Central Administrative Tribunal - Delhi
Ct. Surender Kumar vs Gnct Of Delhi on 21 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 429/2011 New Delhi this the 21st day of April, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Ct. Surender Kumar, 1697/W, PIS No. 28950325, S/o Shri Rampal Yadav, R/o GH 5&7/670, Meera Bagh, Paschim Vihar, New Delhi. Group C Aged 36 years. Applicant (By Advocate Shri Sourabh Ahuja) VERSUS 1. GNCT of Delhi Through Commissioner of Police, Police Head Quarters, I.P. Estate, MSO Building, New Delhi. 2. Deputy Commissioner of Police Establishment, Through Commissioner of Police, PHQ, I.P. Estate, MSO Building, New Delhi. 3. Joint Commissioner of Police, Head Quarters, Through Commissioner of Police, PHQ, I. P. Estate, MSO Building, New Delhi. Respondents (By Advocate Shri Amit Anand) O R D E R Mr. L.K. Joshi, Vice Chairman (A):
The grievance of the Applicant, who is a Constable in Delhi Police, is that he appeared for the test for Promotion List 'A', that is, for promotion to the post of Head Constable in the year 2009 and cleared the tests but his name was kept in the sealed cover because he was under suspension at the time of meeting of the Departmental Promotion Committee (DPC) and the disciplinary enquiry was pending against him. However, the sealed cover was not opened though at the time of promotion of the person immediately junior to him, the order of suspension against him had been revoked and the departmental proceedings against him had been quashed by the Honourable Delhi High Court. The Applicant is seeking direction to the Respondents to open the sealed cover with respect to his consideration for promotion and in case he had been found 'Fit' for promotion by the DPC, it should be acted upon and his name should be brought to the Promotion List 'A' with effect from 20.06.2009 with all consequential benefits.
2. The facts of the case, in a nutshell, are that the Applicant was appointed as Constable (Executive) in Delhi police in 1995 and confirmed to the post in 1997. He became eligible for promotion to the grade of Head Constable after five years of regular service in the grade of Constable as per Rule 12 (i) (a) of the Delhi Police (Promotion and Confirmation) Rules, 1980. However, the test for Promotion List 'A' was held in the year 2009. Before the meeting of the DPC, the Applicant had been placed under suspension with effect from 07.04.2009 pending departmental proceedings against him. The Applicant cleared the prescribed tests for bringing his name to the Promotion List 'A'. Since he was under suspension at the time of the meeting of the DPC on 20.06.2009, his name was kept in the sealed cover. The persons of the Applicant's batch were promoted on ad hoc basis with effect from 21.06.2009. A joint departmental inquiry was initiated against him along with Inspector Laxmi Narain, ASI Raj Kumar and three other Constables alleging that he along with others had failed to check the sale of spurious liquor in the area of Police Station Rajouri Garden. The Applicant was reinstated in service by order dated 18.05.2010, while the disciplinary proceeding against him continued. The Applicant approached this Tribunal in OA number 3328/2010 seeking that the summary of allegations against him might be set aside. The OA was disposed of with the directions to the Respondents to take a decision on the representation of the Applicant. The Respondents vide order dated 22.11.2010 withdrew the order initiating the departmental inquiry against him and his co-delinquents. The Applicant made a representation to the Respondents on 02.12.2010, requesting them to open the sealed cover as there was no departmental inquiry pending against him on that date and there was no criminal case also against him on that date. The learned counsel for the Applicant has advanced the same argument in his submissions before us.
3. By order dated 31.01.2011 the Respondents were directed by this Tribunal to send the Applicant to Lower School Course training provisionally, subject to the final outcome of this OA.
4. The Respondents have, however, contested the cause of the Applicant on the ground that a fresh summary of allegations had been served on the Applicant on 09.02.2011 and, therefore, he was not eligible for promotion because departmental enquiry was contemplated against him. The learned counsel for the Respondents has relied on various judgements of the Courts/Tribunal in Delhi Development Authority V. H C Khurana, AIR 1993 SC 1488; Umesh Kumar and another V. UP Forest Corporation and others, 2004 (1) AWC 44 (Honourable Delhi High Court); and Mahender Jit Singh Mattoo V. Union of India and others, of this Tribunal cited in 2003 (3) SLJ 301 CAT.
5. It is now well-established that the disciplinary proceeding is considered to have been initiated against an employee only after the Memorandum of Charge is issued, following the judgement in Union of India and others V. K V Janakiraman and others, (1991) 4 SCC 109. The law as developed in K V Janakiraman (supra) was that the recommendation of the DPC could not be kept in sealed cover till the Memorandum of Charge was not supplied to him/her, provided, of course, the employee was not under suspension. The endeavour of the learned counsel for the Respondents was to demonstrate, on the basis of the above cited judgements, that the recommendation of the DPC could be placed in sealed cover merely on contemplation of departmental enquiry by the disciplinary authority. We have, therefore, carefully perused the judgements, which have been cited by the Respondents to bolster the above contention. In H C Khurana (supra) case the facts were that a Memorandum of Charge was dispatched by the petitioner DDA on 13.07.1990 to be served on him. The respondent in the case was on leave and, therefore, on 17.07.1990 another Executive Engineer, working in the same wing as the respondent, received it. He intimated to the petitioner that the respondent was on leave and that the Memorandum of Charge would be handed over to him on his return. A DPC met on 28.11.1990 and the recommendation in case of the respondent was kept in sealed cover. The respondent, H C Khurana, approached the High Court for directing the DDA to promote him as Superintending Engineer, as persons junior to him had been so promoted. The High Court allowed the Writ Petition relying on K V Janakiraman (supra), taking the view that framing of charges would carry with it the responsibility of serving the same on the employee. The issue, therefore, which was before the Honourable Supreme Court was as to when the disciplinary proceedings would be considered to have been initiated, whether after the dispatch of the Memorandum of Charge or after its receipt by the charged officer. The Honourable Supreme Court held that the disciplinary proceeding would be considered to have been initiated when the Memorandum of Charge was issued and not when it was served on the employee. This judgement is, therefore, irrelevant in the facts of this OA. The issue in Umesh Kumar (supra) was that the petitioner was removed from the zone of consideration because of pendency of departmental proceedings. It was held by the High Court that he could not have been removed from the zone of consideration, but the decision of the DPC had to be kept in sealed cover. This case too is thus irrelevant in the present context. The issue in Mahender Jit Singh Mattoo (supra) was that the recommendation of the DPC in case of the applicant therein had been kept under sealed cover because of pendency of a criminal case. However, the applicant was discharged in the criminal case and he prayed for opening of the sealed cover. However, the respondents did not open the sealed cover on the ground that before the orders of promotion could be issued, another departmental proceeding had been initiated against him by issuing Memorandum of Charge to him. At the time, when the aforesaid OA was considered there were instructions issued by the Department of Personnel and Training (DOP&T) to the effect that if departmental proceedings commenced before the order of promotion was issued, it would be considered to be placed under deemed sealed cover. The Office Memorandum dated 14.09.1992, inter alia, stated that:
2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion committee:-
i) Government servants under suspension;
ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
iii) Government servants in respect of whom prosecution for a criminal charge is pending.
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. It was on the basis of this that the OA was dismissed. However, in Delhi Jal board V. Mahinder Singh, JT 2000 (10) SC 158 it was held by the Honourable Supreme Court that:
5. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary inquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any disciplinary inquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when the DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the seal was opened to give effect to it, another departmental inquiry was started by the department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. There is, therefore, no question of referring the matter to a larger Bench. In the light of the above judgement, the OM adverted to above has also been amended by the DOP&T thus:
3. It is, therefore, clarified that para 7 of the OM, dated the 14th September, 1992 will not be applicable if by the time the seal was opened to give effect to the exoneration in the first enquiry, another departmental inquiry was started by the department against the government servant concerned. This means that where the second or subsequent departmental proceedings were instituted after the promotion of the junior to the government servant concerned on the basis of the recommendation made by the DPC which kept the recommendation in respect of the Government servant in sealed cover, the benefit of assessment by the first DPC will be admissible to the Government servant on exoneration in the first inquiry, with effect from the date his immediate junior was promoted. (P.896, Swamys complete Manual on Establishment and Administration, Eleventh edition, 2008).
6. In the light of the above discussion, there was no disciplinary proceeding pending against the Applicant on 03.09.2010 when the person immediately junior to the Applicant was promoted. The departmental proceeding against the Applicant had been withdrawn by order dated 22.11.2010. Fresh departmental proceedings were initiated against him by order dated 09.02.2011. In view of the law laid down by the Honourable Supreme Court in Mahinder Singh, initiation of the fresh departmental proceedings could not have resulted in the sealed cover remaining intact. Moreover, there was no departmental proceeding against him after passing of the order dated 22.11.2010 withdrawing the departmental proceedings and initiating fresh proceedings on 09.02.2011. The effect of withdrawal of the disciplinary proceedings on 22.11.2010 would mean that there was no disciplinary inquiry pending on that date when the person junior to him was promoted.
7. In the light of the above discussion the OA is allowed and the Respondents are directed to promote the Applicant as Head Constable, if he has successfully completed the Lower School Course. He will be considered to have been promoted from the date of promotion of his immediate junior. The Applicant will be eligible for full salary from the period preceding three months after filing of this OA, that is, with effect from 25.10.2010. However, for the purposes of increments and seniority the date of promotion of the immediate junior would be relevant. These directions would be complied with within four weeks of receipt of a certified copy of this order. There will be no orders as to costs.
( L.K.Joshi) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/