Central Administrative Tribunal - Delhi
Mahesh Kumar Sharma vs Lt. Governor Of Delhi on 7 May, 2012
Central Administrative Tribunal
Principal Bench
OA No.3332/2011
Order reserved on : 24.04.2012
Pronounced on: 07.05.02012
Honble Mr. Justice S. C. Sharma, Acting Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
Mahesh Kumar Sharma
Chief Probation Officer
Department of Social Welfare,
Government of NCT of Delhi,
R/o D-2 Sewa Kutir Staff Flats,
B. B. Marg, Kingsway Camp,
Delhi-110 009. . Applicant.
(By Advocate : Sh. P. C. Mishra)
Versus
1. Lt. Governor of Delhi
Through Chief Secretary,
Govt. of NCT of Delhi,
5th Level, Delhi Secretariat,
IP Estate
New Delhi.
2. The Secretary
Department of Social Welfare & WCD,
Govt. of NCT, Delhi,
GLNS Campus, Delhi Gate,
New Delhi 110 002. Respondents.
(By Advocate : Ms. Rashmi Chopra)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) :
On the issue of applicants claim for promotion on adhoc basis to the next higher post, this is his one more round of litigation. Earlier, in the OA No.3851/2010, he approached this Tribunal with the prayers to consider him for promotion to the post of Joint Director (Technical) on ad hoc basis and the OA was decided on 5.4.2011 in following terms :-
2. In the counter affidavit filed by the respondents, it has been pleaded that the case of the applicant for promotion on ad hoc basis to the post of Jt. Director (Technical) has been referred to the Services Department to consider as to whether he can be given ad hoc promotion.
3. At this stage, we only direct the respondents to expedite consideration of the applicant for ad hoc promotion on the post of Jt. Director (Technical). They will deal with the matter expeditiously and preferably within eight weeks from today. The OA is disposed of. No costs.
2. Pursuant to the above directions, the respondents have considered the case of the applicant in a DPC convened on 01.9.2011 the recommendation of the assessment on the applicant was placed in a sealed cover in view of the submission of the challan in an anti corruption criminal case against him in the Trial Court. The applicant feeling aggrieved by the order dated 26.11.2010 (page 13) whereby the DPC meeting was postponed and the order dated 07.09.2011 (Page -12) whereby the DPC considered his case for promotion and put its recommendation in the sealed cover, he has instituted the instant OA with the following prayers :-
(1) to quash the sealed cover adopted in the impugned order dated 7/9/2011 and direct the respondents to give effect to the recommendations of DPC held on 1/9/2011.
to set aside the order dated 26/11/2010.
To direct the respondents to give effect the decisions of the DPC dated 2/11/2007 without consideration of vigilance status and promote the applicant w.e.f. 10/2/2009 at par with Sh. P.P. Dhall.
Direct the respondents to grant an oral hearing to the applicant in respect of FIR no.03/09 and sanction for prosecution order dated 27/4/2011 and his representation dated 15/11/2010 in conformity with principles of Natural Justice.
or any other directions or orders as deemed necessary in facts and circumstances of the case be passed.
3. We heard Shri P.C. Mishra, learned counsel for the applicants. His contention is that applicants promotion to the post of Joint Director (Technical) was due on 02.11.2007 as the DPC was held on that date but was postponed on the ground that an FIR was pending against him. This deprived him of his legal rights. Despite the representation filed by him and the direction issued by the Tribunal in OA No.3118/2010 and OA No.3851/2010 the respondents ignored all these to the applicants disadvantage. It is contended that though the challan has been filed before the Trial Court the applicant is not implicated in the criminal case. He referred to para 18 of the challan to contend that irregularities committed administratively could not be termed as illegality. The challan was filed on 02.06.2011 and was intended to deprive the applicant his due promotion. His submission is that the post of Joint Director is vacant w.e.f.10.02.2009 and the applicant being eligible for promotion right from 2007, and as no charges were framed then against him departmentally or in criminal case and as he was not under suspension, adoption of sealed cover procedure by DPC was illegal . In this regard, he placed his reliance on the judgment of Honble Supreme Court in Union of India Versus K.V. Jankiraman and others [AIR 1991 SC 2010]. It was further submitted that frequent postponing of the DPC meeting was illegal which denied him the promotion. In view of the above contentions, he urges to allow the OA with direction to open the sealed cover to grant him promotion.
4. On receipt of the notice from the Tribunal, the respondents have submitted the reply affidavit through Ms. Rashmi Chopra, learned counsel. Highlighting the chronology of events right from 21.04.2009 when the vigilance status of five Senior Superintendents including that of the applicant was sought for ad hoc promotion to the post of Joint Director (Technical), upto 09.09.2011 when Shri P.C. Sharma was appointed to the post, Ms. Chopra would submit that with the best efforts taken by the respondents, the DPC could meet on 01.09.2011 where the DPC adopted sealed cover procedure for the applicant. She submits that the assessment by DPC for the applicant was put in sealed cover as the applicant was facing a Criminal Case in FIR No.3/09 where not only prosecution was sanctioned on 27.04.2011 but also the challan was filed against him on 02.06.2011 in the court of learned Special Judge, Tis Hazari. It is contended that those are sufficient grounds to adopt the sealed cover procedure and in support thereof she relied on the judgment of Honble Supreme Court in Delhi Development Authority Versus H.C. Khurana [AIR 1993 SC 1488], judgment of Honble High Court of Delhi in Shiv Kumar Singh (HC/DVR) Versus Ministry of Home Affairs and Others [WP(C) 4631/2008 decided on 25.01.2010] and the judgment of this Tribunal in R.P. Singh Versus Union of India [OA No. 4009/2011 decided on 28.12.2011].
5. Opposing the reply affidavit, the applicant has submitted his rejoinder pleading more or less same grounds as pleaded in the OA in support of his relief(s).
6. Having heard the contentions of the parties with the assistance of their counsel we perused the documents on record and the relied on judgments. The short question that comes up for our determination is whether the sealed cover procedure adopted by the DPC in respect of its recommendation on the applicant is legally sustainable?
7. As per DOP&T O.M. No. 22011/4/91-Estt.(A) dated 14.09.1992, the Government have prescribed procedure to be followed by the DPC in respect of government servants under cloud. At the time of consideration of cases of government servants for promotion, the DPC has to be kept informed about three types of cases involving the government servants under consideration for promotion, namely, -
(i) government servants under suspension;
government servants in respect of whom a chargesheet has been issued and the disciplinary proceedings are pending; and government servants in respect of whom prosecution for a criminal charge is pending.
As per the said O.M., the sealed cover procedure is to be adopted by the DPC while assessing the suitability of the government servants coming within purview of the three circumstances mentioned above. In the present case, the applicant being under cloud as a criminal case was filed by the Anti Corruption Bureau of the respondents and at the time of meeting of DPC i.e. 01.09.2011, the applicants criminal case has reached the stage where the challan has been filed by the Investigating Officer before the Trial Court. In this regard, it would be appropriate for us to examine the law laid by Honble Supreme Court and High Courts.
8. The issue of sealed cover procedure to be adopted has been considered by the Honble High Court of Delhi in a recent judgment in 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.
9. 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 the criminal proceedings but the prosecution was already sanctioned against him as far back as on 27.04.2011 and admittedly investigation was complete and the Challan was filed before the Trial Court on 02.06.2011. At the time DPC met for adhoc promotion i.e. on 01.09.2011, the sanction of prosecution and 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.
10. Further, the applicant has raised one more ground to submit that he was eligible in year 2007 but the DPC was held on 01.09.2011 after frequent postponement of the DPC. This has caused grave injustice and prejudice to the applicant in the sense that had the DPC met when he was eligible in 2007 or when the vacancy arose in 2009, he would have been considered for promotion and actually promoted as no challan was filed by Investigating Officer in the criminal case. We have given careful consideration to this contention. It is seen from the pleadings that the vacancy for the post of Joint Director (Technical) arose only in the year 2009. The applicants eligibility in the year 2007 would have made no difference for him to be considered for the purpose of promotion to the said post. It is also seen from the averments made by the respondents that right from 21.04.2009, the Vigilance Directorate was requested to submit vigilance status of five Senior Superintendents who were to be considered for the purpose of adhoc promotion to the said post. Further, the OA No. 511/2010 filed before this Tribunal by Shri P.N. Jha, the Tribunal directed the respondents to convene a DPC for the said post at the earliest. In view of the said direction, a fresh vigilance status was sought and a notice was issued for convening a DPC on 06.07.2010. The said meeting of the DPC could not be held due to administrative reasons and was postponed to 16.8.2010. In the meantime, the applicant submitted his representation and as it was pending, he moved the Tribunal by filing OA No. 3118/2010 which was decided on 20.09.2010 directing the respondents to consider his representation. In compliance of the said direction, a meeting was convened on 29.10.2010 but the same was postponed since the clear picture did not emerge about the applicants criminal case that was pending in the trial court and prosecution sanction was in the process. The next meeting of the DPC took place on 13.01.2011 for which fresh vigilance status of the applicant and others was sought as more than six months time has lapsed. Ultimately, on getting the full details on the applicant along with four others (the vigilance status of all of them could be received), the DPC met on 01.09.2011. It is seen that the prosecution was sanctioned by the competent authority against the applicant in the said criminal case and the Investigating Officer has submitted his challan much before the DPC met on 01.09.2011.
11. From a close scrutiny of the averments made by the respondents, it is seen that clear vigilance status not being available for all the candidates in the zone of consideration, the meeting was postponed frequently and ultimately it was held on 01.09.2011. It so happened that on that date when the DPC met the applicants challan in the criminal case was already filed and sanction of prosecution against the applicant had been granted by the competent authority. Therefore, the sealed cover procedure was adopted by the DPC as per the extant guidelines.
12. There was a forceful appeal by the learned counsel for the applicant by referring to paragraph 18 of the challan, which was submitted by the Investigating Officer in the criminal case, to highlight that the applicants role in the said criminal case was not such which would amount denial of promotion to the applicant to the post of Joint Director (Technical) on adhoc basis. It is not for this Tribunal to examine the chargesheet/challan filed by the Investigating Officer before the Trial Court in the criminal case. The nature and magnitude of the applicants involvement is still a matter of sub judice and needs to be decided by the competent Trial Court. We, therefore, adopt judicial restraint not to examine less to give any comment on the contention raised on behalf of the applicant.
13. Considering the totality of facts and circumstances of the case and guided by the law laid by Honble High Court of Delhi and the extant Government guidelines on the subject, we are of the considered view that the adoption of sealed cover procedure in respect of the applicant by the DPC is legally sustainable and procedurally tenable. Thus, the applicant fails to convince us for our interference.
14. In the result, OA being bereft of merits is dismissed leaving the parties to bear their own costs.
(Dr. Ramesh Chandra Panda) (S.C. Sharma) Member (A) Acting Chairman /naresh/