Central Administrative Tribunal - Delhi
Jasbir Singh Bajaj vs The Secretary on 5 December, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 1654/2008
New Delhi this 5th day of December, 2008
Honble Mr. Justice M. Ramachandran, Vice Chairman (J)
Honble Mr. N.D. Dayal, Member (A)
Jasbir Singh Bajaj,
Working as Joint Resident Commissioner,
& Officer on Special Duty to Governor,
Tamil Nadu House,
Chanakyapuri,
New Delhi. Applicant.
(By Advocates Shri Mahabir Singh, Sr. Counsel with Shri Arun Bhardwaj and Shri Naresh Beniwal and Shri Nikhil Jain)
Versus
1. The Secretary,
Union Public Service Commission,
Shah Zahan Road,
New Delhi.
2. The Chief Secretary,
Government of Tamil Nadu
Public (Special-A) Department
Fort St. George,
Chennai 600 009.
3. The Vigilance Commissioner,
Government of Tamil Nadu,
Chennai 600 009. Respondents.
(By Advocates Ms. Alka Sharma for respondent No. 1, Shri Mariarputham, Sr. counsel with Shri R. Nedumaran for respondents 2 and 3)
O R D E R
Honble Mr. Justice M. Ramachandran, Vice Chairman (J) :
The applicant is an IAS officer of 1987 batch belonging to Tamil Nadu Cadre. He had during his career worked in capacities as Additional Collector, Joint Project Co-ordinator, etc. and during the period from 05.12.1994 to 28.03.1996 was the Managing Director of Co-optex, a co-operative society sponsored by the State. In deference to the rules, he had obtained promotion to the senior scale of IAS, on 01.01.1991 and was granted Junior Administrative Grade, on 01.01.1996. He was due for promotion to selection grade on 01.01.2000.
2. But with reference to the functioning of Co-optex, on a complaint given by Handlooms, Handicrafts, Textiles and Khadi Department, the Crime Branch, CID had registered a Crime as 46 of 1996. Investigations are seen to have been made. As revealed from the reply affidavit filed on behalf of State of Tamil Nadu, the charge was that the officer along with another IAS officer, Mr. K. Dheenadhayalan, who was Commissioner and Secretary, Handlooms and Textiles, and Smt. Indira Kumari, Minister of Social Welfare and Handlooms had entered into a criminal conspiracy for over a period of two years at various stations and had agreed to do certain illegal acts in the nature of criminal breach of trust with more than a dozen abettors and had obtained pecuniary advantages from office bearers of institutions coming to a sizeable amount. It is revealed that a sanction for prosecution of the officers had come from the State, on 23.05.2000 under Section 197 (1)(b) of the Cr.P.C. The Govt. of India later on had given sanction for proceeding against them under the Prevention of Corruption Act, by order dated 11.06.2003.
3. It is agreed on all sides that a formal charge sheet is yet to be framed by the court. There has been no departmental action initiated against the officer. He had not been under suspension at any time. The averments made through the O.A. indicates that the applicant had even thereafter been put to responsible work, uninterruptedly and all throughout.
4. But, however, his promotion to selection grade due on 01.01.2000 and entry to the super time scale, which would have been normally due, already awarded to his batch mates on 30.09.2003 had not been conferred on him. Both sides agreed to the factual position that the DPC had considered his claims but a sealed cover procedure has been adopted. The recommendations had been put in a sealed cover in view of the criminal proceedings and the applicant has been informed that it is to be opened only after the conclusion of the criminal case.
5. The applicant had, according to him, submitted that there was illegality in the procedure, since such sealed cover proceedings could have been initiated only as per the Government of Indias instructions and guidelines dated 28.03.2000. According to him, only when an officer is under suspension or where a charge sheet had been issued and disciplinary proceedings were pending, then alone this disability would have been punishable. Officers in respect of whom prosecution for criminal charge were pending also could have been subjected to such a treatment, but as far as he was concerned, he did not come within the said category never a charge sheet had been issued as against him in spite of the circumstance that FIR had been registered in 1996. Such arbitrary treatment requires to be gone into, and appropriately, reliefs are liable to be granted to him. So long as a charge sheet was not issued, the criminal proceedings could not be considered as operating to his detriment career wise.
6. On behalf of the respondents, Mr. Mariarputham, Sr. counsel for the respondents, submits that as at present there is no question of any review, and the applicant has to get himself extricated from the criminal proceedings for his case to be taken up for consideration by the Department for conferment of promotion. The Screening Committee convened during the years 2000 to 2008, every year has placed its recommendations in sealed covers. It is submitted that this is as per the Government of Indias instructions in the matter. Sanction for prosecution had been given by the Government, and when the power has been exercised by the Government thereafter it had no jurisdiction or authority to pass any fresh order for recalling such orders. When earlier an FIR is lodged, and the matter has reached the court, till such time, the court pronounces on the issue, it may not be, therefore, possible for the Government to issue further instructions or directions. When prima facie there was circumstance to proceed against the applicant, the Government could not have been blamed although the situation may be disadvantageous from the point of view of the applicant.
7. However, there is no explanation forthcoming as to why the FIR registered in the year 1996 has not been pursued, especially since the complaint is seen to have been lodged at the instance of a Government department. The counsel was also fair in admitting that charges were yet to be framed or served upon the applicant by the criminal court.
8. We had also heard the learned counsel for the UPSC. They appear to be only a formal party and, therefore, are not to be involved in the matter to any extent, as submitted by the counsel.
9. There are no statutory guidelines in force, which could be looked askance at. When the State of Tamil Nadu relies upon the instructions of the Government of India for having adopted the course that was followed, the point practically narrows down, as to whether the exercise was as prescribed by the parameters to be followed. Along with the rejoinder, applicant has made available to us a copy of the guidelines issued by the Government dated 28.03.2000 as Annexure R-I. It is laid down that appointment to the selection grade and promotion in the super time scale would be admissible after rendering 13 and 16 years of service, respectively. The constitution of the Screening Committee for adjudging the credentials has been prescribed as the Chief Secretary and two other officers in the grade of Principal Secretaries. That sealed cover proceedings have been adopted is conceded. Paragraph 11 of the guidelines refer to the procedure to be followed in respect of officers against whom disciplinary/court proceedings are pending or whose conduct is under investigation. At the time of consideration of the cases, details of officers in the zone of consideration falling under three categories are required to be brought to the notice of the Standing Committee. To extract, the claims of following categories are to be ultimately overlooked.
(a) Officers under suspension;
(b) Officers in respect of whom a chargesheet has been issued and disciplinary proceedings are pending;
(c) Officers in respect of whom prosecution for criminal charge is pending. The Screening Committee but is required to assess the suitability of the officers coming within the above disabilities along with the other eligible candidates irrespective of pendency of proceedings. The assessment is to be kept in a sealed cover.
10. It is evident that, if at all, the disability of the applicant can be the one described under clause `c of Paragraph 11, namely, as an officer in respect of whom prosecution for criminal charge is pending. The question is whether the situation as available against the applicant comes under this clause of the guidelines. Is the applicant to be treated as a person in respect of whom prosecution for criminal charge is pending?
11. Learned counsel for applicant emphasizes that it is not so. He had invited our attention to a decision of the Honble Supreme Court reported as Gurpreet Singh Bhullar and Anr. Vs. Union of India & Ors. (2006 (3) SCC 758). The court was considering the impact of Regulation 5 (5) and 7 (3) of the Indian Police Service (Appointment by Promotion) Regulations, 1955. Explanation 1 to the Regulation as extracted in the judgment was to the effect that proceedings shall be treated as pending only if a charge sheet had actually been issued to the officer or filed in a court as the case may be. According to the Supreme Court, while comprehending the issue, the High Court had committed a mistake, the officer there was to be found as a person, who was not under the disability because the Court was of the opinion that only if a charge has been framed by the Trial Court, it should have been possible to assume that criminal proceedings were pending. So long as a charge sheet had not been filed in the court, it would not tantamount to pendency of criminal proceedings. Although we could not find the extracted portion of the explanation in the Regulations, as appearing in the current texts, the discussions are sufficient to show how the position has to be interpreted.
12. Our attention had also been invited to a decision reported as Union of India & Ors. Vs. Sangram Keshari Nayak (2007 (6) SCC 704) in respect of a situation where sealed cover procedures were to be adopted, which substantially relied on Union of India Vs. K.V. Jankiraman (1991 (4) SCC 109). It had been reiterated that adopting of a sealed cover procedure before issue of charge sheet was invalid and this led to wrongful denial of promotion to an employee.
13. However, it was a case where departmental proceedings had been envisaged and not criminal proceedings. But the legal position had been explained that the instructions do not permit sealed cover proceedings to be adopted on a date, where there was only contemplation of disciplinary action and there was no case of suspension or criminal proceedings. The leading case on the subject is K.V. Jankiraman, referred to earlier. The Supreme Court was considering the scope of the instructions dated 30.01.1982. As could be gatherable from Paragraph 8 of the judgment, one of the questions involved was what is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee. The matter had arisen from an order passed by the Administrative Tribunal. The issue in relation to criminal proceedings had been dealt with in Paragraphs 16 to 18 of the judgment which are extracted below:
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 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 would 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. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows:
"(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;
(2)...................................................
(3).......................................
(4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;"
17. There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench-has intended, the two conclusions can be reconciled with each other. 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. Thus read, there is no inconsistency in the two conclusions.
18. We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal. The ultimate conclusion was that the sealed cover proceedings can be resorted only after a charge sheet is filed before the criminal court and not before.
14. We note that the finding as above was in spite of the instructions, which authorized sealed cover proceedings when sanction for prosecution had been given by the Government. But as far as the present instructions are concerned, Annexure R-1 does not include such a clause at all. This is all the more reason for us to come to a conclusion that sealed cover procedure could not have been initiated, when a charge sheet had not been presented in the court. The submissions on behalf of the applicant that what was attempted was only to tarnish the image of a Minister, and along with her officers were implicated, without a reason, can assume relevance. The circumstance cannot be ruled out, especially in the light of the observations of the Supreme Court.
15. We may also at this point advert to certain other paragraphs in the guidelines Annexure R-1. The Government was aware that pendency of disciplinary proceedings and criminal proceedings, were likely to interfere with the rights of persons to enjoy due promotions. Paragraph 19 of the norms, therefore, refers to three-monthly review of sealed cover cases. It was to ensure that disciplinary cases and criminal proceedings are not unduly prolonged and expeditiously they have to be concluded. We hardly find any effort taken by the State Government to get the matter finalized, and the suggestion as coming from the applicant is that the Government finds it difficult to extricate itself from the difficult position.
16. There are allegations against a number of persons including a Minister for conspiracy and also an FIR has been lodged. But no progress whatsoever has been made in the matter of prosecution or follow up action. Too large a chunk in the career of an officer is put to fritter. His efficiency and enthusiasm for turning out better work is likely to be adversely affected. The guidelines were intended to see that contemplation of proceedings were not put as a reason for denying promotion. This will result in harassment, which cannot be adequately compensated in case ultimately proceedings are dropped or there is a case of acquittal.
17. In the light of the observations of the Honble Supreme Court, we are of the opinion that the sealed cover proceedings adopted, was an irregular procedure. The applicant ought to have been considered along with his batch mates without any discrimination. Now that the proceedings are lingering for almost twelve years, we can only direct that the sealed cover kept in respect of the applicant for the year 2000 should be opened and if he is found fit for appointment to the selection grade, the benefits are to be extended to him. Likewise, his promotability to a supertime scale also should be reckoned with reference to the sealed covers, which are already there. Appropriately opening them, depending upon the recommendations, such benefits are to be given over to him.
18. We further direct that taking notice of the totality of the circumstances, the applicant will be entitled to a fixation, as if he had been conferred the appointments and promotions from the eligible dates from which such benefits are now to be conferred on him. The monetary benefits to which he is likely to be entitled to because of this exercise are to be paid over to him expeditiously. The O.A. stands allowed. We make no order as to costs.
(N.D. DAYAL) (M. RAMACHANDRAN) MEMBER (A) VICE CHAIRMAN (J) `SRD