Central Administrative Tribunal - Madras
Promod Kumar vs Indian Police Service on 27 April, 2023
te - 1 CLA. POIRIe2 CENTRAL ADMINISTRATIVE TRIBUNAL CHENMAL BENGHA A No. 234/202? * Dated Q¢° daythe day of April Two Thousand Twenty Three CORUM: . HONBLE MR. TJACOB, ADMINISTRATIVE MEMBER & HON'BLE MS. LATA BASWARA PATNE, JUDICIAL MEMBER Pramod Kumar, IPS $/0-5.2.Singh, Hindu, aged 58 Years Residing at CO603, TAISHA, Virugambakkam Chennal-600 092 . Applicant By Advocate M/S.Menon, Karthik, Mukundan and Neelakantan Vs, . State of Tamil Nadu Regrasented by Additional Chief Secretary, Horne (SC) Department, Fort St.George, Secretariat, Chennal-600 008 » Respondents By Advocate Mr.Silembanan, Ld. AAG for Mr. H.Ravikumar 2 ) O.ADRU2O? ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Meniber(3)) The spplicant has filed this OA under Section £9 of the Administrative Tribunals Act, 1985 seeking for the following reliefs:
"Yo direct the Respondent to open the sealed cover of the Applicant in the DPCs held avter 09.08.2016 and promote hitn as Additional Director General of Police and further on that basis, promote hire to the rank of Director General of Polke on par with his batch-tigtes with all consequential benefits, Including monetary benefits and pass such further or ather orders a¢ may be deemed fit and proper.
Of IN THE ALFERNATIVE .
MNrect the Respondents:to consider the ease af the Applicsnt far ac-hoc promotion as Additienal Director General af Pollce, pending disposal of the above Original Apalieation and pass such further ar other orders as may be deemed At and proper"
2, The brief facts of the casein nutshell ere as under:
The applicant betengs to 1989 batch of IFS Officer of Tamil Nadu Cadre and holds the rank of Inspector Generel of Police. A complaint was registered in Crime No.26 of 2009 by the Central Crime Branch (CCB), Tirupur against the Directors of Peezea Forex Trading India Lid, under the . orovisions of Prize Chits and Monies Circulation Scheme {Banning} Act, 1978 and Section 420 of IPC. Subsequently, Trupur North Police registered 2 case In CrNe.3068 of 2006 for Woman missing pursuant to a complaint that WMrs.Komalavalli, Arutrugem, DBlrectes of Peezee Forex Trading India Ltd was found missing. since Police fatlad to take any action against the Birecters of Psexee Forex Trading India Ltd, inspite sf. cancellation of anticipatory bali, one of the depositors and the association of Gepositors of Peezee Forex Trading India Ltd moved before the Hon'ble High Court of Madras in Cri. O.P.Nos.2691 and 5358 of 2011 with @ prayer for transfer of investigation from the State Pelice te CBI, The applicant Was not an accused at thet point of time.
3 The Hon'ble High Court passed its order dt.19.4.2011 transferring the hivestigation of both the crimes from fhe State Police to CBI.
Thereafter, CBT took up the matter and during the course of investigation the applicant came to be arrested. Since the applicant~vas in remand for more than 48 hours; he was suspended from the service by ortier dated 10.5.2012. The suspension wae reviewed and extended periodically. The applicant filed a WP No,2i8oi/2012. before the Hon'ble Hish Court of Madras for issuance of writ to restrain the CBI from investigating the case registered under FIR RO No.is/2011, The WP was dismissed by arder dated 5.22.2012. The order of the Writ Court was upheld by the Division Bench by its judgement dated 29,.4.2013 in WA izf2013. The applicant has challenged the order dated 5° December 2012 passed in WP No.21801/2012 and the judgernent In WA. No.12/2013. before the Hon'ble Supreme Court in SLP (Civil No.17999/2013, The same was. converted into Clvll Appeal no.3062/2015. The applicant has also challenged the order dated 19.4.2011 passed in Original Petition in CriO.RNo.2691 and CBI The Non'ble Supreme Court hes alowed the Ci] Appeal No.S0G2/2015 and remitted the WP NOQ.2i8017%2012 for fresh consideration with observation that the applicant was not a party to the said Onainal Petition in Cri.0.R.No. 2691 and 5396 of 2011.
4 tr the meanwhile, on Memo of Applicant, Crime NO.2 of 2013 (arising out of RC iS/E/2021) has alsa heen closed on 19.10.2015 by the CBI Special Court, Cotmbatore, in view of the orders passed by the Homble Supreme Court In the said Civil Appeal No.3062/2015 and remitted the matter back to the Hon'ble High Court of Madras. Pending the said case, the discislinary proceedings were also initiated: against the
4. D,8.131/2022 applicant on 29.10.2013 under Rule 8 of the All India Service Rules (DRA), 1969. The Articles of charges framed are entirely based on the Investigation of the CBT In RC Ne.La/E/2011, ard is based on the report submitted by CSI to the State Government. The applicant has challenged his suspension as well as the said charge memo before this Hon'ble Tribunal in O.A.No.368/206 and L65/27076, Accordingly on the ground af prolonged suspensian, this Hon'ble Tribunal has revoked ihe said Suspension vide its order dt.9.8.2016 ard directed tha respondents to post the applicant in Hon-sensitlve post. With regard to the charge meme, liberty was granted to the applicant to make representations. Both the . applicant os well as the respondents aggrieved by the order dated 9.6.2016 passed In OA NO.368/2076 and 165/2016 have had challenged before the Hon'ble High Court af Madras In WENo.39989/2016 & 38696/2016. The Hon'ble High Court of Madras by its detelled order dated i2.01,2017 quashed the charge memo and allowed the WB in favour of the applicant on the sole ground of charge meme*not having been _ approved by the Disciplinary Authority as well as confirm the order passed by this THbunal revoking the sussension of the applicant by granting iiberty to the State Government to post the applicant In a non-sensitive Post, 5 The Respondents have challenged both the orders before the Hon 'ble Supreme Court in Civil Appeal Nos,8427-8428 of 2018. Vide its judgement dated 218.2018, the Hon'bla Supreme Court has observed that In view of the mandatary requirements of Rule @ (4) and the charge memo being drawn up or cause ta be drawn up by the disciplinary authority Is not complied with, Therefore, they declined to interfere with the judgement of the Hon'ble High Court df Madras on the Issue, However the Hor'ble Supreme Court has granted liberty to the Disciplinary Authonty to Issue 3 GATILe032 charge memo fresh after taking approval from the Diselplinary Authority, As far as concern to the suspension, the Hon'ble Supreme Court while reiterating the observation of the High Court, has granted fiberty to the State Government to appoint the applicant In a non-sensitive post. Pursuant to the diréctions of the Hon'ble. Supreme Court, the respondents after a lapse af more than three years rescinded earlter charge meno dated 29.10.2043, issued a fresh charge memo dated 10.14,2021 and same has Deen served on 17.14.2021.
5 The applicant further contended that the applicant's prospects for promotion as Additional Director General of Police along with his batch of IPS officers of 1989 batch of this cadre was kept in a sealed cover due to pendency of this criminal proceedings and departmental proceadings but his batch-mates and Juniors were promoted on 25.02.2014, vi The applicant further contended that this Telbunal by its order dated 98.2016 revoked the suspension of the applicant. Subsequently the said order passed by this Tribunal was upheld by the Hon'ble High Court In respect of revoking the suspension as well as quashed the charge meme dt.29,10,2013 and finally the order of reveration of suspension has Hon'ble Supreme Court of India. Though the respondents have Issiied a fresh charge memo dated 10.11.2021. According to the applicant from 09.08.2016 after revocation of suspension and the Hon'ble High Court of Madras has quashed the charge meme dated 29.10.2013 by thair orer dated 12.01.2017, nothing was pending against the applicant to keen his caS8 in a Sealed coven Since his juniors belonging to the applicant's batch as well as the subsequent batches granted promotions to the post of Addl. Director General of of Police as well as the officer of the P989 batch has bean further promoted as Director General of Police on 21.12.2020, 9 . g | . CLALSI/2022 therefore, the applicant has made representations to the respondents for adhoc oromotion since 20417 and submitted his representations dated 10.06.2018, 87.2015, 15.46.2019 and 06.10.2020 and requested for -
promotion. The applicant contended that he has also submitted the rank of ADGB/DGR Since there is no reply fram the respondents, hence the applicant has appreached this Hon'ble end filed present OA and prayed for the aforesaid relief. ;
& After notice, the respondents have entered the appearance through . their cauingel and fled a detailed reply and contended that as per DOPT instructions dated 14.9.1992 further amended by OM dated 15.01.1999 which stipulates that as appointient of the members of the All India. Services to various qrades is made on requiar basis and the concept of one-time confirmation exists in their cases, the concept of grant of adhoc . promotion is alien to therm. Unlike Central Government Servants, adhoc sramoations are not allowed in their cases even If the disciplinary cases/ criminal prosecutions Instituted agginst them are found to have been prolonged. In thelr cases, only six monthly review of their disciplinary / criminal cases is to be undertaken and efforts are to be made to expedite thefr cammetion.
9 it fs further contended that after the DPC held in 2014, the applicant was considered In all the Scréening Commitbse meatings helt for . ampanelment of IPS officers ft for prametion to orada of ADGP & DGR The applicant's representation cated 19.1.2022 has been fidiy considered and the applicant was given reply on 18.03.2022 stating that bis request arm GP Based on the arders dated 23.08,2018 of Supremé Court of India, that the disciplinary authority is Nberty to issue a fresh charge letter ? OA TSNO0g2 after taking due approval of the disciplinary authority and 3 fresh charge letter dated 10.11.2021 was issued to the applicant rescinding the eartier charge letter dated 29.10.2013 after obtaining dus. approval from the disciplinary authority. Further submitted that the further action In the Departmental Proceedings is now under process. iQ The respondents in thelr reply also contended that in respect of the Criminal Case registered before the Special Judge for CBI CaSes, Coimbatore as well as the summons served on the applicant ta appear before the said Court on 08.07.2013 . However, the applicant did not appear due to the inisrim stay granted by the Hon'ble Supreme Court In SLP No. 17999/2013 dated 05.07.2013, .
ii It is also cantended that in respect of the sald Criminal case, the applicant has filed WP No.21601/2012 after it is remitted from the Mon'ble Supreme Court, Hon'ble High Court of Madras has considered the issue in depth and by its order dated 02.11.2021 dismissed the WP N.2180T 4022 along with other connected matters and ordered that the investigation done by the CBI is sustained. Against the said order, the applicant has filed SLO befere the Hon'ble Supreme Court, However same has been withdrawn by the applicant. Accordingly, the SLP was dismissed as withdrawn.
iz The respondent further contended that follawing with the DOFT OM ab.14.09.1992 subsequently amended on 18.01.1999 and which reads thus " 1i PROCEDURE TC BE FOLLOWED IN RESPECT OF OFFICERS UNDER CLOUD Lhd At the time of consideration of the cases of officers for promotion of such officers in the zone of consideration falling under the following categories should be sneciically brought to the notice of the concerned Screening Committees:
ta} Oificers under suspension:
{e) Officers in respect of whem a Charge-shest has been issued and a OAT 2022 disciplinary proceedings at pending:
[c} Officers In respect of whorn prosecution for criminal charge is pending di.2. The Screening Committee shall assess the suitability of the officers coming within the purview of the circumstances mentioned abave, along with other eligible candidates, without taking into consideration the cisciplinary case/criminal presecution which is Bending. The assessment of the Committee including "Lint far Promotion" and the grading awarded by It will be kepe Ina sealed rover The cover will be superscribed "Findings regarding the suitability fer promotion to the scale of cose... 20 respect of Shree not to be opened ui the termination of the disciplinary case/eriminal prosecution against Shri..." The proceedings of the Committee need only contain the note "The findings are contained in the attached sealed cover" The same precedure will be adopted by the subsequent Screening Comrmitteas till the disciplinary --caseferiminad prosecution against the officer cancernedis cenzludad, 18 SEALED COVER CASES ACTION APTER COMPLETION OF DISCIPLINARY/CRIMINAL PROSECUTION the proceedings of the Committee for promotion contain findings ina sealed cover, on conclusion of the disciplinary eases criminal prosecution, the sealed caver or covers shall be opened, In case the officer is completely exonerated, the due date of his promotion will bs determined with reference to the findings of the Screening Committee kept in sealed: coverfcovers and with reference to the date-of promotion of his next funior onthe basis of suck findings, the officer may be promoted, if necessary, be reverting the juntor most officiating persan. Such promation would be with reference to the date of promotion of his junfor and in these cases, the officer will he paid arrears of salary and allowances, @i SEALED COVER PROCEDURE APPLICABLE TO OFFICERS COMING UNDER CLOUD BEFORE PROMOTION In the case of an officer recommended for promotion by the Screening Committee where any of the circumstances mentioned in Para 1¢ sbove arse hefore actual promotion, sealed caver procedure would have to. be followed, The subsequent Committee shall assess the suitabillty of such offices along with other eligible candidates and place their assessment In sealord coven. The sealed cover/covers will be opened on conclusion of the disciplinary meefcriminal prosecution. in case the officer is completely exonerated, he would be promoted as per the procedure outlined in Para 18 above and the question of grant of arrears would also be decided accordingly. ifany penalty is imposed ipon hin as a result of the disciplinary proceedings of ¥ he ts found auilty in the criminal prosecution egainst him, the findings of the sealed cover shall net be acted upon, a autlined in Para 18.2 above"
Q CATR 12 According to the respondents in the matter of applicant's case they have followed the auidelines strictly since the criminal case as well as the departmental proceedings are pending against the "apolicant and. as observed by the Hon'ble Supreme Court in their judgment that charges gre very serious end according to the direction of Hon'ble Supreme Court, the applicant's suspension has been reveked and applicant has been pasted in non-sensitive post and as per the liberty granted for issuance of fresh charge memo, the respondents have complied with the order Also, the Hon''ble High Court of Madras by their order dated 02.11.2021 in WP Mo.21804/2012 confirmed the investigation by the CBI and transfer the- case to CB], Therefore, the respondents have prayed for no merits on he jegal qrounds made out bo grant any relief to the appficant, Hence prayed for the dismissal of the OA as devoid of merit.
14 Te refute the points ralsed-by the respondents in their raply, the applicant also Aled a rejoinder and reiterated the sarne grounds raised in the OA and prayed for the rellef.
iS The applicant has also filed "M.A.193/2022 as well as ~ MA.NG 303/202? to.amernd the relisf and same has been allowed and the applicant has amended the G.A, accardingly.
16 The apélicant also fled M.A.No.400/2022 and the same. alse considered by this Hon'ble THbunal and directed the respondents to produce the fites relating to écnsideration of the apollcant for promotion as ADGP/DGP In sealed cover 17 'The Learned Counsel for the Applicant has placed reliance on the following notifications/orders on behalf of the applicant:
t judgement dated 27,08,1991 passed by the Hon'ble Supreme Court in Civil Appeal Nos.3019-2% of 1987 in the matter of Union of india and others vs. KMJankitaman and others 10 | O.A.181/2022 2 judgement dt.20.07.2008 passed by the Hon'ble Supreme Court in Chil Appeal No.47z4 of 2008 In the matter of Anil Mishra vs. Uriion of inka and others:
3 judgement dated14.10.2008 gassed by the Hon'ble Supreme Court in Civil Appeal no.4022 of 1999 in the matter of Conumissioner of Central excise, Bolpur Vs, Ratan Melting & Wire Industries;
4 judgernent di.05.04.2011 pessed by the Hon'ble Cantral Administrative Tdbunal, Princioal Bench in O.A.No.392/2011 in the matter af MrSumathi Ravichandran vs. Union of india and another;
5 Judgement dt.28.03.2018 passed by the Hon'ble Nigh Court of Patna in Civil Welt Jurisdiction Case Nof705 of 2014 in the Matter of Union of india vs, Sanjeev Vermay bay judgement dti4.12.2016 passed by the Hon'ble Supreme Cour in Chil Appeal No.41231-32 of 2016 in the matter of Harsh Kumar Sharma, IFS va, State of Punjab and another;
7 judgement dated 20.10.2022 passed by the Hon'ble Supreme Court in Chi Appeal No.841-843 of 2002 In the matter of CdrArnit Kumar Sharma ete. vs. Union of india & ors.
@ The Learned Counsel for the Respondents have fled dates and events and relied upon the noiification dated 14.10.2005 issued by he - Home Department of State of Tamil Nadu. The Counsel alsa rélisd upon the judgements passed by this Hon'hie Tibunal as well as the Hone High Court of Madras as follows:
t judgement ot.30.01 2047 passed by the Han'ble Delhi High Court in WE (C} No. 8758/2014 in the matter of Union of india vs. VAppatis Raju;
2 Judgement dated 22.11.2021 passed by the Telangana High Court in WA No.209 of 2026 in the matter of N-Srinivasuly vs. The Siste of Telangana ang 2 others;
tee Judgment dt.04.12.2020 passed by the Madurai Bench of Madras High Court in Wis (MD) Ne.gd of 2019 in the matter of The DGP ve. K.Bitchal om.
i | CLA ASLO?
18 Heard M/S:Menon, Karthik, Mukundan and Neelakentan for the aoplicant. and MnSilambanan, oid, AAG for MrkH.Ravikumar for Respondents and perused the relevant records. This court has carefully gone through the docurnents an recerd and also heard the learned counsels at length.
20 In the present matter for the clarity we hereby record the dates and events in brief.
BATES AND EYES. US i 19.04.2011 Ronble High Court of Madras in Criminal 8, BNos.2691 of 2011 and S35@ nf 2011 transferred the case in Crime No.6 of A009 of Economic Ofences Wing, Chennai and Crinie No.S068 of 2008 of 1 the Crime Branch CID, Vellore to the Central Bureau of Investigation, Chennai 2 02.05.2012 Thirs Premod Kumar, IPS, was artested by the GBT on 62.05.2012 and remanded to judicial custody.
3 | ieesz0Te 'thira Pramod Kumar, 1P5, Inspector General of Police, wae placed nicer deemed suspeusion in G.O.Ms.No.341, Home (SC) Departinent, sated 1 0. = A012 & 27.07 S12 | beyond 0, 07.2012 vide G. oO: Ma No. 583, Home (SC) Deparment, dated 27.07; 2012, Oya US.08.2012 contending that car did not 1 obtain pitor p permission under section 6A of DSPE Act, since he was a Joint Secretary level officer of Governmentaflndia, ~ 6 08.12.9012 .
The High Court of Madris dismissed the Writ Petition 21801 of 2012 Aled by the Thiru Pramod kumar, challenging the inclusion.of his name as an atcused by the Central Bureau of Investigation Chennal, 7 a4 L2018 The suspension of Thina Pramod Kumar, [PS, was extended for 180 | days beyond 26.01.2013 vide C.0.Més.No.66, Home (SC) Department, dated 24.01.2013.
§ 29.04.2045 The High Court of Madras has dismissed the Writ Appeal No.22 of | 2013 filed by Thitu Pramod Kumar.
fa [a7 d82ei3 Thira Pramod Kumar, 12S, filed SLP No.1 7999/2013 before the Hon'ble Supreme Court of India against dismissal order in WA. sacral Besoed aby the oe eae Count of Madras.
10 | GR.05.2038 proseciie 'Thirt Pr Pranacd Kuma, eS a2 CA dane 10.05.2013 -
Sanction af Prosecution accorded by the Govt. of India ta prosecute 'This Pramed Kumar, (PS under PC Act 92.05.2013 Chatee sheet filed in RC.13/E2011-CRVEOW! Chennai after abtaining sanction orders we 18 of PC Act and n/section 187 af CrP and was numbered as COC No.2/2013 before learned Special Court for CBI cases, Colmbatere. Intimation regarding further / investigation being done by CB! in this. case wis 17S{8) GnPRC. also | inuynated tg trial court in the charge sheet itself PGT 2013 | The suspension of Thiru Pramod Kumar, IPS wes extended for 180° | days beyond 25.07.2018 vide G Repartsent, dated 17 7.2013 Ovig Ne.535, Hore (80).
Pda 28.10.2013 The Government of india, Ministry of Home Affairs has rejected the appeal preferred by the Thira Pramad Kumar, IPS against the suspension vide No 26011/39/20121PS.N dated 28.10.2013 | 380 a018 Charges under nile 8 af All India Services (Discipline and Appeal} Rules, 1969 was framed against Thiru Pramod Rumer.
22.11.2043 Thiru Pramod Kamas, IPS requested to defer the disciplinary proceedings 16.01.2014 The suspension of Thira Pramad Kunady, IPS was extended far 190 ays Geyond 21.01.2014 vide G-O.Ms.No.35, Home (8G} Department, dated 16.01.2014.
L407,.2014 The Hon'ble Central Administrative Tiibunal, Principal Bench New Delhi in its order dated 14.07.4H4¢ in O.A.No.2656 of 2015 filed by the Thin Framed Kumar, vejectad his prayer for revocation of Suspension, 18.07.2034 The suspension of Thiru Pramod Kumar, IPS, was extended for 180 | days beyond 20.07.2014 vide G.O.Ms.No.485, Home (SC) Department, dated 16.07, 2044 06.12.2014 Appeal patition submitted by Thirs Pramod Kumar, IPS the first respondent herein to the Secretary to Gevt., Ministry af Nome Affairs, New Delal.
P34 19 301d The Secretary to Gove, Ministry of Hame Ris New Dall, 'rejected appeal petition dated 06.12.2014 of Thiru Pramod Kumar, TES.
14.01.2015 'The suspension of Thire Pramod Kumar, 12S was extended for 180 'days beyand 16.01.2015 vide G.O.Ms.No.49, Home (SC) | Department, datedi4, GL.2015.
38.01.2015 | Appeal petition submited by the Thitu Pramad Kaamr, IPS.
to ths Secy, MISA, Mew Delhi | 24 202.2015.
Areply sent to Thiru Pramod Kumar, IPS with directions to submit the written statement of defence in Letter No BOCN230- 16/9018, Home (SC) Deparment, dated 02.02.2015.
a 14.02.2015 'Thirs Pramod Kumar; 1PS again reiterated to defer the disciplinary procecdings.
17032018 The Hon'ble Supreme Court of India in iss order dated 17,03,2015 in Special Leave Petition (Civil) No.17999 of 2019 fled by Thira Pramod Kumar, IPS has remanded the case back to the High Couct af Madras. ° B .
DAA UIOI9 is.tazers | An inguiry Authority was appoinied to inquire into the truth of the chatges framed against Thin Premed Kumar, IBS, vide #0). Ms.No.332, Home (SC) Department, dated 16,04.2015 08.05.2015 On the Original Application NoAGL? of 2018 fled by the Thins Pramod Kumar, IPS, the Hone Central Administrative 'Tyibunal, Felnelpal Bench, New Delhi has directed! to pass a speaking order an the appeal petitions dared G8.12.2014 and 28.01.2015, LO.O7. 205. | 'The suspension of Thim Pramnd Kurnar, IPS wes extended tir 140 days beyond 15.07.2015 vide G.0.Ms.N0.533, Home (SC) Department, dated 10,07,2015, 13.08.2015 The Hon'ble High Court of Mactas in CrLRC.No.838 of 2014 bas filed by Thira Pratap Singh Nagar directed to rerum all the documents it. C.M.BNo.225 of 2014 in C.C.No.2 of 2013 to the Petitioner, .
at 1 12102015 Cx.Re.836/2014 interpreting the orders of the Honble Supreme | Cotut in Civil Appeal No.3082/2015, in the manner stated above and | thus helding that CBI is no longer the divestigation agency the case in CC 2/2013 (Extortion Case in RC ISR 20L the saree be closed.
| | The CRI Court, Coimbatore passed order in the Docket "closing"
CO Ns.2/2013 based on thé orders af Honthle High Court of Madras in CoLR.C.No.638 of 2014 subject to any further orders of the Hon'ble High Court of Madras In WENo.21801012 and Crop [33 "97 13.2015 | Thiru Pramod Kamer, 185 has Nled Contempt Petition No. SS7F01S in O.A.No.3017 of 2015 before the Hon'ble CAT, Principal Bench, 34 OG OLOnE The suspension of Thitu Pramed Kumar, IPS, was extended for 180 | Gays beyond 11.01.2016 vide G.0.Ms.No.12, Home SC} Department, dated 06.01.2016, BEDTBOTE | 436 26.02.9016 1.
af | b120i6 Fresh Inguiring Authority was appointed vide G.0.Ms.No.80, Home (S$C} Department, dared 01.02,2046 ORORAE | id OVA Ea?
as directed aby & es CAT, Pane Bi ench, New Deel WLOAIOIS [R 41 6.07, 2018 The mere af oF thina Pramod Gana BS x was 5 exiendl for iad days beyond 09.07.2016 vide G.O.Ma.No.S13, Home (C) Department, dated 06.07. 2016 a 69.08.2016 Order of the Hon'ble Central Administrative Tribunal, Madras Bench, Chennai in O.A.No. 165 of 2016 filed iby 'Thira.Pramed Kumar, IPS OADUIOL7 The Ho'ble High Court in its order dated 04.01.2017 has observed that the present status quo be maintained wil the judgement is 4 pronaunced, In sheet, the observations made by the Tribunal that the "suspension order is revoked" wold remain stayed tH the disposal of the Writ Petinions.
4a IOLA Common order in WP No.39696 of 2016 ~Tp quash the cliscipinary proceedings initiated by the State againet the petitioner on the sole ground of the charge memorandum not having been approved by the Disciplinary Authority.
T8LOR.2017 Special Leave Petitions (Civil) No.d2ii2 and V2143 of 2013 were filed before the Hon'ble Supreme Court of India 09,08,2018 Rejoinder AHidavit fled on bebalf of the State of Tamil Nadu in SLPO Nas. 12112 & 12133 of 2017 1S.08 208 : Directing the pedtioner-state through its Chief Secretary to file an appropriate affidavit as to the practice followed by the Government of Tamil Nadu in such cases.
14.05.2018 Adéslavit filed by the Cluef Secretary ae to the practice follawed by the Goverment of Tamil Nadu 27.08.2018 | Orders in Civil Appeal No.8427-B428 of 2018 (Arising ont of SLE | (2) Nos.12112 and 12115 of 2017), before the SCI, New Delhi. The Apex Court bas alsa granted likerty to issue a charge memo, afresh | after taking aporoval from the Disciplinary Authority.
oi Lae O5.49.2018 G.O.Ms.No.1d16, Home (SC) Deparamens, dated 05.09.2018 tevoling his suspension.
24.06.2019 Gpinton of AG, EC of Tamil Nadu that the chatge letters in h respect ray he withdrawn, approval of the conipetent authority may be esught for and after such approval, a fresh charge memo nay be issued and served on the MoS and thereafter the regular process of enquiry as contemplated in the Rules nay be commenced.
522019 | G.O.Ms.No.450, Home (SC) Department, dated 28.08.2019 revising ' the date of revocation of suspension, BS 32.07 209 15,14, 2019 L103.2020 | } Representations yecsived from Thiru Pramod Kumar, IFS, requesting promotion as Additional Director General of Police.
5d O2.41. 2033 'The High Court of Madras in its order dismissed the WPs 21801 of 2012 and 17856 of 2015 filed by Thiru Pramod Kumar and ordered that the investigation done by CBY is sustained, iS OA. Eas 55 AOAL2021 | G0. Ms.No.480, Home {SC} Department, dated 10.41.2021 rescinded the charpes framed earlier on 25.10.2013 against Thiru Pramod Raunar, TPS.
5G | 1641-2027 | "Fresh charge letter No.HSC5-/287-G/2018, Home (SC) Dept, dated 10.13.2021 was issued to Thirn Pramod Kuman IS B7 | 02.11.0001 | SLP CASS SUP (Cri) Nos.8801-880¢ of 2021 fled by Thirs Pramod Kumar, IPS before the Supreme Court of India, New Delhi, challenging the orders dated 2.11.2021. The above SLPS were dismissed ag withdrawn.
| CAT, Madras Bench to consider hina for Adhoc promotion wef. | 68.08.2016: Reply affidavit fled os 17.6.2022. M_A.SO3 fled on | 22.7.22 and reply tothe M.A. fled-on 18.8.2022, S9 | 643622 | Thir Pramod Kumar, IPS, has Bled O.A.No.357/2022 to furnish the | 10.12.2021, 22.42.2021, 12.01.2022 and 11.03.2022, Reply affidavit filed on 14.7.2022.
69 | 13.04.2022 | Thins Vilam Kapur, IAS, AddLCs, P &D Dept, hes beea appointed as Inquiring Antherity to Inquire inta the truth of the charges in G.0.Ms.No.186, Home (SC) Dept. dated 13.04.2022 21 According to the applicant after the order of this Tribunal dated 69.08,2016 wherein his suspension was revoked, the applicant was not under suspension this date Neelf and as far as cancermed ta the charge memo issued by the respondents, the same has been quashed by a detailed order dated £2.01,2017 by tye Han'ble High Court of Madras. The Counsel for Agplicant alsa argued that after the order of the Hon'ble Supreme Court passed on 17.03.2015, the Hon'ble High Court of Madras in WLRNo.21801/2012 and subsequent order passed in W.A.No.12/2015. whan the matter has been remitted back the memo filed by the applicant befarethe Second Additional District Court cum Special Court of CBE cases at Colmbatere considered and passed an order dated19.10.2015 considering the order passed by the Ron'ble Supreme Court prd the Hom bie Madras Nigh Court of Madras in CrLR.C.No.836 of 2014, ordersd that subject to the orders ta be passed by the Hon'ble Madras High Court in W.BNo.2189/2042 and CrLO.RNe. 2691/2011 and 5356/2041 for the $8 | 03.2092 | Thire Pramod Kumar, IPS, has filed an O.A.No.131/2022 before the i6 CLAS?
present case, the C.C.No.2/2013 is closed. Hence the Counsel for the Applicant has. contended that from 2016 onwards nothing was pending against the apolicant and according to the Apex Court guidelines issued in the matter of Kavdankiraman and catena of judgements his case for gromotion has to be considered by the review DPC by opening the sealed cover and he has to be granted with promotions for which he is entitled.
4% The Counsel for the Applicant also contended that even if the said eniminal proceedings as well. as the present charges memo are osrding before. the Courts and authorities ie. after 202% only. In te inter-
regnum period nothing was pending there against the applicant. Tha. respondents have to consider his clains In accordance with the DOFT OM dated 1992 atleast for grant of adhoc promotion to the post of ADGP/DGP. Mawever Inaction on the part of the respondent is against the said efigibility oriteria, 23 The Counsel for the Applicant vehimently argued thet the applicant's case fas to be considered in the [ight of the orders of the Honble~ Supreme Court passed in. «.\Jankiraman. Subsequently consider in the matter of Anil Mishra. Further followed In Ratan Melting & Wire industries as wallas in the matter of Mre.Sumath! Ravichandran. In his support placéd his reliance upon following judgemects:-
fa} fv Judgement dt.30.07,2008 the Hon'ble Supreme Court In Civil Appeal No.47°24 of 2008 in the matter of Anil Mishra vs. Union of India and others observed thus:
"19 'We are of the opinion that if the appellant wanted to take this plea, he could have dane it before the Iritumal or the Nigh Court. Even if the entries osfore or after 2000 had not been communicated to him, he could have filed an application before the TNbunal or the High Court for stunmaning of these entries, and the Tribunal and the High Court could have suramoned = the same. However the appellant filed no: stich application before the Tribunal fer summoning these entries. Hence the appellant has Almself to blame."
oa
(c) i?
CLA TS L2029 Judgement datedi4.10 2008, the Han'ble Supreme Court in Civil Agpeal No.4022 of 1999 in the matter.of Commissioner of Central Excise, Bolpur Vs, Ratan Moetting & Wire industries observed thus:
"8, As noted in the order of reference the correct Position vis-2-vis the observations in. para 41 af Dhiren Cherical's ease (supra) has been stated in Kalyant's case (supra), Ef the submissions of learned ceunsel forthe assessee are accepted, it would mean that there Is na scope for filing an appeal. In that case, there is no question of adecision of this Court an the point being rendered, Obviously the assesses wil not file an appeal questioning the view expressed vis-d-vis the circular. [t has te be the revenue authority who das te question that. To lay content with the creular would mean thet thevalaable right of challenge would be denied to hitn and there would be no scope fer adjudication by the High Court or the SupremeCourt, That would be against very coricent of majesty oflaw declared by this Court and the Sinding effect. in terms of Artitle 144 of the Constitution & Judgement dt.05.04,2071 the Hon'ble Central Administrative Tribunal, Principal Bench in OA. Mo.392/3004 In the matter of MrSumathl Ravichandran vs. Union of india anc another observed thus "2. In the present GA fled by the applicant under Section 29 af the Administrative Tribunals Act, 1985, her claim is te give effect to the promotion from: the date persons junior to her were promoted on $1.2.20120 pursuant to the DPC that was held on 27.10.2009. Applicant stakes no claim for promotion as per DPC which met on-16...2008,
3. We need net give facts in detall. Suffice It to mantion that sdimittedly wher the DPC met on 27.10.2008, the apulicant was neither under SUSGENSION Nos charge had been framed against her under Section 240 Cree as regards case of corruption pending against hen None of the circumstances under which the case of the applicant could be put under sealed cover were in existence, Therg may have been some dispute with regard tO applicability of OM dated 14.12.2007 or 7.7.2008 when the matter cane up before us on the last date of hearing, but as on todsy, there Is no disnute that the OM that should be applicable would be dated 149.1993, OM dated 25102009 is only a reKeration of OM dated 149.1992, The OM referred to above of the year i982 came inte being after decision of the supreme Court in Union af india & Ors. Vs. KV. Jankiraman & Ors, AIR 1993 SC 2010. We are conscious of the fact that the applicant is Involved in three corruption cases but concededly, In none of the cases aforesaid, the charge under Section 43(4) and 13(1) (d) of Prevention of Corruption Act, has been framed against the applicant, The applicant was not under suspension nor any departmental inguiry was peoding ageinat him at all. in GA No, 1949/2008, decided on 24.8.200%, we have observed as follows» oe 18 OATS 202
6. Before we may part with this order, we may mention that in Grn Prakash supra}, the applicant therein was facing criminal charge, which also included allegations constituting offences underSection 13(2)and 13(1Ndjof the Prevention af Corruption Act. We may aise mention that the lav mages 'no distinction between ordinary delinquency or misconduct tke corrugtion. The Government may thisk to deal separately with the mizcinductavhich may be serious enough fike bribery and corruption, but as leng as there is no distinction made on.the gravity of the offence for an employee may be charge- sheeted, the courts shall have ne choice but for to take the view as has been taken by us."
in Judgersant dh.28.03.2016 the Hon'ble High Court of Patna in Civil Writ Jurisdiction Case No.d 705 of 2014 in the Matter of Union of India vs. Sanjeav Verma observed thus:
"s.Mn Bose learned senter counsel appearing for the Patna High Court CWIC No.4705 of 2014 ob28-09-2046 applicant stated that the Tribunal did pass onders for Railways fo produce the results, but Rallways failed te produce the results, as such Tribunal reached its owe conclusion. We have noticed this fact only for the purposes of reminding the Tabunal of its powers. Under Section:
2203) {b) of the Administrative Tribunal Act, 1985, Is has powers of a Chal Court requiring the discovery and production of documents. The power is wholesome and in appropriate cases be exercised accordingly. Instead of exereising this power, the Tribunal proceeded on conjuncture and surmisas © which has also prolonged the [Higation at the expense af parties including our time, Had the Tribunal exercised is power in right Jeter and spirit within its jurisdiction, the results which is now before us, would have been before the Tribunal and the matter would have rested then and there.
In Judgement dtidi2.2016 the Hon'ble Suprerme Court in Civil Appeal No.11231-32 of 2015 in the matter of Harsh Kumar Sharma, [FS vs. State of Punjab and anether observed thus ' "2. it may be stated at this stage that the appellant is facing criminal prasecution under the provisions of Prevention of Corruption Act, 1888 (for short 'PC. Act'). The issue, therefors, resolves arsund these criminal proceedings, namely whether that could farre the basis of keeping the result af the DPC In sesled coven Accarding te the appellant, having rogard to the. puidetines for resorting to the sealed cover procedure, stage was not ioe for This purpose aa, as on the date oa which the DPC was held, there was neither any chargesheet against the appellant nor any charges framed in the clminal ease... The respondents claimed othanwvise as, according ty them, matter had already been entrusted to CBl for carrying out the Investigation inte the: .. allepations of acts of corruption on the part of the appellant and aven the investigation was complete and report under Section 172 of the Cade of Criminal Procedure, 1973 {CxRC) had been submiltted by the CB te the competent court. Since the report under Section 173 of the CeRc. was ed rig .
O.AAIV2022 before the first meeting of the DPC which was held, it was argued that the sealed cover procedure had been rightly adapted.
6. The events which are relevant for the purposes of this case from, the stage af fling of the FIR til the fillng of the chareesheat in the Court and the holding of BPC, are as under: 07.04.2006 : CBE filed the FIR. 05.07.2006 ° The appellant moves the case for quashing of FIR, 20.08.2006 » Government of india delists this land from the category of forests. 17.08.2006 : State Government admits that the above satd lands were erroneously recorded as. forests. 27.10.2006 :
The appellant moves quashing petition Wide number 45437 M of 2006, 27.1 L206 +
24. While it may be so, other contention of the appellant regarding review of his case has adequate merit. OM, dated.14.09.1992 as well s¢ other O.Ms. Impress the necessity of ensuring thet the disciplinary caseseriminal Prosecution instituted against any Gaverrnment servant & not unduly prolonged and all efforts te finalise expeditiously the proceedings should he taken so that the need for Keeping the case af a Goverment servant In s secled cover is limited ta the barest minimum, § is further provided that the appointing authorities should review comorchensively the cases of Government servants, whose suitability for promotion te a higher grade bas bean kept | ia sealed cover, Such review should be undertaken on the expiry of 6 months fram the date of convent nig the first DPC which had adjudged the suitability and kept the findings in sealed cover This review is alsa te ba done subsequently as Page 15 15 well, after avery six months, Ik is-alsc reandated that the review should, inter-alfa, cover the progress made iy the disciplinary praceedings/criniinal prosecution and further measures'be taken to expernite the completion
29. Para S of the OLM. dated 14.09.3992 takes into consideration the sitwation where such proceedings are not concluded even alter the expiry of 2 years and impresses upan the appsinting authorities to consider the desirability of giving promotion to such Government servants keeping in view the following aspects: {a] whether the promotion of the officer will he against the public interest; (b) whether the charges are grave enough to warrant continued denial af promotion; {c}) whether there is any likelthood of the case coming to a conchisian i the near future; (a) whether the delay in the finalisation of proceedings, departmentel or in.a court of law, is not directly ar indirectly attributable to the Government servant concerned: end te} whether there is any Nkellhood of misuse of offictal position which the Government servant may occupy after ad-hoc promotion, which may adversely affect the conduct of the departmental case/eriminal prosecution, " 26. in the instant case, no review, after every six months, after the Page 1616 convening of the first DPC way back In the yeer 2011, has been dane. No doubt, the crimina! proceedings have not been initisted because of the challenge to such proceedings by the appellant in the Hith Court end this Court where the matters remain pending, at the same dine, euch review should have heen taken. This wes more so when after examining the case of the appellant, at ane polnt of time, view was to even withdraw the sanction 24 20 OA ESL2022 and drop the prosecution, Even when the Central Government repestedly asked the State Government to do sa, the State Government kept.on dragging its feet. No doubt, it has now been decided not to withdraw the sanction and that iasae is the subject matter-of SEP {Crinfnall No. FES? of 2009, Fact remains that delay in this behalf has been on the part of the State Government. There are other. significant davelapments insofar as issue of golf course in a fnrest area Is concerned, it is almost dead now. The persons involved fin the sald main case stand discharged. Even the public servants invalved therein. stand promoted. In view thereof, the Government should have considered the desirabllity of giving the appellant ad-hoc promotion --
wher prinia facie none of the circumstances mentioned In para 5 of OM. dated 14.09.1992 and extracted above appear te axist.
In Judgement dated. 20.10.2022 the Hon'ble Supreme Court in Civil Appeal No.84i-845 of 2002 in the nratter af CdrAmit Kamar Sharma.ete: vs, Unian of India & ors. Qhserved thus:
"B. The second respondent, in the written submissions before the AFT, filed in Cir AK Sharma vo Union of India submitted that the vacancy celculation is Mare than an exercise of simple mathematics and that the "minute detalls af vacancy calenlation cannot be put in the apen domain far the obvious reasons. Accordingly, this Hon'ble Tribunal will be provided with a detailed note with respect to vacancy caloulstion in a sealed envelope (as and when sought," It was also submitted that the fatrness of the selection process "would be amply dear from the selection. Board Proceedings which would be crovided fo this Hon'ble Tribunal for perusal in the sealed cover, if need for the game arises"
'Similarly, Ta the counter affidavit filed in Commander Barsha & (2021) SCC Online SC 261 9 O.4 2167 of 2021.7 Agrawal v. Union of Indiald , it was submitted: 3 Checordinghy this Hon'ble Thonal 'has beer provided with 2 Therefore, the Counsel for the Applicant has contended that there is watation of Article i+ as there Is hastile discrimination done in the matter Gf applicant The departmental proceedings datd 29.10.2013 was declared @s void ab Initio By the Hon'ble High Court on 12.01.2017: Moreover, suspension was revoked on 09.08.2016 and also criminal proceedings cannot be said to be pending since charge sheet In the same was not .
served an the Applicant as required under Section 207 of CrRC.NOR charges were framed under Section 240°CrPC. He further argued that another Officer namely Mrdatfer Sait, IPS was granted promotion as Director Genera! of Police an 19.01.2019 during the pendency of OLACTS 2022 C.CMo.25/2019 on the file of the Special Court under the Prevention 'of Corruption At, Chenna! on the premise that charge sheet In the criminal proceedings has not been served on him. Charge sheet could not be served on him because of the stay granted by the Hon'ble High Court of Madras when the officer challenged the issuance of the summons to appear in criminal Proceedings.
25 The Counsel for the Applicant vehimently argued that the aoplicant stands on an identical footing, since he also did not appear before the criminal court due to the stay granted by the Hon'ble Supreme Court and charge sheet was not served on Alm under Section 207 of Crt. Therefore, the Counsal for the Applicant prayed for relief for promotion to the applicant, 26 On the other hand, the Learned AAG for the Respondents has also vehimently opposed the claim on the following grounds :
fa} that DOPT Instructions dated 14.9.1992 further amended by OM dated 15.01.1999 which stipulates that as appointment of the members of the Ail Indla Services to various grades is mace on regular basis and the concept cf one-time confirmation. exists In their cases, the concept of grant of adhoc promotion is alien to them. Unlike Central Government Sésrvaits, adhoc promotions are not allowed in their cases even if the disciplinary cases/ criminal prosecutions instituted against them are found to have been prolonged. In thelr CASES, only six monthly review af their disciplinary / criminal cases. is to be undertaken and efforts are to be made to expedite thelr completion.
fh) that the DPC held in 2014, the applicant was considered in all the Screening Committee mestings held for empaneiment oF IPS officers fit for promotion to grade of ADGP & DGS The applicant's representation dated CA LIN?
19,1,2022 has been fully considered and the applicant was given reply on 18.03.2022 stating that his request is not feasible for comoliance for adhec promotion to the ranks of ADGP and OGP Based on the orders dated 27.08.2018 of Supreme Court af Irefla, that the disciplinary authority is liberty to issue a fresh charge latter after taking dual aparoval of the disciplinary authority and a fresh charge letter dated 10.11.2021 was issued te the applicant rescinding the earlier charge letter dated 29.10.2013 after obtaining dual approval from the disciplinary authority. Further submitted that the further action in the Departmental Proceedings is now under process, (¢) that in respect of the Criminal Case registered before the Special Judge for CBI cases, Coimbatore as well as the summons served on the apmicant to appear before the sald Court on 08.07.2013, However the applicant cid not appear due to the Interim stay granted by the Hon'ble supreme Court in SLP No.d7999/2013 dated O5.07.2013, (d} that in respect of the seid Criminal case, the applicant has filed WP - No.2iso1/2012 after it is remitted from the Hon'ble Supreme Court. Hon'ble High Court of Madras has considered the issue in depth and by its urder dated 02.11.2021 dismissed the WP NL21802/2012 along with other connected matters and ordered that the investigation done by the CBI is sustained. Against the sald order, the applicant has filed SLP Before the Hon'ble Supreme Court. However same has been withdrawn by the applicant. Accordingly, the SLP was dismissad as withdrawn. fe) that following with the DOPT OM dt£.14.09.1992 subsequently amended on 15.01.1999 and which reads thus "IL PROCEDURE TO 88 FOLLOWED IN RESPECT GF OFFICERS UNDER cLoup Lhd At the time of consideration of the cases of officers for sromotion of such officers in the sone of consitieration falling wader the follawing 2 O.AAgL2022 categories: should be specifically brought ta the notice of the concerned Screening Committees fa) Officers under suspension:
ib) Officers in respect of whom a Charge-shéet has been issuad and disciplinary proceedings at pending:
fo} Officers In respect of whom prasecution for erfiminat charge is pending iL2 The Screening Committee shall assess the suitabillty of the officers coming 'within the purview of the. circumstances mentionad above, along with other --_ eligih!s candidates, without taking inte consideration the digcintinary case/eriminal prosecution which is pending, The assessment of the Gommittee including "Unit fer Promotion" and the grading awarded by itwil he kept ina sealed cover, The cover wil be superscribed "Phidings regardingthe suftabifity for promotion to the scale of cece in respect of SHri cca net {o be opened Hl the termination 'of the dscigiinary dasaferihi indl prosecution against Shri..." The proceedings of the Committee need only contain the nate "The findings are contained in the attached sealed cover" The same procedure will be adopted by 'the subsequent Screening Committees till the disciplinary caseyferimizial prosecution égainsi the officer concemedis concluded, {8 SEALED SOVER = CASES ACTION AFTER COMPLETION OF DISCIPLINARY CRIMINAL PROSECUTION ' Ifthe proceedings of the Camniittee for promotion contain findings ins sealed cover, on conclusion of the disciplinary case/ criminal prosecution, the sealed cover or covers shall be opened. In case the officer is completely exonersted, the due date of his promotion will be determined with reference to the findings of the Screening Commiites kept in sealed ooverfcavers and with referante to the date of promotion of his. next junior on the basis of such findings, the officer may be promoted, if necessary, be reverting the junior most officiating person. Such promotion would be with reverence ta the date of promotion of his junior and in these cases, the officer will be paid arrears of salary and allowances, 21 SEALED COVER PROCEDURE APPLICABLE TO OFFICERS COMING UNDER CLOUD BEFGRE PROMOTION in the case of an officer recommended for promotion by the Screening Committee where any of the circumstances mentioned In Para 11 above arise before actual promation, sealed cover procedure would have te be followed, The subsequent Cormmitige shall assess the suitebility of such offices along:
with other eligible candidates and place their assessment in sealed cover. The sdaled cover/cavers will be opened on conclusion of the disciplinary case/criminal prosecution. in case the oNicer is completely exonerated, he would be pramoted as per the procedure outlined in Para 18 above and the. question of grantof arrenes would alsa be decitied accordingly. if any penalty is imposed upon him asa result of the disciplinary proceedings of If he Is found Ny ad guilty In the criminal prosecution agsinat him, the findings of the sealed cover shai not be acted upon, a outlined in Pata 18.2 above (A that the respondents in the matter of applicant's case they have Fllowed the guidelmnes strictly since the criminal case as well as the desartmental 'proceedings "are pending against the applicant and as observed by the Hon'ble Supreme Caurt in thelr judgment. that charges are very serlous end according to the cirection of Hor'ble Supreme Court, the applicants suispensian has been revoked and applicant has been - posted in non-sensitive post, (9) that the allegations made against the applicant are serious In nature and according to the directions of the Horble Supremé Court and as per the liberty arented for issuance of fresh charge memo, the respondents have complied with fhe order Alga, the Hon'ble High Court of Madras by their order dated 02.11.2024 mh Wwe No.2i801/2012 confirmed the investigation by the CBI and transfer the cage te CBT . Therefore, the La, AAG for respondents have prayed for the cismissal of the OA as devald of merit.
2? Por better sppreciation of the facts and ment in fhe matter we are extracting the observatioas in the judgements and orders made by the Hon'ble Supreme Court of India and the Hon'ble High Court of Madras.
28 It is to be noted that while considering the Civil Aoneal No.@d3a7- e428 of 2018 fled by the State of Tamil Nadu against the applicant by judgement dated 21.08.2018. The Hon'ble supreme Court in their Judgement observed thus:
"& 'The first Respondent filed an aplication for bail which was rejection by the High Court on 02.04.2012, Thereafter, Se was arrested on 02.05, e012. The Principal Secretary to Government of Tamit Maclg by an erder dated 16.05.2033 place the firs respondent under suspension with effect fra OL04.2012 in terns of SubRule 2 oF Rule 3 of the All India Service (Discipline and Appeal] Rules, 1969 until further orders.
25 , C.A SS Laoe9 it was mentioned in the sald order that the frst Respondent was arrested ion 02.05.2012 and was detained in custody for a period exceeding 48 hawrs. It & relevant ta note that the first Respondent was releasad on ball on 28.06.2073, i4 There are two issues which atise for consideration in this case. One pertains te the validity of the charge memo and the other relates to the continuance of Respondent. No.) under suspension. As the bwo issues are distinct and nat connected ta each other, we proceed to deal with them separately, Validity of the Charge-Meme
135. Rule 8 of the All India Service (Ofscipline and Appeal) Rulds, 1969 prescribes g procedure for imposing major penalties. 4 major penalty specified in Rule $ cannot be iniposed except after holding an enquiry in the manner prescribed in Rule 8. Where it-
is proposed to hold an enquiry against a member af the service under Rule 5, the disciplinary authority shall "draw up or caused to be drawn up" the substance of the imputation of misconduct or mishehavior into definite and distinct article of charge. The Rute further provides fer an opportunity to fe given to the delinguerit to submit his explanation, the appointment of anjinguiring authority and the procedure te be follawed for imposition of s penalty with which we are not concerned in this cage. The disciplinary authority as defined in Rule 2 (b} fs the authority competent to impose on a member of the service any of the penalties spectied in Rufa 6. Bule 7 provides that the authority ta institute proceadings and fo Impose penalty on a member of All india Service is the State Government, if he is serving in connection with the affairs of the State. There Is no doubt that the Goverment of Tamil Nadir is : the disciplinary authority The authority te act an behalf of the State Government as per the Business: Rutes is the Minister far Home Department. There is no dispute that the Hon'ble Chief Minister was holding the said department during the relevant period (2011-2016). Matters pertaining to disciplinary action against IPS, 1AS and IES officers had to be dealt with by the Chief Minister as per Stencing Order No.? dated O9.61.1992 issued by the Chief Minister of Terail Nace under Bute BS (4) of the Business Rules which reads as follows "Paragraph 18. Ofsciplinary Action Files relating to disciplinary action against LAS/LES/LES. Officers in the senior-grade and above at the Stage of Issue of charge memo/show cause notice to the above officers alane should be clreulated to the Chief " Minister.
in the case of Secreterfes to Government where action Is contemplated under Rule 17 fa} or 1? (b) of the Tarll Naidu Civil Services (CC SA) Rules such Sles should be circulated to the Chief Minister, In the case of Meads of Department files where action is contemplated under Rule 17 (b) of the T.N.C.S. (CC &A) Rules, alone should be circulated to the Chief Minister, in the case of District Revenue Officers, the files should becirculated to the Chief Minister . anh at ihe stage of impositien of penalty after obtabiing the exclanation of the officers.
fa a6 CATS 2023 in the case of Joint Secretary Deputy secretary where action js contemplated under Rule 17(b) of the TALS. (CC A) Rules such cases should be circulated by the Chief Secretary to the Chief Minister. ' in respect of all other officers filles should be elrcutsted to the Chief Minister as per Business Rules, *
26. By an order dated 19,04.2018, we directed the Chief Secretary, State of Tamil Nadu to vile an affidavit explaining the bosition pertaining to the Business Rules and the standing orders, The affidavit ed by the Chief Secretary, Government of Tan! Nadu dated 14.03.2038 discloses that 'the first Respondent was arrested on"
O2.05.2012. He was | placed under suspension on 10.03.2012 under Rule 2 {2),.of the All indle Senjice (iscipline and Avpesl) Mules, i969 after obtaining the approval af the Hon'ble Chief Minister an the nove for circulation dated 05.05.2012. it was further stated in the affidavit that regular departriental ection fer a major penalty was iniBated against Resnondent Not under the All india Service [Discipline and Appeal} Rules, 1969 on 05.04.2013 ater obtaining the approval of the Hon'ble Chief Minister. iy, itis clear that the approval of the disciplinary authority was taker for hidation af the disciplinary proceedings, It is also clear from the alidavit thet mo squroval was sought from the disciplinary authority at the dme when the charge mamo wag issued _ te the delinquent officer The submission made on behalf of tha Appellant fs thar approval of the disciplinary authority for Initistion of disciplinary proceedings Was sufficient and there was nea need iar another spproval far issuance of charge memo die basis for such submission is that initlation of d istiplinary proceedings and issuance of charge meio are at the same stage. We are unable to agree with the submission in view of the juégment of this Court in By Gopinath (supra). ts thet case the charge meme issued ta Mr. Gopinath under Rule 14{3) of the Central (lvl Service (Classification, Contra! and Appeal) Rules, 1965 was quashed by the Central Administrative THbunal on the ground that the Fiance Minister did AOL approve ft, The fudement of the Yr buna) was affirmied by the Nigh Court. The Unior:-of india, the Appellant therein submitted before this Court that the approval for Initivtion of the departmental procesdings includes the approval of the charge meme "Such submission was not setepted by this Court on an interpretation of Rule 143) which provides that the disciplinary authority shall "draw Up or cause to be crawe up" the charge, memos, ibwas held that If any authority other than the disciplinary-authority is permitted to draw. the charge memg, the same would result in dastroying the underlying protection guaranteed undsr Articte 812 (2) of the Constitution of India, 18, Rule 8 {&} of the AN india Seniira (Discipline andAppesl) Rules, 1969 also. mandates that the disciplinary authority shall "draw up.or cause to be drawn up" the charge memo. We see no reason to take a view different from the one taken by this Court in BM.Gopinath (supra). We also see no substance in the submission mace by the Senior Counsel for the State that the gald judgment. needs reconsideration, Assuming that MeGiri is right in Sls subsnlssion that the Initiates of disciplinary proceedings and issimace of chases mena are at the Same stage, the mandatory requirement oF Rule & which provides for the charge meme to be draws by the disciplinary authority cannot be ignored. We reject the submission on Behalf of the Appetiant that Gopinath's case can be distinguishad on facts. We are not in B PIF E at CLATST 083 agreement with the contention of the Appallant that the business rules and standing orders of the State of Tarnil Nadu are quite diferent from the office orders and circulars Issued by Union of India which formed the basis of the judgment in Gapinath's case. A close reading of the said judernent would discloses that rellance on the office note was only in addition to the interpretation of the Rute.
iS. itis also settled law that if the rule requires something to be dene in a particular manner it should be done elther in the same manner or not at all-Taylor «. Taylor {2875} 1.Ch.O. 428, 431, In view of the mandatory requirement af Rule 8 {4} and the chargé rneme. being drawn up or cause to be drawn up by the disciplinary autharityts net complied with, we are of the considered. opinion that there is no reason to interfere with the judgment af the High Court on this issue. The oniy addition we would Uke to make is te give Bberty to the disciplinary authority te issue a charge memo afresh after taking approval from the disciplinary authority, Suspension ab. The first Respondent was placed under deemed suspension finder Rule a2} uf the periodic raviows were arriuetea 'for his continuance ander' suspension. The recommendations of the Review Committees did not favour his nsinstatement due te which he is sul uhder suspension. MnP Chidambarmm, learned Senior Counsel appearing for the frst Respondent fairly submitted that we can proceed on the basis that the criminal trial is pending. There cannot be any dispute 17, regecding the power or Jurisdiction of the State Government for continuing the frst ctegations. made . against the first Respondent aré serious In nature. However, the point is whether the continued suspension of the first Resgondent for a orolonged Serlod is justified.
23. This Court In Ajay Kumnar Choudhary « Union of indla, (2045) 7 SCC-294 has frawned upon the practice of protracted suspeasion and held that suspension must necessarily be for a short duration, On the basis of the iviaterial on record, we are convinced that no useful purpose would be served by continuing the first Respondent under suspansion any longer and that his, reinstatement would not he a threat to a fair trial. We relterate the observation of the High Court thet the Appellant State has the liberty te appoint the first Respondent ina non sensitive post"
28 It fs to be noted that after considering the facts and order passed by this Hon'ble Thbunal as well as the Hon'ble High Court, Hon'ble Supreme Court In thelr judgements subsequently recorded that in respect of the allegations made against the applicant are serious in nature. However, the Hon'ble Supreme Court while reiterating all the observations of the Hane High Court granted Hberiy to the respondents ta appoint the 28 OATSU2022 applicant in a non-sensitive post.
SG It is alsa to be noted that thouanh the Hon'ble Supreme Court Has declined te interfere with the judgement of the Hon'ble High Court on the issue of tharee memo, However, after cansidering the. affidavit of Chief secretary of State, has grated Liberty to the Disciplinary Authority to isS¥e@ a charge memo afresh after faking the spproval from the Disciplinary Authority, Si Fis to be nobed that after the order dh.21.08.2018 passed by the Hon'ble Supreme Court, all the orders passed by this THbunal as well as the Han'ble high Court of tadras has sttsined finality, Therefore, the applicant cannot soy that after the order of thie THbunal passed on O8.8,2016 for revocation of suspension, his suspension has got automatically revoked.
22 SS far as concernad to the charge meme, though the Hon'ble High Court has quashed the disciplinary proceedings the sairi charge memo in the year 2017. However, subsequent to the challenge made by the State Government before the Hon'ble Supreme Court and the matter was the same attained finally on 21.08.2018 only. Therefore, the orounds taken by the applicant to shelter His arguments that after this Tribunal have revoked the suspension as well as the Hon'ble High Court quashed ihe charge meme nothing was bending is net tenabie.
33. ft is to be noted that after remanding the matter in respect of We No.2i801/2012 Ried by the applicant in the year 2015, the matter was subjodice before the Hon'hle High Court of Madras Hil 2021,
24 Tt is to be neted that though the Learned Judge of CRY Court has closed the CC No. 2/2043 and passed the order on menios of the apnifcant DATS T2022 * snd In one another accused Mohan stating that the said CC fo be closed subject to the orders of the Hon'ble High Court of Madras in WP No.21801/2012 and Cr. O.PNo. 2601 of 2011 and 5356/2011, 35 Ttis to be noted that questioning the said arder of CBI Court, the Addl. Supdt of Police, CBI had Med Crop Ne.iss1/2016 was pending from 2016 onwards fill the final judgement dated 27.21.2021.
36 it is to be noted thet all these facts have been observed by the Hon'ble High Court of Madras vide its order dated 42.11.2021 -- relevant paras extracted as under
"94 As seen above, the Jearmed Single Judge had transferred investigation in Crime No. 26 of 2009 which was subsequently registered as Crime No. 3 of 2020 to the file of the Directors, Central Buraau of investigation, New Delhi, At the same time, the laamed Single Jedge had also teansferred investigation of the case which was registered as Crime No. 3068 of 2009 which was pending on the file of the Deputy Superintendent of Police, CBCID, Vellore and which was, to recall, the:
original woman missing complaint also to CEL,
37. On O7.08.2019 while CBI was conducting Investigation in. what was the original woran missing First Information Report pursuant to the otder of the learned Single Judge of this Court, Promod Kumar LPS, who, to recall, had actually been issued with summons ender Section 180 CePc,, by the Deputy Superintendent of Police, CBCID, Vellore, fled WPNa. 21801 of 2012 before this Court seeking a Writ of Mandamus forbearing the third te fifth respondents, namely CAl, represented by its Directors, the State of 'Tamil Nadu, represented by is Secretary, Department of Home and the Additional Superintendent of Police, EOW, Chennai, from. proceedings further with aither conducting anquiry or Investigating the offences alleged to have been committed by him in ronnection with Prat infarmetion Report in Came Ne. AE TEVOLIceYEOWw/Chennal, pending on the file of the thir respondent/CBl, Chennal.
= 29, That writ petitian was dismissed by 2 learned Single Judge of this Court by order dated 05.12.2012. The leamedt Singlt Judge held that the wirit Petitioner was hot entitled to maintain the writ petition and to find fault with respondent Nos. 3 and 3 in arraying fim. as A-G in the First information Report RC, Mo. 13{E]/2014-CBi/EOW,/Chennal..
eae RR sk we 30 O.AdBLR029
30. Theresfter, the writ petitioner filed WA.No. 12 of 2023. The Writ Agpeal came up for consideration before a learned Division Sench of this Court. By Judgment dated 29.04.2015, the Writ Appesl was also disintesed., + 34, The writ petitioner Pramead Kumar then Sled Special Leave te Appeal [C} Mas. 17899 of 2013 against the Judgement of the Division Bench. He 'also filed an application (n SEP (Cri) CrLMLPNos. 15475 and IS¢76 of 2014 with application for permission to file SLP against the order of the learned Single Judge In CrhQ.PNos, 2694 & 5356 of 2011. whereby the learned Sinele Judge had directed transfer of investigation to the Central Bureau of investigation.
32, By order dated 17,03,2015, the Hon'ble Supreme Court referred to the Judgement reported in (2011) 14 SCC 77 [State of Puniab Vs. Pavinder Singh Bhullar] and then ordered as follows:
"In view of the above, without getting inte the Intricacles of the rnerits of the issues canvassed, we consider it just and appropriate fo remand the matter back te the High Court, requiring the High Court to adjudicate upon Writ. Petition No.2i861 of 202 afresh, by impleacing the appellant{s) in Criminal Original Petition Nos.2691 end 5356 of 2014, and by affording an appartunity to the appellant before this Court. In disoosing of the sioresaid Writ Petition, the jurisdictian exercised by the High Court, would Be under A rtide 226 of the Constitution of India, In the above view of the matter the arder dated 5.12.2012 passed by the High Court while disposing of the above Writ Petition is hereby set aside. Parties are directed to appear before the High Court on 134.2015. We hope and trust that the High Court shall dispose of the controversy at the earliast, Since, the appellant harein was sot heard when tie order dated 19.4.2041 was passed by the High Court while dispasing of the Criminal appropriate to further clarify, that the above order dated 19.4.2011, will not stand Int eh way of the appellant herein, when the High Court disposes of the matter afresh. The instant sapeal is disposed of in the shove tonns..Pending apalitations, F any, areale disoased of S.LA(R) No. _/20i4 (Cr. M.RNos.15475- 15476 of 2014} Permission to file the special laave getiden is granted. Delay condened. in view of the arder passed by this Court) in the Civil Appeal orising from Special Leave petition {C] Noa.17899 of 2013, nothing survives in thease petitions and thé same are accordingly disnosed-of [Emphasis Supplied]"
= a | OA AS12028 33, By the said ordey, the Hon'ble Supreme Court had remanded the matter, namely, WRNo. 21804 of 2012 back to the High Court and directed afresh adjudication by Implesding the appellant, namely Pramod Kurnar in Cr. Bos. 2697 and $356 of 2004 and afferd him an opportunity of being heard. The order dated 05.12.2012 in W.R.No. 21801 of 2012 was set aside.
+ a4. The Non-ble Supreme Court had further stated that the onder dated 19.04.2014 of the learned Single hidge of this Court transferring investigation to CB) of what can be called the woman missing case will, net stand in the way of Pramod Kumar when the matter Is heard afresh. In view of the seid order It had been further observed that no separate orders are required with respect to the petitions seeking permission to file Spacial Leave Petition against the order in the two Criminal Original Pacitions, Crl.O.2.Nos. 289 and 5356. of 2021.
35. The Hon-ble Supreme. Court fad directed the parties, namely Pramod Kumar and the respandants in the writ petition to appear before the High Court on 13.04.2015. The Hon-ble Supreme. Court further stated that they trusted and haped that the High Court wduld dispose of the sordroversy af the earliest, ie 39, In. the meanwhile, on 22.05.2013, after complating the investigation in the woman missing case, CBE had filed final tenort before the Special Court fer CSl Cases at Coimbatore which final report had been taken cognizance as C.C.NS. 2 of 2013 for commission of offences punishable uader Sections 120-B rfw 347, 384, 508(i), BO? of IPC and alsa under Sections 8, 16, 19(2) c/w LS Heh of PC Act, 1988.
4), CPt had also completed the investigation with respect ta the offence in Crime No. 28 of 20009 and fad filed a final report before the Special Court for TANFID cases in Coimnatare, which had teken cognizance of the Binal raport as C.C.No, § of 2011 against the accused, Kohan Raj, K:Kethiravan, Kemalavalll, M/s. Paazes Forex Trading india Section 5 of TANPID Act 1997.
& a2 O.AISLG022 44, f must be pointed out that even in the Interim orders, prior to the passing of the final order on 17.03.2045, the Nen'ble Supreme Court by an order dated 28.04.2014 had stated that the CBI can conduct further investigation in relation to the role of other Individuals if any, Itwas alsa stated that in case, the investigating agency requires any assistance, the petitioner/Pramad Kumar should co-aperate, a
42. Pursuant to the ofder of the Hon-ble Supreme Court dated 17.03.2015, the writ petitioner Pramod Kumar filed a further affidavit in WANo. 21804 of 2012. Inthe additional affidavit, the petitioner stated that the Hon-ble Supreme-Court had countenancad that the transfer of the case to. CBl was in vialstion of the principles of natural justice and therefore, further investigation and every other action teken by Cal pursuant to the order dated 19.04.2021 of the learned Single Judge in CrO.PNos. 2681 & 5356 of 20412 have become a nuligyand are void, 43, He further stated that the CBI had taken Alm inte custody on 62.05.2012 and he suffered incarceration HR 98.06,2012. He had alse been suspended on 02.08.2012. He ¢laimed that he had been put fo unnecessary harassment and embarrassment. He staced that all consequential Judicial or administrative actions had become a nullity dn Wew of the order of tha Hen-ble Supreme Court. He therefore stated that the Writ Petition should be allowed by declaring that all actions fonsequent to the order dated 29.04.2071 are void abinitic,
44. Thereafter, V.Mohan Ral, one of the accused / Inspector of Police CCB, Tiruppur filed WANo. 17856 of 2015 under Artice 226 of the Constitution of india seeking a Writ of Certiorarl, to call fer the charge sheet filed in C.C.No. 2 of 2019 on the file af the Special Court, CBE Cases, Coimbatore and to quash the same, © 4/. {twas also stated that since the Hon-ble Suprente Court, by order dated 13.04.2021, had set aside the order transferring investigation to C8l, the final repart filed by CA and the cognizance taken by the Special Judge, COl Cazes, Coimbatore, are INegal acts, void ebinitio and therefore, the same should be quashed.
=
48. In the sald Writ Petition, the petiioner had impleaded all the named accused in C.C.No. 2 of 2043 ag respondents, < OAT Ng
45. Arguments were therefore acdressed on similar lines by the respondent Nes/Framod Kumar ressondent Mo. 6/N.Rafendiran, Respondent No8/ John Prabhakar @ Annachi and Respondent No.d/ N.Senthil @ Dharani Senthil Kumar kt must-be kept in mind that the respondent Nes. 6, 7 and § were alrency shown as accused by CACID, Vellore,
50. The main thrust of the arguments of the learned counsels wes that though they were not heard earlier, orders were passed transferring investigation to CBI. The respondent No.8 had been added as an accused by CB pursuantto.its investigation, Arguments were alse advanced that the investigation itself should be struck offas legal ewing te the order of the Hon'hte Supreme Court transferring investigation to CBI.
S2. "Rwo of the accused AwT Pramod Kumar and Avd Vo Mahan Raj had filed memos before the Second Additional! District Court cum Special Court for CBl Cases at Colmbatere stating that further progress of the Calendar Case should be closed and the said accused should Se exonerated. The learned Judge passed an order.on 19.00.2015 stating that in wew of the orders passed by the Hon-ble Supreme Court and by the Madras High Court in CrMLGNo, 838 of 2014, subject to the orders to be passed by the Madras High Court in MENe. 21804 af 2072 and Oy.0.P Nos, 2691 of 207% and 5356 of 2614, for the present, the case in CCN. 2OF 2005 is dasad.
a
53. Questioning that particular order, the Additional Superintendent of Police, CR, EOW, Chennai, had filed CrLO.RNo. 2661 of 2016.
56. Mnk Sankaranarayanan, warned Additional Solicitor General for petitioner is CrLO.PNe, 1661 of 2026/ respondent/CAl in WR.Ne. 218k af 2013; for the respondent in WRNo. 17856 of 2015 and for the respondent in Gi.O.8.No, 22904 of 2015 and alse in CrLO.RNa, 2891 of 2012 and Cr.O.BMo. 5350 of 2011, Me Gokulskrishnan, Additienal Public Prosecutor for Rv in WIRNo. 27856 of 2015, MrPPrasannan fer RG in. WENo. 17856 of 2015, Mnfaya Prakash, for RY? in WiaLMa. F8s6 af 2035, MrARL, Sunderasan, learned Senior Counsel for C TMurugappan ieamed counsel for 8S, MeN. fElango, learned Senior Counsel whe first Opened the arguments In WP.No. 21801 of 2014, after taking the Court through the facts of the case very emphatically asserted that every ee é a4 O.ATRL022 investigation conducted after the order of the learned Single Jinige in crO-PNo. 2694 of 2011 and 5356 of 2021 are non est in lav. The isarned Senior Counsel pelnied out that no relief had been. sought by the potitioners therein or by the respondents therein that the First information Report in Crime No, 3068 of 2009 which was the woman missing complaint should be transferred te CBI There ware Ae pleadings, There was no reference anywhere in the five petitions to that particular First information Report. The reliefs sought in the two petitions wes to transfer the investigation with respect te Crime No.26 of 2000 te CBL There was no ancillary papers. filed by way of typed set bringing ta the natice of the learnad Judge that the First information Repert in women missing casa should also be transferred for investigation ta CAL Consequently, learned Senior Counsel asserted that the arder is.nom est In law.
76, The feared Additional Solicitor General Shankara Nerayanan in reply te all the above arguments pointed out, the affidavit af Pramod Kumar fled in WBNo, 21801 of 2022 whergin the only ground taken was tivet the investigation by CBI was irregular owing to non compliance of:
Section G4 af the Qelhi Special Poltee Establishments Act. Subsequently the very provision self had been struck down by the Hon'ble Supreme Court. Therefore, the very basis of fling of the Writ Petition itself has fallen to the grounds. :
77, The warned Additional Solicitor General further stated that in the afiidawii, the writ petitioner has never stated that he was prejudiced by the transfer of investigation fo CBI, He only claimed privilage on the ground that he was appointed in All India Services and therefore, prior sanction fram the Central Government was required under Section 6A of the Delhi Special Police Establishments Ack.
80, The learned Additional Solicitor General stated that CBI only cantinued with that investigation and on conclusion of investigation had determined that he must be arrayed as an accused, He had not stated in what mancer he was prejudiced, a + BL. The learned Additional Solicltor General also pointed out the Interim omer passed by the Hon'ble Supreme Court wherein they had stated that they are not Inclined to Interfere with the investigation. The leamed Additional Solicitor General alse read the order of the Hon'ble Supreme Court and stated that they had not set aside the order in CrLO.RNos. 2601 of DOG and 8356 of 2011. They had directed further hearing of 35 OA I8La22 WEMo. 2180¢ of 2042 by a Single Judge. This was necessitated because an opportunity must be granted to the petitioner to express prejudice caused to him owing to the transfer of investigation. The learned Additional Solicitor stated that none ef the senior counsels or the counsels who argued pointed ont 4 single Instance of prejudice being caused to the accused, They only stated that they were nat heard, Now opportunity of hearing had been granted. When such ooportunity of being heard had been granted, they had nat stated anything about prejudice caused to their respective clients. They only stated that without fearing them, investigation had been transferred. When gopartunity has bean granted for them to advance areuments, they have never stated that CBI should not investigate inte the issue. They have not stated in what manner they Rave been prejudiced by the investigation. the investigating Agency has found that cognizable offences have been committed. Those offences are offences against the State. The offenders should be put te trial. The learned Additional Solicitor General therefore stated that the investigation conducted by CBl does not suffer from any isvegularity and cannot be declared as yold abinitio as dalmed by the writ petitioner herein, There was alse no cantention raised thet the writ petitioner was deliberately added as an accused by CBI, He was already ander the scanner of CBCID, Vellore. The learned Additional Solicitor General therefore stated that the writ petition should be dismissed and stated that -CH.O.P.No. 1661 of 2046 should be allewed and trisl it coc Ne. 2 of 2013 must be directed to be proceeded with, >
89. Mr Vijay Narayan, learned Senior Counsel in his reply to the arguments advanced by the learned Adiditional Solichor General stated' that the scops ef remand was only to hear the writ getition and a composite order has been passed by the Hon'ble Supreme Court and the order dated 09.44.2014 had been set aside. Once thet had been seat aside, the investigation conducted by CAL Becomes nan est in law. The learned Senior Counsel also stated that the issue of prejudice Is evident because the investigatian itself is bad in law. Whenever there is a deviation from the procedure established by law and there is violation of Articole 24 of the Constitution. Prejudice auternatically follows. The learned Senior Counsel stated that owing to the investigation conducted by CBI, the petitioner had suffered Incarceration, suffered suspension and hat suffered supersession in rank by juniors. The learned Senior Counsel therefore stated that the entire Investigation should be set aside by this Court.
87, | have given ansious thought te the arguments advanced and | have carefully perused the materials on record.
@%, The facts are quite simple and straight forward, 36 CAST 02
407. Pramod Kumar had filed WANo. 21801 of 2012 questioning continuation of Investigation against hint claiming that sanction uniter Section GA of the Delhi Special Police Establishment Act had not been granted and claiming that he was 2 rember of All India Services. The Writ Petition was dismissed, 409, Thereatte, he fled a further Appeal te the Hon-ble Supreme Court under Special Leave fo Appaal (C) Ne. 1799 of 2013 and had also fled on application seeking permission to file SLP against the cammon order in CrLO.0.Nos. 2691 and 5556 of 2043. These applications were CoM PASAS & 15476 of 2074.
135. Coming te the facts of this casa, it has te be therefore be first 'examined. whether any of the parties to WIRNo, 21801 of 2012 or in WPMG, T7856 of 2025 have alleged judicial bigs against the learned Sinaia Judge. They have thankfully not done so. But it is complained that the learned Judge had transferred investigation ta Cel without there heing any application for such transfer, without there being any prayer seeking such transfer and mere importantly by stating that the counsel for CBl had represented that CBl would investigate that particular case.
* +
136. This statement is found in the grounds raised by Pramod Kumar before the Hon'ble Supreme Caut. it is not part of the records.
145. It is thus seen that even during the investigation conducted by CBCIO, Vellore, the weit petitioner Pramod Kumar had heen issued with summons under Section 160 CrRC, to attend enquiry and he had actually appeared before the Investigating Officer and answered 28 questions in writing. Thus, the needle of suspicion was against him aven during that particular period. .
150. The petitioner had known that the needle of suspicion had already been Solnted out against alm by CBCIO, Vellore. To prevent that ag reality ta hagpen, instead of claiming bias as a ground et the earliest instant, the only around taken by the petitioner was that there was no sanction 2s fi 3?
CLA TS e022 contemplated under Section GA of the Delhi Special Police Establishment Act a
151. inthe additional affidavit, he ateted that he had been arrested and that he had been suspended. These are results of the commission of any offense, Any police official, who investigates cognizable offence has 3 right to take the accused under custody, ° 4
182. The petitiower should allege prejudice at the very inception. Mr. Vilav Naraysn, learned Senior Counsel relled on the phrase sublate funideniente cadit opus and stated thet. since the Hon-ble Supreme Court had interfared and set aside the order, all further investigation by CB will have to be declared as mule, 754, The Hon'ble Supreme Court had only directed that this Court should re-examine transfer of Invesligation to CS! and should examine thet on the basis of saragraph No. 75 of the Devendra Singh Bhuller referred supra. in paragraphs No, 75, the Hon'ble Supreme Court had given directions wherein, they had stated that the Court should come to a conclusion that a prima facie case is made out against the accused.
485. in the Instant case, the soitus report of the CBCID, Vellare iiself shows that there wes a prima facie case against the accused. it is-also seen that the matter cannet rest with an investigation of the woman missing cate es an independent event. [t must be looked trom the larger perspective of a Director facing criminal extortion by police officials that they would give protection fram. criminal action if money is paid. The money was. paid. There Gs a direct Interlink arnong all the actions. Therefore, having re-exaniined the facts, Lam of the. firm oginion that it fea fit case for handing {ft over for investigation to CEL 159, Placing reliance, Mr Vijay Narayan, learned Senior Counsel stated that in the Instant case, since the Hon'ble Supreme Court had set aside the order of the learned! Single Judge directing transfer of Investigation to CB all fuyther Investigation stand vitiated and non est. This aspect was underly canvassed by all the other learned Senior Counsels/Counsels, But a reading of the ander of the Hon*ble Supreme Court indicates that the order in the Writ Patition had been set aside and the High Court had heen directed to dispese of the controversy. The controversy was whether there could be transfer of Investigation or not. i have held that the transfer of investigation is required. i hes became a fait accompli.
ao .
OAT USNS C8 had already conducted Investigation. They have alse filéd final report. The petitioner herein had not complained of any bias caused during the course of investigation or with the procedure adopted during the course of investigation. No such ground has been raised. However, al the accused claimed that the. investigation should be set aside since ths Hon'ble Supreme Court had set aside the order in the Writ Pedtion and had directed the High Court to rehear the matter again. Even when .¥ opportunity had been granted, they nave not stated that Cal in the course of investigation hed acted in a prejudiced manner and had filed 3 charge sheet without any evidence or had gathered evidence to thelr convenience or put up witegses ar materials which did not exist, These aye all mot Issues raised. They have not stated that they have been prejudiced by the Investigation. They have not stated that improper Investigation had been conducted. it must be kept in mind that the Hon'ble Supreme Court had oaly directed this Court to hear the matter afresh. On the investigation already done, the accused have not raised 3 single voice of protest.
x
161. In the instant case, the infraction of Article 24 of the Constitution was sought to be re'exarnined to the Nmited extent to-find out whether
- non bearing of the writ petitioner hed caused hin prefudics. When the learned Single Jucge wag hearing the matter, CBCIO Vellore had already pointed its needle of susaicion against the writ petitioner, Therefore CBI cannot be charged with prejudice. They did net pick and choose the wet petitioner from thin sir and arrayed him as an accused. CBCIG, Vellare already hed pethered materighs against Alen. CB) conselidated those materlals and gethered further materials and filed the final report. | would abo readily stete that if CSi had not investigated, CBCID Vellore . would also have drawn the same conclusion, e L6s. In view of all these reasons, even though several other Judgements revolving around the very same issue, Wad baen cited at the bar, ] would mass the following orders:
4CE WRNe, 22807 of $012 and WRNo. 17856 of 235 are dismissed.
® L67. Inadew of the orders passed, the docket order dated"19.10.2045 in Ceo.Na, 2 of 2013 by the tf Additional District Judge curn Special Judge far CHI Cases, Coimbetore is set aside and @ direction is elven te the learned Special Judge for Cot cases ta proceed furtherin manner krawn to Faw ih CC.Ma. 2 of 2013. This Petition is allowed.
a
268. In the result, (1). WP.No. 21801 of 2012 and WP.No. 17856 of 2035 ave dismissed. The investigation cdorie by CBs sustaine (4). Crl.G.BNe, OA. 132022 1661 of 2016 is alowed."
37 Tels to be noted that by order dt.2,11.2021, the Hon'ble High Court of Madras [Is not only dismissed the WP.NO. 2801/2012 filed by the applicant as well as allowed the Criminal OP Aled by ASP CBI No.1661/2016 against the order passed in CC No. 2/2015 and set aside the order dated 29.10.2015 passed by the CBI Court, 38 It Is to be noted that the sald ender dated Q211.2021 has been challenged by the applicant before the Hon'ble Supreme Court and further the same has been withdrawn. Hence the order passed by the Hon'ble High Court dated 2.11.2024 atisined natty.
49 itis to be noted that the said criminal charge sheet filed in the court on 22.05.2013 and the summon was senyed on the apalicant to apoear before the Special Judge for CBI cases, Coimbatore on §.7.2013, but he did net appear due to the interim Slay granted by the Han'ble Stprame Court i SLP No.17999/2013 dated 5.7.2013, the applicant did not appeared before the court on §.7.2013, if cannot be sald the charge sheet was not filed in the court, .
40 It is to be noted In the matter of of Union of India vs,V.Appalla Raju in WP No.8758 /2014 the order passed by the Hon'ble High Court of Bethi refied upon by the respondents. Oealing Into. the similar issue after considering DOPT guidelines dated £4.9,1992 as well as question of applicability of the sealed cover procedure considered by the Hon'bie Supreme Court of India In Union of India vs.RS Sharma observed thus:
a4. The question ef the applicability of the sealed cover procedure was considered by the Supreme Qourt in Union of India v. BS. Shanna (2000) 4 sce 294 wherein it was opined» "46. Learned counsel for the raspondent mada én endeavour to contend that in the Night of the decision of this Court in Union of India w AM Jankiraman (1991) 4.S00 109 the Sealed Cover Procedure can be resorted to only after charge-maemo is received or a charge-sheat is filed and thet unless such an event hed happened at the refavant Sime the goversment CR ne eae ee 40 OATS 2023 employee cannet be denied of his promotion, if he Ie otherwise entitled to it, Learned counsel also submitted that Jankiraman (1951) 4 SCC 109 was since followed in Union of India w Br Sudha Sather {1998} 3 SCC 394 and Bank of india \. Oegala Suryanarayans (1999} 5 SCC 762. The clauses of the second pare of the Sealed Cover Procedure considered in Janklraman (1991) 4 SOC 109 were net those Invelved in the present case and hence that decision is of no avail to the respondent. in the other two decisions the facts warranted application.of the ratio cortalned in Jankiraman (1992) 4 SCC.109, The added factor in these nwo -
tases was that the public servant concemed had been sxonerated of the charges framed by the criminal courts. i the 2017:DHC570-D8 WP {C) No. arse 3018 Page 14 of 22 presant case the respondent is still facing trial for serious offences, and hence the situation fs different. 17. We may also polnt out, in this context, that in Delhi Development Authority ¥, H.C. Khurana (2993) 3 SCC 196 ead Union of India w. Kewal Kumer 4953} 3 SCC 204 this Court found that the ratio in dankingman 1991} 4 SCC 209 js applicable only ta the situations similar to the tases Ciselissad therein, and hence the Seated Cover Procedums resorted ta hy DRC in. those two cases was upheld by this Court' 15. in the facts of the present case, ON the charge sheet was quashed on 24th February, 2040, the seated cover could not have bean opened, Ever after the charge sheet wee quashed, the sealad cover pursuant to the Review BPC held in Decamber 2010 could not have been opened becsuge on 24th April, 20.10 the respondent had heen summoned in the criminal case upon fing of the charge sheet/repart, The sealed cover procedure would have bound and barred the Review DPC fore disclosing their opiniori, By then the effect of quashing of the charge menio on 24th February 2010 insofar gs opening of the sealed cover procedive was concerned, was Inconsaquential, for when the review OPC was hald the respondent was summoned in the criminal case, 36. What was the subject matter of OA No, 2582/2008 was the charge memo In the disciplinary proceedines and not the charge sheet/report in the criminal frosecution, and as held by 8.5. Sharm isupra) clause {i} of Paragraph 2 of the DOPAT O.M. Na. 22001 /1/ 1/9 1-Estt {A} dated 31.7.2991 postulates the "case will continue to be in the sealed coyer on 2077:DRCS70-D8 WP, (C) No, B7S8/2014 Page 15 of 22 account af existenne of any one of the remaining three condisiens specified in clauses {i} to Gif} by clause ii} of the first OM". Thus the three postuistes mentianed in OM dated 14.09.1992, {}) povernment servants under suspensions(ii} government servants against whorn charge sheet has been tssued and distiptinary proceedings are pending and (fi) government servants agalast whom prosecution for a criminal charge is pending, are distinct and oparate Independently. The negative stipulations are separste and the effects thereof, as far as sealed cover procedure is concemed, would be separate and distinct, 17. Clause 201) of the O.M. dated 14,09,1992 stipulates thar sealed cover procedure can be adopted if the prosecution for erlminal cha ree is pending against government servant. The said Clause carne up for interpretation before this-court In WPIC) No. 3793/2011 titled UOl\. Jawahar tal and Ors, and WPIC) No. 1470/2021 titled UDI. Binod Shahi decided on 02.02.2004, wherely thls court hag held as under: "ID. We have to interpret the expression "prosecution for a criminal charge is pending". The ermphasis is on the word "Prosecution" meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. Yo attract this Clause, a criminal charge is nécessary framed by the concemed Court. The question & when the prosecution would be said to be pending, No At "
O.AISU2022 doubt, by mere sanctioning of the prosecution, it would not be pending, at the same time once, the FIR is lodged and the matter is under Investigation, the arasecution would be treated as pending. This Is so held by the Supreme Court in State, CBly, Sash] Balasubramanian, (2006) 13 SCC 252 in the following words:
"99 {kis in the aforementioned cantext, interpretation of the word prosecution assumes significance. The term prosecution would include institution or commencenient of a criminal proceeding, ff may include alse an inautry or Investigation. The terms prosecution and cognizance ara not interchangeable. They carry different treanings. Different statutes provide for grant of sanction at different stages. 30. "In initio" means In the beginning. The dictionary meaning of "Inidatien" is cause to begin. Whereas some statutes provide for grant of sanction before a prosecution is initiated, some others postulate grant of sanction before a cognizance Ip taken by Court, Nowever, meaning of the ward may vary fram case to case, in its wider sense, the prosecution means a proceading by way of Indictment or information, and is not necessarily confined to prosecution for an offence," 11. The Court had drawn distinction between the terme "prosecution" and "cognizance", Cognizance comes sven at a stage later 'than prasecutian whan after the challenjcharge sheet is filed and the court takes cognizance thereof and Issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the Police Officer on campletion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police regort is known. as change sheet which fs fildd before the Magistrate and it is only after gcing through the above charge sheet, the Mapistrate takes cognizance and summons the accused. In the present case, ever: cognizance has been taken by the Court and the matter is at the stage of framing of the charge.
Therefore, prosecution [s definitely pending in respect of 6 criminal charge. It is thus dear that clause {I8} gets attracted, ZO17:DHCS7O-DE WE (C) Ne. 3758/2014 Page 17 of 22.12. The matter can be looked Into from other angle namely the purpose behind such a clause. Obvigusly, the purpase behind inserting the aforesaid clause is that when the criminal proceedings have been initiated the result of DPC should be kept in ® sealed cover as the investigation is complete and investigating agency has fled the charge-sheet in the court, obviously, as par the prosecution case against the delinquent for criminal trial has been made out, }tis-a matter of common knowledge thal frerning of charge by the court at times sulistantially delayed for one reason or the other. Had the matter Been at an FIR stage and investigation In the process, situation perhaps may have been different but would not so when the investigation is complete and even the change sheet is filed In the competent court. Obviously, the filling of the charge sheet, it can safely be sald that the officer has come under a cloud bafore prarnotion. 13. if one goes Into the historical facts feading to the issuance of the aforesaid O.M. the original can be traced to the historic judgment of Apex Coust tn Linton of India « KM, Janklraman, (1991) 4 8CC 109, The Court in that case expressed its concern while take note of the O.M. contained in 80.04 1982 ae the situation was that Union of India could not denied the promotion or years together even on account preliminary | Investigation continuing endiassly and when no departmental action was initisted either or charge sheet before the competent court filed. in such a situation, the court Nn equities in favour of the 'government servant. This led to the amendment in the O.M. dated 12.01 1988 42 OA A282 was issued and this was aleo superseded by the O.M. dated 14.08.1992. Once the equities are fo be balanced and where situations are differant denying oromotion ta the government senvent without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had baen completed. For framing of the charge, ballis In the court of 2O27:DHOS7O-D8 WAP. (Cc) No, 8788/2004 Page 18 of 22 law, If there ba delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of charge sheet the government servant has come wider cloud, f such esituation fs allowed, any such government servant who is duefor promotion can prolonged the franting af the charge by the court of law and In the mean time get hls case considered by the DPC. it cannot Se countenanced: A Single Bench of this Court had dealt with the simfar issue in B.S. Srivastava wo Managing. Director and AcNna Chgirman. GIC,, LO95{5) SLR 744, inthis case, this Court relving on Union of india v KM Janakinman, 1992 {5} SLR 602 {SC),in para 5 of the Judgment hald that the designated court had not framed charge and In para G, this Court held that there 6a criminal case pending against the petitioner It has-further been held that when the petitioner is acquitted by the criminal court, he will get all the Senefits and tif such ime, the petitiamer cannot: be heart to say thet the decision of the BPC in a sealed cover should be given effect ta, We apres with this view, 14, We-ara, therefore, of the opinion that when the charge-sheet fs filed, In the court of law, if should be treated that prosecuson for a criminal charge against such a person Is pending. Clause 2[fi} of OM. dated 14.09.7999 would thus get attracted." .
41 tis also.to be noted that the judgement relied by the respondant in the matter of N.Srinivasulu ve The State of Telangana and 2 others passed by the Hon'ble Telangana High Court dn 22.21.2021 In WA No.209/2020 while considering the matter wherein the issue of the officer who are facing Inquiry/criminal cases stands crystallized and observed thus The issue of officars, whe sre facing departmental enquiries, the law on the subject relating to promotion of officers facing departmental anquiry/eriminal cases Stand crystalized. S The Hor'ble Suprame Court in the case of C0. Arumugem and others vs, State of Tamil Nadu and others], in paragraph 5 has held as under:
"D. As to the merits of the matter, it is mecessary to state that every clvil senrmants has a right to have his case considered for promotion according to his Surn and it is a guarantee floving from Articies 14 and 162) of the Constitution. The consideration of promotion could be postponed only on reasonable srounds, To avoid arbitrariness, it would be better to follow certain uniform principles, The promotion of persons against whom charge has been a3 OLAS La0g2 ied in criminal case may be deferred till the proceedings are concluded. They must, however, be considered for promotion if thay are exonerted or acquitted from the charges. if found suitable, they shall then be given the promotion with retrospective effect from the dete on which their juniors were promoted," .
The Hon'ble Supreme Court in the aforesaid case has held that an employes Is having a right te be considered for promation and the promation of persons against whom charge has been framed tn. the disciplinary proceedings and charge sheet has been filed in the criminal case may be deferred 88 the procesdings are concluded, The Hon'ble Supreme Court Is the case of Union of India and others vs. KY. lankiraman and others? hes again dealt with cases of employees facing departmental enquiry and criminal cases. Paragraphs 16 and 17 of the aforesaid judgment read as under:
"On the first question, viz, a8 to when forthe purposes of the sealed cover presedure the disciplinary/orininal proceedings can. be said to have commenced, the Full Bench of the Tribunal has held that it ts only when 2 chargermema in a disciplinary proceedings or a charge sheet in 2 criminal rwecution is issued ta the employee 11991 Supp (2) SCC 499 2 (1991) 4 500 408 6 that it can be said that the departmental proceadings/eriminal. prosecution fs Initiated against the employee. The sealed cover procedure is to be resorted ta only after the charge-memojycharge-sheet is issued. The sendency of preliminary investigation prior to that stege will not he sufficient to enable the authorities to adapt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for ithe apnellanbauthoritles that when there are serious allegations and it tates time to collect necessary evidence te prepare and issue charge nvemo/charge-sheet, it would not be in the Interest of the purity of administration to reward the employee with 2 promotion, Increment etc. does not imoress us. The acceptance of this contention would result in injustice te Bench. of the Tribunal are inconsistent with each other Thase conclusians are as follows: .
"(4) consileration far promotion, selection grade, cressing the efficiency har or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary oar criminal proceedings against an efficiah;
at = OA Tees (2 FXG Be Ce EKO OLENA NEW DCSE OR FR j vee cwamas ra dam esas a ta eraces cayenne crag {4} the sealed cover procedure can be resorted to only after a charge memo {s served on the concemed-official or the charge sheet fled before the criminal court and sot before."
There' is no deebt that there is a.seaming contradiction between the two eanelisiens. But read harmoniously, and that is what the Full Bench has intended, the bwo conclusions can be reconciled with each othe: The conclusion No. i should be raad to mean that the promotion ete. cannot be withheld meraly because some disciplinaryyeriminal proceedings are pending against the employes. To deny the said benefit, thay. must be at the nelevant time pending at the stage when charmememo/charge-sheet has aready bean issued to. the employee. Thus read, there is no Inconsistency in the two comcusions,"
The Apex Court in the aforesaid case has held thet in case an employee is facing a criminal case or a departmental enquipfy the recommendations in respect ofthe employee are to be kept in sealed cover, The Hon'ble Supreme Court in the case of State of Madhya Pradesh and another vs. Syed Naseem Zahir and othersS was dealiig with a case of an employee facing departmental anquiry Paragraphs § and 9 of the aforesaid judgment read as under: "
§. Syed was posted as Superintending Engineer, Mahan Project Circle, Raiour where he was fn charge of Ravishankar Sagar Project, Sonduy Sam and the canals connected with the project, He was in charge of the total canstructian of the project. He continued in the said posting till August 3, 1986. in April i986 and thereafter State Government received various complainis against Syed Indicating that he made excess payments towards the construction of the project. The State Government received a preliminary report on the said complaints from the Chief Engineer in. charge on January 30, 1987. The report disclosed that respondent Syad committed hregularities which resulted in a loss to the State Government to the tune of Rupees Eighty iakhs. After examining the report the Stete Government ordered on the fils on September 30, 1987 thet departmental proceedings be initiated against him, As mentioned earlier he was served with the chargesheet on April 15, 1988. ft is not disputed 'thet the departmental enquiry has been completed and the charges against Syed have been proved. According to the State Government keeping in view the gravity of the charge and the heavy finanelal loss te the State Government it has been tentatively decided to impose. major penaliy upan Alm and for that purpdse the proceedings have been referred to the Madhya Pracesh Public Service Cormmission, It is admitted by respondent Syed in Ais counter afidavit before this Court that he bas reesived the enquiry report on August 25, 1992,
7. itis no doubt correct that in view af Janklrarnan's case the DPC was nat justified In keeping the recommendation pertaining to Syed in 2 "sealed cover', hut itis dificult to ignore glaring facts in a elven case and act mechanically GATS La022 Even in Janklraman's case while dealing with 3 1993 Supe (2) SCC. 225 8 Civil Appeals Nos.52-55-o0f 1990 this Court abserved as uncer "tn wiew of the aforesaid peculiar facts of the present esee, the OPC which met in July 1886 was justified in resorting to the sealed cover proredure, notwithstanding the fact that the chargesheet in the departmental proceedings was issued in August/Decembey, 97. The tribunal was; therefore, not justified in machanically applying the decision of the Full Bench te the facts of the present case and alse Jn directing al) benefits to be given to the employees Including payment of arrears of salary."
Keeping in view the facts of this case we are of the view that the "sealed cover"
contalaing recommendations of the DPC in respect of respondent Syed be not opened tl the des partmental proceedings against him are concluded, As mentioned shove the enquiry report has already been received by Syed and it isa matter of days before the disciplinary proceedings would come to-an end, in case be is completely exonerated, the "sealed caver" shall be opened and if the recommendation Is in his favour, he shall be nationally promoted with effect from the date when a person junior to him was promoted te the post of Chief Engineer in that event, he shall be entitled te all consequential benefits including back wages. In case, respondent Syed Naseern Zahir is punished in the proceedings, then action would be taken in accordance with the guidelines as {aid down by this Court in Jankiraman's case."
Again the view expressed by the Hon'ble Sugreme Court in the ease of Jankiraman (2 supra) was followed and wes held that the recommendations in respect of such employee arg required te be kept in sealed cover, The Hon'ble Supreme Court in the case of Delhi Development Authority vs. H.C. Khuranad has dealt with the word 'issue' and has arrived at a conclusion that sealed cover has to be followed incase a charge sheet has been issued ta the charged official, In the case of Unten of India 4 (1993) 9 SCC 196 9 vs. Kewal xumarS where a decision was taken to hold is departmental enquiry pursuant to registration of FIR, the Hon'ble Supreme Court has held thet sealed cover procedure has to be followed and if the amployee is exonerated in the criminal case and fn the departmental enquiry, he is entifled for promotion. Again in State of M1.8 vs. 1.5. Bansal and another$, the Hon'ble Supreme Court relying upon Jankiraman (2 supra} has reiterated that sealed cover procedure fas to be followed In case of employes, wha is facing di epartmental erigauiry. A sinllar view bas been taken by the Hon'ble Supreme Court in the case of Unies of india and another ve. AS. Sharma?, Delhi Jal Board vs. Mahindey Singh', Union of india and others va. Anil Kumar Sarkar, Harsh Kunjar Sharma and [FS vs, State of Punjab and anather Keeping in Wew the aforesaid Judaments, the office memeoraridum, which is of the year 1978 vintepe has got no meaning. The taw has been crystallized by the Hon'ble Supreme Court and itis note case of an officer, who is facing « singular departmental enquiry, but ik is a cease of an offices who is facing two deparbmental enquiries that too wherein the change steat has beer issued for ae 46 | O.A.131/2022 imposition of majur punisiiment, Not only this, he has lnvelved in criminal case:
§ (1993) 3 SCC 2046 (1995) 5 SCC 714-7 (2000) 4 SCC 354 8 (2000) 7 SCC 2105 {2073} 4 SCC 161 40 (2027) 4 SCC 366 10 and he is facing criminal prosecution under the Prevention of Corruption Act. Granting permission to such an officer would amount te granting of premium to such officers and therefinrae, in the considered opinion of this Court, the State Goverment was well within Its power te reject the claim of the appellant forad hac promotion alsa.
Resultantiy, this Court does not find any reason to Interfere with the order ° passed by the learned Single Judge. The writ appeal is accordingly dismissed. However, it is made clear that this Court has not expréssed any apinian on marits so far as the departmental enquiry or the criminal case is concerned. The order passed by this Court is confined only in respect of promotion to the appellant to the ext higher post panding criminal case and the departmental enquiry:
tls aise. to be noted that. the judgement relied by the respondents in the matter of The Director General of Police vs. K.Pitchal passed in .
W.A.NO.64 of 2019 dated 04.12.2020, the Hon'ble High Court of Madras, Madurai Bench while considering the similar issue in respect af promotion observed thus: i A. sncnoes He further submitted that promation cannot be claimed as a matter of right and that the right of the Respondent/Petitioner to be considered for promotion siuad deferred an account of the pending charge memo at the - refavant point of time. in other wards, Ais contention is that the Respondant/Petitionar cannot be exempted from deferment of promotion merely because there wes a delay in serving the charge memo dated 22.06.2017 on the Respondent/Petitioner. .
§, In. canclusian, the Isarned counsel for the Respondent/Paetitioner referred to and relled upon several judgments of the Hon'ble Supreme Court as well as this Court. The said judgments are set out below along with contest and principle:
(3) Union of India and others « KWJankiraman and others (1994) 4 SCC 103 --
Gankiramean), wherein, at paragranh 16 and LY, the Non'ble Supreme Court held that disciplinary proceedings commence on the date when the charge memo/charge sheet is served on the delinquent employee. Therefore, the sealed cover procedure should be adopted only In respect of employees who have already bean served with a charge mema/chares shast.
(2) Unien af india and others v DeSudha Salhan {1998} 3 SOC 394 (DrSurlha Salhan), wherein, at paragraph 6, the principle laid dewns in Jankiraman was follawed, OLA TSL2022 {8} Bank of india and Another vo Degala Suriyanarayana (2899) 5 SC 762, wherein, at paragraph 14, it was held that the charge "memo/charge sheet should be served on the delinquent emplsyes and the departmental proceedings commence only upon suct service.
(4) Union of india and another wv AS.Sherma (2000) 4 SOC 394 (R.S.Sharmal, wherein, at paragraphs 11-16, the Han'ble Supreme Court concluded thet the sealed cover procedure may be resorted to in cases where 3 decision was taken to Initiate departmental proceedings, and that this would precede the charge meme.
{5} Coal India Limited v. Ssroj Kumar Mishra(2007}.9 SCC 625 (Coal indis Limited), wherein, at paragragh 18 to 20, the ratic in Jankiraman was followed. ig} The Principal Secretary to Government, Cooperation Food and Consurner Protection Department and others wv AG.Chandrasekar 2020 (2} SCT 675( Madras}, wherein the ratio in Jaakiraman was follawed and the Division Bench of this Court directed the authorities to consider the case of the writ petitioner therein by following the sealed cover procedure.
@iThe Principal Secretary, Department of Municipal Administration v $.Parthasarathy, In WALMDING. 591 of 2020, judgment dated 19.08.2020 TMA, {MOD} No.SS4 of 2020), wheteln this Court considered the scope of paragraph fl of Schedule XI of the Conditions of Service Act in igh? of the ratio in Janidraman and concluded that a mere recommendation fer initiation of disciplinary action is insuficient and 10 of 27 given that the charge memo wes received by the party concerned only on 25.09.2049, the discialinary proceedings cannat be sald ta have commenced or be pending unt! the date of receipt of the charge meme. ° Li. The principal question that arises 'for consideration is whether the Appellants were entitled to refise to relieve the Respondent/Petitioner from the past of OSP Aamanathapuram and permit him te join in the promoted past of ADCP Tirunelvell, The main ground on which the Respondent/Pestitioner was not relieved fram the pust was the issuance of the charge memo dated 22.06.2017. The factual pesition is largely undisputed, The crucial date was DLO4 209 and the cotesting parties agreé that the charge meme dated 22.06.2017 was recelwad in the office of the Deputy Inssector General of Police, Ramanathaouram Range, on 30.06.2017 hut. was served on the Respondent/Fetitioner only on 07.07.2037. Therefore, the question arisesas to whether the Respondent/Petitianer could be denied the promotion on account af the aforesaid charge memo. In onder to answer this question, it is necessary to réfer to the relevant provisions of the Conditions of Service Act, In particular, it is nenessary to refer to paragraph ~- [, Sub-paragraph (1) & (8) of the sald Act, whieh read as under:
"Consideration of members for Inclusion in the approved Nsts:
(1) in eases where enquiry (except Tribunal for Disciplinary Proceedings. enquiry) ag ChAT SH 2h22 including preliminary or detailed enquiry by the appropriate Investigating Authority is pending against. a member of service and no specific charges have been framed, promoted or appointment of such member of service shall be considered on the basis of the merit femphasis added} revealed through Annual Confidential Ranorts, Record Sheets and Punishnents inpased, In cases where -
apeciiic charges have been framed or charge sheat has been filed in criminal case against a member of service, promoon or appointment of such member of service shall be deferred Nil such proceedings are concluded. [emphasis added) On exoneration or acquittal frarn the charges, a member of service shall be considered far promotion ar appointnient with retrospective effect fram the date on which hig immediste Junior was promoted, df he is otherwise qualified for such premation, {8} Pendency of charges framed under rule 17(b} of the Tamil Nadu Civil Services (Discipline amd 12 of 27 Rules against a member of a service shall ba a bar for inchusioan of his name is the approved list." fernphasis addac}.
12, Upon peruse! of the aforesaid, Hts clear that a pending enquiry at a pre- charge. memo/charge sheet stage Is not a bar for the consideretion of an employee for prormotion. However, once charges are framed ara charge sheat ig filed In @ criminal case, the promotion of such persons is required to be deferred til such proceedings are concluded, Thug, the critical activity for triggering the disability to be considered for promotion is the framing of charges or filing of the charge sheet in a criminal case. Therefore, the next aspect to be considered is whether itis sufficient thet charges are fraried or is it necessary that the charge mermo/ charge sheet should be served on the delinquent employee. Towards this and, the law on this issue shauld be examined.
13, In Jankiraman, the Hon'ble Supreme Cowt examined the Government of India, Departrient of Personnel and Training, Office Memorandum cated 80,01.2982, relating to promotion of employees against whom disciplinary proceedings are pending. In particular, the Court referred te the sealed cover procedure whereby the list pertaining to the 23 of 27 http://wiewdudisnicin WAIMOING.64 of 2028 promation of the employee is put In = sealed cover until. codclusian of proceedings against the employee. jn that context, at paragraphs 8, 16 and 17, the Hon'ble Supreme Court held as under:
"§. The common qaestions invalved in all these matters rélate to what in service jurisprudence has come to be known. as "sealed cover procedure". Concisely stated, the questions are: {i} what is the date irom which it can be said that distiplinaryfcriminal procesdings are pending against an amployes? (2) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? (3) Ta what benefits an employee whe is completely or periially exonerated is entitled to and from which date? The "sealed cover procedure" Is adopted when anemployes is dug for promotion, increment etc. but disciptinary/criminal ordceedings are pending against him at the relevant tine and hence, the findings of his entiNement te the benefit are kept ina sealed cover to be opened after the proceedings in question are over. Hance, the relevance and importance of the questiang, 49 O.ALBUANA2 15, On the first question, viz, as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can» be said to heave commenced, the Pull Bench of the Tribunal has held thee it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a crimins! prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated aeainst the eniployee. The sealed cover procedure Is to be resorted to only after the charge-memo/charge-sheat is Isued, The pendency af preliminary Investigation prior to that stage will net be sufficient to enable the authorities to adopt the sealed cover procedure, We are by agreement with the Tribunal on this point. (emphasis added}. The contention advanced by the learned counsel for the appallantauthorities that when there are serious allegations and it takes time to collect necessary evidence to prepare anc Issue charge-mema/charge-sheet, if would not be in the Interest of the purity of administration to reward the eraployee with a pramiction, itcrement etc, does not Impress us. The accentance of this contention would result in Injustice te the employees in Tmany cases. . As has been the experience so far, the prelirainary Investigations take an inordinately long time and particularly when they: are initivted at ihe instance of the interested persans, they are kept pending deliberately. Many times they never result In the issue of any charge-memo/charge-sheat. 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 finalise the charges. emphasis added}. What is further, if the charges sre that serinus, the authoritas have the power to suspend the employee under the relevant rules, and the suspension by Rself permits a resort to the sealed cover procedure. The authorities thus are fot without a remedy. It was then contended on behalf of the authorities that conclusions Nos. d and 4 of the Full Bench of the Tribunal afe inconsistent with each other Those tenclusions are as follows: {ATC p. 196, pare 2a) ; .
"{2) 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 .
(a) eee (3) shoe (8) the sealed cover procedure can be resorted to only after a charge memo fs served.oan the coneerned offelal or the charge-sheat fied before the criminal court and not befare;"
27. There ip no doubt that there isa seeming contradiction between the twe conclusions. But recd hermoniodsly, and that is what the Full Bench has intended, the twe conclusions can be reconciled with each other The conclusion No. 2 should be read to mean that the promation ste, cannot be withheld merely because same disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant tine pending at the stage when charge-mema/charge-sheet has already been issued to the employes. Thus read, there is no inconsistency In the two conclusions."
Thus, by agpljing the Memorandum of Procedura dated 30.01.1982, the Supreme Court concluded that the sealed cover procedure shauid be 16 of 27 Pen veces ao OAL 2022 hetegfwasodis.nigdn, WACMOGING.64 of 2079 followed only if the charge memo was finalized and served onthe employes, whereas IF ths employee bad been considered for promotion prior te the service of the charge memo, the sealed cover procedure would not apply The ratio of the judgement was followed in several judgments thereafter In cages such as DrSudha Salhan and Coal india Umited. This Court has alse follawed the ratio In lankdraman both in the Judgment in WIA(MD).No.S9t of 2020 and in the judement reported in 2020 (2) SCY e7st Madras), "« 43 The Hon'ble High Court in the above orders has reiterated the observations of the Hon'ble Supreme Court in the K.VJenktrarian and distinguished the same in the light of the order passed by the Han'hie High Court in Datht Development Athority v HC. Mhurana and observed thus:
"Likewise, in Delhi. Development Authority « Hic. Khurana (1993) 3 Sec 196 (H.C. Khurana], clause (i) of the Memorandum of Procedure, which applies once a decision is taken to initiate. discislinary proceedings, was Interpreted as under: . "S.The question now, is: What is the stage, when it can be said, that & decision has been taken to initiate disciplinary proceedings'? We have no doubt that the decision to initiate disciplinary proceedings cannot be subsequent ta the issuance of the charge-sheet, since issue of the charge-sheet is a consequence of the decision to initiate discipNhary proceedings. Framing the charge-sheet, Is the first step taken for balding the enquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The charge-sheet is framed on the basis of the allesations made against the government servent: the charge-sheet is then served an him to enable him to give his explanation; if the explanation is satisfactory, the proceedings are closed, otherwise, an enquiry is held inte the charges; if the charges are not proved, ihe proceedings are closed and the - government servant exonerated: but if the charges are proved, the penalty follows. Thus, the service of the charge-sheet on the government servant follows the decision to initiate disciplinary proceedings, and it does not preceds ar coincide with that dacision. The delay, if any, in service of the charge sheet te the government servant, after it has been framed and despatched, daes. not have the effect of delaying initiation ef the discipfinary proceedings, inasmuch as information to the povernment servant of the charges framed agalast him, by service of the charge-sheat, is note part of the decision-making process of the authorities for initiating the disciplinary proceedings." temphasis:added}, i5. The law laid down by the Hon'ble Supreme Court in the above cages should be applied te the cace at hand. The apolicable statute fs the Conditions.of Service Act and, iy particular the relevant paragraphs of 20 of 27 bitpy Awww, fudisnicin WO MDINGo4 of 2029 Schedule Xi thereto, As stated in. paragraph 11 supra, as per sub-para (1) of paragraph Ul of Schedule XI theresf, the promotion ef an employes against whom thera is a pre-charge memo/pre-charge sheet enquiry would be consklered on merit but H charges have been framed or a charge sheet BL CLA TS L022 filed, the promotion would beldeferred. indeed, it is- expressly stipulated therein that "In cages where specific charges have been frémed or charge sheet has been filed In criminal case esainat al mamber of service, promotion or appointment of such meniber of service shall'be deferred til such proceerings aré concluded."
From the above extract, it is avidant that the critical event is the framing of charges or the filing of a charge sheet, as the case may be, and not the commencement of disciplinary praceadings:
17. AKhough the Supreme Court interpreted a Memorandum of Procedure wherein a decision te Initiate disciplinary groceadings is sufficient to-activate the sealed cover procedure in B.S.Sharma and H.C, Khurana, in our view, the ratio therein is more appropriate ta this case than the mtio in Jankiraman. In Hac.
"hurara, the Supreme Court emphasized that the decision to initiate disciplinary oraceadings was the determinative event. likewise, In light of sub-daragragh (4) of paragraph Woof Schedule XI of the Conditions of Service Act, which does not imgose the condition precedent. that disciplinary proceedings should have commenced, and keeping in mind that there Is no doubt that charges were --
framed on 22.06.2017, we hole that the framing of charges is the determinative event as regards deferment of promotion, By way of a caveat, we add that in cases where the charge mento is served after a delay, there should be sufficient evidence before the Court that the charge meme was Indeed finalised-on the date stated so as tn obviate the risk of ante-dating thereof. The Judgment of the Division Bench of this Court in WA. (MD} Ne.591 of 2020 turned on the fact that the Court was not convinced that the charge meno. dated 30.05.2019 was actually prepared on that date because 1t wes net referred to in the subsequent communication dated 26.06.2015, By contrast, there [s no dispute,-in this case, that the charge meme was finalized on 22.06.2017 and served an the Respondent on O7.07.2017. Thus, the aforesaid fudgment ic distinguishable. As regards the judement reported in 2026 (2) SCT 675 {Mad}, in that case, criminal proceedings were pending and this Court directed that the sealed cover pracedure should be followed.
44 The Counsel for the Applicant contended that the applicant has mot bean provided with the Information asked under RYT. Wt is to be noted according to the order dated 14.1.2005, the Home Department has sued notification thereby that RTI is not applicable to Hame/Police department 45 Itist be noted that Inview of the sbave facts a far ss concemed ta th suspension the same has been atlained finality after the order of the Hon'ble Supreme Court dated 21.8.2018, in ressect of the charge meme dt 2013, though the orier of the Hon'ble High Court passed In the year 2017 Is also attained finality by the order dated 21.8.2018 of the Hon'ble. -
Supreme Court of Indla. However, the Han'bis Supreme. Count has par a ¥ Ba OATSH022 granted Aberty to issue fresh charge memo and accordingly by following due process of law respondents. have ibsuied the charge meme dated 10.11.2021.
46 tis also to be noted that even after the order passed by the Hon 'bie Supreme Court in 2015 in the matter of criminal case, the investigation handed over to CBI the same was pending before the Hon'ble High Court of Madras for consideration Hil 2021 47 Tk is to he noted that though the Ld, Cat Courtls closed the said CC Ne.2f204s in the year 2015 However, the said order was challenged in Cr OP Not6SL/2016 was tagged with WP No. 2Bi0L/2012 48 itis to be noted though charge sheet filed In the court on 22.68.2013 in the said criminal case, however. on the basis of Hon'ble Supreme Court order, the applicant was not appeared even after summons issued by the "CBI Court on &.7.2013 that does not mean that the charge sheet was sot fled. In view of the same, the ratio and facts of the judgements relied upon by the applicant are not applicable to the applicant's ease and also his case is not Similar to the one Jaffer Saft who have been granted the promotion as the facts of the appilcant's case are totally different.
a9 on the other hand, the orders relied upon by the respondents sustaining their stand for denial of promotion and In respect of sealed cover procedure in our considered opinion the same are squarely appliss in the applicants case too, wherein the Hon'ble High Court have distinguished the orders passed by the Hbn'bie Supreme Court of India in the matter of K.VJankiraman and subsequent orders, --
$3 GATS Hae 50 tis to be noted that when matter was heard at lengthby the Hon'ble Supreme Court since from 2017 and observed that the allegations levelled against the applicant Is serious In nature and granted Hberty to the respondents to post the applicant ina nor-sensitiva post if at all in the applicant's view the applicant is entiied for any of the promotion whether it is regular or adhoc, the applicant was having an gopeortunity to nlace the sald fact before the Hon'bie Supreme Court at that point of time, pointing out this very fact that suspension was revoked on 9.8.2016 By the Tribunal and the charge meme was also quashed by the Hon'ble High Court on 12.1,2017. Though both orders have been upheld by the Hon'ble:
Supreme. Court, however, the Hon'ble Supreme Court has also by recording the statement of Ld. Counsel for applicant that allegations levelled against the applicant is serious' in nature, have opined that applicant's suspension to be revoked and reinstate the applica nt. by giving # posting In a non-sensitive post, 61 In view of the above, we are not in agreement with the contention of fhe Applicant on the admitted fact that when challenge was made to the lower ourks ortlers before Higher Courts and was pending for consideration. In our considered view same cannot be sald attained finality without the seal of approval of the Higher Court when the matbers/appeals were subjudice. ' 5? We have perused the file pertains to Review OPC along with sealed cover. We do not find any fault and satisfied with decision making process. 53 In the light of the aforesaid observations of the Hon'ble Supreme Court made in the judgemerit dated 21.08.2018 and observations made by the Hon'ble High Court on 2.11,2021 we reject the submission of the applicant. that from 2017 till 2021 before Issuance of fresh charge memo - .
ROIUOC ERE CUCEU CCU T CUREREOEUC CRESS a OE es ea rrnmie renee ad :
OATS Ua022 2021 and digmissal of the WP in the year 2021 nothing was there against the applicant for opening the sealed cover to consider Ais case for "promation té'the post of ADGP/DGP and the applicant is eligible for regular or adhoc promotion to the post of ADG/DGP. Therefore, In our considered opinion, the State Goverment was well within its power to reject the claim of the applicant for adhoc promotion also. Considering the gravity in the matter the Respondents have rightly rejected the request of the apdicant. Therefore, we do not find any reason to interfere in the orders/decigion of the respondents and there is no merit in OA fo grant reiief to the applicant as prayed for. Accordingly the OA Is dismissed No ander as fo cost.