Central Administrative Tribunal - Delhi
Hon Ble Mr. Justice Syed Rafat Alam vs Union Of India Through Secretary on 3 December, 2013
Central Administrative Tribunal Principal Bench: New Delhi OA No.1814/2012 Reserved on:18/11/2013 Pronounced on: 03/12/2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Mrs. Leena Gupta w/o Sh. Rajat Gupta, Presently working as Programmer, Joint Cipher Bureau, Defence Research Development Organization Metcalfe House, Civil Lines, Delhi 54. R/o 19/307, Shivam Khand, Vasundhara, Ghaziabad, Uttar Pradesh 201 012. Applicant (By Advocate: Sh. S.K. Das) Versus 1. Union of India through Secretary, Research & Development, Ministry of Defence, DRDO Bhawan, New Delhi-110 001. 2. Coordinator, Joint Cipher Bureau, Metcalfe House, Civil Lines, Delhi 110 054. 3. Union Public Service Commission ` Through its secretary, Dholpur House, Shahjahan Road, New Delhi. Respondents (By Advocate: Sh. B.K. Barera for R-1 & R-2 Sh. Rajinder Nischal for R-3) O R D E R By Honble Dr. B.K. Sinha, Member (A):
The short issue for examination in the instant Original Application is that whether the Departmental Promotion Committee (hereinafter referred to as DPC), having once recommended the case of the applicant for promotion, can deny the same on the ground that the departmental proceedings against the applicant were under contemplation.
2. The facts of the case, in brief, are that the applicant was considered by the DPC held on 15.11.2011 for promotion to the post of Senior System Security Officer Grade-II and was found fit along with others [Annexure A-3]. However, when the promotion order came to be issued on 10.01.2012, the other two selected persons namely, M. Rajan and Smt. G. Raja Prabha were promoted leaving the applicant out. The applicant, thereupon, approached this Tribunal vide OA No.903/2012, which was disposed of vide order dated 19.03.2012 directing the respondents to consider the representation of the applicant and decide by means of a reasoned and speaking order. Subsequently, the respondents passed the impugned memorandum dated 30.04.2012 rejecting the representation of the applicant on the ground that a proposal for initiating departmental proceedings against the applicant under Rule 14 of the CCS (CCA) Rules, 1965 was already under submission to the Ministry of Defence (R&D) on 21.11.2011. While the decision on the afore proposal was awaited, the process with regard to promotion could not have been delayed. At the same time, in view of the charges leveled against the applicant, it was not feasible to promote her to higher post pending initiation of the departmental proceedings in terms of para 7 of the DOP&T OM No.22011/4/91-Estt.(A) dated 14.09.1992 whereby officers coming under cloud after DPC meeting, the recommendation of the DPC is treated deemed to be under sealed cover. The order further stipulates that the case of the applicant for promotion will be processed as per the rules depending upon the outcome of the departmental proceedings initiated against her vide Memo dated 10.01.2012. The applicant has sought to challenge this order on the ground that sealed cover proceedings could not have been adopted considering the fact that the memorandum containing charges against the applicant was issued on 16.01.2012 while the DPC had been held on 15.11.2011 and the order of promotion of the two officers named above had been issued on 10.01.2012, and, therefore, the procedure contemplated in para 7 of the OM dated 14.09.2012 is inapplicable to the facts of the instant case. In taking this position, the applicant has sought to rely upon the following cases:-
Union of India and Others versus K.V. Jankiraman and Others [(1991) 4 SCC 109];
Delhi Development Authority versus H.C. Khurana [(1993) 3 SCC 196];
The Union of India & Others versus Anil Kumar Sarkar [Civil Appeal No. 2537 of 2013 arising out of SLP(C) No. 1933 of 2011 decided on 15.03.2013]; and Union of India and Others versus Satyendra Kumar Singh [W.P. (C) No. 7030/2013 decided on 11.1.2013].
3. The respondents have filed their counter affidavit seeking to repel the prayer of the applicant. Relevant paras of the reply are reproduced herein below:-
7. That while the decision on the proposal for initiation of disciplinary proceedings against Smt. Leena Gupta was awaited, the processing of the case for promotion could not have been delayed. The Disciplinary Authority [who is also the appointing authority] approved on 10.01.2012 initiation of major penalty proceedings against Smt. Leena Gupta and charge-sheet vide memorandum dated 10.01.2012 was issued. As such the competent authority approved on 10.01.2012 promotion of the two remaining officers i.e. Shri M. Rajan and Smt. Raja Prabha.
8. That as such the case of the applicant Smt. Leena Gupta was required to have been processed in terms of para 7 of DOPT OM No. 22011/4/91-Estt.(A) dated 14th September, 1992. Officers coming under cloud after DPC meeting. A government servant, who is recommended for promotion by the DPC but in whose case any of the circumstances mentioned in para 2 above arise after recommendations of DPC are received but before he is actually promoted, will be considered as if the 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 provisions contained in this OM, will be applicable in his case also
4. Coming to the issue, the case of Union of India and Others versus K.V. Jankiraman and Others (supra) is an often quoted landmark judgment, which still continues to hold good. It has developed into some kind of Bible for decision in cases involving sealed cover procedure. Relevant portions of this judgment are reproduced hereunder:-
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 would 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. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows:
"(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;
(2) xxx xxx xxx (3) xxx xxx xxx
(4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;"
17. There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench-has intended, the two conclusions can be reconciled with each other. 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. Thus read, there is no inconsistency in the two conclusions.
5. In the case of Delhi Development Authority versus H.C. Khurana (supra), the issue was different. Here the respondent, who was an Executive Engineer, deliberately went on leave and evaded service of the chargesheet though it had been issued prior to the DPC. Hence, the Honble Supreme Court held as under:-
14. 'Issue' of the charge-sheet in the context of a decision taken to initiate the disciplinary proceedings must mean, as it does, the framing of the charge-sheet and taking of the necessary action to despatch the charge-sheet to the employee to inform him of the charges framed against him requiring his explanation; and not also the further fact of service of the charge-sheet on the employee. It is so, because knowledge to the employee of the charges framed against him, on the basis of the decision taken to initiate disciplinary proceedings, does not form a part of the decision making process of the authorities to initiate the disciplinary proceedings, even if framing the charges forms a part of that process in certain situations. The conclusions of the Tribunal quoted at the end of para 16 of the decision in Jankiraman (AIR 1991 SC 20 10) which have been accepted thereafter In para 17 in the manner indicated above, do use the word 'served' in conclusion No.(4), but the fact of 'issue' of the charge-sheet to the employee is emphasised in para 17 of the decision. Conclusion No. (4) of the Tribunal has to be deemed to be accepted in Jankiraman only in this manner.
6. In the case of Union of India & Others versus Anil Kumar Sarkar (supra), the case of the respondent, who was a Group-B officer, was taken up for promotion to Group-A (Jr.Scale) of Indian Railways Accounts Service (IRAS). It was an admitted fact that when the DPC met on 26.02.2002 and 27.02.2002, the respondent was considered and he was placed in the extended selected panel as neither criminal nor any departmental proceedings had been initiated against him nor any chargesheet served upon him. However, his name was excluded in application of para 7 of the DOP&T OM dated 14.09.1992. The contention of the applicant was that the enquiries had been contemplated and show cause notice had already been served upon the respondent on the relevant date that being 21.04.2003 when his batch mates were promoted. The case of the respondent was rejected by the Central Administrative Tribunal. The Honble High Court of Guwahati set aside the order in view of the order dated 21.04.2003 as no chargesheet was pending against him on that date. The Honble Supreme Court upheld the ratio laid down in Union of India and Others versus K.V. Jankiraman and Others (supra) being fully applicable to the case and agreed with the decision of the Honbe High Court.
7. In a recent decision in Union of India and Others versus Satyendra Kumar Singh (supra), the Honble High Court of Delhi has taken note of all the aforementioned judgments. The case here is very similar to the one under consideration as when the DPC met on 09.01.2012 for promotion to the grade of Commissioner of Custom and Central Excise on ad hoc basis, the applicant was found fit for promotion. However, a major penalty chargesheet was served upon the applicant on 22.02.2013. In the promotion order issued on 25.06.2012, the applicant was left out while his juniors were promoted. The applicant approached the Tribunal which allowed his claim and directed the respondents to promote him. This order was challenged before the Honble High Court of Delhi and the relevant portion of the decision of the High Court is as under:-
11. We are also unable to agree with Mr. R.V. sinha that the case of the petitioners is covered by the ratio of the judgment in R.s. Sharmas case inasmuch as the facts in R.S. Sharmas case are totally different. In R.S. Sharmas case the DPC considered his case on April 03, 1991 when the recommendations of the DPC were kept in sealed cover as CBI had registered a case against Mr. R.s. Sharma by registering a FIR. In the meantime the CBI submitted its report to the Government and thereafter the matter was sent to CVC for its advice. The President gave sanction to prosecute Mr. R.s. Sharma on September 30, 1991. The Supreme Court interpreting the provisions of O.M. dated January 12, 1988 more specifically para 2(iv) and para 7 has held as under:-
We are not impressed by the said arguments for two reasons. One is that, wheat the Department did not do is not the yardstick indicated in paragraph 7 of the sealed cover procedure, what is mentioned therein is that it cannot apply to the Government servant who is not actually promoted by that time. Second is that, the stand taken up by the Department is that in spite of deletion of clause (iv) of the second paragraph, the recommendations of the DPC must remain in the sealed cover on account of the conditions specified in clause (iii) of the said paragraph by virtue of the operation of paragraph 7 thereof. We cannot say that the said stand was incorrect and, therefore, we are unable to blame the Department for not opening the sealed cover immediately after 31-7-1991.
12. In the case in hand the DPC was convened in January 2012 and the promotion order was issued on June 25, 2012. The charge-sheet was issued much later only on February 22,2013. There was no impediment on the date when promotion order issued against the respondent from being promoted. Mere pendency of investigation is no ground for delaying the promotion to the respondent. It appears that it was for this reason that the DPC (UPSC) had not put the recommendations in sealed cover. In fact his name was sent to the ACC for approval which did not approve it but had sought certain clarifications about the action taken against the respondent after CVCs advice. The net effect has been that the respondent was not promoted. In so far as the case of C.P. Gupta is concerned, this Court was of the view that C.P. Guptas case is similar to that of R.S. Sharmas case (supra). We need not say anything further as we have already distinguished the case of R.S. Sharmas case (supra) with the case in hand. The judgment relied upon by the petitioners in C.P. Guptas case (supra) as such would not have any relevance. Rather this is a case which is also covered by the judgment of the Suprme Court in Anil Kumar Sarkars case (supra). In that case the respondent Mr. Anil Kumar Sarkar while working as Senior AFA a DPC was convened by the UPSC on February 26,2002 and February 27, 2002 to consider eligible Group B officers of the Accounts department for their substantive promotion to Group A (junior scale of IRAS). Four memorandum of charges were issued to Mr. Anil Kumar Sarkar out of which two were issued on August 13, 2013 and others were issued on September 01, 2013 and November 05, 2013.
8. The respondents have relied upon a decision of the Honble Supreme Court in the case of State of Madhya Pradesh and Others versus Syed Naseem Zahir and Others [AIR 1993 (SC) 1165]. Here the respondent was considered for promotion on 28.10.1987 but since disciplinary proceedings were contemplated against him, the DPC recommended his name to be kept in sealed cover. The Tribunal directed the State Government of Madhya Pradesh to promote the applicant to the post of Chief Engineer as admittedly the chargesheet had not been served upon the applicant in that case or in any case to act in accordance with the recommendations of the DPC, which met in 1987. Subsequently, the departmental proceedings were contemplated and the charges were found substantiated. The Honble Supreme Court held as under:-
6. It is no doubt correct that in view of Jankiraman's case, the DPC was not justified in keeping the recommendation pertaining to Syed in a "sealed cover", but it is difficult to ignore glaring facts in a given case and act mechanically. Even in Jankiraman's case while dealing with Civil Appeals Nos. 51-55 of 1990 this Court observed as under:-
"In view of the aforesaid peculiar facts of the present case, the DPC which met in July, 1986 was justified in resorting to the sealed cover procedure, notwithstanding the fact that the charge-sheet in the departmental proceedings was issued in August / December, 1987. The Tribunal was, therefore, not justified in mechanically applying the decision of the Full Bench to the facts of the present case and also in directing all benefits to be given to the employees including payment of arrears of salary."
7. Keeping in view the facts of this case we are of the view that the "sealed cover" containing recommendations of the DPC in respect of respondent Syed be not opened till the departmental proceedings against him are concluded. As mentioned above the enquiry report has already been received by Syed and it is a matter of days before the disciplinary proceedings would come to an end. In case he is completely exonerated, the "sealed cover" shall be opened and if the recommendation is in his favour, he shall be notionally promoted with effect from the date when a person junior to him was promoted to the post of Chief Engineer. In that event, he shall be entitled to all consequential benefits including backwages. In case, respondent Syed Naseem Zahir is punished in the proceedings, then action would be taken in accordance with the wages guidelines as laid down by this Court in Jankiraman's case.
9. In the instant case, the facts are different. Here on the date on which the DPC was held that being 15.11.2011, no charges were pending against the applicant. The DPC recommended the applicant for promotion to the post of Senior System Security Officer Grade-II. However, when the orders came to be issued on 10.01.2012, the name of the applicant was excluded while two persons (one senior and one junior to the applicant) were promoted. On the same date a chargesheet was issued to the applicant under Rule 14 of the CCS (CCA) Rules, 1965. While we take full cognizance of the fact that the case of Union of India and Others versus K.V. Jankiraman and Others (supra) is not to be applied as a mathematical formula and much would depend upon the facts of the case under consideration, we also take a note that it still continues to hold good and binding as a legal precedent. In the instant case, the charges relating to the applicant are only of late coming and refusal to accept the notice. They are not related to corruption and causing loss to the Government as in the case of State of Madhya Pradesh and Others versus Syed Naseem Zahir and Others (supra). Moreover, we also take note of the argument that there is a discrepancy regarding the date of dispatch and date of approval by the Secretary (R&D). While the Secretary (R&D) has approved the proposal on 11.01.2012, the same has been signed by the Director (JCB) on 16.01.2012 its service being shown as 10.01.2012. Though this has been denied by the respondents, the issue has been thrown under a cloud. Irrespective of this controversy, on the date the DPC met i.e. on 15.11.2011, the proposal had not even been approved. It is also not explained as to why the respondents waited for a period of two months to issue the order of promotion and the chargesheet is claimed to have been served on the same date.
10. In consideration of the above facts, we have no hesitation in holding that the case of Union of India and Others versus K.V. Jankiraman and Others (supra) is fully applicable in the instant case. However, reliance on the judgment in State of Madhya Pradesh and Others versus Syed Naseem Zahir and Others (supra) in our view is inapplicable as it has no application in the facts of the present case.
11. Having considered the submissions made before us and having regard to the facts of the case and also in view of the judgment in Union of India and Others versus K.V. Jankiraman and Others (supra), the impugned cannot sustain. In the result, the Application succeeds and is hereby allowed with the following directions:-
The impugned order dated 30.04.2012 rejecting the representation of the applicant is set aside;
The respondents are directed to consider and take decision to promote the applicant w.e.f. 10.01.2012 the same date from which other two officials namely M. Rajan and Smt. G. Raja Prabha were promoted, within a period of two months from the date of receipt of a certified copy of this order;
There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/