Central Administrative Tribunal - Delhi
Santosh Kumar vs Comm. Of Police on 11 May, 2023
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Item No. 28 C-5 O.A. No. 168/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 168/2016
This the 11th Day of May, 2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Santosh Kumar, aged 50 years,
S/o Sh. Mahavir Prasad,
R/o F-975, Mangolpuri,
Delhi-110 083
...Applicant
(By Advocate:- Mr. Sachin Chauhan)
Versus
1. Govt. of NCTD through
The Chief Secretary,
Govt. of NCTD,
A-Wing, 5th Floor,
Delhi Secretariat,
New Delhio-110113
2. The Commissioner of Police,
PHQ, IP Estate, New Delhi
3. The Spl. CP,
P&L, through the
Commissioner of Police,
Police Headquarter,
IP Estate, MSO Building,
New Delhi
4. The Dy. Commissioner of Police,
Prov. & Logistics,
Delhi through
The Commissioner of Police,
Police Headquarter, IP Estate,
MSO Building, New Delhi
...Respondents
(By Advocates:- Mr. Amit Anand)
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Item No. 28 C-5 O.A. No. 168/2016
ORDER (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A) The applicant is aggrieved that despite being eligible for financial upgradation under the Assured Career Progression (ACP) Scheme, the recommendations with respect to his case have been placed in a sealed cover. He is further aggrieved that the benefit of financial upgradation under Modified Assured Career Progression (MACP) Scheme, to which he is entitled, too has been denied to him in accordance with the date of his entitlement although the same have been released from a later date.
2. He vents his grievance in the present OA seeking the following reliefs :
8.1 To direct the respondent to open the sealed cover 01.04.2004, 1.10.04, 1.4.05, 1.10.05, 1.4.06, 1.10.06, 1.4.07, 1.10.07, 1.4.08, 1.10.08, 1.4.09, 1.10.09. 1.4.10 and if found fit then to grant the benefit of 1st ACP Scheme with all consequential benefits including arrears with 8% p.a. interest from the date of eligibility to the date of actual payment.
8.2 To quash and set-aside order dated 21.05.2015 in respect of applicant (Sr. No.13) to an extent whereby it grants the benefit of MACP Scheme w.e.f. 01.04.2014 instead of benefit of 1st ACP Scheme after completion of 12 years i.e. w.e.f. 14.11.02 and 2nd MACP Scheme w.e.f. the due date, order dated 05.11.2015 whereby the representation of applicant for grant of benefit of 1st ACP 3 Item No. 28 C-5 O.A. No. 168/2016 Scheme and 2nd MACP Scheme w.e.f. the due date is being rejected and to further direct the respondent that applicant be given the benefit of 1st ACP Scheme w.e.f.
the due date i.e. 14.11.02 and 2nd MACP Scheme w.e.f. due date with all consequential benefits including seniority and promotion and pay and allowances.
(i) Any other relief which this Hon'ble Court deems fit and proper may also be awarded to the applicant."
3. Briefly narrating the background and history of the case, learned counsel for the applicant points out that the applicant who is a Constable in Delhi Police got falsely implicated in FIR No. 577/1999 in the year 2009 under Section 323/341/34 which finally resulted in his acquittal by way of legal mediation. The applicant was also subjected to disciplinary proceedings which were an outcome of the aforesaid FIR. His plea to reconsider the penalty imposed upon him on his acquittal did not find favour. Due to this stigma attached to him, recommendations of the appropriate Departmental Promotion Committee (DPC)/Screening Committee for grant of financial upgradation with respect to him were kept in a sealed cover on each and every occasion when such a DPC/Screening Committee conducted.
4. Learned counsel points out that the FIR against the applicant was on account of a minor dispute with his neighbour and the fact that it was placed in the Mediation 4 Item No. 28 C-5 O.A. No. 168/2016 Centre of the Rohini District Courts, amply demonstrates that the allegations against him were neither grave nor serious. Accordingly, he was acquitted. Moreover, the allegation against him in the criminal proceedings had absolutely no correlation with his responsibilities and duties as a govt. servant and these should could not have been an impediment as far as his initial entitlement is concerned. By no stretch of imagination, can the applicant be held guilty of any misconduct as a public servant, learned counsel contends.
5. He goes on to argue that the principle and the issue involved in the instant matter has a striking similarity with OA No 08/17 decided by the Allahabad Bench of this Tribunal on 23.12.2021. The applicant therein too was denied promotion despite eligibility and entitlement on account of pendency of criminal proceedings under various sections of IPC and the Tribunal had held that the charges against the applicant had no relation to his official position and were an outcome of a marital dispute. The Tribunal had also relied upon a judgment of the Hon'ble High Court of Delhi while deciding the said OA.
6. Learned counsel points out that in fact in the present matter, the charges against the applicant are of much lighter 5 Item No. 28 C-5 O.A. No. 168/2016 sections of IPC. Moreover, in OA No 08/2017, the Allahabad Bench had provided relief and ordered the promotion of the applicant even though the criminal proceedings were pending, whereas in the present matter, the applicant has already been acquitted.
7. Since the learned counsel for the applicant rests his case squarely upon the aforesaid judgment, it would be appropriate to quote the same verbatim :
Shri Rakesh Singh is present in person. Shri Vinod Mishra holding brief of Shri Amit Kumar Rai, learned counsel for the respondents is present.
2. Applicant is aggrieved by an order dated 24.11.2016 by virtue of which his order of promotion to the senior time scale has been cancelled. The reliefs, he seeks through this OA, is reproduced below:-
"(i) to issue a writ, order or direction in the nature of certiorari quashed the impugned order dated 24.11.2016 (Annexure A-1).
(ii) To issue a writ, order or direction in the nature of mandamus directing the respondents to promote the applicant w.e.f. 1.4.2016 with consequential benefits including arrears of pay etc.
(iii) To issue any other suitable writ, order or direction in the facts and circumstances of the case which this Hon'ble Tribunal may deem fit and proper.
(iv) To award cost of the petition".
3. The applicant argues that the Departmental Promotion Committee (DPC) had duly recommended his name for promotion and subsequent to the recommendation an order of 6 Item No. 28 C-5 O.A. No. 168/2016 his promotion was issued but department did not implement that order and subsequently impugned order was issued.
Applicant challenges this order on the initial ground that this order is very cryptic and does not mention the reason for cancellation of his order of promotion. Applicant submits that he had to resort to the Right to Information Act to find out the reasons for denial of promotion to him and he was shocked to learn that the orders of his promotion were cancelled on ground of a family dispute in which some criminal case has been registered against him. He informs that that case registered against him was on account of a Non Cognizable Report furnished by his wife under section 323 and 504 of the IPC. Subsequent to the investigation done by the police on the direction of the Court, Section 498A and 506 of IPC were added. The applicant argues that none of these sections could be an impediment to his promotion as the criminal charges levelled against him did not arise out of any of his acts of either commission or omission in the discharge of his official duties. The applicant also draws attention an order passed by the Hon'ble High Court of Delhi in WP (C) No. 6391 of 2016 titled Himanshu Gupta Vs. Engineers India Ltd. wherein in absolutely identical circumstances and facts, the Court had categorically held that the promotion cannot be denied to an employee merely because investigation under the aforesaid sections are going on against him, specially when the DPC has considered the applicant fit for promotion and duly recommended his candidature for promotion.
4. We have heard the argument of applicant in great detail. The learned counsel for the respondents had sought time to make written submission, which was allowed and subsequently we have carefully gone through the written submissions furnished by learned counsel. The contention of the learned counsel for the respondents is that vigilance clearance is essential for promotion, and otherwise too it can be denied to a government servant who is facing prosecution for criminal charges. He submits that the respondents' action is strictly in accordance 7 Item No. 28 C-5 O.A. No. 168/2016 with the rules and instructions of DOPT governing the subject. Accordingly, learned counsel argues that in the case of the applicant, the proceedings were supposed to be kept in the sealed cover which was not done. Therefore, the Competent Authority rectified this mistake by virtue of cancelation of the promotion order. Further relying upon DOPT instructions, the learned counsel submits that the applicant would be entitled to promotion only after he is exonerated of all the charges. Learned counsel reiterates that the action of the respondents is strictly in accordance with the rules and hence does not suffer from any shortcoming.
5. Having heard the arguments put-forth by the applicant and the learned counsel for the respondents and also having carefully perused all the relevant documents on record, we are of the view that some facts are not disputed at all. The case of applicant was considered by the Departmental Promotion Committee (DPC) in its meeting held on 31.03.2016 wherein the vigilance clearance of the applicant was on record. The DPC assessed the candidate to be 'Fit' for promotion and as a consequence of this recommendation, the applicant was promoted. However, this order of promotion was cancelled when it was realized that the applicant was facing criminal prosecution for charges under section 323, 504, 498A and 506 of IPC. At the same time, it is to be borne in mind that these charges were neither related to nor were the result of any of the official responsibilities or conduct of the applicant. These charges were an outcome of a marital dispute he was facing. The DOPT Rules and instructions relied upon by the learned counsel for the respondents do not conclusively cover the instant case as reading the instructions in their entirety makes it obvious that the criminal prosecution which will be an impediment to the promotion should essentially be related to the official position, responsibility and conduct of an employee. This is not the case here. The judgment of the Hon'ble High Court of Delhi in WP (C) No. 6391 of 2016 relied upon by the applicant makes an unambiguous observation that denial of 8 Item No. 28 C-5 O.A. No. 168/2016 promotion to an employee on ground of criminal charges, which are not related to the service of the employee is misconceived and does not stand the scrutiny of law.
6. In view of the detailed position explained above, the O.A. is allowed and the impugned order dated 24.11.2016 bearing No. 381/4430-A/Per/G is quashed. Since the Departmental Promotion Committee had found the applicant 'Fit' for promotion, the same shall be awarded to him w.e.f. 01.04.2016 when his first promotion order was issued, which later got to be cancelled. Further direction is given to the respondents to comply with these directions within a period of four weeks from the date of this order. No order as to costs.
7. Hon'ble Ms. Pratima K Gupta, Member (J) has consented to this order."
8. Learned counsel for the respondents vehemently opposes the OA and the arguments of the learned counsel for the applicant. He submits that one fact which must duly be noted and accorded weightage is that the applicant herein is a Constable of Delhi Police i.e. member of a uniformed service, hence, highest level of discipline is expected from him. He submits that the judgment being relied upon is person specific and relief given to the applicant therein cannot automatically be extended in the present case. He further submits that he has elaborately explained the facts and circumstances of the case in his counter reply, specifically paras 4.4 and 4.5.
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Item No. 28 C-5 O.A. No. 168/2016
9. In order to appreciate the arguments of the learned counsel for the respondents, the said paras are reproduced below :
Para 4.4 That in reply to the contents of corresponding para, it is submitted that the extent that case of Constable (Exe.) Santosh Kumar, No.584/L (here-in-after called applicant of OA) for grant of 1st ACP Scheme was due on 14.11.2002 after completion of 12 years of his regular service in the rank. But in the meantime, a criminal case vide FIR No.577/99 u/s 323/341/34 IPC was registered against applicant of OA Santosh Kumar PS Mangol Puri, Delhi. Hence, the decision of DCP for grant of 1st ACP Scheme was kept in sealed cover vide order No.7925-7965/CR-X Bn. DAP, dated 10.09.2003. Further the case of the applicant of OA for grant of ACP Scheme was considered again and kept in sealed cover due to criminal case/DE pending against him on the following dates:-
01.04.2004, 01.10.2004, 01.04.2005, 01.10.2005, 01.04.2006, 01.10.2006, 01.04.2007, 01.10.2007, 01.04.2008, 01.10.2008, 01.04.2009, 01.04.2010, 01.10.2010, 01.04.2011, 01.10.2011, 01.04.2012, 01.10.2012, 01.04.2013 and 01.10.2013. The action of the respondents is legal and justified in view brief facts submitted above.
Para 4.5 That the contents of corresponding para are not admitted. It is submitted that the rule for sealed cover "if any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him" (Annexure-P/2). Accordingly, applicant of OA Const. (Exe.) Santosh Kumar, 584/L (PIS No. 28902237) has been granted only 1st MACP Scheme w.e.f. 01.04.2014 vide Order No.809- 30/CR-II/P&L, dated 21.05.2015 (Annexure-A/2 of OA) as his name 10 Item No. 28 C-5 O.A. No. 168/2016 was removed from the list of police personnel facing criminal case vide judgment dt. 12.4.2014. He is not eligible for granting 2nd MACP Scheme as the findings of the sealed covers shall not be acted upon due to major penalty awarded him. Hence, the action of the respondents is legal and justified in view of brief facts submitted above.
10. We have heard the learned counsel for the parties and also gone through the documents on record.
11. We have no doubt in our mind that even though the facts and circumstances may be different but the issue involved is identical to the one decided by the Allahabad Bench which has been referred to by the learned counsel for the applicant and whose judgment has been reproduced in one of the preceding paragraphs of this order.
12. We take note of the fact that the applicant has been assessed multiple times by the relevant DPC/Screening Committee who have made some recommendations which are not in public domain on account of having been kept in a sealed cover in accordance with the procedure laid down. The only ground for keeping such recommendations in the sealed cover is that, at some stage, he faced criminal prosecution which also resulted in departmental proceedings. Whether these recommendations can be kept in 11 Item No. 28 C-5 O.A. No. 168/2016 a sealed cover for an indefinite period, has not been explained.
13. We find that the recommendations as old as 19 years are still in sealed cover. This cannot be justified by any stretch of imagination. Moreover, even if the applicant was guilty of some criminal misconduct, the genesis of the same was not in discharge of official duties and none of his official responsibilities got compromised. It was a minor dispute with his neighbour which got settled subsequent to litigation an through mediation, resulting in his acquittal.
14. It may be worth noting that the applicant in OA No 08/2017 of the Allahabad Bench was still facing criminal trial when the Tribunal decided that promotion shall be awarded to him. It had been unambiguously held that promotion cannot be denied on account of a criminal charge which is not related to the service of the employee or discharge of his official responsibilities.
15. We have no reason, in the instant matter, to take a view which could be at divergence.
16. In view of what has been discussed and detailed above, the OA is allowed. The competent authority amongst the respondents is directed to open the sealed cover with 12 Item No. 28 C-5 O.A. No. 168/2016 respect to each and every DPC/Screening Committee in which the name of the applicant was considered. Subsequent to the opening of the sealed cover, if the assessment made with respect to the applicant finds him fit for grant of financial benefits/upgradation, both under the ACP and MACP, an order to this effect shall be passed awarding such benefit w.e.f. the date he fulfilled the requirement of qualifying service. In the event the applicant is found fit and granted financial upgradation under ACP/MACP w.e.f. the date he possess qualifying service, necessary consequential benefits including the arrears which would accrue to him on account of this financial upgradation, shall be released in his favour. The order vide which financial upgradation under MACP has already been extended shall also be revised accordingly by giving it from the date on which he attained qualifying service.
17. The directions contained herein shall be complied with within a period of 12 weeks from the date of receipt of a certified copy of this order.
18. It is made clear that if these directions are complied within the stipulated period, the applicant shall have no claim for payment of interest upon the delayed payment. However, in the event of delay beyond the period allowed, the 13 Item No. 28 C-5 O.A. No. 168/2016 payment of arrears shall be accompanied by simple interest at the rate of 6%.
19. Learned counsel for the applicant does not pray for award of cost on this.
(Pratima K. Gupta) (Tarun Shridhar) Member (J) Member (A) /NISHA/