Central Administrative Tribunal - Delhi
Si (Exe.) Anand Prakash vs Govt. Of Nct Of Delhi on 6 May, 2013
Central Administrative Tribunal Principal Bench, New Delhi OA No.2747/2012 WITH OA No.3011/2012 Monday, this the 6th Day of May, 2013 Honble Shri G George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member (A) OA No.2747/2012 & 3011/2012 SI (Exe.) Anand Prakash D-3455, PIS No. 16940270 S/o Sh. Ram Kishan R/o RZ-89,Phase-IV, Prem Nagar Najafgarh, New Delhi-43. Applicant (By Advocate: Shri Yash Pal Rangi) Versus 1. Govt. of NCT of Delhi Through Commissioner of Police Police Head Quarters I.P. Estate, New Delhi. 2. Joint Commissioner of Police Hedquarters, PHQ I.P. Estate, New Delhi. 3. Deputy Commissioner of Police (Establishment) Headquarters, PHQ I.P. Estate, New Delhi. . Respondents (By Advocate: Mrs. P.K. Gupta) ORDER (ORAL)
Shri G. George Paracken, M(J) The factual matrix of both these OAs is same and, therefore, they are disposed by this common order.
2. While the grievance of the applicant in OA No. 2747/2012 is that persons junior to him have been given the financial benefits under the Assured Career Progression Scheme (ACP for short) from its due date, he has been denied the same and his case was kept in sealed cover on the ground that a criminal case was pending against him vide impugned Annexure A-1 order dated 20.10.2007 and Annexure A-2 order dated 01.05.2008, his grievance in OA No. 3011/2012 is that he has been denied promotion to promotion List F (Executive) from the due date while his juniors have been granted promotion w.e.f. 19.01.2010 vide Annexure A-1 order dated 27.01.2010. The reason for not giving promotion was also same as that of not granting him the ACP benefits as aforestated. According to the learned counsel for the applicant, as on 20.10.2007 or as on 27.01.2010, neither any departmental proceeding nor any criminal proceedings have been initiated or pending against him. Further, according to him FIR No.90/1997 dated 05.02.1997 under Section 304 A /342/343 IPC P.S. Najafgrah, Delhi filed against him and later transferred to the CBI and got registered vide RC-5(S)/1998/SCB-I/DLI u/s 304A/342 and 343 and the same is still pending. The CBI filed charge in that case in the concerned court on 21.12.2000 but the criminal court has not framed any charge against him so far. Therefore, his contention is that he should not have been denied the ACP benefit and the promotion from the due date and his name should not have been kept in the sealed cover.
3. Learned counsel for the applicant, Shri Yashpal Rangi has further submitted that even otherwise he should have considered for ad hoc promotion in terms of the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training OM No.22011/4/91-Estt.(A) dated 14.09.1992 according to which in cases where the disciplinary case/criminal prosecution against the Government servant is not concluded even after the expiry of two years from the date of the meeting of the 1st DPC which kept its findings in respect of the Government servant in a sealed cover, the appointing authority may review such case and consider him for ad hoc promotion subject to exceptions as provided therein. The relevant part of the said order reads as under:-
5. In spite of the six monthly review referred to in para 4 above, there may be some cases, where the disciplinary case/criminal prosecution against the Government servant is not concluded even after the expiry of two years from the date of the meeting of the first DPC, which kepts its findings in respect of the Government servant in a sealed cover. In such a situation the appointing authority may review the case of the Government servant, provided he is not under suspension, to consider the desirability of given him ad-hoc promotion keeping in view the following aspects:-
Whether the promotion of the officer will be against the public interest;
Whether the charge are grave enough to warrant continued denial of promotion;
Whether there is any likelihood of the case coming to a conclusion in the near future;
Whether the delay in the finalization of proceedings, departmental or in a court of law, is not directly or indirectly attributable to the Government servant concerned; and Whether there is any likelihood of misuse of official position which the Government servant may occupy after ad hoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution.
4. The respondents have filed their reply. Their main contention is that the sealed cover procedure has to be adopted both in ACP matters and promotion matters, if a charge sheet has already been filed against the Govt. employee on or before the date the Departmental Promotion Committee meets. In this regard, learned counsel for the respondents Mrs. P.K. Gupta has produced a copy of order in WP(C) No. 3793/2011, Union of India Vs. Inspector Jawahar Lal & Ors. and WP(C) No.1470/2011, Union of India vs. Binod Shahi. In the said judgment, the High Court of Delhi has interpreted the expression prosecution for a criminal charge is pending. According to the High Court, when a charge sheet is filed in a case in the court of law it should be treated as prosecution for a criminal case against such a person is pending. The relevant part of the said judgment reads as under:-
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 would 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 Balasubramaniam 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 or 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 to begin. Whereas some statutes provide for grant of sanction before a prosecution is initiated, some others postulate grant of sanction before a cognizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceedings 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. Cognizance 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 mater 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 O.M., the original can be traced to he historic judgment of Apex Court in Union of India 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 denied the promotion or 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 chargesheet, the task of the investigating agency had been completed. For framing of the charge, ball is in the court of law. 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 suffered 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 faming 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 heard to say that the decision of the DPC in a sealed cover should be given effect to. We agree with the view.
14. We are, therefore, of the opinion that when the chargesheet is filled, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2 (ii) of OM dated 14th September, 1992, would thus get attracted.
15. We accordingly make the rule absolute, allow these petitions and set aside the impugned judgments of the Tribunal.
16. No orders as to costs.
5. We have heard the learned counsel for the applicant Shri Yashpal Singh Rangi and learned counsel for the respondents Mrs. P.K.Gupta. In view of the judgment of the Honble High Court in WP(C) No. 3793/2011 & WP(C) No.1470/2011 (supra), the learned counsel for the applicant has very fairly submitted that he is not pressing his argument that no criminal case was pending against the applicant on the date on which the respective DPCs were held for considering the case of the applicant for grant of financial benefits under the ACP Scheme as well as promotion to the next higher post i.e. Inspector. However, he has submitted that in terms of the aforesaid Office Memorandum dated 14.09.1992, the respondents were required to review his case for ad hoc promotion.
6. We have considered the aforesaid submissions of the learned counsel for the parties. It is not disputed that the applicant was due for promotion to the post of List F (Executive) w.e.f. 27.01.2010 and his case was placed in sealed cover from that date onwards. Obviously, more than two years have passed after the aforesaid DPC met. Therefore, the respondents ought to have reviewed his case and consider his ad hoc promotion in terms of the aforesaid Office Memorandum dated 14.09.1992. We, in the above circumstances, direct the respondents to review his case for grant of ad hoc promotion to the aforesaid post of List F (Executive) accordingly and place his case before the next DPC when it meets. If the DPC considers him suitable for such ad hoc promotion, he shall be promoted accordingly. In case the DPC does not find him suitable for ad hoc promotion, he shall be informed about the reasons as to why he cold not be promoted by way of reasoned and speaking order immediately thereafter. However, in the matter of granting ACP benefits to the applicant, since the aforesaid Memorandum does not come to his rescue, he will have to wait for the outcome of the criminal case pending against him.
7. With the aforesaid directions this OA is disposed of. There shall be no order as to costs.
( Shekhar Agarwal ) ( G George Paracken )
Member (A) Member (J)
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