Central Administrative Tribunal - Cuttack
Amiya Kanti Patnaik vs Revenue on 5 March, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA No. 260/00402 of 2021
Heard & reserved on: 04.03.2024 Order on: 05.03.2024
Present:
Hon'ble Mr. Sudhi Ranjan Mishra, Judicial Member
Hon'ble Mr. Pramod Kumar Das, Administrative Member
In the matter of
Sri Amiya Kanti Patnaik,
aged about 66 years,
Son of late Subal Chandra Das,
permanent resident of Plot No.A/48,
Mancheswar Industrial Estate,
Bhubaneswar-751010,
Retired as Deputy Commissioner,
Office of the Chief Commissioner,
GST, Central Excise & Customs,
Bhubaneswar, Dist.Khurda.
.............Applicant
-Versus-
1. Union of India, represented through -
The Revenue Secretary to Government of India,
Ministry of Finance Department of Revenue,
Central Board of Indirect Taxes & Customs,
North Block, New Delhi-110 001.
2. The Chairman,
Central Board of Indirect Taxes & Customs,
Ministry of Finance Department of Revenue,
North Block, New Delhi-110 001.
3. Member (P&V),
Central Board of Indirect Taxes & Customs,
North Block, New Delhi-110 001.
O.A. No.402 of 2021
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4. Director General Vigilance,
Indirect Taxes & Customs,
2nd & 3rd Floor, Samrat Hotel,
Kautilya Marg, Chanakyapuri,
New Delhi-110066.
5. The Under Secretary (Ad-II) to Government of India,
Ministry of Finance Department of Revenue,
Central Board of Indirect Taxes & Customs,
North Block, New Delhi-110 001.
6. The Under Secretary to Government of India,
Ministry of Personnel, PG and Pensions,
Department of Personnel and
Training (AVD-II) (DoPT),
North Block, New Delhi-110 001.
7. The Superintendent of Police, CBI,
Anti Corruption Branch,
Nizam Palace, Kolkata,
West Bengal.
8. The Chief Commissioner, GST,
Central Excise and Customs,
Bhubaneswar-751007.
9. Under Secretary to Government of India,
Department of Revenue,
Central Board of Indirect Taxes & Customs,
Office of the Chief Vigilance Officer,
6th floor, Hudco Vishala,
Building, Bhikaji Cama Place,
R.K. Puram, New Delhi-110 001.
..........Respondents.
For the applicant : Mr. J.M. Patnaik, Counsel
For the respondents : Mr. G.R. Verma, Counsel
O.A. No.402 of 2021
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ORDER
Sudhi Ranjan Mishra, (Judicial Member) As it emerges from records, the applicant was found 'FIT' by the Departmental Promotion Committee held on 13.12.2013 for promotion to the post of Joint Commissioner of Central Excise and Customs along with others. The other officers, including his juniors were promoted, on the basis of the recommendation of the said DPC to the post of Joint Commissioner vide order dated 31.12.2013, but the applicant was not given promotion on the ground that before issuance of his promotion, vigilance status was called from Vigilance Division of CBIC who informed that DIG CBI, Kolkata conveyed that prosecution has been launched against him and the matter is under trial in the court. Thus, the recommendation of the DPC in respect of the applicant was kept in deemed sealed cover. It is revealed from record that there was no disciplinary proceeding initiated against him. It is also revealed that meantime, the applicant retired from service and after a protracted correspondence and litigations, finally, the Respondents rejected his grievance vide order F. No.C-18011/31/2014-Ad.II dated 12th March, 2021 Annx.A/5). Being aggrieved he has filed this Original Application praying, inter alia as under;
"To quash the order of rejection communicated vide F. No.C-18011/31/2014-Ad.II dated 12th March, 2021 under Annexure-A/5;O.A. No.402 of 2021 4
And direct the Respondents to consider the case of the Applicant strictly in accordance with the order of the Hon'ble High Court of Orissa dated 30.09.2020 in WP (C) No.14922 of 2020 and give effect to the recommendation of the DPC dated 13.12.2023 as per the decision of the Hon'ble Supreme Court in the case of Harsh Kumar Sharma (supra) since no review was undertaken in accordance with the order of the DoP&T under Annexure-A/1 and grant the applicant all his service /financial benefits retrospectively;
And further be pleased to pass any other order/orders as deemed fit and proper. "
2. Respondents filed counter contesting the case of the Applicant.
According to Respondents, CBI, ACB, Kolkata had registered a case No. RC No.48(A)/2008 against the Applicant on 12.11.2008 in a complaint case of demand and acceptance of bribe and sought sanction of prosecution against him vide report dated 20.02.2009. The report of the CBI was examined in consultation with the CVC, sanction for prosecution was conveyed to the CBI vide order dated 17.07.2009. The case of the Applicant was examined in the light of the DoP&T's OM dated 14.09.1992 for promotion and the Department came to the conclusion that keeping in view the fact that a criminal charge is pending against him, the promotion is surely against public interest. Further, the officer has retired from service; therefore, the promotion will be on notional basis only which will only enhance his pension, which is not in public interest. Since the applicant was caught red-handed by the CBI accepting bribe, the charges are grave enough to warrant continued denial of O.A. No.402 of 2021 5 promotion. It has been submitted that the delay in finalization of the CBI case instituted against the applicant is attributable to him since he had earlier approached the Hon'ble High Court of Kolkata. Accordingly, it has been submitted that in view of the above, the authority concerned took the decision to keep the recommendation of the DPC under deemed sealed cover as per DoP&T OM and rejected the representation, which needs no interference by this Tribunal and the OA is liable to be dismissed. The applicant has also filed rejoinder controverting some of the facts stated in the counter.
3. In course of hearing, Ld Counsel for the applicant has submitted that on 13.12.2013 DPC was held for consideration of the case of the Applicant along with other eligible Officers of IRS (C&CE) of 2002 & 2003 batches and found him 'FIT' for promotion to the post of Joint Commissioner. On 31.12.2013 other recommended officers, even juniors to him, were promoted to the post of Joint Commissioner (J.C). On 08.01.2014, Applicant submitted representation against his non-promotion to J.C. On 10.01.2014 the said representation of the Applicant was duly forwarded. On 06.01.2014 stay order granted in the Criminal Case by the Hon'ble High Court of Calcutta vide CRR No- CRR/3806 of 2013 with I.A No- CRAN/1401 of 2014. On 01.12.2014, OA No. 260/00856 of 2014 filed by the Applicant before this Tribunal for effecting promotion was disposed of. On 29.12.2014, Applicant again submitted another representation. On 20.01.2015, Respondents rejected O.A. No.402 of 2021 6 the prayer of the applicant for giving promotion to J.C. On 08.04.2015, OA No. 260/00169 of 2015 filed by the applicant was disposed of. On 30.06.2015, representation of the Applicant was rejected. On 31.07.2015, Applicant retired from service on attaining the age of superannuation. On 13.05.2020 OA No.453 of 2015 filed by the applicant was dismissed by this Tribunal, which was challenged by the Applicant in W.P.(C) No14922 of 2020 and the Hon'ble High Court was pleased to dispose of said Writ Petition on 30.09.2020 (A/4) with direction to respondents to consider his case in the light of the decision of the Hon'ble Apex Court in the case of Harsh Kumar Sharma IFS Vs. State of Punjab and ors, (2017) 4 SCC 366, because there was no review conducted by the department as required under Rules. The representation of applicant was rejected on 12.03.2021. The said order of rejection was challenged by him before the Hon'ble High Court of Orissa in W.P. (C) No 12825 of 2021 which was disposed of on 12.04.2021 granting liberty to the Applicant to approach before this Tribunal.
3.1 It is contended that the Do&T OM No. 22011/4/91-Estt.(A) dated 14 th September,1992 provides that the disciplinary case/criminal prosecution instituted against any Government servant should not unduly prolonged and all efforts to finalize the proceedings expeditiously should be taken so that the need for keeping the case of a government servant in a sealed cover is limited to the barest minimum. It has further been decided that the appointing O.A. No.402 of 2021 7 authorities concerned should review comprehensively the cases of government servant, whose suitability for promotion to a higher grade has been kept in a sealed cover on expiry of six months from the date of convening the first Departmental Promotion Committee which had adjudged his suitability and kept its finding in a sealed cover. Such a review should be done subsequently also every six months. The review should, inter alia, cover the progress made in the disciplinary proceedings/criminal prosecution and the further measures to be taken to expedite the completion. Since no such review was made by applying the law laid down in the case of Harsh Kumar Sharma (supra) read with the decision of the High Court of Orissa, the Applicant is entitled to the relief claimed in this OA.
3.2. It is submitted by learned counsel for the Applicant that on 9th July, 2009 on the basis of false, fabulous & concocted story, a false Criminal Case was registered against the applicant. As the prosecution case was based on no evidence, a conscious decision was taken by the authority concerned not to initiate any disciplinary proceedings against the Applicant. The rejection of the claim was contrary to the specific direction of the Hon'ble High Court of Orissa. Hence, the order of rejection is liable to be quashed by granting consequential orders in favour of the Applicant. It is submitted that criminal case was instituted on 12.11.2008 but there was no progress till 06.01.2014 (for near about more than five years) and, on 06.01.2014, the criminal case O.A. No.402 of 2021 8 was stayed by Hon'ble High Court of Kolkata for a period of five weeks. The said order of stay was vacated. However, from 2014 till 2024 there is no progress in the CBI Case. The Applicant was facing financial hardship and delay in conclusion of the criminal case cannot be attributable to him. Thus, by applying the law laid down by the Hon'ble High Court of Orissa, referred to above, the Applicant is entitled to the relief claimed in this O.A. Learned counsel for the Applicant has also placed reliance on the decision of the Hon'ble High Court of Orissa in the case of Dr. Malay Kumar Pradhan vs State of Odisha and another, 2023 (1) OLR, 319.
3.3 Further contention of the Ld. Counsel for the applicant is that adoption of deemed sealed cover is bad because trite is the position of law that during the course of investigation, the alleged offender is not termed as 'accused'. It is only when the charges are framed the offender can be termed as "accused."
The Apex Court has in the case of Esher Singh vs State of A.P. (2004) 11 SCC 585 stated that "The person becomes an accused for the purpose of trial after the charges are framed." In disciplinary proceedings, it is after issue of charge sheet the delinquent officer can be termed as the 'charged officer' and similarly when the charges are framed the alleged offender is termed as 'the accused'. Sealed Cover Procedure is adopted when the stage of issue of charge sheet is served. To justify his stand, he has also placed reliance on the decision of the Hon'ble Apex Court in the case of Delhi Development O.A. No.402 of 2021 9 Authority vs H.C.Khurana, (1993) 3 SCC 196. With reference to the above, it is submitted that in the instant case neither disciplinary proceeding was initiated nor the charge sheet in CBI case was framed/served against/upon the Applicant on the date of DPC. The charge was framed in the CBI case only on 23.07.2018 (copy enclosed). Hence, according to him, adoption of procedure of deemed sealed cover in this case is not bona fide exercise of power. Ld. Counsel for the applicant to establish his claim has placed reliance on the decision of this Tribunal in OA No. 573 of 2013 [Kumar Raghvendra Singh Vs Union of India & Ors,], which decision, according to the applicant, was upheld by this Hon'ble Court in W.P. (C) No 19066 of 2015 and covers his case. Ld Counsel for the applicant has also relied on the decision in the case of Nihar Ranjan Choudhury Vs. State of Odisha & Anr., 2023 SCC Online Ori 6183, wherein it was held that an employee "having considered for the promotion by DPC, the result could not have been withheld awaiting the conclusion of disciplinary proceeding/criminal prosecution indefinitely". Accordingly, Ld Counsel for the applicant has prayed for the relief claimed in this OA.
4. Ld. Counsel for the respondents to fortify and justify their claim has laid emphasis to the facts stated in the counter and has submitted that there was absolutely nothing wrong in keeping the recommendation of DPC under deemed sealed cover due to launch of the CBI case against him, which was O.A. No.402 of 2021 10 done strictly in accordance with the rules. Therefore, none of the grounds stated by the Ld. Counsel for the applicant is of any help to him and this OA is liable to be dismissed.
5. We have considered the rival submissions of the respective parties and perused the records and the decisions relied on as noted above.
6. Admitted facts of the matter is that the applicant was found 'FIT' for promotion to the post of Joint Commissioner of Central Excise and Customs along with others by the DPC held on 13.12.2013 and based on the recommendation of the DPC, the recommended officers, including some of his juniors, were promoted vide order dated 31.12.2013 but the applicant could not be promoted on the pretext that before issuance of his promotion, vigilance status was called from Vigilance Division of CBI, who informed that DIG CBI, Kolkata conveyed that prosecution has been launched against him and the matter is under trial in the court. Admittedly, no disciplinary proceedings was initiated against the applicant and it is not in controversy that in the Special case No. 7/2009/RC No. 48 of 2008, charge was framed by the Learned Special Judge, CBI Court No.2, Alipur on 23.07.2018. Thus, the main issue falls for consideration in this OA is as to how far the adoption of deemed sealed cover in respect of the applicant, while giving promotion to the juniors of the applicant vide order dated 31.12.2013, based on registration of CBI is justified on the face of the record that charge was framed in the CBI O.A. No.402 of 2021 11 case on 23.07.2018. This Tribunal at the stage would like to place reliance on the decision of the Hon'ble Apex Court in the case of Union of India and Ors vs K.V.Jankiraman, AIR 1991 SC 2010, para 6 of the said decision being relevant is extracted below:
"6. 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 chargesheet 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/chargesheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalize 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 O.A. No.402 of 2021 12 withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;
(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 . ' ' 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.
We, therefore, repel the challenge of the appellant- authorities to the said finding of the Full Bench of the Tribunal."
Thus, it is clear from the decision in the case of Jankiraman (supra) that it is only when a charge-memo in a disciplinary proceedings or a chargesheet in a criminal prosecution is issued to the employee it can be said that the departmental proceedings/criminal prosecution is initiated against the employee.
7. In the case of Esher Singh Vs. State of A.P., (2004) 11 SCC 585, the Hon'ble Apex Court has held that a person becomes an accused for the purpose of trial after the charges are framed and, admittedly, in criminal cases charges is framed only after taking the cognizance by the Learned Court on the report filed by the police. Taking into consideration the aforesaid decision and the decision in other case, the Ernakulam Bench of the O.A. No.402 of 2021 13 Tribunal in the case of Chacko Eapen Vrs Union of India, in OA No. 941 of 2011 on 8th February, 2012 held as under:
17. The stage at which the prosecution files a charge sheet in the court, could well be the initiation of proceedings and it is thereafter that there shall be commencement of criminal proceedings (may be by way of issue of summons on taking cognizance of offence by the Court) and only on the charges having been framed by the Court, which stage is only after the stage of arguments on charge, that the proceedings on 'criminal charge' could be stated to be pending. In this regard, reference is invited to the decision of the Apex Court in the case of S.K. Sinha, Chief Enforcement Officer vs Videocon International Ltd (2008) 2 SCC 492, wherein, the Apex Court has held as under:-
"24. From the above scheme of the Code, in our judgment, it is clear that "Initiation of proceedings", dealt with in Chapter XIV, is different from "Commencement of proceedings" covered by Chapter XVI. For commencement of proceedings, there must be initiation of proceedings. In other words, initiation of proceedings must precede commencement of proceedings. Without initiation of proceedings under Chapter XIV, there cannot be commencement of proceedings before a Magistrate under Chapter XVI. The High Court, in our considered view, was not right in equating initiation of proceedings under Chapter XIV with commencement of proceedings under Chapter XVI."
18. It is pertinent to note here that during the course of investigation, the alleged offender is not termed as 'accused'. It is only when the charges are framed that the offender is termed, "accused." The Apex Court has in the case of Esher Singh vs State of A.P. (2004) 11 SCC 585 has stated as under:-
"The person becomes an accused for the purpose of trial after the charges are framed."O.A. No.402 of 2021 14
19. In disciplinary proceedings, it is after issue of charge sheet that the delinquent officer is termed as the 'charged officer' and similarly it is after charges are framed that the alleged offender is termed as 'the accused'. Sealed Cover Procedure is adopted when the stage of issue of charge sheet is reached See Delhi Development Authority vs H.C. Khurana [(1993) 3 SCC 196 ].
20. Thus, apart from the reasons given in the earlier order in OA No. 557 of 2011, the above reasons also concretize the decision of this Bench that it is only after the charges are framed by the Court that the criminal proceedings would be said to be pending."
8. This was also the view taken by this Tribunal in OA No. 573/2013 [Kumar Raghvendra Singh Vs Union of India & Ors,], which was also upheld by the Hon'ble High Court of Orissa in W.P. (C) No 19066 of 2015. The Division Bench of this Tribunal also in the case of Baburam Patnayak Vs UOI & Ors, OA No. 260/00208 of 2015 decided on 29.01.2024, held as under:
"13. As regards, the dispute as to on which it can be said that criminal was instituted against an employee is concerned, it is noted that the Hon'ble Apex Court in no uncertain terms held in the case of K.V.Jankiraman (supra) that it is only when a charge-memo in a disciplinary proceedings or a chargesheet in a criminal prosecution is issued to the employee it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. Also, in the case of Esher Singh Vs. State of A.P., (2004) 11 SCC 585, the Hon'ble Apex Court has held that a person becomes an accused for the purpose of trial after the charges are framed and, admittedly, in criminal cases charges is framed only after taking the cognizance by the Learned Court on the report filed by the police. In the instant case, admittedly, cognizance was taken only on 14.01.2004. From the facts noted above, it would be evident that the absorption order of the applicant in BSNL was much before 14.01.2004. Hence, based on the initiation of the criminal case, his O.A. No.402 of 2021 15 absorption ought not to have been cancelled after expiry of near about one and half decade that too without giving him any opportunity."
9. In the case of S.I. Rooplal Vrs Lt. Governor, (2000) 1 SCC 644, the Hon'ble Apex Court held as under:
"Precedents which enunciate rules of law from the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bounded by the enunciation of law made by the superior courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement."
10. On examination of the facts and law discussed above, this Tribunal do not find any ground to defer with the view already taken to the effect that adoption of sealed cover deemed sealed cover prior to charge sheet in disciplinary proceedings/criminal case is not sustainable in the eye of law.
11. Besides the above, it is not out of place to mention that according to the respondents department the CBI case was instituted against the applicant on 12.11.2008 but there was no progress till 06.01.2014 (for near about more than five years) and, on 06.01.2014, the criminal case was stayed by Hon'ble O.A. No.402 of 2021 16 High Court of Kolkata only for a period of five weeks. Thus, there was no progress from 12.11.2008 till the date of promotion order was issued in favour of the juniors of the applicant on 31.12.2013. Even till date the CBI case is still pending without any order of stay by any higher forum. At the stage, it is relevant to put on record that the Hon'ble High Court of Orissa for the delay in conclusion of the criminal case directed to promote the applicant giving effect to the recommendation of DPC entitling him all consequential benefits in the cases of Nihar Ranjan Choudhury Vs State of Odisha, W.P.(C) No.21793 of 2021, disposed of on 06.11.2023; State of Orissa & Ors. Vs. Ashok Kumar Hota & Anr., W.P.(C) No. 18500/2015 disposed of on 06.05.2022, and Dr. Malaya Kumar Pradhan Vs State of Orissa & Anr., in W.P.(C) No. 33216/2021 disposed of on 07.12.2022. Thus, as discussed above, this being one such case, by applying the law laid down in the above cases, the applicant is also entitled to the relief claimed in this OA.
12. Thus, viewed from any angle, as discussed above, this Tribunal do not find any justification in keeping the recommendation of the DPC finding the applicant 'FIT' under deemed sealed cover when giving promotion to his juniors. Accordingly, the impugned order of rejection communicated vide F. No.C-18011/31/2014-Ad.II dated 12th March, 2021 (A/5) is hereby quashed. Since the applicant has already been found 'FIT' by the DPC, the respondents are directed to promote the applicant to the post of Joint Commissioner of O.A. No.402 of 2021 17 Central Excise and Customs with effect from the date his junior was promoted vide order dated 31.12.2013 and grant him all consequential service and financial benefits retrospectively within a period of 60 days from the date of receipt of a copy of this order.
13. In the result, the OA stands allowed. Parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra)
Member (Admn.) Member (Judl.)
(KB/PS)
O.A. No.402 of 2021