Central Administrative Tribunal - Chandigarh
By: Mr. D.R.Sharma vs K.V. Jankiraman Etc. Air 1991 Sc 2 on 19 September, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH O.A.No.436-PB-2012 Order pronounced on: _______ (Order reserved on: 19.09.2013) CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) HONBLE MS. RAJWANT SANDHU, MEMBER (A) Maninder Pal Singh S/o Sh. Manohar Singh, aged about 33 years, presently posted as Examiner (Inspector) at Custom Preventive Commissionerate, Amritsar (Punjab). By: Mr. D.R.Sharma, Advocate. Applicant 1.Union of India through Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi. 2.Commissioner of Customs, Central Excise and Service Tax, ICE Building, EDC Complex, Plot No. 6, Patto Plaza, Panji, Goa. 3.The Chief Commissioner of Customs (General), New Custom House, Ballard Estate, Mumbai. 4.Commissioner of Central Excise, Chandigarh-I through its Commissioner, Central Revenue Building, Plot No., 19, Sector: 17-C, Chandigarh. By : Mr. Sanjay Goyal, Advocate. Respondents O R D E R
HONBLE MR. SANJEEV KAUSHIK ,JM
1.The applicant has filed this Original Application under section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:
i) That the impugned order dated 14.3.2011 (A-1) be quashed and set-aside.
ii) That respondents be directed to consider the applicant for promotion to the cadre of Appraiser with effect from the date his juniors have been promoted.
2.The facts are to be noticed first. The applicant, who belongs to Scheduled Caste Category, was appointed as a Examiner on 20.7.2005. On his own request, he came to be posted on deputation to Amritsar Commissionerate in September, 2007. Presently, he is working at Headquarters, Amritsar Commissionerate. In pursuance of initiation of an enquiry in a fraud case relating to fraudulent availment of duty drawbacks by 3 firms named therein, the applicant was placed under suspension in April, 2009. An FIR was registered against him on 10.6.2009 under sections 120B, 420 IPC, Section 13 (2) read with 13 (1)(d) of Prevention of Corruption Act and Section 66 of I.T Act,2009, However, the suspension of the applicant was revoked on 23.10.2009.
3.The next channel of promotion is to be post of Appraiser from the cadre of Examiner. In the seniority list of Inspector (Examiner) as on 1.1.2011 (A-2), the name of the applicant is at Sr. No. 428. On 24.1.2011, a Departmental Promotion Committee (DPC) held its meeting for promotion to the post of Appraiser. The respondents issued the promotion orders in which the name of the applicant was missing whereas names of his juniors i.e. Sh. Rajesh Kamble (Sr.No.427) and Sh. Anil Kumar (Sr.No.430) were included.
4.The applicant submitted a representation dated 10.2.2011 (A-3) that as on 25.1.2011 i.e. when DPC met there was nothing against him which could prevent his promotion. It was followed by a reminder dated 25.2.2011 (A-4). However, the claim of the applicant was rejected vide order dated 14.3.2011 (A-1) on the ground that his case was not considered for want of ACR for 2008-09 and Vigilance status.
5.The CBI submitted its final report/Challan under section 173 Cr. P.C. on 14.3.2011 (A-5).
6.Thereafter the applicant was charge-sheeted on 4.6.2011 (A-6) qua same charges which were part of criminal proceedings.
7.The applicant submitted a representation dated 25.11.2011 (A-7) that events which took place subsequent to date of meeting of DPC (25.1.2011) cannot be used to deny him promotion. Finding no response, he has filed this Original Application, with the relief reproduced above.
8.Pursuance to the notice, the respondents entered appearance and filed reply. They submit that the CVC in its advice dated 23.11.2010 had desired that the prosecution as well as the disciplinary proceedings be initiated against the applicant. The DPC did not consider case of the applicant in its meeting held on 25.1.2011 as ACR for 2008-09 was not available and due to vigilance status. They submit that as per letter dated 21.4.2010 it was intimated that prosecution was sanctioned by Commissioner, Goa, vide order dated 3.2.2011. The promotion order was issued on 4.2.2011.
9.They submit that since, in terms of para 4 of O.M. No. 22011/4/91-Estt. (A) dated 14.9.1992, he was not clear from vigilance angle and as such the promotion orders could not be issued in his favour.
10.We have heard Mr. D.R. Sharma, learned counsel for the applicant and Mr. Sanjay Goyal, learned counsel for the respondents.
11.The learned counsel for the applicant vehemently argued that the crucial date for considering as to whether there was any disciplinary case or a criminal case pending against an employee falling within the zone of consideration for promotion, is when the DPC meets and in this case the DPC met on 25.1.2011 and as on that date there was nothing pending against the applicant. The FIR came to be registered against him only on 10.6.2009 and the challan was presented subsequently on 14.3.2011. The charge sheet in disciplinary case too came to be issue on 4.6.2011. Both these events took place subsequent to the date of holding of meeting of DPC and as such the same could not be taken into consideration by the authorities while issuing the promotion orders of the applicant. He further submitted that due to non-availability of ACR for the year 2008-09 he cannot be made to suffer as he has no role to play in the same. If the ACR was not written by Reporting/Reviewing Authority, the DPC should treat it as no report and could clear the promotion of the incumbent. Once his juniors have been promoted, he cannot be made to suffer more so when there is no fault on his part. As per law laid down in Union of India Vs. K.V. Jankiraman etc. AIR 1991 SC 2010, when a charge-memo in a disciplinary proceedings or a charge sheet in a criminal case is issued to the employee, only then it can be said that the proceedings stand initiated. Sealed cover procedure is to be adopted only after charge memo/charge sheet is issued and not prior thereto. This view was followed in Union of India Vs. Smt. Sudha Salhan (Annexure A-9). He also invited our attention to Office Memo No.22011/4/91-Estt.(A) dated 14.9.1992 (A-1) as per which Sealed Cover Procedure can be adopted only if
(i)Government servants are 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.
He submits that none of the above eventualities being available in this case, the DPC/respondents could not have refused to consider the case of the applicant or issue his promotion order.
12.Per contra, learned counsel for the respondents reiterated the submissions made in the reply statement. He reiterated that in view of the sanction for prosecution of applicant having been given on 3.2.2011, his name could not be included in the promotion order issued on 4.2.2011.
13.We have considered the rival submissions made on behalf of learned counsel for the parties and perused the material available on record.
14.From the pleadings of the parties it can safely be culled out that the DPC in its meeting held on 25.1.2011 for considering case of Examiners for promotion to the post of Appraiser has not at all considered the case of the applicant inasmuch as the impugned order clearly states that DPC did not consider his case for want of ACR for 2008-2009 and Vigilance status and as such the question of putting the case of the applicant in sealed cover procedure or otherwise does not arise at all.
15.The only objection for denial of promotion to the applicant is on the premise that the prosecution sanction had been issued on 3.2.2011 and promotion orders were issued on 4.2.2011. We have not been shown any instructions or rule under which such a course of action may be permitted. In any case as observed above, in this case the DPC has not even considered the case of the applicant and as such he was not empanelled and therefore, question of issuing any promotion order does not arise.
16.A learned Coordinate Bench of this Tribunal i.e. C.A.T. Ahmedabad Bench in O.A.No. A.D. Khadtare vs Union Of India and Ors. decided on 17 July, 2001 has thrashed the issue of denial of consideration for promotion on the ground of issuance of prosecution sanction etc. threadbare holding as under :-
8. So far the sealed cover procedure adopted by the respondents is concerned, the law in this regard is well settled in view of the decision of the Supreme Court in Union of India v. K.B. Jankiraman and various decisions thereafter. The DPC could have adopted the sealed cover procedure, if the applicant on the date on which the DPC met was facing any departmental proceedings or was under suspension or a charge sheet in a criminal Court was filed against him. If none of the above mentioned factors were in existence, then, it was not open for the DPC to adopt the sealed cover procedure for the applicant. Since none of the above contingencies were in existence so far the case of the applicant was concerned when the DPC met, the DPC had rightly selected the applicant and placed him on panel for promotion. In the case of Union of India v. Dr. (Mrs.) Sudha Salhan, 1998(5) SLR 473, relying on the decision in the case of K.B. Jankiraman, (1991) 4 SCC 109, the Supreme Court has observed as under:--
"4. The question, however, stands concluded by a Three-Judge decision of this Court in Union of India and Ors. v. K.B. Jankiraman and Ors., 1991(4) SCC 109 : [1991 (5) SLR 602 (SC)] in which the same view has been taken. We are in respectful agreement with the above decision. We are also of the opinion that if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the "sealed cover" procedure cannot be adopted. The recommendations of the Departmental Promotion Committee can be placed in a "sealed cover" only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officer, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the recommendations of the Departmental Promotion Committee would be opened, and the recommendation would be given effect to."
These observations stipulates that the recommendations of the Departmental Promotion Committee can be placed in sealed cover only and only if some departmental proceedings were pending or initiated or any criminal charge sheet had been filed and the criminal trial was pending or such person was under suspension. The sealed cover procedure is nowhere contemplated in the case of sanction to prosecute. In the O.M. dated 14.9.92 of the Govt. of India, the sealed cover procedure is neither contemplated nor recommended in the cases where sanction for prosecution is granted. The reason is obvious. The sanction for prosecution may or may not result into the filing of the charge sheet against the accused and on subsequent criminal trial, the agency who has obtained the sanction for prosecution may on the receipt of further evidence decide of not filing the charge sheet against the accused person. The Govt. may also subsequently revoke the sanction for prosecution. The same can also be set aside by the Courts if challenge therein. Hence a sanction for prosecution does not bring a Govt. servant, against whom the same is obtained, under a cloud. His promotion can be withheld only if the sanction for prosecution is ultimately converted into a criminal charge sheet against him and the charge sheet is filed in the criminal Court. Merely because the sanction for prosecution is obtained against a particular Govt. servant, he cannot be debarred from getting his due promotion, all the more when he is found suitable for the same and selected by the DPC. We are therefore of the opinion that it was not open to the respondents to adopt sealed cover procedure and keep the name of the applicant in sealed cover when his turn for promotion had come. We also hold that the adoption of the sealed cover procedure by the respondents in the case of the applicant was contrary to the guidelines issued in this regard and contrary to the settled law in this regard. Since there was no other reason for not promoting the applicant to the post of Commissioner, Central Excise and Customs, we hold that the action of the respondents in not promoting him when his turn came was clearly arbitrary and illegal.
17. The observation made by a co-ordinate Bench of this Tribunal clinches the issue in favour of the applicant. In this case apparently on the crucial date i.e. 25.1.2011 when the DPC met, there was nothing against the applicant and as such a consideration for promotion could not be denied to him. The Kerala High Court in OP (CAT) No. 4305 of 2011 - Union of India etc. Vs. Thottathil B. Radhakrishnan & Others, while considering the O.M. dated 14.9.1992 has held that the question of a Government servant being treated as one against whom prosecution for criminal charge is pending would arise only depending on the question whether the Court had framed charge against the employee at any time before the DPC in question. The Honble High Court held that Tribunal had rightly held that on relevant date when the DPC considered them for promotion there was no criminal case pending against them. This finding cannot be found fault with on ground that there is an erroneous interpretation of the applicable laws concerned or on any ground of jurisdiction. Qua point of prosecution sanction a co-ordinate Bench of this Tribunal in O.A.No. 2682/2010 P.S. Narang Vs. Govt. of NCT of Delhi & Others decided on 20.10.2010 has held that only because of prosecution sanction, promotion to an employee cannot be denied. It was held that prosecution sanction is not an impediment for denying promotion to an employee, which is his fundamental right guaranteed under the Constitution of India.
18. The other ground or non consideration of the case of the applicant is that his ACRs for 2008-09 were not available. It is not the stand of the respondents that the applicant was instrumental in non-availability of the relevant ACRs and such non-availability of ACR cannot be used as a ground to deny consideration for promotion to an employee. Thus, we are left with no alternative except to hold that the impugned order, deserves invalidation.
19. In view of the above discussion, this Original Application is allowed. The impugned order, Annexure A-1 is quashed and set aside. The respondents are directed the consider the case of the applicant for promotion to the post of Appraiser by conducting a review DPC as per rules and law and observations made here-in-above, within a period of two months from the date of receipt of a certified copy of this order. If the applicant is found entitled to the benefit, he shall be extended promotional benefit from the date his juniors have been so promoted, within period aforesaid. No costs.
(SANJEEV KAUSHIK) MEMBER(J) (RAJWANT SANDHU) MEMBER (A) Place: Chandigarh Dated: ________ HC*