Jammu & Kashmir High Court
Krishan Lal Raina vs State Of J&K And Other on 10 March, 2020
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP 1471/2018
CM 2488/2019[1/2019]
IA 01/2018
Reserved on : 14.02.2020
Pronounced on: 10 .03.2020
Krishan Lal Raina ...Petitioner
Through:- Mr.M.K.Bhardwaj Sr. Advocate with
Mr. Gagan Kohli, Advocate.
v/s
State of J&K and other... Respondent(s)
Through:-Mr. Raman Sharma, AAG
Coram : HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1 The petitioner was appointed as Sub-Inspector in the Executive Wing of the J&K Police in the year 2000. His grievance, as projected in this petition, is that while he was serving as Sub-Inspector, his case for promotion to the post of Inspector was considered by the Departmental Promotion Committee (DPC) and the result whereof was kept in a sealed cover because, at the relevant point of time, he, besides being involved in FIR No. 28/2010 registered in Police Station Vigilance Organization, Jammu, was also facing the Departmental enquiry. The petitioner claims that in view of his exoneration in the Departmental enquiry, the respondents are bound to open the sealed cover and based upon the result of consideration 2 SWP 1471/2018 contained therein, pass appropriate orders of promotion in his favour from the retrospective date.
2 With regard to the registration of FIR aforesaid and the subsequent presentation of challan before the Court of learned Sessions Judge (Anti Corruption) Rajouri,the petitioner contends that no charges in the case have been framed and, therefore, he, if otherwise entitled, cannot be denied promotion to the post of Inspector.
3 In the aforesaid background, the petitioner seeks a direction to the respondents to open the sealed cover of his promotion as Inspector and give him promotion with effect from the date of his entitlement/clearance by the DPC.
4 Having heard learned counsel for the parties and perused the record, I am of the view that the entitlement of the petitioner to promotion as Inspector, notwithstanding the pendency of criminal investigation/criminal prosecution against him would turn on the interpretation and proper understanding of Regulation 110-A of J&K Civil Service Regulations (for short „CSR‟). Therefore, before proceeding further, it would be necessary to first set out the Regulation 110-A of CSR hereunder:
"110-A. Promotion of Government servants who are under suspension or against whom disciplinary court proceedings are pending or whose case is under investigation or whose integrity is doubtful.
1. Case where "sealed cover" procedure applicable- At the time of consideration of the case of Government servant for promotion details of Government servants in the consideration zone for promotion falling under the following categories shall be specifically brought to the notice of the Departmental Promotion Committee:3 SWP 1471/2018
(i) Government servant under suspension;
(ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
(iii) Government servant against whom a charge sheet for a criminal offence has been filed in a competent court of law or sanction for prosecution has been issued"
2. Procedure to be followed by Departmental Promotion Committee- The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with the other eligible candidates without taking into consideration the disciplinary case criminal prosecution pending or contemplated against them or where the investigation is in progress. The assessment of the Departmental Promotion Committee including "Unfit for Promotion" and the grading awarded by it will be kept in a sealed cover. The findings of the Committee shall be kept secret and opened only after the termination of suspension order or conclusion of the disciplinary case/ criminal prosecution /investigation. Till such time as the proceedings remain in sealed cover, the authority competent to fill the vacancy may fill the vacancy in the higher grade only in an officiating capacity.
3. Procedure by subsequent Departmental Promotion Committee:- The same procedure outlined in para 2 above will be followed by the subsequent Departmental Promotion Committee convened till the disciplinary case/criminal prosecution/investigation pending or contemplated against the Government servant concerned is concluded.
4. Action after completion of departmental case/criminal prosecution.
(a) On the conclusion of the disciplinary case/criminal prosecution or an investigation or termination of suspension as 4 SWP 1471/2018 the case may be sealed cover or covers shall be opened. In the case the Government servant is completely exonerated, the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/ covers and with reference to the date of promotion of his next junior on the basis of such position. The government servant may be promoted, if necessary by reverting the junior most officiating person unless there can be any other vacancy to accommodate him. He shall be promoted notionally with reference to the date of promotion of his junior but he will not be allowed any arrears of pay for the period proceeding the date of actual promotion.
The period shall, however, be treated as service for experience, if any required for promotion to the next higher grade. The seniority of such Government servant shall be determined by reference to such notional promotion.
(b) If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the finding of the sealed cover/ covers shall not be acted upon. His case for promotion may be considered by the next Departmental Promotion Committee in the normal course and having regard to the penalty imposed on him.
5. Six Monthly review of "Sealed Cover" cases:- The competent authority shall review comprehensively the cases of Government servants whose suitability for promotion to the higher grade has been kept in a sealed cover on the expiry of six months from the date of convening the first Departmental Promotion Committee which had adjudged his suitability and kept its findings in the sealed cover. Such a review shall be done subsequently also after every six months in case the proceedings against him have not been concluded. The review shall inter-alia cover the following aspects:-
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(i) The progress made in the disciplinary proceedings/criminal prosecution and further measures to be taken to expedite their completion.
(ii) Scrutiny of the material evidence collected in the investigation to take a decision as to whether there is prima facie case for initiating disciplinary action or sanctioning prosecution against the officer.
(b) If, as a result of the review, the competent authority comes to a conclusion, in respect of cases covered by item (ii) above, that there is no case for taking action against the Government servant concerned, the sealed cover may be opened and he may be given his due promotion with reference to the position assigned to him by the Departmental Promotion Committee".
5 From a careful reading of Regulation 110-A of CSR, it is clearly borne out that "the sealed cover procedure" is required to be adopted at the time of consideration of a case of a Government servant for promotion under the following circumstances:
i. Government servant is under suspension;
ii. Government servant in respect of whom a charge sheet has been
issued and the disciplinary proceedings are pending; and, iii. The Government servant against whom a charge sheet for a criminal offence has been filed in a competent Court of law or sanction for prosecution has been issued.
6 Clause 2 of Regulation 110-A, which was amended and updated vide SRO 139 dated 10.04.2001 lays down the procedure to be followed by the DPC with respect to the Government servant falling within the purview of the aforesaid circumstances. It provides that the DPC notwithstanding the existence of aforesaid circumstances shall assess the Government employee and would, accordingly, either declare him unfit for promotion or hold him 6 SWP 1471/2018 fit by awarding him appropriate grading, but the result of such assessment shall be kept in a sealed cover. The findings of the Committee shall remain sealed and would be opened only after the termination of suspension or conclusion of disciplinary case/criminal prosecution/investigation. Clause 2 further provides that till such time, the proceedings with respect to any Government servant remain in a sealed cover, the competent Authority to fill the vacancy may fill the same in an officiating capacity. Clause 5 provides for six monthly review of the sealed cover cases.
7 Without going into the extensive analysis of the procedure to be followed in such cases, suffice it to say that promotion to a Government employee cannot be denied merely on the ground that FIR against him is pending investigation or that an enquiry into his conduct is contemplated. The delinquent Government employee facing disciplinary action or criminal prosecution and even when he is under suspension is also not denied the right of consideration for promotion, but the result of such consideration is deferred till the conclusion of the disciplinary proceedings/criminal prosecution/investigation. On the conclusion of the disciplinary case/criminal prosecution or an investigation or termination of suspension, as the case may be, the sealed cover or covers are opened and in case the Government employee is completely exonerated and is found fit by the DPC for promotion, he shall be promoted with reference to the date of promotion of his next junior on the basis of the position assigned to him by the DPC. The applicability of Regulation 110-A of CSR to the members of the Police is not disputed by the parties.
8 Mr. Raman Sharma, learned counsel appearing for the respondents states that in the absence of any specific procedure laid down under the J&K 7 SWP 1471/2018 Police Act and the rules framed thereunder, the provisions contained in the J&K Civil Service Regulations apply to the police personnel as well. 9 Having regard to the admitted position that the case of the petitioner is governed by Regulation 110-A, I have considered the rival contentions of the parties. As stated above, "sealed cover procedure" is resorted to only under the following three circumstances:
(i) When the government servant is under suspension;
(ii) When in a disciplinary proceedings/departmental enquiry, the Government servant has been issued a charge memo/chargesheet; and,
(iii) Where a chargesheet for criminal offence has been filed before the competent Court of law i.e when the challan is presented or if the challan is not presented, but a sanction for prosecution of the Government servant has been issued.
10 The aforesaid three circumstances referred to in clause (1) of Regulation 110-A are not enumerative, but exhaustive in nature. When the case of the petitioner is scrutinized in the light of clear and categoric provisions of Regulation 110-A, it is seen that the "sealed cover procedure‟ in the case of the petitioner was resorted to only because at the time of consideration of his case by the DPC, the petitioner was booked in a case FIR No. 28/2010 registered in Police Station Vigilance Organization Jammu. It is not the case of the respondents that when DPC met and considered the case of the petitioner along with other eligible Sub-Inspectors for promotion to the post of Inspectors, there was any departmental enquiry/disciplinary proceedings against him pending in which he had been issued the charge memo. The DPC is claimed to have met in the year 2010 and cleared several Sub-Inspectors, who were junior to the petitioner for promotion to 8 SWP 1471/2018 the post of Inspectors. The case of the petitioner was also considered, but the same was kept in a sealed cover for the reasons given above. 11 The petitioner, as is claimed by him, made several representations to the respondents to open the sealed cover and consider his case for promotion, but the request of the petitioner was declined each time on the ground that criminal prosecution against him was pending. It has come in the reply affidavit of the respondents that the challan/final report in FIR No. 28/2010 was presented before the Court of Additional Sessions Judge (Anti Corruption) Rajouri on 08.03.2017.
12 From the admitted facts of the instant case, I have no hesitation to hold that resort to sealed cover procedure in the year 2010, when the case of the petitioner along with other eligible Sub-Inspectors was considered for promotion, was totally uncalled for. At the cost of repetition, it may be stated that at the relevant point of time when DPC met, there was no departmental enquiry/disciplinary proceedings pending against the petitioner wherein he had been issued the charge memo/charge sheet, nor there was any sanction for prosecution granted in the FIR No. 28/2010. Subsequent presentation of charge sheet in the case on 08.03.2017 may impact the further promotional prospects of petitioner, but mere pendency of FIR, at the relevant time, could not have been a sufficient ground for keeping the result of DPC qua the petitioner in a sealed cover.
13 The contention of learned counsel for the respondents that the „sealed cover procedure‟ can be and should be resorted to where a Government employee is facing an investigation in a criminal case, cannot be accepted. A conjoint reading of clause (1) and (2) of Regulation 110-A would make the position abundantly clear. The „sealed cover procedure‟ can also be resorted 9 SWP 1471/2018 to where, though, the charge sheet has not been presented, but the sanction for prosecution has been issued by the competent authority. In law the investigation is deemed to be pending till the final report is submitted before the competent Court of law. It may be noted that inspiration to introduce Regulation 110-A in the Civil Service Regulations apparently came from the judgment of the Supreme Court rendered in the case of Union of India vs K.B.Jankiraman 1991 (4) SCC 109 in which similar provisions contained in Rule 17(1) of the Fundamental Rules and the Office Memorandum issued by the Government of India (Department of Personnel and Training) fell for consideration. The Hon‟ble Supreme Court, after threadbare discussion of all the issues raised with regard to the interpretation of the aforesaid rules in paragraph 16, held thus:
"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/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 10 SWP 1471/2018 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/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. 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; ( ) ................................................
(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 .
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 11 SWP 1471/2018 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.
We, therefore, repel the challenge of the appellant- authorities to the said finding of the Full Bench of the Tribunal".
14 Comparing clause 1 of Regulation 110-A with clause (c ) of Office Memorandum No.22011/1/79.Estt.(A) dated 30.01.1982, it is seen that so far as the third circumstance is concerned, there is some variation. With a view to bring out the distinction between the two provisions aforesaid, it is expedient to reproduce the same herein below:
Clause 1 of Regulation 110-A:
(i) Government Servant under suspension;
(ii) Government servants in respect of whom a charge sheet has
been issued and the disciplinary proceedings are pending; and
(iii) Government servant against whom a charge sheet for a criminal offence has been filed in a competent Court of law or sanction for prosecution has been issued [provision was recast vide Notification SRO-139 dated 10.04.2001]"
Clause (c ) of Office Memorandum dated 30.01.1982:
"Against whom the prosecution has been launched in a Court of law or sanction for prosecution has been issued".
15 From a bare reading of the two comparative provisions, it is clear that as per Clause 1(iii) of Regulation 110-A of J&K Civil Regulations, "sealed 12 SWP 1471/2018 cover procedure" is to be resorted to if the charge sheet for criminal offence has been filed in the competent Court of law, whereas as per Office Memorandum issued by the Government of India, the „sealed cover procedure‟ is to be resorted to only if the prosecution has been launched in the Court of law. The Supreme Court while accepting the conclusion drawn by the Full Bench of the Tribunal, thus, held that criminal prosecution will commence only when the charge sheet is framed by the Court. However, as per the provisions of Regulation 110-A CSR, as it stands, mere presentation of charge sheet/final report in the competent Court of law would be good enough to resort to a sealed cover procedure.
16 The provisions of Regulation 110-A of CSR, understood in the aforesaid context, would substantiate the position as has been explained hereinabove.
17 For the foregoing reasons and in the light of the discussions made hereinabove, this Court is of the considered view that resort to the „sealed cover procedure‟ in the case of the petitioner by the DPC, which was convened in the year 2010, for making promotion to the post of Inspector, was totally uncalled for. Accordingly, this petition is allowed. The respondents are directed to open the sealed cover immediately and forthwith and if, as per the assessment made by the DPC, the petitioner is found to have made the merit for promotion, he shall be accorded promotion to the post of Inspector w.e.f the date immediate junior to him was recommended and promoted as Inspector. In such event, the petitioner shall be entitled to all the consequential benefits.
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Let the exercise, as directed above, be undertaken and completed within period of eight weeks from the date a certified copy of this order is made available to the respondents.
(SANJEEV KUMAR) JUDGE Jammu 10.03.2020 Sanjeev Whether the order is speaking: Yes Whether the order is reportable: Yes SANJEEV KUMAR UPPAL 2020.03.11 14:45 14:41 I attest to the accuracy and integrity of this document