Central Administrative Tribunal - Gauhati
Shri Ratnadeep Dutta Roy vs M/O Railways on 12 April, 2019
1
CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No. 040/00177/2017
Date of Order: This, the 12th Day of April 2019
THE HON'BLE SMT. MANJULA DAS, JUDICIAL MEMBER
THE HON'BLE MR. NEKKHOMANG NEIHSIAL, ADMINISTRATIVE MEMBER
Sri Ratnadeep Dutta Roy
Son of Mrinal Kanti Dutta Roy
Presently residing at B-402
Gokul Dham Apartment
Ananda Nagar, Pandu Port Road
Guwahati - 781012
P.S. - Jalukbari, Dist - Kamrup (M), Assam.
...Applicant
By Advocates: Mr. A. Chamuah, P.P. Borthakur & Mr. K. Roy
-Versus-
1. The Union of India
Represented by the Secretary
To the Govt. of India
Ministry of Railways, New Delhi - 110001.
2. The General Manager
NF Railway, Maligaon, Guwahati - 781011
Dist - Kamrup (Metro), Assam.
3. The Financial Adviser & Chief Accounts Officer
N.F. Railway, Maligaon, Guwahati
Pin - 781011, Kamrup (Metro), Assam.
4. The Deputy Chief Accounts Officer
N.F. Railway, Maligaon, Guwahati
Pin - 781011, Kamrup (Metro), Assam.
...Respondents
By Advocate: Mr. H.K. Das, Rly Advocate
2
ORDER
NEKKHOMANG NEIHSIAL, MEMBER (A):
By this O.A., applicant makes a prayer for a direction upon the respondent authorities to promote him to the post of Assistant Financial Adviser in Group-B from 70% vacancy which is due to the applicant with retrospective effect i.e. from 21.03.2017 with all consequential benefits.
2. Brief facts of the applicant are that as follows:-
5.i) The promotion, transfer and posting orders issued by Office of the FA &Chief Accounts officer, N. F. Railway, Maligaon vide Office Order No.-G/133(16-17), dated - 21/03/2017 is ex facie illegal as well as punitive in nature. The said order of promotion, transfer and posting is violative of the rules formulated by the Govt. of India, Ministry of Railways (Railway Board).
5.ii) The applicant's name had already been borne on a suitability list for promotion ide office order No. PN/AD/62/162/Pt.XIX (70%) dated -
21/12/2016 issued by the Office of the FA & Chief Accounts Officer, N.F. Railway, Maligaon. That it is a settled principle of law that a Railway servant shall not be promoted even if already borne on a selection panel/suitability list if (i) railway servant is under suspension; (ii) Railway servant in respect of whom a charge- sheet for major penalty has been issued and the disciplinary proceedings are pending; and
(iii) Railway servant in respect of whom prosecution for a criminal charge pending. None of these conditions is applicable to the case of the applicant. Applicant shall not be denied of his promotion solely on the ground of 3 a pending F.I.R. on 21/03/2017 and hence Office Order No. G/133(16-17), dated 21/03/2017 is out illegal and against the settled proposition of law.
3. The respondents submitted their written statement on 19.03.2018. Among others, they have highlighted at para 5 and 9 as follows:-
"5. That against the averments made by the applicant in Para 4 (d) of the original application, the answering respondents beg to state that an FIR was registered by the CBI/ACB Guwahati against theapplicant for Criminal Conspiracy and Misconduct and the matter was under
investigation by the CBI/ACB Guwahati. Moreover, the FIR was lodged under Section 120B, 420, 467, 468 and 471 IPC along with Section 7 and 13 (2) read with 13 (1) (d) of Prevention of Corruption Act' 1988. Here Section 120B is "punishment for Criminal Conspiracy", Section 420 is "Cheating and dishonestly inducing delivery of property", Section 467 is "Forgery of valuable security, will etc", Section 468 is "Forgery for the purpose of Cheating" and Section 471 IPC is "using as genuine a forged document or electronic record". Again Section 7 of P.C. Act is "Public Servant taking gratification other than legal remuneration in respect of an official act", Section 13 (2) is "punishment for committing criminal misconduct" and Section 13 (1) (d) is "criminal misconduct by public servant." It is stated that the allegation against the applicant are very much serious in nature. Therefore the promotion of the applicant was not considered in terms of railway board's letter as well as DoPT guidelines."
"9. That with regard to the averments made by the applicant in Para 4 (h) of the original application the answering respondents while denying the contentions made therein beg to state that FIR has already been registered against the applicant by the CBI/ACB/Guwahati on 06.01.2017 and the Learned Special Judge, CBI issued direction to register the FIR on 07.01.2017.4
Thereafter, on 14.02.2017 the Learned Court issued search warrant to conduct search in the residential premises of all the three accused. The DoPT issued O.M. dated 02.11.2012 on the subject "Comprehensive review of instructions pertaining to vigilance clearance for promotion-regarding. The Para 8 provides as follows:-
8. As regard the stage when prosecution for a criminal charge can be stated to be pending, the said O.M. dated 14.09.1992 does not specify the same and hence the definition of pendency of judicial proceedings in criminal cases in Rule 9 (6)(b)(i) of CCS (Pension) Rules' 1972 is adopted for the purpose. The Rule 9 (6)(b)(i) of CCS (Pension) Rules' 1972 provides as under:-
(b) judicial proceedings shall be deemed to be instituted.
(i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made."
4. The case was finally heard on 06.02.2019. During hearing, there was a duel of lengthy arguments between the two learned counsel of both the parties on issue of specific time or stage when the 'Magistrate takes cognizance of the offence'.
5. Having given full opportunities to both parties, the learned counsel were allowed to submit their written arguments. Accordingly, the learned counsel for the parties have submitted their written arguments. On going through the written arguments of both the parties, it is observed that there nothing new or additional but making the repetition of the arguments already averred during 5 hearing. The learned counsel for the applicant at paras 2 & 3 of his written argument submitted as under:-
II. It is submitted in the instant case that the FIR was filed on 06.01.2017 and the Special Judge, CBI, Assam on 07.01.2017 ordered for registering the FIR. On 14.02.2017 on the prayer of the Investigating Officer, CBI, Assam, the Special Judge granted permission to make a search in the house of the applicant (i.e. accused Sri Ratnadeep Dutta Roy).
In respectful submission of the applicant the said orders are regular procedure to be observed or maintained in a case under the P.C. Act. Therefore, it is inappropriate rather wrong to say that the said two orders are orders taking cognizance of the offence by the Special Judge, Assam.
III. Since the respondent railway vide notification dated 2nd November, 2012 has adopted the aforesaid Rule 9(6)(b)(i) of the Central Civil Services (Pension) Rules, 1972 for the purpose to explain as to when the judicial proceedings shall be deemed to be instituted, it can well be seen from the aforesaid provisions that the competent Court must take cognizance on the report of the Police Officer on or before the date of the actual promotion effected to the other eligible candidates who are equivalent or junior to the applicant. In the instant case, the relevant important dates are:
(a) FIR filed on 06.01.2017.
(b) Charge Sheet filed on 28.12.2017.
(c) Prosecution sanction issued on 01.01.2018.
Whereas
(d) The other similarly situated persons from the same
select list were promoted on 21.03.2017."6
6. As regards the submission of the learned counsel for the respondents, he has highlighted once again at para 6, 9 & 12 as under:-
(6) The Sr. AFA/AD for FA & Chief Accounts Officer, N. F. Railway, Maligaon issued the communication date 16.05.2017 rejecting the prayer of the applicant as follows:
"With reference to the above it is intimated that, on the basis of report received from the concerned authority on your alleged criminal conspiracy and misconduct under investigation by CBI, ACB, Guwahati, your promotion has not been considered in terms of Railway Board's letter No. E(D&A)92 RG 6-149(A) dated 21.01.1993."
In this context it is pertinent to mention here that the said rejection order dated 16.05.2017 has not been challenged by the applicant.
(9) The respondents contended that the Hon'ble Court of Special Judge, CBI vide order dated 01.01.2016 "Seen" the FIR of RC 1(A)/2017-GWH, which is a police report filed against applicant and two others after investigation. Meaning thereby the Hon'ble Court of Special judge, CBI, Guwahati exercised his jurisdiction and took cognizance of the offence on 06.01.2017. By another order dated 14.02.2017 the Hon'ble Court of Special Judge having gone through the records as well as relevant provisions of law directed issuance of search warrant to conduct search in the residential premises of accused applicant along with other two accused in the address/location shown in Annexure - A of the petition. Be that as it may, the Hon'ble Court of Special Judge, CBI, Guwahati assumed jurisdiction of the case and after application of mind passed the order dated 07.01.2016.
7(12) The respondents submitted that in the instant case the CBI authorities received the complaint through SDGM, N.F. Railway Maligaon on 10.03.16. Thereafter, a detailed investigation was carried out by the CBI which revealed commission of offence u/s 120/B, 420, 467, 468 and 471 I.P.C and Section 7 and 13(2) R/W 13(1)(d) of P.C. Act 1988 by the applicant along with other persons. The CBI authority submitted its police report on 06.01.2017. The Hon'ble Court of Special Judge, CBI, Assam vide order dated 07.01.2017 after application of mind assumed jurisdiction and took cognizance of the offence after directing to register the FIR. In view of the aforesaid facts of taking of judicial notice by the Hon'ble court of Special judge, CBI, Assam and taking into consideration Para 8 of the DoPT Om dated 02.11.2012, it can be conclusively constructed that prosecution for a criminal charge can be stated to be pending on 07.01.2017 when Hon'ble Special judge, CBI, Assam took judicial notice of the case. Hence, case of the applicant squarely falls in the category (iii) of the DoPT OM dated 14.09.1992. The batch mates of the applicant were promoted on 21.03.2017. Therefore, prosecution for criminal charge remaining pending after judicial notice of the Hon'ble Court of Special Judge, CBI, Assam prior to the crucial date i.e. 21.03.17, the applicant will not be entitled for promotion as per Para 3.1 of the Railway Board's circular dated 21.04.1993.
7. The two crucial questions which fall for consideration by the Tribunal in view of Railway Board circular dated 21.01.1993 and O.M. dated 02.11.2012 are as follows:-
(i) When a magistrate can be said to have taken cognizance of the offence.
(ii) Whether pendency of prosecution for criminal charge after empanelment and before the officer was actually promoted will debar the applicant for 8 promotion in view of Para 3.1 of the Railway Board's Circular dated 21.01.1993."
In addition to this, our attention was drawn by the learned counsel of the respondents law cases amongst others viz:-
1. A.C. Aggarwal, Sub-Divisional Magistrate, Delhi and another Vs. Mst. Ram Kali reported in AIR 1968 SC 1 at para 12.
2. Dr. Subramanian Swamy Vs. Dr. Manmohan Singh and another reported in (2012) 3 SCC 684 at para 21 and 22.
3. State of U.P. Vs. Paras Nath Singh reported in (2009) 6 SCC 372 at para 4.
8. We have considered carefully the pleadings, arguments and submissions made by the parties. From the records, it is very clear that the FIR against the applicant was filed on 06.01.2017 and the Hon'ble Court of Special Judge, CBI, Assam vide order dated 07.01.2017 ordered to register the same. It is a fact that the Judge took cognizance of the contents of the FIR and then directed to register the FIR on this date. Accordingly, the Tribunal is of the view that on this date, since the FIR has been ordered to be registered under his authority, condition as stipulated at para (iii) of the Govt. of India, Ministry of Railways under No. E(D&A)92 RG 6-149(A) dated 21.01.1993 para ii & iii, Annexure-8, page 18 of the O.A. is found to have been fulfilled.
9Accordingly, it is held that the decision of the competent authority not to promote the applicant along with others in the promotion order No. G/133(16-17) dated 21.03.2017 as communicated in his letter No. CAO/Conf/3/Pt.IV dated 16.05.2017 does not suffer from any legal infirmities. Accordingly, O.A. is liable to be dismissed. The O.A. is therefore dismissed.
8. No order as to costs.
(NEKKHOMANG NEIHSIAL) (MANJULA DAS)
MEMBER (A) MEMBER (J)
PB