Gujarat High Court
N M Jadav vs State Of Gujarat Thro Secretary & 3 on 13 January, 2014
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/568/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 568 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or
any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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N M JADAV
Versus
STATE OF GUJARAT THRO SECRETARY & 3
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Appearance:
MS HARSHAL N PANDYA, ADVOCATE for the Petitioner
MR RONAK RAVAL, ASSTT GOVT PLEADER for Respondent(s)1-2
MR RAJESH CHAUHAN for MR HS MUNSHAW, ADVOCATE for
the Respondent(s) No. 3
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 4
RULE SERVED BY DS for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 13/01/2014
ORAL JUDGMENT
1. The petitioner who is serving on the post of Additional Assistant Engineer has prayed for direction to the respondent authorities to promote him to the post of Deputy Executive Engineer (Civil) with effect from 5.1.2011, the date on which his junior was promoted, with all consequential benefits.
2. It is the case of the petitioner that when the Departmental Page 1 of 12 C/SCA/568/2013 JUDGMENT Promotion Committee ("DPC") had met in the month of August and September, 2010, no departmental inquiry was pending against him and the DPC considered the case of the petitioner and sent for approval to the Gujarat Public Service Commission ("GPSC"). It is the further case of the petitioner that after the promotion orders were issued on 5.1.2011, charge sheet for departmental inquiry was issued to him on 11.7.2011 and based on such charge sheet, the petitioner was not given promotion. The petitioner has further averred that the departmental inquiry initiated against the petitioner culminated into punishment of censure vide order dated 25.1.2012, however the petitioner was not given promotion and, therefore, the petitioner is constrained to file the present petition.
3. The petition is opposed by respondent No.1 by filing affidavit in reply stating that the DPC met on 29.6.2009, 29.8.2009 and 25.3.10 to prepare select list for promotion to the post of Deputy Executive Engineer (Civil) Class II. However, the case of the petitioner was kept open for recommendation to the GPSC. It is stated that the junior to the petitioner was promoted on 5.1.2011 as there was no departmental inquiry pending against him. It is further stated that the DPC had again met on 28.3.2011 for the cases kept open by it to prepare select list for promotion. The petitioner was found fit, so, the DPC recommended his name to the GPSC and the GPSC also recommended the name of the petitioner for promotion. However, the the petitioner was then served with charge sheet dated 11.7.2011 for departmental inquiry wherein the petitioner was imposed the punishment of censure on 25.1.2012, therefore, the petitioner was not given promotion. It is also stated that the petitioner was not given promotion as per the provisions contained in Government Resolution dated 23.9.1981 and the advise was given to consider the case of the petitioner for promotion as per the resolution dated 1.9.2006, and thus name of the petitioner was required to be considered in the next DPC as per Page 2 of 12 C/SCA/568/2013 JUDGMENT the resolution after issuance of punishment order of censure dated 25.1.2012. In these circumstances, the case of the petitioner was not considered along with his junior.
4. The petitioner has filed further affidavit placing on record communications dated 28.6.2009, 13.8.2009 and other documents to establish that his service record was very much available with the DPC when the DPC first time met. It is further stated that in view of the Government Resolution dated 4.8.2007, the department was not justified in placing reliance on the resolution dated 23.9.1981 and 1.9.2006. As per the resolution dated 4.8.2007, since no inquiry was pending when the DPC met, the petitioner could not have been denied the benefit of promotion when his junior was promoted.
5. I have heard the learned advocates for the parties.
6. Learned Advocate Ms. Harshal Pandya for the petitioner submitted that on wrong interpretation of the Government Resolutions in the matter of consideration of the case of an employee for promotion, the petitioner has been denied benefit of promotion along with his junior though DPC found him fit for promotion and recommended his name for promotion. Ms. Pandya submitted that in view of the resolution dated 4.8.2007 which amended the resolution dated 23.9.1981, the respondents were not justified in placing reliance on resolution dated 23.9.1981. Ms. Pandya submitted that as per the resolution dated 4.8.2007, and the law laid down by the Hon'ble Supreme Court in the case of Union of India Vs. K.V.Jankiraman, reported in (1991) 4 SCC 109, an employee cannot be denied promotion if otherwise found fit by the DPC when no charge sheet is issued for departmental inquiry or for criminal case on the date of meeting of the DPC. Learned Advocate Ms. Pandya submitted that undisputedly in this case the charge sheet was issued after promotion orders were released to Page 3 of 12 C/SCA/568/2013 JUDGMENT the junior of the petitioner and just on the basis of the resolution dated 23.9.1981, the petitioner is denied promotion. She, thus, urged to allow this petition.
7. Learned Assistant Government Pleader Mr. Ronak Raval for respondent State authority submitted that though on the date when the DPC met and recommended the name of the petitioner for promotion there was no charge sheet issued for departmental inquiry, however, since the charge sheet came to be issued subsequently, it was decided to consider the case of the petitioner for promotion in the next DPC meeting as the petitioner was imposed punishment of only censure. Mr. Raval submitted that the resolution dated 23.9.1981 clearly provided for withholding of promotion even if the departmental inquiry is proposed to be initiated. Mr. Raval submitted that relying on such resolution, the promotion of the petitioner was withheld and it was decided to consider his case in the next DPC after the order of punishment was passed in the departmental inquiry. Mr. Raval submitted that by further resolution dated 1.9.2006, the Government has prescribed procedure to be followed after imposition of punishment in departmental inquiry and as per such provisions, the case of the petitioner remains to be considered. Mr. Raval submitted that the resolution dated 4.8.2007 has just amended instructions relating to following sealed cover procedure if the charge sheet in the departmental inquiry or in criminal case is issued on or before DPC meeting. Mr. Raval submitted that the other provisions of earlier resolutions would continue to apply. If the departmental inquiry is initiated before the actual promotion is given to an employee, promotion of such employee needs to be postponed and to be decided on conclusion of departmental inquiry as per the procedure laid down in the said resolution. Mr. Raval submitted that simply because the charge sheet was not issued for the departmental inquiry against the petitioner when the DPC met, the Page 4 of 12 C/SCA/568/2013 JUDGMENT petitioner cannot be made entitled to the benefit of promotion especially when inquiry against the petitioner was initiated and punishment of censure was imposed. Mr. Raval submitted that as stated in the affidavit in reply, considering the punishment of censure imposed against the petitioner, now the case of the petitioner shall be considered in accordance with Government Resolution dated 1.9.2006. He, thus, urged to dismiss the petition.
8. Learned advocate Mr. Rajesh Chauhan for learned advocate Mr. H.S. Munshaw for respondent No.3 and learned advocate Mr.Premal R. Joshi for respondent No.4 have adopted the arguments advanced by learned AGP Mr. Raval. They also submitted that since there was departmental inquiry pending against the petitioner and since the case of the petitioner is now to be considered, this court may dismiss the petition.
9. Having heard the learned advocates for the parties and having gone through the record of the case with the resolutions dated 1.9.1981 at annexure III page 70, resolution dated 1.9.2006 at annexure IV page 74 and resolution dated 4.8.2007 at annexure H page 52, it appears that though the petitioner was found fit for promotion and his case was recommended by DPC prior to issuance of charge sheet for the departmental inquiry, benefit of promotion was not released to the petitioner on the basis of charge sheet for departmental inquiry subsequently issued to the petitioner. From the record, it appears that when the DPC met first on 29.6.2009, 29.8.2009 and 25.3.2010, it was having the service record of the petitioner and as stated in the affidavit in reply filed on behalf of the respondent no.1 in para 7, case of the petitioner was recommended by DPC to GPSC and even the GPSC also recommended his case for promotion but the petitioner was not given such benefit when his junior was given promotion order dated 5.1.2011. DPC then again met on 28.3.2011 to consider the case of the petitioner and other cases kept open for promotion and Page 5 of 12 C/SCA/568/2013 JUDGMENT as stated in para 9 of the affidavit in reply filed by respondent No.1, no departmental inquiry was pending on the said date. As further stated in the said paragraph, DPC found the petitioner fit for promotion and recommended his name to the GPSC and even the GPSC recommended his name for promotion. Charge sheet then came to be issued on 11.7.2011 and same is made a ground not to act upon the recommendations made by DPC and GPSC. To justify such action, the respondents have placed reliance on resolution dated 23.9.1981 and 1.1.2006 at annexure III and IV to the affidavit in reply.
10. To judge justification of action of the respondents in not giving promotion to the petitioner though charge sheet was not issued to the petitioner on the day when the DPC met, resolution dated 23.9.1981 and 1.9.2006 need to be considered, as the petitioner is denied promotion relying on these two resolutions. By resolution dated 23.9.1981, the Government provided for procedure to be followed by DPC in the case of Government servant under suspension or against whom inquiries are pending or to be initiated. By said resolution, it was decided that the Government servants who are suspended or against whom disciplinary proceedings either already initiated or proposed to be initiated shall not be given benefit of promotion till the departmental inquiry is completed and the Government servant is exonerated. It was also decided that the punishment of censure or warning awarded to such Government servants was not to be taken into account while considering cases of such employees for promotion.
11. It appears that by further resolution dated 1.9.2006, the Government provided procedure to be followed for promotion in respect of the employees who were imposed minor punishment pursuant to departmental inquiry initiated against them for which their cases were placed in sealed cover. However, by resolution dated 4.8.2007, at annexure H, sealed cover procedure provided by Page 6 of 12 C/SCA/568/2013 JUDGMENT earlier resolution dated 23.9.1981 came to be amended. Above said resolution was passed on the basis of the decision of the Hon'ble Supreme Court in the case of KV Jankiraman (supra). It was provided that the sealed cover procedure shall be followed by the concerned DPC only in the case falling under one of the following categories "(1) Government employee/officer under suspension.
(2) Government employee/officer in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending and (3) Government employee/officer in respect of whom prosecution for criminal charge is pending."
However, it was clarified that the further procedure based on sealed cover cases shall remain the same as stipulated in resolution dated 1.9.2006.
12. It is required to be noted that the sealed cover procedure for proposed departmental inquiry contained in resolution dated 23.9.1981 was given go bye by resolution dated 4.8.2007. As per the resolution dated 4.8.2007, sealed cover procedure is to be followed only when the Government employee is under suspension or the charge sheet has been issued and the disciplinary proceedings are pending against the Government employee/officer or prosecution for criminal charge is pending against such Government employee on the day of meeting of the DPC. In this resolution, it is clarified that the disciplinary proceedings could be said to be pending after issuance of charge-sheet. Thus, as on or before the day when the DPC meets, if no charge-sheet is issued for disciplinary inquiry against the Government employee, sealed cover procedure for such employee/officer is not to be followed. Therefore, if the sealed cover procedure is not to be followed for the employee against whom charge sheet is not issued in departmental proceedings, there is no question of following sealed Page 7 of 12 C/SCA/568/2013 JUDGMENT cover procedure for the proposed departmental inquiry. In view of such amended procedure provided to be followed by the DPC for promotion of Government employees if departmental inquiry or prosecution is stated to be pending, the petitioner could not have been denied promotion relying on the resolution dated 23.9.1981 as the third category provided therein for placing case of Government employee in sealed cover on account of proposed departmental inquiry is given go bye.
13. In the case of K.V.Jankiraman (supra), Hon'ble the Supreme Court has held and observed in paragraph 16 and 17 as under:
"16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced,the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge- sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/ charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc., does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure.The authorities thus are not without a remedy. It was then contended on behalf Page 8 of 12 C/SCA/568/2013 JUDGMENT of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows:
"(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;
(2) ................................................... (3) ....................................... (4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;"
17. There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench-has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/ criminal proceedings are pending against the employee. To deny the said benefit they must be at the relevant time pending at the stage when charge- memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions."
14. Relying on the decision of Hon'ble the Supreme Court in the case of K.V.Jankiraman (supra), Hon'ble the Supreme Court in recent decision in the case of (The) Union of India and others versus Anil Kumar Sarkar reported in 2013(1) GLH 792 held and observed in para 13,14 and 15 as under:
"13. It is not in dispute that an identical issue was considered by this Court in Union of India and Others vs. K.V.Jankiraman and Others, (1991) 4 SCC 109. The common questions involved in all those matters were:
(1) What is the date from which it can be said that disciplinary/ criminal proceedings are pending against an employee? (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? and (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?. Among the three questions, we are concerned about question No.1. As per the rules applicable, the "sealed cover Page 9 of 12 C/SCA/568/2013 JUDGMENT procedure" is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over. Inasmuch as we are concerned about the first question, the dictum laid down by this Court relating to the said issue is as follows:-
"16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge- memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant- authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue chargememo/ charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. 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. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy.
In para 17, this Court further held:
17. ... The conclusion No. 1 should be read to mean that Page 10 of 12 C/SCA/568/2013 JUDGMENT the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when chargememo/ charge-
sheet has already been issued to the employee...."
After finding so, in the light of the fact that no charge sheet was served on the respondent-
employee when the DPC met to consider his promotion, yet the sealed cover procedure was adopted. In such circumstances, this Court held that "the Tribunal has rightly directed the authorities to open the sealed cover and if the respondent was found fit for promotion by the DPC, to give him the promotion from the date of his immediate junior Shri M. Raja Rao was promoted pursuant to the order dated April 30, 1986. The Tribunal has also directed the authorities to grant to the respondent all the consequential benefits.....We see no reason to interfere with this order. The appeal, therefore, stands dismissed." The principles laid down with reference to similar office memorandum are applicable to the case on hand and the contrary argument raised by the appellant-Union of India is liable to be rejected.
"14. In Coal India Limited & Ors. vs. Saroj Kumar Mishra, AIR 2007 SC 1706, this Court, in para 22, has held that a departmental proceeding is ordinarily said to beinitiated only when a charge-sheet is issued.
15. In Chairman-cum-Managing Director, Coal India Limited and Others vs. Ananta Saha and Others, (2011) 5 SCC 142, this Court held as under:
"27. There can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a charge-sheet is issued to the delinquent employee. (Vide Union of India v. K.V. Jankiraman, (1991)4 SCC 109 and UCO Bank v. Rajinder Lal Capoor, (2007) 6 SCC 694)"
We also reiterate that the disciplinary proceedings commence only when a charge sheet is issued.
Departmental proceeding is normally said to be initiated only when a charge sheet is issued."
15. In light of the above principles of law settled by Hon'ble the Supreme Court and in light of the undisputed position that when the DPC met, no charge sheet was issued for departmental Page 11 of 12 C/SCA/568/2013 JUDGMENT proceedings to the petitioner, the recommendation of the DPC for giving promotion to the petitioner was required to be acted upon and implemented and the petitioner was required to be given promotion when his junior was given promotion vide order dated 5.1.2011.
16. In view of the above, the petition is required to be allowed. However, the petitioner could be granted notional benefit of promotion with effect from the date of promotion of his junior till the petitioner is actually promoted.
17. In the result, the petition is allowed. Respondents are directed to consider the case of the petitioner on the basis of the recommendations made by the DPC for promotion to the post of Deputy Executive Engineer (Civil) Class II and to give benefit of deemed date to the petitioner with effect from the date his junior was promoted i.e. 5.1.2011 without actual benefits of salary till the petitioner is given actual promotion to the post of Deputy Executive Engineer (Civil) Class II. Respondents shall take such decision within one month from the date of receipt of copy of this judgment and order. Rule is made absolute to the extent stated above.
Sd/-
(C.L.SONI, J.) anvyas Page 12 of 12