Central Administrative Tribunal - Delhi
Umesh Kumar Goel vs Union Of India Through on 11 October, 2012
Central Administrative Tribunal Principal Bench OA No. 2956/2011 Reserved on : 05.10.2012 Pronounced on : 11.10.2012 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Umesh Kumar Goel S/o Shri Gopichand Goel, R/o Ward 1, Old Grain Market, Indri, Dist. Karnal, Haryana. Applicant (By Advocate: Shri A.K. Behera) Versus Union of India through: 1. Secretary, Ministry of Finance, Department of Revenue, Government of India, North Block, New Delhi - 110 001. 2. The Chairman, Central Board of Excise & Customs, Government of India, North Block, New Delhi 110 001. Respondents (By Advocate: Shri R.V. Sinha) O R D E R Dr. Ramesh Chandra Panda, Member (A):
The applicant Shri Umesh Kumar Goel, an officer of the Indian Revenue Service (Customs and Central Excise) of 1993 Batch, was promoted periodically and lastly he reached the grade of Joint Commissioner i.e. Junior Administrative Grade (JAG) on 16.01.2003 along with his batch mates. The next promotional grade is Non-Functional Selection Grade (NFSG). The applicant along with his batch mates became eligible w.e.f. 01.01.2006. The Departmental Screening Committee (DSC) met on 05.09.2006 to consider grant of NFSG to the officers of 1991, 1992 and 1993 batch. The applicants case was also considered and the DSC found him unfit for grant of NFSG. However, a review DSC was held on 27.02.2008 and after assessing the ACRs of the applicant and his vigilance status put the recommendation on the applicant in the sealed cover. The subsequent DSCs also considered his case on 22.07.2009, 26.11.2010 and 06.05.2011 and placed their assessment of the applicant in sealed cover. However, right from 2006 the applicant has been aggrieved for his non-promotion by the order dated 26.10.2006 (Annexure A-2) has granted NFSG to his batch mates including his juniors. The main impediment for getting promotion to NFSG was his suspension. Further, two criminal cases were pending against him. The CBI has registered a Preliminary Enquiry in the case PE No. 02/2004 (RC No. 25/2004) against the applicant to enquire into the alleged disproportionate assets. Shri R.K. Das, Inspector, CBI, was the Inquiry Officer in the said criminal case, who lodged a complaint that the applicant offered him bribe, which was registered on 26.09.2004 against the applicant in RC No.23/2004 and w.e.f. the same date the applicant was kept under suspension. The suspension of the applicant was revoked on 30.10.2007. It is the case of the applicant that the CBI after thorough investigation into the matter of alleged disproportionate assets case of the applicant in RC No. 25/2004 has finally filed a closure report No. 2/2010 which has been accepted by the learned Special Judge, Ahmedabad on 21.12.2010. In respect of the second criminal case relating to the complaint filed by Shri R.K. Das, Inspector of CBI, the IO in the main case, the CBI has filed a report under Section 173 of Cr. P.C. on 19.09.2005 but the Trial Court has not yet taken any decision thereon. With regard to the complaint of Shri R.K. Das, Inspector CBI, who inspected the PE No. 2/2004, filed before the CBI alleging offer of bribe by the applicant, it is averred that Shri Das was an officer of doubtful integrity from the year 2003 to 2007 against whom three serious charges were pending viz. (1) accepting bribe while investigating a case; (2) playing mischief with wife of a Government servant, and (3) stealing a part of the seized property when he was raiding the house of a suspect. Shri Das could not have been given the charge of PE case of the applicant relating to his disproportionate assets. In the meantime, after the revocation of his suspension on 30.10.2007, he submitted representations dated 07.11.2007, 26.11.2007 and 25.02.2008 to consider his case for grant of NFSG. His case was considered by the subsequent DSC convened on 27.02.2008 but his case was put in sealed cover. It is his case that the recommendation of DSC could not have been put in sealed cover as neither he was under suspension nor was he facing departmental and criminal charges. Terming the said sealed cover as illegal, he submitted his representations dated 18.08.2008 and 10.11.2010 requesting the respondents to grant him NFSG at least on ad hoc basis. Feeling aggrieved by the inaction of the respondents, the applicant has instituted this Original Application with following prayers:-
(i) Call for the records of this case;
Quash & set aside the adoption of sealed cover in respect of the applicant in the DPC dated 27/02/2008 and direct the respondents to open the same and give effect to the same forthwith;
Or In the alternative direct the respondents to grant the applicant NFSG on ad hoc basis by following the mandate contained in the OM dated 14/09/2012;
Direct the respondents to give all consequential benefits to the applicant;
Direct the respondents to pay the cost of litigation to the applicant;
Pass any other order or direction which this Honble Tribunal thinks fit and proper in the facts and circumstances of the case.
2. We have heard Shri A.K. Behera, learned counsel representing the applicant, and Shri R.V. Sinha, learned Senior Central Government counsel on behalf of the respondents.
3. Narrating the background of the applicants case, Shri Behera contended that no ground existed to keep the recommendation of the DPC in sealed cover as the applicants suspension had been revoked and in criminal case of disproportionate assets, the Trial Court had accepted the closure report filed by CBI. In respect of the complaint filed by Shri Das, Shri Behera submits that though challan has been filed in 2005, for last 7 years the Trial Court has not taken cognizance of the same. His submission is that if the applicant cannot be granted regular promotion on the ground of pendency of a criminal case, he is entitled to get the ad hoc promotion. He placed his reliance on two judgments of this Tribunal which, in Shri Beheras contention, had already been implemented in (i) Shri Amresh Jain versus Union of India and Others (OA No.1937/2010 decided on 24.12.2010) and (ii) S. Ramu versus Union of India and Others (OA No. 1093/2009 decided on 20.01.2010).
4. Shri R.V. Sinha, learned Senior Central Government counsel, fairly concedes that the Trial Court has taken cognizance of the closure report filed by the CBI in respect of PE No. 02/2009 on 21.12.2010. He, however, submits that the facts of the pendency of the other criminal case are not in dispute.
5. In view of the above contentions of the rival parties, we perused the pleadings and two judgments relied on by the counsel for the applicant. It is noted that the applicant has sought two alternative relief(s) viz. (i) to direct the respondents to open the recommendations of the DSC held on 27.02.2008 already kept in sealed cover and, if found fit, to promote him to NFSG; and (ii) to direct the respondents to grant the applicant NFSG on ad hoc basis as per the DOP&T OM dated 14.09.1992 and the judgment of this Tribunal in two OAs.
6. With regard to the first alternative for opening of the sealed cover for promotion of the applicant to NFSG, it is admitted fact that first criminal case on disproportionate assets registered by CBI has culminated with the closure report filed by the CBI on 21.12.2010. The said Closure report having been taken cognizance of by the learned Special Judge, Ahmedabad on 21.12.2010, the said criminal case cannot stand as an impediment against the applicant. Another impediment against the applicant was the suspension that he suffered due to the complaint filed by Shri R.K. Das, which has since been revoked on 30.10.2007. This impediment, therefore, does not stand against opening of the sealed cover in respect of the applicant. However, the applicant is facing another criminal case in which the Inquiry Officer of the RC 25/2004 (PE 2/2004) Shri R.K. Das, Inspector-CBI, filed a complaint that the applicant offered him bribe which has been registered on 26.09.2004 against the applicant in RC No. 23/2004. It is not in dispute that the CBI has filed a challan in the Trial Court on 19.09.2005 but the said challan is yet to be taken cognizance of by the Trial Court. Be that as it may, it is settled position in law that if a Government servant is facing criminal case in which challan has been filed under Section 173 of Cr. P.C., in case of promotion the sealed cover procedure is to be adopted.
7. The issue of sealed cover procedure to be adopted has been considered by the Honble High Court of Delhi in a recent judgment in a batch of two Writ Petitions [WP (C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011] where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at the stage of framing of the charge. After referring to the judgments of Honble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Honble High Court of Delhi in Union of India Versus Om Prakash (WP(C) No.7810/2010) the Honble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-
10. We have to interpret the expression prosecution for a criminal charge is pending. The emphasis is on the word prosecution meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-
29. It is in the aforementioned context that interpretation of the word prosecution assumes significance. The term prosecution would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.
30. In initio means in the beginning. The dictionary meaning of initiation is cause of begin. Whereas some statutes provide for grant of sanction before a prosecution is initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.
11. The Court had drawn distinction between the terms prosecution and cognizance. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet 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 completion 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 report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.
12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially 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 chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.
13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the origin can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010. The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not deny the promotion for years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M. dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant 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 been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffer as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714. In this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there is a 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 benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.
14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.
8. In the background of the above judgment of the Honble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing a criminal proceeding and admittedly investigation was complete and the Challan was filed before the Trial Court on 19.09.2005. At the time DSC met for promotion to NFSG on various dates the completion of investigation leading to the filing of challan was existing. Thus, the applicants claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Honble High Court of Delhi.
9. On the basis of the above law laid by Honble High Court, it would not be legally justifiable to direct the respondents to open the sealed cover until the said criminal case is fully finalized and the applicant gets acquitted therein. Considering three different impediments, which were standing against the applicants promotion to NFSG, one impediment still remains. In view of the above, we are of the considered view that no direction can be issued to the respondents in the first alterative until the criminal case goes in favour of the applicant by the appropriate Trial Court.
10. Adverting to the second alternative claimed by the applicant that ad hoc promotion should be granted to him on the basis of (i) the guidelines in the DOP&T OM dated 14.09.1992 and (ii) the two judgments of this Tribunal relied upon by the applicant, we propose to consider this alternative. We may take the extract of the appropriate paragraph of the OM dated 14.09.1992, which reads as follows:-
Six Monthly review of Sealer Cover cases
4. It is necessary to ensure that the disciplinary case/criminal prosecution instituted against any Government servant is not unduly prolonged and all efforts to finalize expeditiously the proceedings should be taken so that the need for keeping the case of Government servant in a sealed cover is limited to the barest minimum. It has, therefore, been decided that the appointing authorities concerned should review comprehensively the cases of Government servants whose suitability for promotion to a higher grade has been kept in a sealed cover in the expiry of 6 months from the date of covering the first Departmental Promotion Committee which had adjudged his suitability and kept its findings in the sealed cover. Such a review should be done subsequently also every six months. The review should, inter alia, cover the progress made in the disciplinary proceedings/criminal prosecution and the further measures to be taken to expedite their completion. Procedure for ad hoc promotion
5. In spite of the six monthly review referred to in para 4 above, there may be some cases, where the disciplinary case/criminal prosecution against the Government servant is not concluded even after the expiry of two years from the date of the meeting of the first DPC, which kept its findings in respect of the Government servant in a sealed cover. In such a situation the appointing authority may review the case of the Government servant, provided he is not under suspension, to consider the desirability of giving him ad-hoc promotion keeping in view the following aspects:-
a) Whether the promotion of the officer will be against public interest;
b) Whether the charges are grave enough to warrant continued denial of promotion;
c) Whether there is any likelihood of the case coming to a conclusion in the near future;
d) Whether the delay in the finalization of proceedings, departmental or in a court of law, is not directly or indirectly attributable to the Government servant concerned; and
e) Whether there is any likelihood of misuse of official position which the Government servant may occupy after ad-hoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution.
The appointing authority should also consult the Central Bureau of Investigation and take their views into account where the departmental proceedings or criminal prosecution arose out of the Investigations conducted by the Bureau.
5.1 In case the appointing authority comes to a conclusion that it would not be against the public interest to allow ad-hoc promotion to the Government servant, his case should be placed before the next DPC held in the normal course after the expiry of the two year period to decide whether the officer is suitable for promotion on ad-hoc basis. Where the Government servant is considered for ad-hoc promotion, the Departmental Promotion Committee should make its assessment on the basis of the totality of the individuals record of service without taking into account the pending disciplinary case/criminal prosecution against him.
5.2 After a decision is taken to promote a Government servant on an ad-hoc basis, an order of promotion may be issued making it clear in the order itself that:-
i) the promotion is being made on purely ad-hoc basis and the ad-hoc promotion will not confer any right for regular promotion; and
ii) the promotion shall be untill further orders. It should also be indicated in the orders that the Government reserve the right to conceal the ad-hoc promotion and revert at any time the Government servant to the post from which he was promoted.
5.3. If the Government servant concerned is acquitted in the criminal prosecution on the merits of the case or is fully exonerated in the departmental proceedings, the ad-hoc promotion already made may be confirmed and the promotion treated as a regular one from the date of the ad-hoc promotion with all attendants benefits. In case the Government servant could have normally got his regular promotion from a date prior to the date of his ad-hoc promotion with reference to his placement in the DPC proceedings kept in the sealed cover (s) and the actual date of promotion of the person ranked immediately junior to him by the same DPC, he would also be allowed his due seniority and benefit of notional promotion as envisaged in para 3 above.
5.4. If the Government servant is not acquitted on merits in the criminal prosecution but purely on technical grounds and Government either proposes to take up the matter to a higher court or to proceed against him departmentally or if the Government servant is not exonerated in the departmental proceedings, the ad-hoc promotion granted to him should be brought to an end.
6. The procedure outlined in the proceeding paras should also be followed in considering the claim for confirmation of an officer under suspension, etc. A permanent vacancy should be reserved for such an officer when his case is placed in sealed cover by the DPC.
7. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this OM will be applicable in his case also.
11. In the backdrop of the above guidelines laid in the OM dated 14.09.1992, it is noticed that the respondents have not reviewed the applicants case every six months for promotion to NFSG on ad hoc basis. Four DSCs held by the respondents are regular ones and the recommendation on the applicant has been put in sealed cover on 27.02.2008, 20.07.2009, 26.11.2010 and 06.05.2011. These are regular DSC meetings for the respective years in which the applicants case was taken up for consideration. But admittedly the competent authority has not convened six monthly review referred to in para 4 of the said OM after the expiry of two years from the date of meeting of the first DSC. The date of first DSC in respect of the applicants case in which sealed cover was adopted was held on 27.02.2008. As the second criminal case filed by Sh. R.K. Das has still been continuing after the expiry of two years from 27.02.2008 i.e. w.e.f. 27.02.2010, the respondents are mandated to conduct six monthly review referred to in the OM. The applicant is, therefore, entitled to be considered in the six monthly review to start with effect from 27.02.2010 for considering him to be promoted to NFSG on ad hoc basis.
12. From the judgments of the coordinate Benches of this Tribunal relied on by the learned counsel for the applicant in Shri Amresh Jains case (supra) and S. Ramus case (supra), we note that the present case of the applicant is fully covered by the judgments of the above two cases. Learned counsel for the respondents fairly conceded that the present case is fully covered by the said judgments relied on by the learned counsel for the applicant.
13. Considering the totality of facts and circumstances of the case and guided by the judgments of the coordinate Benches of this Tribunal in Shri Amresh Jains case (supra) and S. Ramus case (supra) and taking note of the DOP&T OM dated 14.09.1992, we come to the considered conclusion that insofar as the second alternative is concerned, the applicant has established his case.
14. The Original Application, therefore, succeeds, with the direction to the respondents to consider the applicants case in a six monthly review w.e.f. 27.02.2010 for promotion to NFSG on ad hoc basis as per the procedure prescribed in the DOP&T OM dated 14.09.1992 within a period of nine weeks from the date of receipt of a certified copy of this order. If the applicant is found suitable for ad hoc promotion by the DSC, he should be promoted on ad hoc basis from the appropriate date as per the said OM. We are prescribing nine weeks time from the date of receipt of certified copy of this order in view of the specific fact that the respondents have not conducted six monthly review of the sealed cover adopted by them from the first DSC held on 27.02.2008. In case an adverse decision is taken in the review DSC, we expect that the competent authority should pass a detailed, reasoned and speaking order to justify such a decision.
15. In view of the above, the Original Application is allowed in terms of the above orders and directions leaving the parties to bear their respective costs.
(Dr. Ramesh Chandra Panda) (Syed Rafat Alam)
Member (A) Chairman
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