file the instant writ petition when criminal proceedings are pending before the competent court of law, which have not yet culminated and thus, in absence of accrual of cause of action to the petitioner to file the instant Page 15 of 16 WP(C) No. 1386/2024 writ petition, the instant writ petition is not maintainable and liable to be dismissed in limini.
22. In the aforesaid backdrop, the instant writ petition is utterly misconceived and being devoid of any merit, deserves dismissal and the same is accordingly dismissed in limini. However, no order as to costs.
(WASIM SADIQ NARGAL) JUDGE SRINAGAR:
19.07.2024 "HAMID"
i. Whether the Judgment is Reportable: Yes/No
ii. Whether the Judgment is Speaking: Yes/No
Page 16 of 16 WP(C) No. 1386/2024
Abdul Hamid Bhat
I attest to the accuracy and
authenticity of this document
22.07.2024