Central Administrative Tribunal - Hyderabad
T. Sanjeev Kumar vs Union Of India And Others Decided On ... on 10 July, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD O.A. 34/2006 Date of order: 10-07-2008 Between: T. Sanjeev Kumar, Occu: Superintending Surveyor, APGDC, Survey of India, Uppal, Hyderabad. ... Applicant A N D 1. The Union of India, rep. by Secretary to Government, Department of Science & Technology, Ministry of Science & Technology, Government of India, New Delhi. 2. The Surveyor General of India, Survey of India, Government of India, Post Box No. 37, Dehradun - 248 001. 3. The Additional Surveyor General of India, Andhra Pradesh Geo-Spatial Data Centre, Survey of India, Uppal, Hyderabad - 500 039. 4. Sri Sailesh Kumar Sinha, Superintending Surveyor, Survey of India, Orissa GDC (Geo-Spatial Data Centre), Bhubaeshwar. 5. Sri Mohan Kumar Stalin, Superintending Surveyor, Survey of India, Tamilnadu & Pondicherry GDC, Chennai. 6. Sri Shyam Veer Singh, Superintending Surveyor, Survey of India, National Geo-Spatial Data Centre, Dehradun. 7. Sri Joy Kongari, Superintending Surveyor, Survey of India, Jharkhand GDC, Ranchi. ... Respondents Counsel for the applicant : Mr. V. Venkateswara Rao Counsel for the respondents : Mr. M. Brahma Reddy C O R A M : THE HON'BLE MRS. BHARATI RAY, MEMBER (J) THE HON'BLE MR. R. SANTHANAM, MEMBER(A) O R D E R
(Per Hon'ble Mrs. Bharati Ray, Member (J) This application has been filed by the applicant seeking for the following relief :
To declare the letter No. C-7282/853-DD dated 31st December,2004 as illegal, arbitrary and unconstitutional and set aside the same in so far as the respondents 4 to 7 are concerned and direct the Respondents 1 to 3 to consider the case of the applicant for placement in the Non-Functional Higher Grade Scale of pay of Rs.12,000-16,500/- with effect from 31st December, 2004, the date on which his juniors were granted the said scale of pay with all consequential benefits such as arrears of pay and allowances etc.
2. The undisputed facts of the case are that the applicant was initially appointed in respondent organisation as Deputy Superintending Surveyor in Junior Time Scale. The applicant was promoted to the post of Superintending Surveyor on 21.12.1998. After completion of 5 years regular service in the grade of Superintending Surveyor the applicant was considered for placement to the higher pay scale to Non-Functional Second Grade of Superintending Surveyor/ Deputy Director in the DPC held on 16.12.2004 but the Selection Committee assessed the applicant as 'Not Yet Fit' due to below bench mark grading in his ACRs for preceding 5 years. The first respondent vide his order dated 31.12.2004 granted the Non-Functional grade of Rs. 12,000-375-16,500 to many candidates but the applicant's name was not there in the order dated 31.12.2004. It is the contention of the applicant that the respondents have considered and granted non functional grade to his juniors vide order dated 31.12.2004. The applicant, therefore, approached this Tribunal questioning the order dated 31.12.2004 and has sought for the aforesaid relief.
3. Respondents have filed their counter reply to the OA. It is the specific case of the respondents that as per instructions contained in Department of Personnel & Trg. OM No. 35034/7/97-Estt.(D) dated 08.02.2002 the mode of promotion/placement in the pay scale of Rs.12000-16500 and above is selection and the bench mark prescribed is 'Very Good'. Those officers who get a grading lower than the bench mark (Very Good) are not empanelled for placement in that pay scale. Due to the lower grading the applicant could not be empanelled for placement in higher pay scale. It is also the case of the respondents that as per DP & AR OM No. 20011/11/77-Estt dated 30.-01-78 only adverse entries of ACRs are required to be communicated to the individual and there is no such instructions laid down for communication of ACRs below bench mark required for promotion to the individual. As such no error has been done by the Screening Committee. As per assessment made by the Departmental Screening Committee, applicant was assessed as "Not Yet Fit" as per laid down rules.
4. Applicant has filed rejoinder wherein he has stated that down grading the ACRs below the bench mark level are required to be communicated as per law as the same would effect promotional prospects of an employee. Since the down graded ACRs are not communicated to the applicant the same cannot be considered while considering the case of the applicant for promotion/ placement.
5. Heard Mr. V. Venkateswara Rao, learned counsel for the applicant and Mr. M. Brahma Reddy, learned counsel for the respondents. We have gone through the facts of the case and material papers placed before us.
6. In view of the above undisputed fact that applicant was considered for promotion/ placement in higher pay scale but was not found fit by the DPC because the applicant's grading was lower than the prescribed bench mark "Very Good" and that the applicant was not communicated with the grading which was lower than the bench mark (Very Good), the only question that falls for our consideration is as to whether the applicant can be assessed unfit for promotion by considering the grading lower than the prescribed bench mark "Very Good" which was not communicated to the applicant.
7. We get the answer from the decision of Hon'ble Supreme court in the case of Dev Dutt vs. Union of India and others decided on 12.5.2008 (2008(4)SCJ 489).
8. In the above case before the Apex Court the issue involved and plea taken by the respondents therein are similar. The Hon'ble Supreme Court has held that the office instruction containing the instruction that only adverse entries are to be communicated to the concerned employee and not other entries, would become arbitrary and hence illegal being violative of Article 14. In this context their Lordships opinion is extracted herein below :
"13. It has been held in Maneka Gandhi v. Union of India and another (AIR 1978 SC 597) that arbitrariness violates Article 14 of the Constitution. In our opinion, the non-communication of an entry in the A.C.R. of a public servant is arbitrary because it deprives the concerned employee from making a representation against it and praying for its up-gradation. In our opinion, every entry in the Annual Confidential Report of every employee under the State, whether he is civil, judicial, police or other service (except military) must be communicated to him, so as to enable him to make a representation against it, because non-communication deprives the employee of the opportunity of making a representation against it which may affect his chances of being promoted (or get some other benefits). Moreover, the object of writing the confidential report and making entries in them is to give an opportunity to a public servant to improve his performance, vide State of U.P. v. Yamuna Shankar Misra (1997 (4) SCC 7). Hence such non-communication is, in our opinion, arbitrary and hence violative of Article 14 of the Constitution.
14. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench mark or not. Even if there is no benchmark, non- communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a 'good' or 'average' or 'fair' entry certainly has less chances of being selected than a person having a 'very good' or 'outstanding' entry. "
9. In para-20 of the judgment their Lordships have said:
"20. Thus it is not only when there is a bench mark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder. "
10. The Hon'ble Supreme Court has discussed its decision in U.P. Jal Nigam v. Prabhat Chandra Jain (AIR 1996 SC 1661) and said that in the said case the court has not noticed that the Constitution Bench decision of the court in Maneka Gandhi v. Union of India which has held that all State action must be non-arbitrary, otherwise Article 14 of the Constitution will be violated and has opined that "the decision in U.P. Jal Nigam (supra) cannot be said to have laid down any legal principle that entries need not be communicated." In regard to the decision of the court in the case of Union of India and another v. S.K. Goel and ors. (AIR 2007 SC 1199) the Apex Court has said that the decision being of 2-Judge Bench cannot prevail over the 7-Judge Constitution Bench decision of the Court in Maneka Gandhi vs. Union of India (supra). Their Lordships said that "Since the aforesaid decision in Union of India S.K. Goel (supra) has not considered the aforesaid Constitution Bench decision in Maneka Gandhi's case (supra) it cannot be said to have laid down the correct law. Moreover, this decision also cannot be treated as a Euclid's formula since there is no detailed discussion in it about the adverse consequences of non-communication of the entry, and the consequential denial of making a representation against it."
11. The Hon'ble Supreme Court in the above case finally opined that :
"45. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non- communication would be arbitrary, and as such violative of Article 14 of the Constitution. "
12. The said Civil Appeal was allowed by the Apex Court with the following order :
"48. We, therefore, direct that the 'good' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment. "
13. The case of the applicant in hand is squarely covered by the above judgment of the Apex Court and deserves to be allowed.
14. We, therefore, direct that grading of the applicant lower than the bench mark which was considered by the DPC be communicated to the applicant within a period of two months from the date of receipt of a copy of this order. On being communicated, the applicant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the applicant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the applicant gets selected for promotion retrospectively, he should be given the Non-Functional Higher Grade scale of pay of Rs.12,000-16500 with effect from the date his juniors were granted the said scale of pay with all consequential benefits such as arrears of pay and allowances etc.
15. In result, the OA is allowed. No order as to costs.
(R. SANTHANAM) (BHARATI RAY)
MEMBER (A) MEMBER(J)
MDIN THE CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
HYDERABAD
O.A. 356/2007 Date of order : 10-07-2008
Between:
K. Balaswamy,
S/o. K. Papaiah,
Occu: Fitter Gr.II/RCD/NLPD(Under suspension),
Resident of Lakshmi Nagar,
Old Guntur, Guntur. ... Applicant
A N D
1. The Divisional Railway Manager,
South Central Railway,
Guntur Division,
Guntur.
2. The Senior Divisional Personnel Officer,
South Central Railway,
Guntur Division,
Guntur.
3. The Senior Divisional Mechanical Engineer,
South Central Railway,
Guntur Division,
Guntur. ... Respondents
Counsel for the applicant : Mr. M.V. Krishna Mohan
Counsel for the respondents : Mr. V. Rajeswara Rao,SC for Rlys.
C O R A M :
THE HON'BLE MRS. BHARATI RAY, MEMBER (J)
THE HON'BLE MR. R. SANTHANAM, MEMBER (A)
O R D E R
(Per Hon'ble Mrs. Bharati Ray, Member (J)
The applicant has approached this Tribunal questioning the charge memo No. GNT/M.271/I/DAR/KBS dated 14.11.2006 levelling the charge mentioned in Annexure-II to the charge memo, which is enclosed as Annexure A-III to the OA, and has sought for a declaration that the action on the part of the respondents in completing the departmental enquiry as arbitrary, illegal and unjust and consequently direct the respondents not to take any action against the applicant in the disciplinary proceedings in pursuance of Charge memo dated 14.11.2006 till the completion of criminal trial pending in the II Metropolitan Magistrate for Railways, Vijayawada.
2. The applicant is working as Fitter Gr.II at RCD/NLPD in Guntur Division. While working at RCD/NLPD, a criminal case was registered against him by RPF under Section 3(a) of RP(UP) Act of 1966 on 13.02.2006 and he was taken into custody. The applicant was remanded to judicial custody and subsequently he was released on bail by order dated 17.02.2006 by the learned Metropolitan Magistrate, Vijayawada. The applicant was suspended on 22.02.2006. A criminal case bearing No. Crl.M.P.No.173/2006 in Cr. No.7/2006 is pending with IInd Metropolitan Magistrate for Railways, Vijayawada. The DAR proceedings were completed by the department. However, the applicant approached this Tribunal by filing the instant OA and the Tribunal, on 04.05.2007, passed an interim order to the extent that no further proceedings shall be conducted and the interim order is continuing since then.
3. The respondents have contested the application by filing a counter reply. It is admitted by the respondents that applicant was suspended w.e.f. 13.02.2006 since he was arrested and was in custody w.e.f. 13.02.2006 in connection with a criminal case. In their counter reply they have stated that the applicant submitted his explanation dated 15.12.2006 to the charge memo denying the charges. Therefore, departmental enquiry was ordered to bring out the facts. Inquiry Officer was nominated on 17.01.2007. It is also categorically stated by the respondents in page-4 of their counter reply that the charged employee has failed to arrange for defence counsel on 12.03.2007, the day scheduled for regular enquiry, and the enquiry was postponed from 12.03.2007 to 02.04.2007 to facilitate him to arrange for defence counsel. Subsequently enquiries were conducted on 02.04.2007, 03.04.2007 & 04.04.2007. They have also categorically mentioned in para 4.6 of the counter rely that the applicant expressed that he was fully satisfied with the mode of enquiry. In this context it requires mentioning that applicant has not filed any rejoinder refuting the contentions made by the respondents. It is, therefore, the contention of the respondents that there is no necessity to stay the proceedings because a criminal case is pending in a court of law on the same charges. Placing reliance on the judgment of the Hon'ble Supreme Court in the case of Kendriya Vidyalaya Sangathan & Others vs. T. Srinivas (AIR 2004 SC 4127) the respondents have stated that the Hon'ble Supreme Court in the said case has held that "the advisability, desirability or propriety, as the case may be in regard to a departmental enquiry has to be determined in each case taking into consideration of all facts and circumstances of the case." This judgment also lays down that stay of departmental proceedings cannot be and should not be a matter of course. They have also enclosed a copy of the judgment along with their counter reply. It is also seen from the counter reply filed by the respondents that the Inquiry Officer submitted his report of 04.05.2007 on 09.05.2007. It is, therefore, the contention of the respondents that it took 113 days to complete the enquiry proceedings and in submitting the Inquiry Officer's report.
4. Heard Mr. M.V. Krishna Mohan learned counsel for the applicant and Mr. V. Rajeswara Rao, learned standing counsel for the respondents. We have gone through the facts of the case and material papers placed before us.
5. The only question that is to be considered is whether the disciplinary proceedings that has been initiated against the applicant can be stayed till the criminal case is decided.
6. In the judgment of the Hon'ble Supreme Court in the case of Kendriya Vidyalaya Sangathan and Ors. vs. T. Srinivas (supra) the Hon'ble Supreme court has held that "Stay of, during pendency of criminal proceedings in regard to same misconduct - should not be a matter of course - Advisability, desirability or propriety of staying departmental proceedings to be determined considering all facts and circumstances of case." The Apex court in the above case followed its earlier decision in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. AIR 1999 SC 1416 wherein it was noted that there is consensus of judicial opinion on the basic principle that proceedings in a criminal case and departmental proceedings can go on simultaneously. However, the Apex Court in the said case noticed that certain exceptions have been carved out to the said basic principle. In this context the conclusion drawn by the Hon'ble Supreme Court in the case of Capt. M. Paul Anthony vs. Bharat Gold Mines is extracted herein below :
"22. The conclusions which are deducible from various decisions of this Court referred to above are :
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty hos honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.
7. In this context the Apex Court has also relied upon its earlier decision in the case of State of Rajasthan vs. B.K. Meena AIR 1997 SC 13. In the above case the Hon'ble Supreme Court has observed that the only ground as constituting a valid ground for staying the disciplinary proceedings is that "the defence of the employee in the criminal case may not be prejudiced"
8. As mentioned above, in the case in hand, inquiries have been concluded and the Inquiry Officer's report has been furnished to the applicant but no final order could be passed because of the stay granted by this Tribunal. We have noticed that the respondents in page 4 of their counter reply has stated that the applicant herein has been provided with the following opportunities:
(i) Preliminary enquiry was conducted on 23.02.2006 before proceeding into regular enquiry.
(ii) Copies of Relied Upon Documents as asked for were provided duly giving him sufficient time (13.12.2006 to 23.02.2007) to scrutinize and prepare himself for defence.
(iii) Documents not listed in the charge sheet, if required for his defence if any were also offered, but the Charged employee expressed that it was not necessary.
(iv) As the charged employee has failed to arrange for defence counsellor on 12.03.2007, the day scheduled for regular enquiry, the enquiry was postponed from 12.03.2007 to 02.04.2007 to facilitate him to arrange for defence counsellor.
(v) Subsequent enquiries were conducted on 02.04.2007, 03.04.2007 & 04.04.2007.
9. It is also mentioned by the respondents that the charged employee expressed specifically that he was fully satisfied with the mode of enquiry.
10. As already mentioned, no rejoinder has been filed by the applicant refuting the contentions made by the respondents and the applicant has been supplied with the Inquiry Officer's report. The applicant could not explain as to how he will be prejudiced if the departmental proceedings are allowed to continue when admittedly the enquiry is over. That being the position, we are of the view that since the enquiry has already been completed, the applicant will not be prejudiced if the stay is vacated and the disciplinary proceedings are allowed to be continued.
11. Considering the latest position of the departmental case and in view of law laid down by the Hon'ble Supreme Court on the issue (supra) we are of the opinion that no prejudice would be caused to the applicant if the departmental proceedings are allowed to continue. The stay already granted is, therefore, required to be vacated. Accordingly, we hereby, vacate the stay granted by this Tribunal on 04.05.2007. The respondents are at liberty to continue with the departmental proceedings and pass its order as per rule.
12. OA is dismissed with no order as to costs.
(R.SANTHANAM) (BHARATI RAY)
MEMBER (J) MEMBER(J)