Central Administrative Tribunal - Delhi
Ashok Kumar vs M/O Finance on 7 January, 2020
1
OA 1562/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH:
NEW DELHI
O.A. NO.1562 of 2014
Orders reserved on : 12.12.2019
Orders pronounced on : 07.01.2020
Hon'ble Mrs. Justice Vijay Lakshmi, Member (J)
Hon'ble Mr. Pradeep Kumar, Member (A)
Ashok Kumar
S/o Late Sh. Ghanshyam Singh,
R/o C-56, Chandenvan, Phase-II,
Mathura (UP)
.... Applicant
(By Advocate : Shri Yogesh Sharma)
VERSUS
1. Union of India through The Secretary,
Ministry of Finance, Department of Revenue,
Government of India, New Delhi.
2. The Chief Commissioner of Income Tax (CCA),
U.P. (West) Region, 16/69, Aayalar Bhawan,
Civil Lines, Kanpur (UP).
3. The Additional Commissioner of Income Tax,
Range-3, Aajakar Bhawan, Radhika Vihar,
Phase-II, Mathura.
..... Respondents
(By Advocate : Shri Ashok Kumar)
ORDER
By Hon'ble Mrs. Justice Vijay Lakshmi, Member (J) :
By means of this OA, the applicant has challenged the legality and correctness of the order dated 9.1.2013 (Annexure A/1) whereby the persons junior to the applicant were promoted to the post of Office Superintendent (hereinafter referred to as "OS") but the name of the applicant 2 OA 1562/2014 was kept in sealed cover, due to pendency of a criminal case against him.
2. The brief facts giving rise to the controversy involved in this case are that on 7.10.1993, the applicant was initially appointed in the Ministry of Finance, Department of Revenue, on the post of Upper Division Clerk (UDC). He was promoted to the post of Senior Tax Assistant (hereinafter referred to as „STA‟) in March 2006 and since then the applicant is working on the same post as STA in the Office of Additional Commissioner of Income Tax, Mathura.
3. In the year 2003, in Income Tax Office, Mathura, a "refund scam" took place, for which FIR was lodged against a number of employees. Though the applicant was not named in the FIR, however, his name surfaced during investigation. Hence, the Police Authorities sought prosecution sanction from the Department under Section 197 of Cr.P.C. for registration of criminal case against him along with several other co-accused. Somehow, the Department refused to grant prosecution sanction against the applicant.
4. It has been alleged by the applicant that the Police Authorities even without obtaining the prosecution sanction from the Department, included his name in the chargesheet and filed the same before the learned Chief Judicial Magistrate (hereinafter referred to as „CJM‟), Mathura. As soon as the applicant came to know about this fact, he 3 OA 1562/2014 knocked the doors of the Hon‟ble High Court at Allahabad by means of Application U/s 482 No.7162 of 2011 for quashing the chargesheet as well as the order of taking cognizence on the said chargesheet and also the order summoning the applicant to face trial. The Hon‟ble High Court, in view of the fact that the requisite sanction has not been taken by the investigating agency, vide Order dated 8.3.2011 directed that no coercive steps shall be taken against applicant. Meanwhile, the applicant was due for his promotion to the post of STA and on the basis of vigilance clearance, he was promoted to the post of STA in March 2006. From the post of STA, the next promotional post was of OS for which the Department issued an eligibility list of STAs for promotion to the posts of OS for recruitment year 2012-13, in which the name of the applicant found place at Serial No.22. However, when the respondent No.2 (Chief Commissioner of Income Tax) vide order dated 9.1.2013 (Annexure A/1) passed the order of promotion of 42 STAs to the post of OS, applicant‟s name was found absent from the list, whereas the names of persons junior to the applicant were found included. According to the applicant, persons from serial No.19 to 42 in the list were junior to the applicant.
5. When the applicant enquired about the reasons for not considering his name and not promoting him to the post of OS, he was informed that his name has been kept in sealed cover due to pendency of a criminal case against him. 4 OA 1562/2014
6. The applicant made a detailed representation dated 23.5.2013 ventilating his grievance that neither he was named in the FIR nor any chargesheet had been issued to him in any departmental proceedings nor he was facing suspension. Hence, there was no occasion for the department to adopt the sealed cover procedure, moreover, one Shri Ashish Saxena, who was involved in the same criminal case was discriminately promoted to the post of OS, but no reply was given to the applicant by the department.
7. Feeling aggrieved, the applicant is before this Bench by means of the present OA, challenging the impugned order mainly on the following grounds:-
I. The impugned order, denying promotion to the post of OS to the applicant by adopting sealed cover procedure is totally against the well settled legal position and is violative of fundamental rights under Articles 14 and 16 of the Constitution of India.
II. The next contention of learned counsel for the applicant is that as per the Government of India‟s instructions issued vide OM dated 14.9.1992 and subsequently amended OMs, the procedure to keep the report of DPC in a sealed cover is limited only to any of the following three conditions:-
1. Government servant under suspension;5 OA 1562/2014
2. Government servant in respect of whom a chargesheet has been issued and disciplinary proceedings are pending; and
3. Government servant in respect of whom a criminal case is pending where charges have been framed against him.
The learned counsel for the applicant has contended that in the present case, none of the above conditions were present at the time when the respondent Nos.2 and 3 adopted sealed cover procedure. Therefore, the impugned order, being bad in law, is liable to be quashed. In support, reliance has been placed on the following cases:-
i. Dwarka Prasad and others vs. Union of India and others, 2004 (1) ATJ (SC) 591, decided by Hon‟ble Supreme Court;
ii. Abha Tyagi vs. Delhi Energy Development Agency & Anr., 2002 (3) AD (Delhi) 641, decided by Hon‟ble Delhi High Court;
iii. Z.I. Khan vs. Delhi Jal Board (TA No.731/2009) decided on 16.12.2009 by Principal Bench of Central Administrative Tribunal; and iv. Ajay Karan Sharma vs. Commissioner and others (OA 1049/2015) and other connected OA 1015/2015 decided on 2.11.2015 by Principal Bench of Central Administrative Tribunal. v. Ashish Saxena vs. Union of India and others (OA 2898/2009) decided on 20.7.2010 by the Principal Bench of Central Administrative Tribunal.
vi. Abla Prasad vs. Union of India and others (OA
4369/2010) decided on 30.08.2011 by the
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OA 1562/2014
Principal Bench of Central Administrative
Tribunal.
8. Lastly, it has also been submitted that two similarly placed employees namely Ashish Saxena and Abla Prasad have been promoted to the post of OS in compliance of the orders passed by this Bench in the OAs cited above, therefore, the applicant is also entitled for the same relief.
9. The learned counsel for the respondents has vehemently opposed all the aforesaid contentions. In the counter affidavit filed by the respondents, it has been contended that the applicant was found involved in "refund scam" case of Mathura. Though his name was not mentioned in the FIR, however, his name came to light during investigation.
Therefore, the Police filed chargesheet against him before the learned CJM, Mathura. It is next contended that although it is true that sanction for his prosecution was not granted by the competent authority but it was a mere irregularity and not an illegality and the irregularity can be cured at a later stage as per settled legal position. It is further contended that since after filing of chargesheet against the applicant, the criminal proceedings were pending against the applicant and these proceedings were merely stayed by an interim order of Hon‟ble High Court and not quashed, he was not granted vigilance clearance and the DPC decided to keep its finding in respect of him in a sealed cover.
7OA 1562/2014
10. Further submission of learned counsel for the respondents is that in so far as promotions of Shri Ashish Saxena and Shri Abla Prasad are concerned, they were promoted in compliance of the orders of the Court, i.e., Principal Bench of Central Administrative Tribunal.
11. On the aforesaid grounds, it has been prayed by learned counsel for respondents that the OA be dismissed.
12. We have heard rival contentions advanced by learned counsel for the parties and have carefully gone through the records.
13. The Hon‟ble Supreme Court in the landmark case of Union of India vs. K.V. Jankiraman, AIR 1991 SC 2010, while expressing its concern on the issue about the duration of pendency of criminal case against an employee observed that a Government servant cannot be deprived of promotion which is due to him for years on account of preliminary investigation continuing endlessly, especially when no departmental action has been initiated against him. Accordingly, it issued some guidelines on equitable grounds in favour of Government servants.
14. This led to amendment in OM dated 12.1.1988 which was superseded by OM dated 14.9.1992, which provides as under:-
"Subject : Promotion of Government servants against whom disciplinary/court proceedings are pending or 8 OA 1562/2014 whose conduct is under investigation - Procedure and guidelines to be followed.
xxx xxx xxx xxx
2. At the time of consideration of the cases of Government servant for promotion details of Government servant in the consideration zone for promotion falling under the following category 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 criminal charge is pending."
2.1 The Departmental Promotion Committee shall assess the suitability of Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC including „unfit for promotion‟ and the guiding awarded by it will be kept in a sealed cover."
15. The question as to "when the prosecution for criminal charge is stated to have been pending" came for consideration before the Hon‟ble Apex Court in the case of Harsh Kumar Sharma, IFS vs. State of Punjab and another, (2017) 4 SCC 366, in paras 16 and 17 of which the Hon‟ble Apex Court interpreted the Clause (iii) of Para 2 of OM dated 14.9.1992 (supra) as under:-
The sealed cover procedure is to be resorted to only after the charge memo/charge-sheet is issued and the pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt 9 OA 1562/2014 the sealed cover procedure. Relying on K.V. Jankiraman's case (supra), the Hon‟ble Apex Court held that if the charge-sheet has been filed in a criminal court, the sealed cover procedure can be resorted to.
16. The aforesaid position contained in OM dated 14.9.1992 in respect of sealed cover procedure has been repeated in subsequent Office Memorandum dated 2.11.2012 of the Ministry of Personnel, Government of India with certain clarifications keeping in view the dicta laid down by the Hon‟ble Apex Court in K.V. Jankiraman's case (supra).
17. Para 6 of the OM dated 2.11.2012 states as under:-
"6. When a Government servant comes under a cloud, he may pass through three stages, namely, investigation, issue of charge sheet in Departmental Proceedings and/or prosecution for a criminal charge followed by either penalty/conviction or exoneration/ acquittal. During the stage of investigation prior to issue of charge sheet in disciplinary proceedings or prosecution, if the Government is of the view that the charges are serious and the officer should not be promoted, it is open to the Government to suspend the officer which will lead to the DPC recommendation to be kept in sealed cover. The sealed cover procedure is to be resorted to only after the charge memo/charge sheet is issued or the officer is placed under suspension. The pendency of preliminary investigations prior to that stage is not sufficient to adopt the sealed cover procedure."
This O.M. further clarifies the stage when prosecution for a criminal charge can be stated to be pending as this was not specified in O.M. dated 14.09.1992. Reference in this para is made to Rule 9(6)(b)(i) of Central Civil Services (Pension) Rules, 1972 which provides that criminal charge would be 10 OA 1562/2014 treated as pending in the case of criminal proceedings, on the date on which the complaint or a report of police officer, on which Magistrate takes cognizance, is made. It, thus, makes it clear that the date on which report of police is made or a complaint is filed, would be the relevant date.
18. A careful perusal of the judgments of Hon‟ble Apex Court cited above along with OMs dated 14.9.1992 and OM dated 2.11.2012 of Ministry of Personnel, Government of India, makes it very clear that the procedure for sealed cover can be adopted after a chargesheet has been filed before the Court of Magistrate and there is absolutely no need to await till the charges are framed by the criminal court against an employee/official. Neither in any OM nor in the case of K.V. Jankiraman's (supra) or in the case of Harsh Kumar Sharma (supra), anywhere it has been mentioned that till the stage of framing of charges is reached, it cannot be said that a criminal case is pending against a Government servant, so as to enable the employers/concerned authorities to adopt the sealed cover procedure.
19. Therefore, the contention of learned counsel for the applicant as mentioned in para 5 (c) of the present OA that as the charges had not been framed against the applicant due to stay of the proceedings of criminal case by the Hon‟ble Allahabad High Court, it was not proper for the department to 11 OA 1562/2014 adopt sealed cover procedure on the ground of pendency of criminal charge, is groundless and is not tenable.
20. Insofar as judgment of this Bench rendered in the case of Ashish Saxena vs. Union of India and others (OA No.2898/2009) decided on 20.7.2010 (Annexure A/6), is concerned, it shows that a coordinate Bench of this Tribunal in para 6 of the aforesaid judgment, while interpreting Clause
(iii) of Para 2 of OM dated 14.9.1992 has expressed its view as under:-
"6. The law is well settled by the Hon‟ble Supreme Court in the case of K.V.Jankiraman(Supra) that unless a person has been served a charge sheet in a departmental enquiry or a charge has been framed in a criminal case or a person is put under suspension on the date when the DPC meets, the case cannot be kept under sealed cover. In the instant case admittedly, the DPC had met on 17.12.2007 on which date neither any charge sheet was served on the applicant nor was any charge framed in the criminal case nor was he suspended, therefore, there was no justification to keep the recommendations in a sealed cover."
It appears that in Ashish Saxena's case too, like in the present OA, the third Clause of para 2 of OM dated 14.9.1992 has been wrongly mentioned as "charges were not framed on that date", resulting in wrong interpretation of OM dated 14.9.1992. There is a vast difference between "filing of chargesheet in Court in a criminal case" as was held by Hon‟ble Apex Court (para 15 supra) and "framing of charge by Court in a criminal case", as was noted by Tribunal as above. The stages of both are entirely different. Therefore, the averment in para 5 (c) of this OA which is wrongly drafted to this extent, is of no use to the applicant.
12OA 1562/2014
21. Moreover, the applicant in the present OA can also not be given any benefit out of Ashish Saxena's case and Abla Prasad's case because the facts are entirely different. In the case of Ashish Saxena, DPC had been held before filing of charge sheet i.e. in the year 2007, therefore, it was held that on the date of DPC no prosecution for a criminal charge was pending against the applicant.
22. In Abla Prasad case, the DPC was held on 17.12.2007 for recruitment year 2007-08. Abla Prasad retired on 31.12.2008 whereas the DPC to consider the promotion of present applicant was held on 24.12.2014 and charge sheet was filed by Police in criminal court prior to 8.3.2011 when High Court gave directions not to take coercive action. Hence, chargesheet was filed prior to holding DPC. Therefore, the applicant cannot be said to be similarly placed employee with Ashish Saxena and Abla Prasad in respect of DPC.
23. Considering all these facts and circumstances of this case, the present OA appears to be devoid of merit and is liable to be dismissed. Accordingly, the OA is dismissed. No costs.
24. The pending MAs, if any, also stand disposed off and no separate order is being passed.
(Pradeep Kumar) (Justice Vijay Lakshmi) Member (A) Member (J) /ravi/