Central Administrative Tribunal - Delhi
B. S. Bola vs Union Of India Through on 11 August, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.1919/2008 This the 11th day of August, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) B. S. Bola, IPS S/O M. S. Bola, R/O 3, Jai Singh Road, New Delhi. Applicant ( By Shri A. K. Behera, Advocate ) Versus Union of India through Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi-110001. Respondent ( By Shri A. K. Bhardwaj, Advocate ) O R D E R Justice V. K. Bali, Chairman:
The case of the applicant, an officer of the Indian Police Service (IPS), in the matter of grant of selection grade has been put in sealed cover. Whereas, thus, the colleagues of the applicant, senior or junior of the same batch, were given selection grade w.e.f. 1.1.2006, the applicant is put on hold till the decision of the criminal case registered against him, as also the departmental enquiry which has been initiated. The applicant takes exception to the procedure adopted by the respondents in putting his case in sealed cover, stating it to be wholly illegal, against government instructions and judicial precedents, and in consequence of such a declaration to be given by this Tribunal, to direct the respondents to open the sealed cover adopted in respect of his case in the DPC held o 22.12.2005 for considering grant of selection grade to IPS officers of 1993 batch, and if on opening of the sealed cover, he is found to be fit, to further direct the respondents to give him all consequential benefits.
2. The facts on which the reliefs as indicated above are sought to rest reveal that the applicant was initially appointed as Assistant Commissioner of Police in DANIPS cadre in the year 1978. He was promoted/appointed in the IPS in the year 2000 and was allotted 1993 as the year of allotment. It is the case of the applicant that way back in July, 2001, a false case came to be registered against him by CBI on unfounded and frivolous grounds vide RC No.44/2001. The said case continued to remain pending with CBI. In the year 2002, however, the applicant was considered for grant of Junior Administrative Grade in pay scale of Rs.12000-16500 w.e.f. 1.1.2002, and vide order dated 28.5.2002 the same was granted to him along with his batchmates. All IPS officers of 1993 batch including the applicant became eligible for grant of selection grade in the pay scale of Rs.14300-18300 w.e.f. 1.1.2006. Prior to that the respondents held DPC on 22.12.2005 for grant of selection grade and on the basis thereof an order dated 3.1.2006 was issued granting selection grade to the batchmates of the applicant, which included one of the juniors of the applicant as well. Subsequent to order dated 3.1.2006, vide order dated 10.7.2006 selection grade was granted to the rest of the 1993 batch officers, including some juniors of the applicant. The respondents would not intimate any reason to the applicant for not granting him selection grade. However, on enquiries from the office of the respondents, the applicant came to know that his name was considered in the first DPC held on 22.12.2005, but the recommendation in respect of him was kept in sealed cover. Insofar as, the status of the criminal case is concerned, it is the case of the applicant that CBI filed a report under section 173 Cr.PC in the Court of Special Judge/CBI, New Delhi on 30.7.2005. The learned Special Judge/CBI vide order dated 30.7.2005 directed the prosecution to file documents and adjourned the matter for taking cognizance to 29.8.2005. On the adjourned date and on the next two dates, i.e., 7.10.2005 and 25.11.2005, the matter was further postponed on the request of the public prosecutor, and was adjourned to 3.2.2006 for taking cognizance. On 22.12.2005, when the DPC was held, even cognizance of the report u/s 173 Cr.PC had not been taken. It is only after 3.1.2006 that the learned Special Judge/CBI took cognizance of the matter and summons were issued to the applicant, but till date, i.e., when the present Application was filed, charge has not been framed. The next date fixed in the case aforesaid was 1.10.2008, after filing of the present Application. We may mention at this stage that during the course of arguments, it is stated that till date even chargesheet has not been framed. When the DPC was held on 22.12.2005 to consider grant of selection grade to 1993 batch IPS officers, on the basis of which order dated 3.1.2006 was issued, the applicant pleads, sealed cover procedure could not possibly be adopted. In the circumstances aforesaid, the applicant made representation on 29.1.2007 urging the respondents to correct the error committed by them in adopting the sealed cover procedure. The said representation was, however, rejected vide impugned order dated 21.7.2008. A regular departmental enquiry was initiated against the applicant vide charge memo dated 13.6.2006.
3. On the facts as stated above, Shri A. K. Behera, learned counsel representing the applicant, vehemently contends that the respondents illegally adopted the sealed cover procedure, and even when the illegality was brought to their notice, they persisted with their stand by rejecting the representation of the applicant vide order dated 21.7.2008. It is urged that concededly, on the date when the DPC had met, no chargesheet had been framed against the applicant and insofar as, the departmental proceedings are concerned, the same were initiated far later. Citing DOP&T OM dated 14.9.1992, which came into being pursuant to the authoritative pronouncement of the Honble Supreme Court in Union of India v K. V. Jankiraman [JT 1991 (3) SC 527], and some judicial precedents, it is urged that the sealed cover procedure in the case of the applicant has been adopted both against instructions and judicial precedents.
4. Pursuant to notice issued by this Tribunal, the respondents have put in appearance and filed their counter reply contesting the cause of the applicant. While giving details of the criminal case pending against the applicant, it is pleaded that CBI had registered a Regular Case (RC) vide FIR No.RC-DAI-A-0044 dated 5.7.2001 against the applicant under Section 120(b) IPC and Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. CBI sought sanction for prosecution of the applicant for possession of assets disproportionate to his known sources of income, and forwarded a copy of the report containing result of the investigation. After detailed investigations, CBI found that during the check period from 1.1.1989 to 6.7.2001, the applicant had been found to have acquired assets disproportionate to his known sources of income to the tune of Rs.16,03,216/-. The total income of the applicant during the check period was found to be Rs.21,69,759/- and he incurred expenditure of Rs.20,52,038/- during the corresponding period. His likely savings were Rs.1,17,721/-. As against these savings, he had been found to be in possession of assets amounting to Rs.17,20,937/- which were disproportionate to his known sources of income to the tune of Rs.16,03,216/- which would be 73.89% of the total known sources of income. The investigations conducted by CBI had further concluded that during the same check period, the income of the wife of the applicant Smt. Praveen Bola from all sources was Rs.32,48,901/- against which she had incurred an expenditure of Rs.16,43,450/- and had thus saved an amount of Rs.16,05,451/-, and against these savings she had acquired assets valued at Rs.18,02,027/-, which would indicate assets disproportionate to her known sources of income to the tune of Rs.1,96,576/-. CBI came to the conclusion that the applicant had been found guilty of offences punishable under Section 13(2) r/w 13(1)(e) of PC Act, 1988, and thus recommended prosecution of the applicant under the said provisions. In the defence projected by the applicant, he stated that CBI was trying to fasten malicious prosecution on him by twisting facts by including the property of other persons in his name and his wifes name, in support of his plea that CBI had under-estimated his income and over-estimated his expenditure. CBI sought sanction of the Ministry for prosecution of the applicant for possession of assets disproportionate to his known sources of income. The request made by CBI was examined in detail and the Ministry came to the conclusion that the case made out by CBI against the applicant merited acceptance. The case records were accordingly referred to CVC, which advised launching of prosecution against the applicant. Accordingly, the recommendations made by CBI and CVC for sanction of prosecution on allegations of possession of assets disproportionate to known sources of income and simultaneously initiation of departmental proceedings for imposition of major penalty against the applicant were accepted, and sanction for his prosecution was given vide order dated 7.4.2005. Subsequently, CBI pointed out that though the wife of the applicant was also found in possession of disproportionate assets worth Rs.1,95,576/- for which she could not satisfactorily account for, however, since she was a private business lady having her independent source of income, the disproportion in her wealth may not be added to the disproportion of her husbands wealth, and accordingly a revised sanction was issued on 29.7.2005. CBI also recommended initiation of regular disciplinary action for major penalty against the applicant on acts of misconduct which have been stated in para 8 of the counter reply. On recommendations of CBI and advice of CVC, regular disciplinary proceedings for major penalty were initiated against the applicant vide memorandum dated 13.6.2006. In para 11 of the reply, it has also been pleaded that the recommendations of the screening committee in respect of the applicant were kept in sealed cover because CBI had filed charge-sheet against him in the designated court. During the course of arguments, it remained undisputed that what is meant by charge-sheet which has been filed in the court, is the challan u/s 173 Cr.PC. On the facts as mentioned above, Shri A. K. Bhardwaj, learned counsel representing the respondents, would contend that the respondents were well within their rights to adopt the sealed cover procedure.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. It remained admitted position during the course of arguments that by the time the DPC met, i.e., 22.12.2005, or even by the time the order promoting the batchmates of the applicant, some of whom were junior to the applicant as well, came to be passed, the concerned CBI court had not framed the charge against the applicant, nor even the disciplinary proceedings were initiated against him. At the most, sanction to prosecute the applicant had since already been accorded. We are of the firm view that the matter on the facts as mentioned above, is covered in favour of the applicant by a recent decision of this Tribunal in OA No.1185/2007 decided on 3.6.2008 in the matter of Om Prakash v Union of India. Not only the facts and law involved are similar, but incidentally, even the learned counsel representing the parties are the same. This judgment of the Tribunal has been affirmed in a writ filed by the respondents in the said case before the Honble High Court of Delhi [WP(C) No.7810/2008 decided on 27.11.2008 Union of India v Om Prakash]. We may only mention that whereas, the case of the applicant for adopting sealed cover procedure may be justified on the dint of DOP&T OM dated 12.1.1988, the same would not be so covered by the later OM dated 14.9.1992, vide which not only the OM dated 12.1.1988, but all other OMs covering the issue were superseded. This precise issue in reference to the difference in the two OMs referred to above has been threadbare dealt with by us in Om Prakash (supra). We may extract the relevant observations made in that behalf:
8. It could not be disputed during the course of arguments that the promotion/confirmation of employees against whom disciplinary/court proceedings are pending or whose conduct is under investigation, is now governed by instructions contained in OM dated 14.9.1992. That being so, in our considered view, sealed cover procedure can be adopted in case where a government servant may be under suspension, or in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending, or in respect of whom prosecution for a criminal charge is pending. Whereas clause (i) of para 2 of instructions of 1988 and 1992 is the same, there is a marked difference between clause (ii) of para 2 of instructions of 1988 and that of 1992. Whereas, as per clause (ii) of para 2 of the 1988 instructions, sealed cover procedure could be adopted in respect of government servant against whom disciplinary proceedings were pending or a decision had been taken to initiate disciplinary proceedings, such procedure can be adopted as per clause (ii) of para 2 of the 1992 instructions only in respect of government servant against whom charge-sheet has been issued and the disciplinary proceedings are pending. Reading of clause (ii) of para 2 of the 1992 instructions would make it absolutely clear that disciplinary proceedings would be considered to be pending only if the charge-sheet has been issued, as the words whom a charge-sheet has been issued precede the words and the disciplinary proceedings are pending. This meaning of clause (ii) of para 2 can be gathered from the fact that the word and has been used between the words Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending. If perhaps, instead of the word and, or was mentioned, it could mean that in either case, i.e., when disciplinary proceedings are pending, or a charge sheet was framed, the sealed cover procedure could be adopted. We need not further delve into clause (ii) of para 2 of instructions of 1988 or 1992 as it is not the case of the respondents that sealed cover procedure has been adopted in the case of the applicant because of circumstances obtainable in clause (ii) of para 2 of the instructions of 1988 or 1992. Once again, there is significant change in clause (iii) of para 2 of the 1988 instructions and the one contained in 1992 instructions. Whereas, as per clause (iii) of para 2 of the 1988 instructions 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 had been issued or a decision had been taken to accord sanction for prosecution, as per clause (iii) of para 2 in the 1992 instructions such procedure can be adopted only if the prosecution for a criminal charge is pending against a government servant. Pendency of sanction for prosecution or even a decision that might have been taken to accord sanction for prosecution, have been consciously deleted from clause (ii) of para 2 of the later instructions. Insofar as clause (iv) of para 2 in the 1988 instructions is concerned, the same has been deleted from the 1992 instructions. Para 7 of the instructions, be it the instructions of 1988 or of 1992, would be applicable only with regard to circumstances enumerated in para 2, and no others. We are of the firm view that sealed cover procedure can be adopted only in circumstances enumerated in para 2 of instructions of 1992, and even if the circumstances as mentioned therein may surface after the DPC might have cleared a government servant for promotion, he may yet not be promoted, as in that event it has to be considered to be a case of deemed sealed cover procedure. In the present case, it is apparent that none of the circumstances enumerated in para 2 of the instructions of 1992 were in existence. The same did not come into existence by sanctioning prosecution of the applicant. The contention of Shri Bhardwaj, learned counsel representing the respondents, to incorporate the circumstance of sanction for prosecution enumerated in the instructions of 1988 justifying non-promotion of the applicant, in our view, has to be repelled. In all fairness to Shri Bhardwaj, learned counsel for the respondents, we may mention that he also urged that para 7 of OM dated 14.9.1992 would be applicable in this case inasmuch as, even if the sealed cover procedure was not to be adopted in respect of the applicant and he was to be recommended for promotion, but before he could be actually promoted, if the circumstances mentioned in OM dated 14.9.1992 became available, he would not be promoted unless he is completely exonerated of the charges against him. Para 7 of the said OM reads as follows:
Sealed cover procedure applicable to officers coming under cloud after holding of DPC but before promotion:
7. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC, are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated or the charges against him and the provisions contained in this OM will be applicable in his case also. The said argument needs to be straightway rejected. Para 7 of OM dated 14.9.1992 is not applicable in the facts of the present case. In the present case, there was no order passed giving the applicant selection grade. Insofar as, colleagues of the applicant are concerned, they were given the selection grade on 3.1.2006 and 10.7.2006, by which time as well, circumstances as mentioned in OM dated 14.9.1992 permitting adoption of sealed cover procedure had not become available. As to in what circumstances para 7 of the said OM would be applicable, is also mentioned in our judgment in Om Prakash (supra), and thus we need not reiterate the view taken therein. During the course of arguments, Shri Behera had relied upon number of judicial precedents, but there would be no need to make a mention of the same, which would be unnecessarily burdening the judgment.
6. Before we may part with this order, we may mention that in Om Prakash (supra), the applicant therein was facing criminal charge, which also included allegations constituting offences under Section 13(2) and 13(1)(d) of the Prevention of Corruption Act. We may also mention that the law makes no distinction between ordinary delinquency or misconduct like corruption. The Government may think to deal separately with the misconduct which may be serious enough like bribery and corruption, but as long as there is no distinction made on the gravity of the offence for an employee may be charge-sheeted, the courts shall have no choice but for to take the view as has been taken by us.
7. Resultantly, present Application is partly allowed. A direction is issued to the respondents to open the sealed cover of the applicant with regard to grant of selection grade, and if the recommendation may be in his favour, to grant him the said grade from the date his colleagues, some of whom were junior to him, were given the same. There shall, however, be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/