Central Administrative Tribunal - Madras
N.B.S. Manian vs Union Of India (Uoi) And Ors. on 14 March, 2007
Equivalent citations: [2008]1STJ278(NULL)
ORDER R. Ganesan, Member (A)
1. The applicant who was working as Asst. Post Master (Accounts), Head Post Office, Tiruvallur has sought for the following relief:
To call for the records pertaining to the order bearing No. STA/2-79/CAT CASE/ NBSM/KCP/2005 dated 16.9.2005 of the 1st respondent and set aside the same consequently direct the respondents to consider the applicant for promotion to the higher post of HSG-I in the pay scale of Rs. 6500 - 10500 on par with the juniors by including the applicant's name in the promotional list dated 21.4.2005 and grant all consequential benefits and pass such further or other orders as deemed fit and proper.
2. The applicant who joined the respondent department as Postal Assistant on 7.2.1966 was promoted under Time Bound One promotion scheme on 30.11.1983, was given Biennial Cadre Revicw/HSG-II on 1.10.1991. According to him he was fully eligible for promotion to the HSG-I but vide order dated 21.4.2005 issued by the 2nd respondent his junior officials were promoted on regular basis to HSG-I ignoring him. As the representation against his exclusion from the promotion did not yield any result he filed O. A. 481 /2005 and this Tribunal directed the respondents to pass reasoned and considered order within a period of six weeks from the date of receipt of a copy of the order. However, on 16.9.2005 the respondent rejected the request of the applicant for inclusion of his name in the promotion order of HSG-I on the ground of alleged charges.
3. The applicant stated that the respondents had never issued any memo or any charge sheet/punishment till the issue of promotion order dated 24.4.2005 and. therefore, the Departmental Promotion Committee (DPC) cannot reject the applicant as unfit for promotion based on the contemplation of charges. The applicant stated that regarding contemplated charge sheet, time and again he sought for issue of the scroll by the Bank, as evident from the numerous letters written to the Bank and the Director of Postal Accounts, Chennai. But these letters failed to yield any response from the higher officials. He also alleged that the respondents have granted promotion to Mr. B. Subbiah, Officiating Superintendent of Post Offices, Kanchipuram on regular basis in whose tenure the above malpractice occurred. Similarly Asst. Superintendent of Post Offices, Tiruvallur Sub-Division Mr. V.K. Ramasamy was relieved on Voluntary Retirement without any inquiry even though he was immediate superior of the said SPM who is the main culprit charged with misappropriation. The denial of promotion to HSG-I when there was no departmental case against the applicant on 24.4.2005 and promoting those juniors to him is arbitrary and illegal, and hence the O.A.
4. The respondents have filed the reply statement denying the allegations in the O.A. They stated that the applicant working as Asst. Post Master (Accounts) at Tiruvallur was not recommended by the DPC for promotion to the grade HSG-I in view of his involvement in a major fraud case amounting to Rs. 12,70,000 committed by one E. Ravanan who was working as Sub-Post Master, Uttukottai, Sub-Post Office under the control of the applicant. The applicant being a subsidiary offender he was issued a show cause notice dated 24.2.2005 for his willingness or otherwise to credit a sum of Rs. 3,50,000 and in view of the said show cause notice the name of the applicant was not considered for promotion in the order dated 21.4.2005. He cannot claim promotion as a matter of right as the promotion is subject to the assessment of the DPC based on the overall records of the official. They added that Rule 16 charge sheet was issued on 16.9.2005 and the same is pending. The applicant failed to inform any receipt of scrolls from Indian Overseas Bank to Division Office and the lapse on his part paved way to the culprits to continue the fraud to the tune of Rs. 12,70.000. In the Departmental Investigation, the applicant was identified as responsible for the negligence who grossly failed in performing his duly as prescribed in Rule 130 of Financial Hand Book-1. In view of the above they prayed for dismissal of the O.A.
5. The applicant has filed his rejoinder reiterating the averments made in the O.A. He denied the statement made by the respondents that he was involved in the alleged fraud committed by Shri E. Ravanan, Uttukottai S.O. He had replied to the show cause notice seeking recovery from him vide his letter dated 5.3.2005 denying that he had in any way contributed to the fraud and his unwillingness to credit his share of Rs. 3.5 lakhs to be adjusted against loss in the fraud case. He also contended that the show cause notice dated 24.2.2005 for seeking his willingness for recovery against loss cannot be treated as disciplinary case pending against him by the DPC which met on 4.4.2005 and 11.4.2005 for considering his promotion to HSG-I. The case was under investigation by different teams at that time without coming to a final decision. There are no orders to treat the show cause notice as "disciplinary case" pending against a Government servant by DPC. No charge memo was issued when the DPC met for considering his case for promotion. In this context the applicant has relied on the following decisions:
Union of India v. K.V. Janakiraman ; State of M.P. v. Bani Singh 1990(1) ATJ 653; Bank of India v. Degala Surya Narayana 2001(1) SLJ 113 (SC) : 1999 SCC (L&S) 1036; B.O. Kubba and Anr. v. Union of India 2004(3) ATJ 70 (Jaipur); Smt. Surkah M. Chari v. Commissioner of Customs & Central Excise, Panaji, Goa and Ors. 2004(1) ATJ 333 (Mumbai).
6. The applicant on the basis of above decisions contended that no charge sheet was served on him and the show cause notice seeking willingness for recovery cannot be treated as a disciplinary case against him by the DPC while considering his case for promotion. Any denial of promotion which is not in confirmity with the rules would entitle him for backwages too. He stated that no adverse remarks were communicated to him by the superious made in the Character Rolls. Director of Postal Services who was reported to have sent the Special Report could not mention about the Uttukottai S.O. case since no the charge sheet was issued to him at that time. Hence if there was any adverse information in his special report, the DPC should have ignored the same. Had the DPC correctly assessed his suitability for promotion taking into account the above factors, he would have been included in the promotion list.
7. We have heard the learned Counsels for the applicant and the respondents and perused the relevant records including the DPC proceedings, ACRs of the applicant, carefully.
8. The learned Counsel for the applicant stressed the fact that he was denied his promotion mainly on the ground that he was subsidiary offender in a fraud case as identified by the Investigating Authority in the fraud committed by one E. Ravana, SPM of Uttukottai S.O. A show cause notice dated 24.2.2005 was issued to him directing to give willingness or otherwise to credit a sum of Rs. 3.50 lakhs being his share of the loss, without prejudice to any disciplinary proceedings to be taken against him and as no disciplinary action was actually initiated against him when the DPC met on 4.4.2005 and 11.4.2005, the respondents cannot deny him promotion based on his Annual ACRs for the relevant period. He questioned the respondents' claim that the DPC after perusing the confidential Special Report of his immediate superior considered the applicant unfit for promotion, as it was arbitrary and unjust being against the extant orders on convening DPC. In this connection the respondents' reply in Paras 2, 3 and 6 is as follows:
2. The respondent state that he (applicant) was identified as a subsidiary offender by the circle level Investigating Officer. In view of the above the applicant was issued a show cause notice by the SPOs, Kanchipuram vide his letter No. F1/1/04-05 dated 24.2.2005. Directing the applicant's willingness or otherwise to credit a sum of Rs. 3,50,000 being his share of the total loss sustained by the department.
3. The respondent state that in view of the show cause notice dated 24.2.2005 the name of the applicant was not considered in the promotion for HSG-I order dated 21.4.2005. The applicant made a representation dated 2.5.2005 to consider him for promotion. The same was disposed by the respondents and communicated to him vide SPOs Kanchipuram letter No. B3/PF/NBS dated 18.7.2005.
6. The respondent state that the promotion to the cadre of HSG-I is based on selection-cum-seniority and the DPC has followed the prescribed rulings/ guidelines in the case. The DPC after going through confidential/special report of his immediate superior namely Director of Postal Services, Chennai. The said Director made an objective assessment of the suitability of the applicant and came to the conclusion that the applicant was not fit for promotion to the HSG-I. Hence the applicant's case was considered by the DPC and was found unfit for inclusion in the promotion list.
9. Thus from the respondents' reply cited above, it is clear that the DPC had not considered the applicant fit for promotion after going through the Confidential/Special Report relating to applicant. The relevant portion from the said 'Confidential/Special Report' is extracted below:
Particulars of adverse entries, if any Disciplinary action is contemplated in the CRs from 1.4.1999 to 31.3.2004. against the official in a major fraud case to the tune of Rs. 12.70 lakhs taken place at Uttukottai S.O. in which the official is held as subsidiary offender.
The 'confidential/special report' placed before DPC speaks of contemplated disciplinary action against the applicant and the DPC considering him unfit for promotion according to the respondents' own reply being based on this 'confidential/special report' which stipulated only contemplated disciplinary action, the DPC cannot hold this against the applicant in accordance with the extant orders on the subject. The DPC minutes showing the applicant unfit for promotion, therefore, cannot be accepted as based on fair and objective finding also keeping in view'. The Annual Confidential Reports of the applicant which show the following rating during the relevant period considered for promotion.
1999-2000 2000-01 2001-02 2002-03 2003-04
Good Good Very Good Good Average
According to DPC minutes, the committees considered the case of the official based on the bench mark grading as Good in accordance with department's O.M. dated 10.3.1989 and 27.3.1997. With the bench mark for promotion as 'Good' the applicant's grading in the relevant years refereed to supra being what they are, the DPC's decision that the applicant was unfit and, as admitted by the respondents in their reply that the DPC considered the 'Confidential/Special Report' on the applicant which stated about the contemplated disciplinary action against him, it is clear that the DPC was carried away only by the Confidential/Special Report' on contemplated disciplinary action and it had not taken into account at all the ACR gradings, as confirmed by Para 3 of their reply, while coming to its conclusion against the applicant, and hence the DPC decision is erroneous. The DPC has based its decision on facts which are not relevant to procedures as per extant orders which is as under:
Procedure to be followed by DPC in respect of Government servants under cloud:
11.1 At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:
(i) Government servants under suspension
(ii) Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending; and
(iii) Government servants in respect of whom prosecution for a criminal charge is pending DOP&T O.M. No. 22011/4/91-Estt(A) dated 14.9.1992.
1. Cases of persons whose conduct is under investigation or against whom a charge-sheet is pending - clarification regarding consideration for promotion The undersigned is directed to refer to the Department of Personnel and Training Office Memorandum No. 22011 /4/91 -Eslt. A dated 14.9.1992 which has been issued pursuant to the judgment of the Hon'ble Supreme Court in the case of Union of India v. K.V. Janakiraman, etc. , and is supersession of all previous instructions on the subject, and to say that Para 2.1 of the said Office Memorandum provides that the DPC shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned in Para 2 of the Office Memorandum, along with other eligible candidates, without taking into consideration the disciplinary case/criminal prosecution pending. Therefore, it is made clear that only a bare statement, that case of an employee in the zone of consideration/extended zone of consideration is covered by any of the three situations indicated in Para 2 of the said Office Memorandum is to be furnished to the DPC to enable it to place its recommendations in the sealed cover. No other details about the pending inquiry or the nature of charges, etc. are to be furnished to the DPC lest these details weigh with the DPC in making its recommendations, which are to be placed in the sealed cover.
2. Considerable doubts also persist about the furnishing of the vigilance clearance and integrity certificate to the DPC. It is clarified that the DPC is required to consider the cases of all persons who are otherwise eligible in terms of the Recruitment Rules as on the relevant crucial date and are in the zone of consideration. If, however, case of an employee in the zone of consideration is covered by any of the three situations, only this fact is to be furnished to the DPC so that the recommendations could be placed in sealed cover. Where none of the three situations has arisen, a simple vigilance clearance would need to be furnished. Vigilance clearance/status would have no other significance and would not be a factor in deciding the fitness of the officer for promotion on merit.
3. It is also clarified that there is no requirement of furnishing a separate integrity certificate to the DPC. In terms of the judgment of the Hon'ble Supreme Court in the case of Union of India v. K.V. Janakiraman etc. , no promotion can be withheld merely the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of issue of charge-sheet, etc. If in the matter of corruption/ dereliction of duty, etc. there is a serious complaint and the matter is still under investigation of CBI or otherwise the Government is within its right to suspend the official. In that case, the officer's case for promotion would automatically be required to be placed in the sealed cover.
[2 G.I., Dept. of Per. & Trg. O.M. No. 22012/l/99-Estt. (D) dated the 25th October, 2004.] (Emphasis added) In M.L. Gupta v. Union of India and Ors. O.A. No. 187/98 [2002(2) ATJ 400] CAT Jaipur Bench dated 24.5.2002 it has been held that
9. We arc conscious of the law laid down by the Hon'ble Supreme Court that this Tribunal cannot substitute itself as a Selection Committee and award grading. However, where there is arbitrariness/malafide in making assessment, Tribunal/Court can certainly interfere. In this case we find that the DPC has neither followed the procedure as laid down in the guidelines of DPC nor has properly assessed the ACRs of the officials and graded them accordingly. In as much as the applicant has been given much higher grading in his ACRs for the last 8 years as compared to R-5 as has been reflected above. Therefore, we find that the recommendations of the DPC are arbitrary and not in consonance with Rules/Procedure framed by the Government from time to time.
(Emphasis added) In Vipin Choudhury v. Union of India and Ors. O.A. No. 236/2001 dated 9.7.2001 : 2002(3) ATJ 48, CAT Hyderabad Bench has allowed the observing that the applicant cannot be considered under sealed cover. The relevant portion of the order is as follows:
5. It is the contention of the learned Counsel for the applicant that the mere preparation of the charge memo without serving upon the applicant would not be a ground for placing his name in the sealed cover. The charge memo has to be served upon the applicant, then only it would be construed that the disciplinary proceedings were pending against him. It is also admitted that the applicant was not under suspension on the date of DPC. In Union of India v. K.V. Janakiraman it was held as follows:
The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employees. To deny the said benefit, they must be at the relevant time pending at the stage when charge memo/charge sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions.
In view of the above ruling, as the applicant was not served with the charge memo on the date of the meeting of the DPC, we find that the action of the respondents in placing the name of the applicant in sealed cover is illegal.
(Emphasis added) Thus, it is settled law, following the order of Hon'ble Apex Court in Union of India v. K.V. Janakiraman, which has been cited by the Hyderabad Bench of the CAT in the order referred to supra that there has to be charge sheet or criminal proceedings on going for DPC to place its decision under sealed cover and contemplated charge sheet/criminal proceedings cannot come at all in the way of DPC taking a decision against the applicant and the DPC has to only go by ACRs. In fact the DOP&T O.M. dated 25.10.2004 has clearly stated that even where a disciplinary proceedings/criminal proceedings is actually pending, only a bare statement that the case of the applicant is covered by one of the three situations namely suspension/criminal case is to be furnished to the DPC to enable it to place it in the sealed cover and no other details about the pending enquiry or the nature of charges etc., are to be furnished to the DPC lest these details weigh with the DPC in making its recommendations which are to be placed in the sealed cover.
10. Hence the DPC should have only considered the relevant ACR gradings and based on these ACRs it should have come to its conclusion. Thereafter, assuming the applicant is given promotion on the relevant date based on ACRs the respondents still have opportunity to take action against him based on the findings of the enquiry report in the fraud case, if they so desire, by finalising the disciplinary action lying dorment before DPC met, in the context of the so called contemplated disciplinary action against the applicant, by issuing appropriate charge sheet. Unfortunately the DPC was given information about the contemplated disciplinary action which led to the biased finding of the DPC because the service particulars based on the ACR clearly indicate that the applicant had four bench mark gradings out of five years which by no means would result in his being considered as unfit, while the 'Average' grading in the latest ACR itself must have been due to the recent occurrence relating to the alleged negligence. It is regretable that the respondents had not taken the correct path of conducting the DPC proceedings in accordance with the extant orders referred supra which provide for sealed cover procedure only when a Government servant is issued with a charge sheet or a criminal case is pending against in the Court. The contemplated stage for disciplinary action or criminal case as coming in the way of promotion has been long ago amended by DOP&T vide its order dated 14.9.1992 and it is unfortunate that the respondents chose to ignore the prevailing orders on the subject when conducted the DPC on 4.4.2005 and 11.4.2005.
11. Hence the decision of the DPC held on 4.4.2005 and 11.4.2005 in so far as the applicant is concerned is quashed. The respondents are directed to convene a review DPC within a period of six weeks from the date of receipt of a copy of this order by placing before review DPC only the ACRs which are relevant at the appropriate time as on 4.4.2005 and the DPC should not again consider the 'contemplated disciplinary action' as factor against him in assessing his fitness or otherwise promotion, which should be based only on the ACRs gradings for relevant years and the decision of the DPC will be given effect to, if considered fit for promotion, from the date of his junior was promoted. In Mohd. Ahmed v. Nizam Sugar Factory and Ors. (2004) 11 SCC 210, Their Lordship has allowed payment of arrears of pay for the period of wrongful denial of promotion. Applying the said ratio, the applicant will be eligible from backwages when promoted from the date of his junior. The decision of the DPC will be applicable from the date of applicant's junior was promoted.
The O.A. is allowed with a cost of Rs. 1,000.