Central Administrative Tribunal - Mumbai
Ashok Kumar Narang vs Union Of India (Uoi) And Ors. on 6 February, 2006
Equivalent citations: 2006(3)SLJ36(CAT)
ORDER
A.K. Agarwal, Vice Chairman
1. This O.A. has been filed by the applicant seeking a declaration that this promotion to the post of Chief Enforcement Officer has become final and it cannot be reviewed any more.
2. The facts of the case, in brief, are as follows. The applicant was initially appointed as Assistant in the Directorate of Enforcement in December, 1975 and the applicant was promoted to the post of Enforcement Officer in December, 1982. Thereafter, vide order dt. 11.11.1998, he was promoted to the present post of Chief Enforcement Officer. The applicant has stated that as Enforcement Officer when he was interrogating a foreign exchange racketeer on 28/29th February, 1992 the said person made a bid to escape by jumping from the window of the 6th floor of Delhi Zonal Office of respondent No. 2 which resulted in his death. It has been further mentioned by the applicant that the deceased at that point of time was a proclaimed offender for evading the execution of the COFEPOSA detention orders in respect of the smuggling case detected by the Directorate of Revenue Intelligence. The deceased had also served a term of 4 years imprisonment at Cyprus for using forged Travellers' Cheques and counterfeit passport. When the report of death of foreign exchange racketeer was flashed in the Newspaper, the Hon'ble Supreme Court of India took cognizance and ordered an inquiry by an Additional Sessions Judge. Thereafter, on the basis of the enquiry report, the Hon'ble Supreme Court directed CBI to register an FIR and to investigate the case in accordance with law. The CBI filed a charge sheet in the Court of Metropolitan Magistrate, New Delhi for alleged commission of offences under Sections 306 and 330 of IPC read with Section 34 of IPC. This case is still pending in the Court.
3. The applicant has stated that Government of India, Department of Revenue has already taken a decision to defend the applicant including other Enforcement Directorate officials chargesheeted by the CBI in the said criminal case. The Government also issued sanction for the engagement of two private Senior Advocates on agreed fee vide order dt. 10.2.1994.
4. The applicant has submitted that the chargesheet filed by the CBI in the Criminal Court in December, 1993 was still pending when he became eligible, in terms of his seniority for promotion to the post of Chief Enforcement Officer by the end of the year 1977. The DPC which met on 13.11.1997 recommended the applicant for promotion. The applicant has contended that the DPC did not keep its recommendations in a sealed cover in terms of DOPT O.M. dl. 14.9.1992, but made a specific recommendation for his promotion. The Director of Enforcement i.e. R2, promoted the applicant to the post of Chief Enforcement Officer vide order dt. 11.11.1998 and the applicant took charge on 23.11.1998 and has been holding that post since then. The applicant has mentioned that one Shri P.V. Balasubramaniam Enforcement Officer, against whom departmental proceedings were pending, was not given promotion as Chief Enforcement Officer and the DPC kept its recommendations pertaining to Shri P.V. Balasubramaniam in a sealed cover as per the instructions contained in DOPT O.M. dt. 14.9.1992. It has been further mentioned by the applicant that charge against Shri P.V. Balasubramaniam was of corruption and when he made a representation stating therein that the applicant has been given a promotion despite pendency of criminal case the respondents referred the matter for consideration by a Review DPC which arrived at conclusion that the facts of the case of the applicant and of Shri P.V. Balasubramaniam were not identical or similar and as such there was no case to disturb the continuance of the applicant from the promoted post of Chief Enforcement Officer. Thus, the review DPC which met on 30.10.2001 confirmed the recommendations of the earlier DPC and action taken thereon by the respondents.
5. The applicant has stated that Shri P.V. Balasubramaniam has been submitting representations whenever there is a change of the incumbent on the post or any Director of Enforcement, Respondent No. 2 had again ordered another review DPC to review the ease of the applicant. However, the applicant made two representations to R2 one on 11.2004 and another on 16.11.2004 with a pleading not to hold any more Review DPC. Despite all this, another review DPC met on 17.11.2004 and based on its recommendations R2 made a reference to respondent No. 1 to examine the matter and also to obtain advice from DOPT and Ministry of Law. The applicant has submitted that R2 has again ordered holding of another review DPC on 8.6.2005. The applicant who was promoted as Chief Enforcement Officer on a regular basis vide order dt. 11.11.1998 and has been continuously working since then has been aggrieved by such action of the respondents. Hence, this O.A.
6. The learned Counsel for the applicant submitted that the first DPC which met on 13.11.1997 and recommended the name of the applicant for regular promotion was apprised of all the relevant facts. He contended that nothing was suppressed from the DPC and it was also aware of the guidelines issued by DOPT vide O.M. dt. 14.9.1992 for regulating the promotions for persons against whom disciplinary inquiry/Court cases are pending. The DPC after due deliberations and keeping in view the record of the applicant recommended the applicant for regular promotion. The learned Counsel submitted that the case against the applicant is not of corruption or of moral turpitude. In fact, he had caught a smuggler and when the latter was cornered he committed suicide by jumping out of window. A case was registered by the CBI against the applicant and the Court has framed charge under Section 306 IPC relating to abetment for suicide. The learned Counsel for applicant stated that the complainant Shri P.V. Balasubramaniam was engaged in a theft case and on his non-promotion, he started complaining against the applicant and the department after receiving such complaints referred the matter for review to another DPC which met on 30.10.2001. The review DPC also confirmed the recommendations made by the first DPC in favour of the applicant for promotion. The learned Counsel contended that the very fact that the Government of India is bearing the cost of Lawyers to defend the applicant in a criminal case proves beyond any doubt that the applicant is not guilty of any mis-conduct. The learned Counsel submitted that as per instructions contained in Para 16.5.1 of DOPT O.M. dt. 29.4,1989, an Appointing Authority has to take the decision within three months on the recommendations of a DPC. The decision of the Appointing Authority taken on the recommendations of the DPC held on 11.11.1998 and 30.10.2001 has become final. There is no provision for any further review of such decision. The learned Counsel for the applicant has relied upon a verdict of Delhi High Court given in the case of R.L. Rathore v. Delhi Power Supply Co. Ltd. 2004 (2) SLJ 265, wherein it was held that the promotion given, during the pendency of the proceedings, without any conditions shows that the proceedings were ignored. In the cited case the promotion order did not mention that the promotion is subject to the outcome of the disciplinary proceedings. The learned Counsel submitted that Delhi High Court in its judgment has relied upon a ratio laid down by the Apex Court in the case of DDA v. Ashok Kumar SLP (Civil) 24710/95, wherein the Apex Court held as follows:
It is further well-settled that when a person is promoted without any demur whatsoever, unless it is shown that his promotion was subject to the order of disciplinary proceedings either contemplated or pending, it would he presumed that the same has been condoned.
7. The learned Counsel for applicant concluding his submissions stated that keeping in view the facts that the applicant has been promoted on a regular basis vide order dt. 11.11.1998 without any attached conditions, has been working on that post for more than 7 years. Moreover, even in the criminal case where the charge framed is abetment to suicide done by a smuggler, the applicant is being defended at the cost of the Government. Therefore, the relief sought in the O.A. should be allowed.
8. The learned Counsel for respondents, mentioned that by filing this O.A. the applicant has not challenged any specific order of the respondents. The respondents have not issued any order as yet against the applicant, hence the O.A. is premature and not tenable. The learned Counsel stated that DOPT O.M. dt. 14.9.1992 specifically lays down conditions for promotion of Government servants against whom disciplinary/Court proceedings are pending and as per the contents of this O.M. the applicant could not have been given promotion on regular basis. The DPC held on 13.11.1997 did not take into consideration this provision and even the review DPC which was held on 30.10.2000 some how also missed it. When the matter was re-examined in the department it was decided to obtain opinion of DOPT as well as of Department of Legal Affairs. DOPT has advised that the regular promotion given to applicant is against the provision of their O.M. dt. 14.9.1992 which allow only giving of ad hoc promotion when the Court proceedings are being delayed for a period of more than 2 years. The learned Counsel contended that department does not want it to become a wrong precedent, therefore the decision of the department to place the matter for review before a DPC is perfectly in order. A review can always be held to rectify certain unintentional mistakes. The learned Counsel contended that filing of O.A. at this stage is premature. The applicant can agitate the matter in case the recommendations of proposed review DPC goes against him. In view of such facts, the learned Counsel for respondents argued that the O.A. deserves to be dismissed.
9. The learned Counsel for the applicant in reply stated that in Para 4.19 of O.A. a specific averment has been made that R2 has wrongfully ordered the holding of another review DPC on 8.6.2005 and this has not been denied by the respondents in their written statement. On the other hand, the respondents have specifically mentioned in Para 15 of the written statement that "as regards contents of 4.19 of the O.A. no remarks are necessary". The learned Counsel for the applicant contended that the order of respondents of holding another review DPC gives a cause of action to the applicant and it cannot be argued that the O.A. has been filed prematurely.
10. We have heard both the learned Counsel and have perused the material placed on record. We have also gone through the minutes of the meetings of various DPCs along with other relevant material submitted by the respondents in a sealed cover.
11. The main relief sought by the applicant is that his promotion to the post of Chief Enforcement Officer should not be reviewed any more. The argument put forth from the respondents side that so far no decision has been communicated to the applicant regarding review and therefore, the O.A. is premature is not convincing keeping in view the reply given by the respondents in the written statement to a specific averment made in Para 4.19 of the O.A.
12. We notice from the material submitted in sealed cover that the respondents did initiate action for holding another review DPC on 8.6.2005 and the note prepared for the DPC mentions the facts relating to the applicant as well as the advice received from DOPT in his case. Hence the averment made in Para 4.19 of O.A. is not incorrect.
13. We have essentially to examine whether the direction to hold another review DPC is fair and in accordance with rules. The DOPT has issued instructions relating to DPC vide O.M. dt. 10.4.1989 and amended vide O.M. dt. 27.3.1997. There was another short amendment vide DOPT O.M. dt. 13.4.1998 in Part VI of the main instructions relating to review DPC. It has been held in Para 18.1 of this O.M. that the primary objective of holding a review DPC is to rectify any mistake that took place at the time of holding of original DPC. Para 18.3 of this O.M. states as under:
A Review DPC is required to consider the case again only with reference to the technical or factual mistakes that took place earlier and it should neither change the grading of an officer without any valid reason (which should be recorded) nor change the zone of consideration nor take into account any increase in the number of vacancies which might have occurred subsequently.
14. The instructions issued by the DOPT makes it clear that a Review DPC cannot change the zone of consideration or the number of vacancies. Further, the Review DPC should also not change the grading of an officer without any valid reason (which should be recorded). Thus, the Review DPC is required to consider the case again only with reference to the technical or factual mistakes that took place earlier. In this case, the stand of respondents is that neither the original DPC which met on 13.11.1997, nor the Review DPC held on 13.10.2001 took into consideration the instructions relating to the recommendations for the persons against whom disciplinary/Court proceedings are pending. These instructions were issued by DOPT vide O.M. dt. 14.9.1992 and were very much in force when the original DPC was held on 13.11.1997. As per the instructions the details of Government servants in the zone of consideration against whom prosecution for a criminal charge is pending should be specifically brought to the notice of the DPC. The assessment of DPC in such cases along with grading awarded will be kept in a sealed cover to be opened after the conclusion of disciplinary case/criminal proceedings. In this case when DPC met on 13.11.1997 prosecution against the applicant was pending in a Criminal Court. Therefore, going by the instructions of the DOPT the DPC should have kept its recommendations in a sealed cover. The DPC, however, after due deliberations on the case of the applicant decided to recommend him for promotion. The DPC had taken into account the fact that one Shri B.S. Vasudevan, then AC DRI was promoted by Customs and Central Excise Department notwithstanding pending of similar case against him in the Court. The DPC also observed that the charges against Shri Narang are neither of corruption nor of any gross misconduct involving moral turpitude. Further, the Directorate had taken a decision during January, 1996 not to place Narang under suspension and he is being defended at the Directorate's expenses with the sanction of the Government. The DPC in view of such facts recommended the case of the applicant for promotion. The Appointing Authority accepting the recommendations of the DPC promoted the applicant vide order dt. 11.11.1998. It is apparent from the order that the promotion given to the applicant is a regular promotion without any demur and not on ad hoc basis. The papers submitted by respondents in sealed cover do not show that the DOPT O.M. dt. 14.2.1992 was placed before the DPC. This O.M. stipulates that where the disciplinary case/criminal prosecution against the Government servant is not concluded even after expiry of two years from the date of meeting of the first DPC, which kept its findings in respect of the Government servant in a scaled cover, then in such a situation the Appointing Authority may review the case of the Government servant. After review, if the Appointing Authority comes to a conclusion that it would not be against the public interest to allow ad hoc promotion to the Government servant his case should be placed before the next DPC to decide about his suitability for promotion on ad hoc basis. The DOPT O.M. dt. 14.9.1992 further provides that after a decision has been taken to promote the Government servant on an ad hoc basis the promotion order should make clear that "the promotion is being made on purely ad hoc basis and the ad hoc promotion will not confer any right for regular promotion".
15. In the present case, we find that none of the provisions mentioned in para 5,5.1 and 5.2 of DOPT OM dt. 14.9.1992 have been followed. The first DPC did not keep its recommendations relating to applicant in a sealed cover. Based on the recommendations of DPC the Appointing Authority promoted the applicant vide order dt. 11.11.1998 on regular basis. The matter was reviewed by DPC held on 30.10.2001 and it was observed that the recommendations made by the earlier DPC on 13.1.1997 were based upon a conscious application of mind on the facts and circumstances of the said case and since there is no material change in the factual position there is no necessity to disturb the status quo.
16. On another representation made by Shri P.V. Balasubramaniam that the applicant Shri A.K. Narang has been promoted despite a criminal case pending against him, a Review DPC was held on 17.11.2004 and it decided to refer the case to Department of Revenue for advice, if necessary, in consultation with the Ministry of Law and DOPT.
17. We find from the record submitted in the sealed cover that the letter was issued by the Directorate of Enforcement on 6.6.2005 for holding a Review DPC on 8.6.2005. The note for the Review DPC mentions that the Department of Revenue vide its letter dt. 2.2.2005 lias reiterated its position conveyed earlier vide letter dt. 18.11.2004. It mentions that the DOPT vide letter dt. 11.8.2004 has conveyed "as regards the category of Government servants in respect of whom prosecution of criminal charge is pending, the instructions do not differentiate between the criminal charge whether it is of corruption, moral turpitude or of an offence under the IPC. As such these instructions were applicable in the case of Shri A.K. Narang also".
18. We find from the record submitted by the respondents that the note put up for the consideration of the DPC held in November, 1997 simply mentions that a criminal case is pending against Shri A.K. Narang relating to death of one Shri Surinder Singh while under interrogation in the Enforcement Directorate. The provisions of DOPT O.M. dt. 14.9.1992 were neither mentioned in the note nor the said O.M. was enclosed. Thus, there is no substance in the contention of the applicant made in the O.A. that the first DPC had recommended his case for regular promotion being fully aware of the provisions contained in DOPT O.M. dt. 14.9.1992, Secondly, the applicant has also mentioned in the O.A. that the recommendations relating to Shri P.V. Balasubramaniam were kept in a sealed cover which is also not borne out by the records of DPC since we find the name of Shri Balasubramaniam also in the list of persons recommended for regular promotion. However it is not that the DPC was unaware of the sealed cover procedure because recommendation relating to one Shri J.C. Mehta was kept in a sealed cover.
19. A DPC only makes recommendations regarding suitability of Government servants for promotion. It is for the Appointing Authority to ensure that the order issued is in conformity with all relevant instructions on the subject. In the cases of persons facing departmental/Court proceedings instructions contained in DOPT O.M. dated 14.9.1992 have to be complied with. The Appointing Authority promoted the applicant on regular basis fully knowing the fact that criminal proceedings against him were pending in a Criminal Court. When a complaint was received in this regard the matter was reviewed by another DPC held on 30.10.2001 which again held the applicant suitable for promotion from the date as recommended by the earlier DPC. It is a fact that the guidelines contained in DOPT O.M. dt. 14.9.1992 have not been observed. A Review DPC is not supposed to change the grading and in this case the applicant was already graded by (he first DPC as fit for promotion. We do not see any useful purpose being served at this stage by putting the recommendations of the DPC held in November, 1991 in a sealed cover after a gap of almost 8 years when the fact that the applicant was considered suitable for promotion is not only well known, but has also been promoted.
20. Keeping in view facts of the case, we are of the considered opinion that the applicant is entitled for benefit of the ratio laid down by the Apex Court and relied upon by the Delhi High Court while giving its judgment in the case of R.L. Rathore (.supra). Since the promotion order of the applicant dt. 11.11.1998 was unconditional it would be presumed that the fact of pending disciplinary proceedings has been condoned. We, therefore, hold that the suitability of the applicant for promotion to the post of Chief Enforcement Officer adjudged by the DPC in its meeting held on 13.11.1997 and confirmed by the Review DPC dt. 13.10.2001 has become final and cannot be subjected to any further review.
21. The O.A. is allowed as above, with no order as to costs.