Central Administrative Tribunal - Patna
Kaushik Bhatcharya vs Science And Technology on 24 October, 2018
-1- OA/051/00149/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH
CIRCUIT SITTING AT RANCHI
OA/051/00149/2017
Date of Order: 24.10.2018
COR AM
HON'BLE MR. K.N.SHRIVASTAVA, ADMINISTRATIVE MEMBER
HON'BLE SHRI JAYESH V. BHAIRAVIA, JUDICIAL MEMBER
Kaushik Bhattacharjee, S/o Late Tirtha Nath Bhattacharjee, R/o CSIR
National Metallurgical Laboratory, P.O. NML, P.S. Burmamines,
Jamshedpur, District- East Singhbhum, Jharkhand- 831007.
......... Applicant.
- By Advocate : Shri Kumar Vaibhav
-Versus-
1. Union of India & Ors. through its Secretary, Department of Scientific
and Industrial Research (Ministry of Science and Technology, Government
of India ), having its office at Anushandhan Bhawan, 2 Rafi Marg, PO and PS
Rafi Marg, District- New Delhi-110001.
2. Council of Scientific and Industrial Research (CSIR) through its Director
General, having its office at Anusandhan Bhawan, 2 Rafi Marg, PO & PS Rafi
Marg, District- New Delhi-110001.
3. Joint Secretary (Administration),Council of Scientific and Industrial
Research having its office at Anusandhan Bhawan,2 Rafi Marg, PO & PS Rafi
Marg, District- New Delhi-110001.
4. Senior Deputy Secretary, Council of Scientific Industrial Research having
its office at Anusandhan Bhawan, 2 Rafi Marg, PO & PS- Rafi Marg, District-
NewDelhi-110001.
5. Director, CSIR-National Metallurgical Laboratory, having its office at
National Metallurgical Laboratory,PO NML, PS Burma Mines, Jamshedpur,
District- East Singhbhum, Jharkhand- 831007.
......... Respondents.
- By Advocate :- Shri H.K. Mehta, Sr. SC for UOI
Shri Abhay Prakash for CSIR.
-2- OA/051/00149/2017
ORDER
[ ORAL ] Per Mr. K.N. SHRIVASTAVA, A.M.:- The applicant is presently working in National Metallurgical Laboratory, Jamshedpur which is unit of Council for Scientific and Industrial Research (CSIR in short). He was considered for promotion to the post of Deputy Secretary/Controller of Administration by the DPC and has been recommended for promotion vide OM dated 31.08.2016. However, he has not been granted promotion on the ground that there is a criminal case pending against him and his case has been kept in sealed cover.
2. The learned counsel for the applicant submitted that the trial court has not taken cognizance of the criminal case till date and as such the applicant is not in cloud of the criminal case as has been held by the Hon'ble Apex Court in the following judgments:-
(i) Harsh Kumar Sharma, IFS Vs. State of Punjab and Another [(2017) 4 SCC 366]
(ii) Union of India and Others Vs. Anil Kumar Sarkar [(2013) 4 SCC 161]
3. In the case of Harsh Kumar Sharma (supra), the Hon'ble Supreme Court has observed as under:-
" The employee in respect of whom charge-sheet has been issued and the disciplinary proceedings are pending or in respect of whom prosecution for criminal charge is pending, his assessment is to be
-3- OA/051/00149/2017 kept in a sealed cover and is not to be given effect. The question is as to when prosecution for criminal charge is treated to have been "pending". This aspect came up for consideration in K.V. Janakiraman case and the Court held that sealed cover procedure is to be resorted to only after the charge memo/charge-sheet is issued, as is clear from the following passage in para 16 of the judgment:-
"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 chargesheet 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/chargesheet 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 investigation 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/chargesheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should 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."
17. In view of the aforesaid law laid down by this Court, the crucial aspect is as to whether the prosecution for criminal charge was pending against the appellant when DPC meeting was held. In K.V. Janakiraman case, this Court gave imprimatur to the order of CAT holding that if the charge-sheet is filed in a criminal court, sealed cover procedure can be resorted to. This was conclusion 4 of CAT judgment, which was upheld by this Court, and this conclusion reads as under :
-4- OA/051/00149/2017 "16.....39(4). The sealed cover procedure can be resorted to only after a charge memo is served on the official concerned or the charge-sheet filed before the criminal court and not before.""
4. In the case of Anil Kumar Sarkar (supra), the Hon'ble Supreme Court has observed as under:-
"16) It is not in dispute that an identical issue was considered by this Court in Union of India and Others vs. K.V.Jankiraman and Others, (1991) 4 SCC 109.
The common questions involved in all those matters were:
(1) What is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? and (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?.
Among the three questions, we are concerned about question No.1. As per the rules applicable, the "sealed cover procedure" is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over.
17) Inasmuch as we are concerned about the first question, the dictum laid down by this Court relating to the said issue is as follows:-
"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
-5- OA/051/00149/2017 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 should 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.
In para 17, this Court further held:
17. ... 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...."
After finding so, in the light of the fact that no charge sheet was served on the respondent-employee when the DPC met to consider his promotion, yet the sealed cover procedure was adopted. In such circumstances, this Court held that "the Tribunal has rightly directed the authorities to open the sealed cover and if the respondent was found fit for promotion by the DPC, to give him the promotion from the date of his immediate junior Shri M. Raja Rao was promoted pursuant to the order dated April 30, 1986. The Tribunal has also directed the authorities to grant to the respondent all the consequential benefits.....We see no reason to interfere with this order. The appeal, therefore, stands dismissed."
18) The principles laid down with reference to similar office memorandum are applicable to the case on hand and the contrary argument raised by the appellant-Union of India is liable to be rejected."
5. The applicant had represented to the respondents in the matter, but vide impugned Annexure A/13 OM dated 17.07.2017 he has been informed that he cannot be granted promotion in view of ongoing criminal proceeding against him under S/s 3(1) (x)(xi) of SC/ST Act (Prevention of Atrocity Act, 1989). Aggrieved by the Annexure
-6- OA/051/00149/2017 A/13 OM the applicant has approached this Tribunal seeking its quashment.
6. We have heard the arguments of the learned counsel for the parties.
7. It is not in dispute that the Trial Court (Court of Hon'ble Additional District Judge, 1st Court, Alipore, West Bengal) has not taken cognizance of the criminal case so far. Hence, the applicant's case is required to be re-looked by the respondents in view of the aforementioned judgments of the Hon'ble Apex Court.
8. In the conspectus, we dispose of this OA with a direction to the respondents to re-consider the case of the applicant for promotion to the post of Dy. Secretary/ Controller of Administration in view of the judgments of the Hon'ble Apex Court mentioned in para-2 of this order. This shall be done within a period of six weeks from the date of receipt of a copy of this order. No order as to costs.
[ Jayesh V. Bhairavia ] [ K.N.Shrivastava ]
Judicial Member Administrative Member
Srk.