Central Administrative Tribunal - Delhi
Niraj Srivastava S/O Late M.P. ... vs Union Of India Through on 15 January, 2014
Central Administrative Tribunal Principal Bench: New Delhi OA No.4094/2013 MA No. 08/2014 Reserved on: 08.01.2014 Pronounced on: 15.01.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B. K. Sinha, Member (A) Niraj Srivastava s/o late M.P. Srivastava R/o F-202, Lane W5A, Western Avenue, Sainik Farms, New Delhi 100 062. Applicant (By Advocates: Ms. Jyoti Singh, Sr. Advocate assisted by Sh. C. Bheemanna, Sh. Padma Kumar S. and Ms. Tinu Bajwa) Versus 1. Union of India through Cabinet Secretary, Cabinet Secretariat (Main), Rashtrapati Bhawan, New Delhi. 2. Secretary (R) Room No.7, Bikaner House (Annexe) Shahjahan Road, New Delhi. Respondents (By Advocate: Shri T.C. Gupta) O R D E R By Dr. B.K. Sinha, Member (A):
The short question that we are called upon to decide in the instant Original Application is that whether sealed cover procedure can be resorted to when no charge sheet has been approved and only initiation of departmental proceedings against a minor penalty charge has been sanctioned by the competent authority.
2. The case of the applicant, in brief, is that he has been working as Additional Secretary in the Cabinet Secretariat since 27.08.2011 and is due for retirement in February, 2014. On 09.08.2012, the applicant was called upon to submit explanation with respect to the alleged decision taken by him in April, 2004 while working as Joint Secretary in the same Department to which the applicant submitted his reply on 24.08.2012. However, as the matter was very old, the memory had faded and the applicant, therefore, submitted a more detailed reply on 26/28.03.2013. On 14.05.2013, the applicant submitted a comprehensive reply to the respondents after having offered an oral explanation in course of personal audience granted to him. The grievance of the applicant is that on 25.06.2013 a DPC meeting was held to consider his case for promotion to the rank of Special Secretary and its recommendation in so as the applicant is concerned had been placed under sealed cover. On 18.09.2013, three of the applicants juniors were promoted to the grade of Special Secretary in supersession of the applicant. On 19.09.2013, the applicant made a detailed representation to the respondents without having evoked any response. Aggrieved, the applicant approached this Tribunal by filing OA No.3452/2013, which was disposed of with a direction to the respondents to consider the representation of the applicant vide means of a reasoned and speaking order. However, when no decision on the representation was forthcoming, the applicant, in view of his impending retirement in February, 2014, has instituted the instant OA on 20.11.2013.
3. The respondents have filed a counter affidavit wherein, as a measure of rebuttal to the contents of para no.6, it has been stated that the applicants representation dated 19.09.2013 assailing the decision of the DPC to place its recommendation in sealed cover was duly examined and appropriately disposed of vide order dated 25.11.2013. Accordingly, the applicant has filed MA No.08/2014 seeking amendment in the OA submitting that consequent to the issue of the Dasti Notice in respect of the instant OA, the respondents have purportedly disposed of his representation vide a non-speaking, cryptic order dated 25.11.2013 contrary to the directions of this Tribunal. The applicant has submitted that the decision to this OA primarily hinges on grounds of law, the facts being not in dispute serve to a minor extent.
4. The applicant has adopted the following grounds in support of his claim:-
The disposal of the applicants representation vide order dated 25.11.2013 is contrary to the direction of this Tribunal being non-speaking and cryptic one and is against the rules of natural justice as the assailed order in question seeks to abridge the rights of the applicant. It was further submitted by Mrs. Jyoti Singh, the learned senior counsel of the applicant, that the rules and oath of secrecy governing the respondent organization prevents the applicant from bringing the reply received from the respondent organization on record here.
The second ground relating to point of fact, which has been disputed by the applicant is that while the learned counsel for the respondents made oral submissions that the charge sheet had been approved on 04.04.2013 which, as per the applicant, had been approved on 07.10.2013 and had been served upon the applicant on 18.10.2013. Thus, the approval and submission of the charge sheet have both taken place well after the date of DPC held on 25.06.2013 and on the date the three juniors of the applicant had been promoted over the applicant vide order dated 18.09.2013.
5. On the point of law, the learned counsel for the applicant heavily relied upon the decisions of the Honble Supreme Court in the case of Union of India and Others versus K.V. Jankiraman [1991 (4) SCC 109] wherein it has been clearly spelt out that the sealed cover procedure can only be resorted to under three given circumstances that being (i) when a charge sheet has been served upon the charged employee; (ii) when a criminal case has been instituted against the errant employee and a charge sheet has been submitted; and/or (iii) when the employee has been placed under suspension; and in none others. The applicant has additionally relied upon a recent decision in the case of Union of India and Others versus Anil Kumar Sarkar [SLP No.2537/2013 decided on 15.03.2013] wherein the Honble Supreme Court has examined and reaffirmed the decision in the case of Union of India and Others versus K.V. Jankiraman (supra). The applicant has further relied upon the decisions of Honble High Court of Delhi in the cases of Union of India and Others versus Satyendra Kumar Singh [WP(C) No.7030/2013 decided on 11.11.2013] and Union of India and Another versus Suresh Chandra [WP(C) No.335/2012 decided on 03.09.2013]. Additionally, the applicant has further relied upon the DOP&T OM dated 02.11.2012 which has made a comprehensive review of the instructions pertaining to vigilance clearance for promotion and has, inter alia, reiterated the OM dated 14.09.1992 issued on the basis of the procedures laid down by the Honble Supreme Court in the case of Union of India and others versus K.V. Jankiraman (supra). The applicant has further relied upon a decision of the Honble Supreme Court in the matter of Union of India and Others versus Sangram Keshari Nayak [2007 (6) SCC 704).
6. The respondents have filed a counter affidavit wherein they have submitted that the Prime Minister, being the disciplinary authority, had approved the initiation of departmental proceedings against the applicant on 04.04.2013 well before the date of the meeting of the DPC held on 25.06.2013. Therefore, in view of the pending charges against the applicant, which are grave in nature, the DPC had rightly resorted to sealed cover procedure against the applicant. It is not that the DPC had not considered the case of the applicant. The DPC had indeed considered the case of the applicant but deemed it appropriate to place its recommendation in sealed cover till the clearance of the charges. The respondents have also submitted a reply to the MA filed by the applicant reiterating the same facts.
7. The learned counsel for the respondents has submitted that the charges against the applicant related to matters of integrity and were by all means grave in nature. Therefore, the DPC had rightly placed the recommendation in respect of the applicant under sealed cover. He further submitted that the cases relied upon by the applicant would not be applicable to the facts of the instant case as the Prime Minister had already approved the initiation of departmental proceedings well before the date of DPC. The learned counsel for the respondents has, therefore, vehemently argued that the instant OA is misconceived, misplaced and devoid of merit and deserves to be dismissed. He also submitted a sealed envelope containing replies of the respondent organization in respect of the applicants queries, which the Tribunal alone should peruse on account of the secret nature of the respondent organization.
8. It is a well admitted fact that what the Prime Minister had approved on 04.04.2013 was a decision to initiate departmental proceedings against the applicant. It appears from the sealed envelope submitted by the respondents counsel that promotions of the regular officers of R&AW are considered simultaneously when promotions of IPS officers of the same batch serving in the Intelligence Bureau are considered. It was on this account that the DPC for promotion of Additional Secretaries was initially held on 18.12.2012 but had been rejected on account of the fact that the IPS officers of 1978 batch of the Intelligence Bureau were yet to be considered for promotion to the Apex scale of Rs.80,000/- at that point of time. Subsequently, on 10.04.2013, the Cabinet Secretariat conveyed the directions of the Prime Minister for initiation of departmental enquiry for misconduct under CCS (CCA) Rules, 1965 against the applicant for imposing a minor penalty. A draft charge sheet against the applicant was submitted on 14.05.2013 to the Cabinet Secretariat, which conveyed its approval vide ID Note dated 11.10.2013. The charge sheet was finally issued to the applicant on 18.10.2013. The Note further refers to OM of DOP&T dated 14.09.1992 that sealed cover procedure is to be adopted in case of government servant in the zone of consideration in whose respect a charge sheet has been issued and disciplinary proceedings are pending. It was in this light that the DPC held on 25.06.2013 decided to place its recommendation qua the applicant under sealed cover while other three junior officers, who were not similarly placed incumbent, were promoted. The proceedings of the DPC indicate that minor penalty proceeding had been approved by the competent authority against the applicant and it was on this account the DPC decided to keep its recommendation in respect of the applicant in a sealed cover.
9. The imputation of charges have also been enclosed which indicate that the applicant had served as Joint Secretary (Personnel) during the relevant period (December 2003 May 2004) when the decision of making deviations in the approved building plan of the Project at Envelop 5-A, CGO Complex, New Delhi were made. The applicant was in-charge of the Sections processing all the approvals on the files and dealing with communication thereof to the approving and implementing authorities. The applicant had also served as Chairman of the Monitoring Committee. Though the applicant in his official capacity was fully aware of the background of the Project, yet he had consented to the change in the building plan whereby three blocks were constructed in place of two but there were alterations in the basement. It is relevant to extract the concerned paragraph from this chargesheet, which reads as under:-
That Shri Niraj Srivastava did not bring out the facts of deviation to the knowledge of Secretary . in writing to obtain his orders, on file, though various notes recorded do indicate that the deviations were possible made at his directions. JS (Pers.) Shri Niraj Srivastava was fully aware that Secretary (R) was not the Competent Authority to make any change in the building plan approved by CNE/CFA. Still, rather than bringing to the notice of his superior officers the need to approach CNE/CFA, in case some modifications were contemplated, or cautioning them about the illegality in not doing so, he allowed the irregular/unauthorized decision to be conveyed to CPWD. By recording minutes without obtaining formal approval of the then Secretary (R), Shri Niraj Srivastava, not only allowed the deviations to be made by possibly tried to shield the then Secretary (R) from the irregularities committee. It also appears from the order dated 08.05.2013 that it was the then Secretary (R) who was guilty of grave misconduct being a party to the deviations made in the design and scope of the building as approved by the CNE/CFA without obtaining approval of the competent authority to do so. However, as the then Secretary (R) retired on superannuation on 31.01.2005, no enquiry could have been initiated against him under the provisions of CCS (CCA) Rules, 1965 and further Rule 9(2)(b) of CCS (Pension) Rules, 1972 as the event had taken place more than four years ago. Therefore, it was decided not to initiate a departmental enquiry against the then Secretary (R) instead, as it appears, proceedings had been initiated against the applicant. It also transpired during the oral submissions that the then Secretary (R) was separated from the Joint Secretary by a Special Secretary against whom no action is under evidence.
10. We also take note of the statement of the learned counsel for the respondents that the charges related to financial irregularity. However, that is not justified by the above facts. Moreover, had it been so, the respondents would have proceeded against the applicant under Rule 14 of the CCS (CCA) Rules, 1965 for a major penalty and not for a minor penalty as the case is.
11. We now take up the legal issue as it has been formulated in the opening paragraph of this order. We well recognize that the judgment in Union of India and Others versus K.V. Jankiraman (supra) remains one of the land mark decisions in service jurisprudence and is often referred to as the mother of such decisions. Thereafter, this decision has been re-examined and re-affirmed in a series of decisions, the one of which, the applicant has sought to place his reliance, is that of Union of India and Others versus Anil Kumar Sarkar (supra) wherein the respondent had joined the Northern Railway as a Junior Clerk and had worked his way up to Senior AFA/T-1 in the office of Financial Adviser and Chief Accounts Officer of Northern Frontier (NF) Railway at Maligaon. A DPC was convened by the UPSC on 26.02.2002 and 27.02.2002 to consider the promotion of eligible Group B officers of the Accounts Department for their substantive promotion to Group A of the Indian Railway Accounts Service (IRAS) against the vacancies for various Zonal Railways/Production Units. The case of the applicant was considered for the year 2001-02 and his name was accordingly placed in the extended select panel. However, it was alleged by the appellants that during the year 1994-95, the respondent had committed gross misconduct in checking and clearing the bills for which four memoranda of charges were issued to him, out of which two had been issued on 13.08.2003, the third on 01.09.2003 and the fourth on 05.11.2003 on the basis of which, four separate departmental proceedings had been initiated against the respondent at three different places. In the year 2004, the CBI lodged 11 FIRs against the respondent based upon these similar charges. By an Office Order dated 21.04.2003, the batch mates of the respondent were promoted giving rise to an OA before the Guwahat Bench of this Tribunal for a direction to promote him to Group A (Jr. Scale) of IRAS w.e.f. 05.03.2002. The afore OA was dismissed by the Tribunal while the Honble High Court of Guwahati had set aside the Tribunals order. The Honble Supreme Court, while referring to the DOP&T OM dated 14.09.1992 and the case of Union of India and Others versus K.V. Jankiraman (supra), had agreed with the decision of the High Court of Guwahati and dismissed the appeal. For the sake of clarity, the relevant paragraph is extracted herein below:-
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 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 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 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 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. 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. The same very order also cites the subsequent order of the Honble Supreme Court in Coal India Limited & Others vs. Saroj Kumar Mishra [AIR 2007 SC 1706] and Chairman-cum-Managing Director, Coal India Limited and Others vs. Ananta Saha and Others, [(2011) 5 SCC 142] to hold that disciplinary proceeding commences when chargesheet is issued to the delinquent employee.
12. We find that the order of the Honble Supreme Court in Union of India and Others versus K.V. Jankiraman (supra) has been further interpreted by the Honble High Court of Delhi in the case of Union of India and Others versus Satyendra Kumar Singh (supra) wherein the DPC met in January, 2012 while the juniors had been promoted in 2012. There was no justification for the petitioners to deny promotion to the respondent as none of three mandatory conditions i.e. submission of charge memo in departmental proceedings; submission of chargesheet in criminal case and/or suspension of the delinquent government employee had been fulfilled. A similar view has been expressed in yet another decision of the Honble High Court of Delhi in Union of India and Another versus Suresh Chandra (supra). A reference has also been made to the OM dated 02.11.2012 which provides for a comprehensive review of instructions pertaining to vigilance clearance for promotion. This OM, after stating in the opening paragraph that as per the decision in Union of India and Others versus K.V. Jankiraman (supra) vigilance clearance could be denied only under the conditions of suspension, submission of a charge sheet in disciplinary proceedings; and prosecution in a criminal case, goes ahead to review the latter circular and hold as under:-
5. The O.M. No.22012/1/99-Estt.(D) dated 25th October, 2004 further provides that a DPC shall assess the suitability of the Government servant coming within the purview of the circumstances mentioned in para 2 of the Office Memorandum No. 22011/4/91-Est.(A) dated 14.09.1992, alongwith other eligible candidates, without taking into consideration the disciplinary case/ criminal prosecution pending. No promotion can be withheld merely on 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, the Government is within its right to suspend the official. In that case, the officers case for promotion would automatically be required to be placed in the sealed cover.
6. When a Government servant comes under a cloud, he may pass through three stages, namely, investigation, issue of charge sheet in Departmental Proceedings and/or prosecution for a criminal charge followed by either penalty/ conviction or exoneration/acquittal. During the stage of investigation prior to issue of charge sheet in disciplinary proceedings or prosecution, if the Government is of the view that the charges are serious and the officer should not be promoted, it is open to the Government to suspend the officer which will lead to the DPC recommendation to be kept in sealed cover. The sealed cover procedure is to be resorted to only after the charge memo/ charge sheet is issued or the officer is placed under suspension. The pendency of preliminary investigations prior to that stage is not sufficient to adopt the sealed cover procedure. It further states that as per Rule 9(6)(b)(i) of CCS (Pension) Rules, 1972, judicial proceedings shall be deemed to be instituted on the date on which the Magistrate takes cognizance of the complaint of a police officer and reiterates that vigilance clearance cannot be denied on the ground of pending disciplinary/criminal court case against the Government servant unless three conditions in para 2 of DOP&T OM dated 14.09.1992 are satisfied.
13. Having discussed all the facts of the case in detail, though not the legality of the charges at this stage, and also various pronouncements of the Honble superior courts, we come to the one and only inescapable conclusion that this case is squarely covered by the decision of Honble Supreme Court in Union of India and Others versus K.V. Jankiraman (supra), Union of India and Others versus Anil Kumar Sarkar (supra) and other decisions emanating from the same.
14. We are compelled to take a note of the fact that much stress has been laid in the counter affidavit filed by the respondents that the Prime Minister being the Disciplinary Authority had approved initiation of departmental enquiry against the applicant as early as 04.04.2013 well before the date of the meeting of the DPC on 25.06.2013 and the sealed cover procedure adopted by the DPC in respect of the applicant was correct. It appears that in the verification clause of the counter affidavit it has not been stated as to whether the averments made in para nos. 4.9 and 4.13 are based on record, instead a vague statement has been made saying the same is true and correct to the best of deponents knowledge. On a close look, the averment to the afore effect is falsified by the Memorandum dated 25.11.2013 rejecting the representation dated 19.09.2013 submitted by the applicant wherein it has been clearly mentioned in para no.3 It is also noted that Prime Minister, as Disciplinary Authority has approved the charge sheet on 07.10.2013 and the charge sheet has also been served upon Shri Niraj Srivastava on 18.10.2013. When this was brought to the notice of the learned counsel for the respondents, he materially admitted on behalf of the respondents that on the date the DPC met and/or the junior officers were promoted and placed the recommendation qua the applicant in sealed cover, none of the three mandatory conditions mentioned in para 2 of OM dated 14.09.1992 were getting satisfied. Therefore, the act of the respondents in placing the case of the applicant in sealed cover is repugnant to the decision of the Honble Supreme Court Union of India and Others versus K.V. Jankiraman (supra) and also contravenes the Office Memoranda dated 14.09.1992 and 02.11.2002. The submissions of the respondents that the case relates to integrity have also been taken care of and do not sustain.
15. In totality of facts and circumstances of the case, we dispose of the instant Original Application with the following directions:-
The respondents are directed to open the recommendations placed in the sealed cover by the DPC held on 25.06.2013 and act accordingly thereafter;
Considering the fact that the applicant is to retire shortly, this exercise is to be positively completed within a period of fortnight from the date of receipt of a certified copy of this order.
The parties are left to bear their own costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/