Central Administrative Tribunal - Delhi
Bhupender Singh vs Mcd & Ors. Through on 24 December, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 3242/2012
MA No. 1685/2013
Order Reserved on: 30.10.2014
Pronounced on: 24.12.2014
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. V.N. Gaur, Member (A)
Bhupender Singh
S/o Sh. Net Ram,
R/o 1863/19, Kanhaiya Nagar,
Tri nagar, Delhi-110035.
- Applicant
(By Advocate: Sh. M.K.Bhardwaj)
Vs.
MCD & Ors. through
1. The Director,
Local Bodies, New Secretariat,
I.P.Estate, New Delhi.
2. The Commissioner,
North Delhi Municipal Corporation,
Dr. SPM Civic Centre,
New Delhi.
3. The Director (Personnel),
North Delhi Municipal Corporation,
Dr. SPM Civic Centre, New Delhi.
Respondents
(By Advocate: Sh. R.K.Jain)
ORDER
Honble Shri V.N.Gaur, Member (A) MA-1685/2013 is filed for condonation of delay by the applicant. For the reasons stated therein, MA is allowed.
2. The applicant has filed this OA with the following prayer:
(i) To declare the action of respondents in not promoting the applicant to the post of EE (Civil) as illegal, arbitrary and unconstitutional.
(ii) To direct the respondents to promote the applicant to the post of EE (Civil) on adhoc/regular from the date of promotion of his junior namely Mula Singh (Seniority No.457) with all consequential benefits including arrears of pay.
(iii) To direct the respondents to promote the applicant to the post of EE (Civil) as per his entitlement with all consequential benefits.
(iv) To allow the OA with cost.
(v) To pass such other and further orders which their lordships of this Honble Tribunal deem fit and proper in the existing facts and circumstances of the case.
3. The applicant, a direct appointee to the post of Assistant Engineer (Civil) [AE (Civil)] was confirmed in that post by order dated 30.01.2001 issued by respondent no.2. The applicant was involved in a criminal case and an FIR was filed against him and some other officials of MCD on 01.02.2005 under Prevention of Corruption Act, 1988. A disciplinary action was also started by respondent no.2 vide memo dated 13.09.2006 and after the departmental enquiry the disciplinary authority imposed penalty of reduction in pay in the present time scale of pay by one stage for a period of one year with cumulative effect by order dated 16.01.2009. However, after considering the representation of the applicant, the appellate authority vide office order dated 10.08.2010 exonerated the applicant from the charges leveled against him. In the meantime, charges were framed against the applicant in the competent court of law on 16.02.2010 in the pending criminal case. In another development the respondent no.2 vide order dated 15.12.2008 promoted some AEs (Civil) to the post of Executive Engineer [EE (Civil)] on ad hoc basis in which one of the juniors of the applicant was also promoted but the applicant was not promoted.
4. Sh. M.K. Bhardwaj appearing for the applicant stated that at the time of ad hoc promotion of AE (Civil) on 15.12.2008 there was a disciplinary enquiry in progress against the applicant and, as such, the department should have followed the sealed cover procedure. In this connection, he referred to the DOP&T OM of 23.02.1999 which provided that the sealed cover procedure as laid down in the OM of 14.09.1992 would also be followed in case of ad hoc promotions. The only hurdle in the promotion of the applicant in 2008 was the disciplinary enquiry going on against him at that time. However, once the applicant was exonerated by the appellate authority in 2010, he was entitled for promotion from the date his junior was promoted. The applicant had submitted a representation on 24.09.2010 but respondents did not take any action. In response to an RTI query, the respondents only stated that a police case was pending against the applicant. The learned counsel contended that with exoneration of the applicant, there was nothing against him on the day when the ad hoc promotion was given to his junior except an FIR. Referring to the DOP&T OM dated 14.09.1992 the learned counsel stated that the sealed cover procedure could be followed by the DPC only in the following conditions:
i) Government servants under suspension
ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
iii) Government servants in respect of whom prosecution for criminal charge is pending.
5. Pendency of an FIR was not among the conditions mentioned in the above guidelines wherein the applicants case could be placed in sealed cover. He further referred to DOP&T OM dated 24.02.2003 that was issued after the judgment of Honble supreme Court in the case of Delhi Jal Board vs. Mohinder Singh, JT 2000 (10) SC 158, providing as follows:
3. It is, therefore, clarified that para 7 of the O.M. dated 14th September, 1992 will not be applicable if by the time the seal was opened to give effect to the exoneration in the first enquiry, another departmental inquiry was started by the department against the Government servant concerned. This means that where the second or subsequent departmental proceedings were instituted after promotion of the junior to the Government servant concerned on the basis of the recommendation made by the DPC which kept the recommendation in respect of the Government servant in sealed cover, the benefit of the assessment by the first DPC will be admissible to the Government servant on exoneration in the first inquiry, with effect from the date his immediate junior was promoted.
6. The effect of the above instruction is that any subsequent enquiry after the date of the DPC would not have any effect on the promotion of the employee, if he has been exonerated in the first enquiry which was the reason for keeping his case in the sealed cover. In the instant case also, in 2008 except the FIR which was not a bar on promotion, the applicant was only facing a departmental enquiry in which he was exonerated subsequently. The framing of charge in police case on 16.02.2010, which could be treated as a bar on promotion, would be considered as a second enquiry, and therefore, will come within the ambit of the above instruction given by the DOP&T after the judgment of Honble Supreme Court.
7. The learned counsel also relied on the following cases:
(1) Union of India vs. K.V.Jankiraman, AIR 1991 SC 2010 (2) Union of India vs. Sangram Keshari Nayak, 2007 (6) SCC 704 (3) State of Bengal vs. Rabindra Nath Sengupta, 1998 (2) SLR 535 (4) Marine Products Export Development Authority vs. A.Geetha, 1997 (6) SLR 331 (5) Union of India vs. Anil Kumar, 1999 (4) SLR 298 (6) TA-431/2009 (7) OA-1615/2007 (8) OA-1185/2007 (9) Satish Singh Aswal vs. Government of NCT of Delhi, OA-2540/2010 decided by this Tribunal on 23.05.2011 (10) R.P.Singh vs. Government of NCT of Delhi, OA-1604/2009 decided by this Tribunal on 23.12.2009 (11) P.C.Meena vs. MCD, OA-3551/2010 decided by this Tribunal on 01.07.2014
8. Sh. R.K.Jain, learned counsel for the respondents, on the other hand, raised the preliminary objection that the applicant had made his first representation on 24.09.2010 and having received no reply he filed this OA on 19.07.2012. As per Section 21(1)(b) of the Administrative Tribunals Act, the application has to be filed within one year from the date of expiry of 6 months from the making of representation. In this case the applicant has filed this application after nearly 2 years and without any application for condonation of delay, hence the OA was barred by limitation.
9. On merits, learned counsel stated that in the first instance in 2008 the applicant could not be considered for ad hoc promotion as a disciplinary enquiry was in progress against him. Subsequent to his exoneration the respondents again sought clearance from the vigilance and in their report it was stated that a charge sheet had been filed in the police case against the applicant. The applicant himself has also stated that the charges have been framed on 16.02.2010. Hence, the applicant was not eligible for promotion. He referred to para 4 of the DOP&T OM no.22012/1/99-Estt.(D) dated 25.10.2004 which reads as follows:
4. If the conditions indicated in Para 2 of Dop&T Office Memorandum, dated 14-9-1992, arise only after the DPC has made its recommendations and therefore, the recommendations could not be placed in the sealed cover, Para 7 of the said Office Memorandum provides that the recommendations of the DPC shall be deemed to have been placed in the sealed cover and he shall not be promoted until he is exonerated of the charges. Therefore, after the recommendations of DPC have been approved by the competent authority, it is necessary to again seek the status position from the concerned vigilance division before issuing promotion order in respect of any officer included in the approved panel of names to ensure that there is no hindrance in issuing the promotion order in respect of the concerned officer. The respondents have only complied with the above instructions.
10. Learned counsel also referred to Manoj Kumar Singh vs. Coal India Ltd. and others, (2006) 13 SCC 705 in support of his contention that a vigilance clearance could be withheld even in the case of a preliminary enquiry, either by CBI or departmental agencies the competent authority, on consideration of the results of the investigation, has formed the opinion that a charge sheet may be issued on specific imputations for departmental action. The Honble Supreme Court observed that the appellant in that case could not have been granted vigilance clearance.
11. We have carefully considered the submissions made by the learned counsels from both the sides and the record placed before us. In the interest of justice MA 1685/2013 filed in this OA for condonation of delay is allowed for the reasons stated therein. The main question before us is whether in an FIR registered prior to the date of DPC, framing of the charge after the DPC can be treated as a second enquiry in terms of the DOP&T instructions dated 24.02.2003 when the applicant has been exonerated in a parallel departmental proceeding.
12. There is no dispute over the facts that initially the applicant was not given ad hoc promotion in 2008 as at that time a disciplinary enquiry was in progress as also an FIR was pending against him. Going by the DOP&T instructions of 14.09.1992, mere pendency of an FIR could not be a hurdle for promotion of an employee. Therefore, the promotion was denied to the applicant apparently on the ground of the departmental proceeding alone pending against him. In such a situation, the instructions as contained in the OM dated 14.09.1992 are that the DPC should assess the suitability of the Government servants along with other eligible candidates without taking into consideration the disciplinary case/ criminal prosecution. The assessment of the DPC including unfit for promotion and the grading awarded by it would be kept in the sealed cover. From the pleadings in the OA it is seen that in para 4.4 the applicant has stated that his case was kept under deemed sealed cover. In the reply submitted by the respondents there is no specific averment in this regard. However, in the rejoinder in para 4.3 and 4.4, the applicant has stated that when the juniors of applicant were promoted in 2008, the applicant was facing disciplinary proceedings as such his case was required to be placed in sealed cover/deemed sealed cover and on exoneration in disciplinary proceedings, the said sealed cover/deemed sealed cover was required to be operated. However, the respondents did not take action in that regard malafidely. If the respondents had not considered the applicant while considering his juniors for ad hoc promotion, that would be a violation of the existing instructions particularly the DOP&T OM of 23.02.1999 which provides that the sealed cover procedure has to be followed in the case of ad hoc promotions also.
13. With regard to the situation obtaining after the applicant was exonerated in the departmental proceedings in the year 2010, it is noted that in OM dated 14.09.1992 in para 2, the third condition of sealed cover procedure reads as follows:
(iii) Government servants in respect of whom prosecution for criminal charge is pending.
14. In a criminal case, it is settled law that for applying the above clause it is not necessary that the charges should be framed in the court of law against the Government employee for prosecution for criminal charge to be treated as pending. In WP (C) 7960/2012 Union of India vs. Doly Loyi the Honble Delhi High Court deliberated on this question and came to the following conclusion:
9. 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 gognizance. 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.
15. In this case there is no information on record as to when the investigating agency had filed challan/charge sheet in the case. The only date on record (16.02.2010) is the date on which the charges were framed against the applicant in a court of law. In such a situation it cannot be said with certainty as to what was the date from which the prosecution for criminal charge was pending. The applicant was exonerated in the departmental proceedings but charges have been framed against him in a criminal case, in these circumstances, we agree with the respondents that the DOP&T instructions dated 25.10.2004 will come into play and the respondents would be required to seek vigilance clearance in respect of the applicant before considering his representation for promotion following his exoneration in the disciplinary proceedings. Para 4 of the aforesaid OM is reproduced below:
4. If the conditions indicated in para-2 of DoPT Office Memorandum dated 14-9-1992, arise only after the DPC has made its recommendations and therefore, the recommendations could not be placed in the sealed cover, para-7 of the said Office Memorandum provides that the recommendations of the DPC shall be deemed to have been placed in the sealed cover and he shall not be promoted until he is exonerated of the charges. Therefore, after the recommendations of DPC have been approved by the competent authority, it is necessary to again seek the status position from the concerned vigilance division before issuing promotion order in respect of any officer included in the approved panel of names to ensure that there is no hindrance in issuing the promotion order in respect of the concerned officer.
16. It is important to note that the FIR was registered against the applicant in the year 2005 before the promotion of his junior and initiation of the departmental proceedings. In a criminal case the action of the competent authority to prosecute the Government employee for alleged offences, starts with the registration of an FIR which is an important first step in the criminal proceedings. The activity in pursuance of the FIR continued for nearly five years independent of disciplinary proceedings, before framing of charges in the Court. Thus, it cannot be said that after the exoneration of the applicant in the departmental proceedings, framing of charge in the criminal case would amount to a second or subsequent departmental proceedings in terms of DOP&T OM dated 24.02.2003. Had the FIR been launched after the DPC, the situation would have been different. We are, therefore, of the view that the DPC should have adopted sealed cover procedure in respect of the applicant taking into account the pending disciplinary proceedings and the provision of DOPT OM dated 23.02.1999 even if only ad hoc promotions were being considered and that sealed cover would have to be opened after the exoneration of the applicant in the departmental proceedings. In the event of the applicant being found fit for promotion, the respondents will have to follow the instructions as contained in the para 4 of DOPT OM dated 25.10.2004. The prosecution in the criminal case will be treated as pending from the date on which the charge sheet had been filed in the court by the prosecuting agency.
17. We have considered the judgments and orders cited by both the sides. The DOP&T OM of 24.02.2003 was issued following judgment in Mohinder Singh. The relevant portion of that judgment reads as follows:
5. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Art. 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary enquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any disciplinary enquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when the DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed cover was opened to give effect to it, another departmental enquiry was started by the Department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. There is, therefore, no question of referring the matter to a larger Bench.
18. Honble Supreme Court in K.V. Jankiraman (supra) and Honble High Court in Union of India vs. Om Prakash, WP (C) no.7810/2008 have held that pendency of FIR is not a bar on promotion.
19. Learned counsel also relied on Rabindra Nath Sengupta (supra), A. Geetha (supra) and Anil Kumar (supra) wherein the Honble Supreme Court has laid down the principle that discriminatory use of powers suffer from vice of discrimination being violative of the fundamental rights guaranteeing equality in service matters.
20. We do not find any such discrimination exercised by the respondents against the applicant in denying him promotion in 2008 when there was a disciplinary proceeding pending against him. At present also, the applicant is not clear from the vigilance angle. As we have discussed earlier in this order the applicant does suffer at present from the disability as specified in Clause (iii) of para 2 of DOP&T order of 14.09.1992, and therefore, the ratio laid down in K.V.Jankiraman (supra) and Sangram Kesari Nayar (supra) would not be relevant in the instant case.
21. The order of this Tribunal in OA-2540/2010 would not apply in the present case as in that OA, the question related to denial of promotion only on the ground of prosecution sanction having been granted by the authorities while OA-1604/2009 is not relevant as the applicant in that case was entitled to upgradation under ACP scheme on 27.02.2002 while he was denied such upgradation by the Screening Committee in its meeting on 20.03.2009 on the basis of the FIR registered in September 2008. In OA-3551/2010 also, the immediate junior of the applicant was promoted as Superintendent Engineer with effect from 27.08.2000 and the applicant claimed ad hoc promotion from the same date after the finalization of the seniority list on 02.06.2010 and the FIR against the applicant was registered in the year 2002 much later than the due date of promotion being claimed.
22. In the light of the foregoing discussion and the reasons stated therein, we direct the respondents to hold the review DPC to consider ad hoc promotion of the applicant with effect from the date of promotion of his junior in the year 2008 and follow the sealed cover procedure, if the same had not been done. Further follow up action may be taken as discussed earlier in this order on the basis of the recommendations made by the review DPC and the instructions contained in the DOP&T OM dated 25.10.2014 and other relevant rules. This action may be completed within a period of 12 weeks. The OA is disposed of. No order as to costs.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) sd