Central Administrative Tribunal - Cuttack
Sandeep Yadav vs Central Board Of Indirect Taxes & ... on 3 July, 2024
1 O.A.No. 260/00076 of 2020
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00076 of 2020
Reserved on 24.06.2024 Pronounced on 03.07.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Sandeep Yadav @Yadav Sandeep G.M., S/o Shri Ganesh
Yadav, Aged about 37 Years, Deputy Commissioner,
Central Goods & Services Tax, O/o Chief Commissioner of
Central Goods & Services Tax, C.R. Building, Rajaswa
Vihar, Bhubaneswar-751007, Group 'A'; Mobile No.
8291570113.
Resident of : Terrace Flat, Vishwa Krupa Building, Plot
No. 78, Jharpada, Jail Road, Off CTC Road, Bhubaneswar-
751006.
......Applicant
VERSUS
1. UNION OF INDIA through The Secretary, Department of
Revenue, Ministry of Finance, North Block, New Delhi-
110001.
2. The Chairperson, Central Board of Indirect Taxes and
Customs (CBIC), Department of Revenue, Ministry of
Finance, North Block, New Delhi-110001.
......Respondents
For the applicant : Mr. T.R.Mohanty, Counsel
For the respondents: Mr. S.B.Mohanty, Counsel
2 O.A.No. 260/00076 of 2020
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
It is the case of the applicant that on 30.04.2018 he was arrested by the Central Bureau of Investigation. On 05.04.2018 he was released on Bail. On 11.05.2018, he was placed under deemed suspension with effect from 30.04.2018, which was extended from time to time. Meanwhile, on 31.12.2018, DPC was held for promotion on ad hoc basis to the post of Joint Commissioners and on the recommendation of the DPC, the batchmates of the applicant were promoted, as such, on 01.01.2019. Again, DPC was held on 06.12.2019 for promotion to the post of Joint Commissioners on ad-hoc basis and on the recommendation of the DPC, his juniors were also promoted w.e.f. 30.12.2019.
1.1 It is submitted by the applicant that he filed OA 617/2019 challenging his order of suspension and its further continuance, which was disposed of on 31.01.2020 by quashing the order of suspension beyond the initial period of ninety days. On 27.02.2020 prosecution sanction was accorded by the respondents department against the applicant. On 03.03.2020, cognizance was taken in the criminal case. 3 O.A.No. 260/00076 of 2020 The Hon'ble High Court of Orissa vide order dated 31.07.2020 modified the order of this Tribunal, as aforesaid, to the extent that the extension of suspension order dated 19.07.2019 was quashed and the suspension of the applicant with effect from 24.07.2019 was declared as bad in law. On 09.12.2020, charge sheet under Rule 14 of CCS (CCA) Rules, 1965 was issued to the applicant. SLP filed against the order of the Hon'ble High Court of Orissa was dismissed by the Hon'ble Apex Court on 18.01.2021. On 18.08.2021, respondents revoked the order of suspension w.e.f. 24.07.2019 and, consequently, the applicant resumed his duty at Bhubaneswar.
1.2 According to the applicant/Ld. Counsel for the applicant, as per the provisions, the case of an employee against whom criminal/disciplinary proceedings are pending or the employee concerned is under suspension, his/her case is to be considered along with others and the recommendation of the DPC will be kept in the sealed cover. In terms of the DoP&T OM dated 02.11.2012, the sealed cover is to be opened upon reinstatement and/or closure of the proceedings. Further, it is submitted that as per the DoP&T OM six monthly review of the sealed cover is also sine qua non. But, in the 4 O.A.No. 260/00076 of 2020 instant case, despite the applicant being reinstated to service, the sealed cover has not been opened nor six monthly review was undertake by the respondents. In the aforesaid circumstances, according to the applicant, there being no other alternative, the applicant has approached this Tribunal in the instant OA seeking directions as under:
"8.1. to allow the present application;
8.2. to direct the Respondents to open the Sealed Cover of the Applicant, wherein the Applicant was considered for promotion as Joint Commissioner along with his Batch Mates [2009 Batch of the Indian Revenue Service (Customs and Central Excise)] vide Promotion Order dated 01.01.2019 [Annexure: A-1];
8.3. to consequently direct the Respondents to promote the Applicant as Joint Commissioner along with his Batch Mates by amending Promotion Order dated 01.01.2019 [Annexure: A-1], and granting the benefit of the promotion with effect from 01.01.2019, the day on which the Batch Mates of the Applicant had been Promoted;
and if the Applicant is not found fit for promotion in the above Departmental Promotion Committee, 8.4. to direct the Respondents to open the Sealed Cover of the Applicant wherein the Applicant was considered for promotion as Joint Commissioner along with his Next Junior Batch [2010 Batch of the Indian Revenue Service (Customs and Central Excise)] vide Promotion Order dated 30.12.2019 [Annexure: A-2];
8.5. to consequently direct the Respondents to promote the Applicant as Joint Commissioner along with his Next Junior Batch [2010 Batch of the Indian Revenue Service (Customs and Central Excise)] by amending Promotion Order dated 30.12.2019 [Annexure: A-2], and granting the benefit of the promotion with effect from 01.01.2020;
8.6. to direct the Respondent Ministry to grant all consequential benefits of promotion to the Applicant, including pay and allowances for the said 5 O.A.No. 260/00076 of 2020 period and arrears of pay may be directed to be paid within a specified period;
8.7. to direct the Respondent Ministry to pay the Applicant interest @ 18% per annum, compounded monthly, on the arrears of pay and allowances that is due to the Applicant from the date the amount was due;
8.8. to direct the Respondent to pay suitable compensation to the Applicant as this Hon'ble Tribunal deerns fit and proper In the circumstances of the case;
8.9. to issue any such and further order/directors this Hon'ble Tribunal deems fit and proper in the circumstances of the case; and 8.10. to allow exemplary costs of the application."
1.3 It is the case of the applicant that sealed cover procedure for the DPC of 31.12.2018 was not resorted to in his case because of pending disciplinary proceedings/criminal case. The sealed cover procedure was adopted because of his suspension. There being no disciplinary or criminal case as on 24.07.2019 and suspension of the applicant having been revoked, the sealed cover ought to have been opened and acted upon by giving him promotion to the post of Joint Commissioner on ad hoc basis w.e.f. the date when his batch-mates were so promoted. In order to strengthen his argument, Ld. Counsel for the applicant has placed reliance on the decision of the CAT, Jaipur Bench dated 12.12.2003 in OA 493/2002 (H.S.Shekhawat Vs. UOI & Ors.) stating that one charge sheet issued to the said applicant was withdrawn on 6 O.A.No. 260/00076 of 2020 16.05.1994 and another charge sheet was issued on 18.06.1994.The Jaipur Bench of the Tribunal held that the first charge sheet was dropped on 16.05.1994 and a fresh charge sheet was issued only on 18.06.1994 and during the period up to 18.06.1994 there was nothing against him and, if at all the charge sheet can be said to be pending, it was only from 18.06.1994 and thus the applicant's case ought to have been considered for promotion no sooner the charge sheet was dropped. On the strength of the aforesaid decision, it was submitted that since the suspension of the present applicant was revoked w.e.f. 24.07.2019, the respondents ought to have opened the sealed cover and acted on the recommendation of the DPC relating to the promotion of the applicant.
1.4 Next contention of the Ld Counsel for the applicant is that it is well settled Principle that "what is sauce for the goose is sauce for the gander". In this regard, he has placed reliance on the decisions as under:
(i) Indian Poultry v. STO, (1999) 9 SCC 162;
(ii) State of U.P. v. Sheo Lal, (2009) 11 SCC 513;
(iii) T.R. Boopalan v. Tamil Nadu Housing Board, (2008) 12 SCC 525;
(iv) Nathuni Yadav v. State of Bihar, (1998) 9 SCC 238
(v) P.R. Prabhakar v. CIT, (2006) 6 SCC 86;
(vi) S. Sudershan Reddy v. State of A.P., (2006) 10 SCC 163;
(vii) Hem Singh v. State of Haryana, (2009) 6 SCC 748;
(viii) Basudeo Yadav v. Surendra Yadav, (2008) 15 SCC 124;7 O.A.No. 260/00076 of 2020
(ix) Banwari Dass v. Sumer Chand, (1974) 4 SCC 817;
(x) Ravi Namboothiri v. K.A. Baiju, 2022 SCC OnLine SC 1550;
(xi) Aureliano Fernandes v. State of Goa, 2023 SCC OnLine SC 621;
(xii) Trinity Infraventures Ltd. v. M.S. Murthy, 2023 SCC OnLine SC 738;
(xiii) Adani Gas Ltd. v. Union of India, (2022) 5 SCC 210; and
(xiv) State of Kerala v. N.M. Thomas, (1976) 2 SCC 310.
(xv) Decision of the Hon'ble High Court of Delhi in the case of North Delhi Municipal Corporation Vs. Rakesh Ahuja, W.P(C) No. 10656/2015 Accordingly, he has prayed for the relief as claimed in this OA.
2. Respondents filed their counter contesting the case of the applicant, which has been highlighted by the Ld Counsel for the applicant in course of hearing.
2.a According to respondents, a CBI case was registered against the applicant U/s 120-B of IPC and 7, 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. He was arrested on 30.04.2018 and remanded to judicial custody till 14.05.2018. Accordingly, he was placed under deemed suspension w.e.f. 30.04.2018 vide order dated 11.05.2018. The CBI, ACB, Mumbai vide letter dated 12.06.2020 informed that charge sheet against the applicant has been filed before the Learned special CBI Court No. 52, Mumbai on 28.11.2019 and sanction for prosecution, as required U/s 19(1)(a) of the P.C. Act of 1988 for taking cognizance of the offence by the competent court was accorded by the competent authority vide order dated 27.02.2020.
8 O.A.No. 260/00076 of 2020
2.b It is the case of the respondents that DPC was held on 31.12.2018 for promotion to the post of Joint Commissioner against vacancy year 2018 and 2019. In view of the ongoing proceedings and deemed suspension, the case of the applicant was considered by the DPC but the recommendation of the DPC was kept in sealed cover in terms of DoP&T OM dated 14.09.1992. Again DPC was held on 06.12.2019 for promotion to Joint Commissioner against the vacancy year 2020 and since the applicant was continuing under suspension, the findings of the DPC was kept under sealed cover.
2.c It is stated that the initial order of suspension of the applicant was subsequently extended, however, on challenge, the suspension of the applicant w.e.f. 24.07.2019 was declared bad in law, which was set at rest by the order of the Hon'ble Apex Court in SLP(C) No./Diary No. 25097 of 2020. According to the respondents, on the date of DPC (31.12.2018), the applicant was under deemed suspension and charge sheet having been submitted by the CBI in the criminal case on 28.11.2019, his promotion could not be considered.
2.d It is averred that the DoP&T OM dt. 14.09.1992 provides that sealed cover procedure should be adopted in respect of a government 9 O.A.No. 260/00076 of 2020 official under suspension. Nowhere it provides that on revocation of suspension the sealed cover should be opened. In para 3 of the circular, it is clearly mentioned that on conclusion of disciplinary case or criminal prosecution, which results in dropping of the case or exoneration of the official, the sealed cover should be opened and the findings of the DPC should be given effect to. Thus, mere revocation of suspension does not mean that the official has been exonerated of the charges. It is stated that the spirit of the circular is that a person under cloud cannot be rewarded with promotion. Further, by placing reliance on the decision of the the Hon'ble Supreme Court in the case of Union of India vs. K.V. Jankiraman etc., AIR 1991 SC 2010, it has been stated that an employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record, whereas, in the instant case, CBI, ACB, Mumbai has filed charge sheet against the applicant and others, those who were involved in the criminal case, before the Hon'ble Special CBI Court No. 52, Mumbai on 28.11.2019 and sanction of prosecution was accorded 10 O.A.No. 260/00076 of 2020 on 27.02.2020. Therefore, the plea of the applicant that his suspension was declared illegal w.e.f. 24.07.2019 cannot have any effect to open sealed cover. Further, it is contended that the facts of the case of H.S.Shekhawat (supra) being different and distinct to the facts of the present case, the said case has no application to the case in hand. Accordingly, respondents have prayed for dismissal of this OA.
3. It is not in dispute that due to institution of criminal case and arrest of the applicant, he was placed under deemed suspension vide order dated 11.05.2018 w.e.f. 30.04.2018, which was extended from time to time. DPC was held on 31.12.2018 and on 06.12.2019 and on the recommendation of the DPC, the batchmates/juniors of the applicant was promoted to the post of Joint Commissioner w.e.f. 01.01.2019 and 01.01.2020. The continuance of suspension of the applicant beyond 90 days was bad in law, set at rest by the order of this Tribunal dated 31.01.2020 and of Hon'ble High Court dated 31.07.2020, consequently, applicant resumed to his duty. Applicant's stand is that the order of suspension was deemed to have been revoked w.e.f. 24.07.2019. The DPC was held on 31.12.2018 and on 06.12.2019 and batchmates/juniors to him were promoted on 01.01.2019 and 11 O.A.No. 260/00076 of 2020 01.01.2020. Thus, there having no legal impediment, non-acting on the recommendation of the DPC kept in the sealed cover is bad in law. According to the respondents, the stand taken by the applicant is not correct because the charge sheet was filed before the criminal court of law on 28.11.2019 and prosecution sanction was accorded on 27.02.2020. Thereafter, departmental proceedings under Rule 14 of CCS (CCA) Rules, 1965 was initiated against him vide memorandum dated 09.12.2020. In substance the applicant was placed under deemed suspension due to his arrest and in judicial custody beyond 48 hours. The said order of suspension was extended from time to time. But subsequent extension of the order of suspension beyond ninety days was held illegal, as discussed above. The first DPC was held on 31.12.2018 and, thus, the authorities concerned had rightly kept the recommendation of the DPC in sealed cover while giving effect to the recommendation for promotion in respect of others w.e.f. 01.01.2019. However, by the judicial intervention his order of deemed suspension was held illegal w.e.f. 29.07.2018. According to Respondents, charge sheet in criminal case was filed on 28.11.2019. Second DPC was held on 06.12.2019 and promotion was effect on 01.01.2020 in respect of 12 O.A.No. 260/00076 of 2020 others. Prosecution sanction was accorded on 27.02.2020 and charge sheet in departmental proceedings was served on 09.12.2020.
4. Para 7 of O.M. dated 14.09.1992 impress the necessity of ensuring that the disciplinary case/criminal prosecution instituted against any Government servant is not unduly prolonged and all efforts to finalize expeditiously the proceedings should be taken so that the need for keeping the case of a Government servant in a sealed cover is limited to the barest minimum. It is further provided that the appointing authorities should review comprehensively the cases of Government servants, whose suitability for promotion to a higher grade has been kept in a sealed cover. Such review should be undertaken on the expiry of 6 months from the date of convening the first DPC which had adjudged the suitability and kept the findings in sealed cover. This review is also to be done subsequently as well, after every six months. It is also mandated that the review should, inter alia, cover the progress made in the disciplinary proceedings/criminal prosecution and further measures be taken to expedite the completion. Para 5 of the O.M. dated 14.09.1992 takes into consideration the situation where such proceedings are not concluded even after the 13 O.A.No. 260/00076 of 2020 expiry of 2 years and impresses upon the appointing authorities to consider the desirability of giving promotion to such Government servants keeping in view the conditions (a) whether the promotion of the officer will be against the public interest; (b) whether the charges are grave enough to warrant continued denial of promotion; (c) whether there is any likelihood of the case coming to a conclusion in the near future; (d) whether the delay in the finalisation of proceedings, departmental or in a court of law, is not directly or indirectly attributable to the Government servant concerned; and (e) 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.
5. This Tribunal cannot close its eyes to the well settled law that making attempt to redress the grievance at the hands of the authority concerned prior to invoking the provision under Section 19 of the AT Act is sine qua non in terms of Section 20 of the AT Act, 1985. In the instant case, it is seen that the applicant has approached this Tribunal 14 O.A.No. 260/00076 of 2020 without making any such effort by way of submitting representation/appeal or memorial before filing this OA.
6. In the instant case, it establishes that after re-instatement of the applicant following to the decisions of this Tribunal & Hon'ble High Court of Orissa no review has been undertaken for taking decision on giving effect to the recommendation of the DPC where the name of the Applicant is kept in sealed cover. In view of the above, for the ends of justice, the respondents are directed to review the case of the applicant where the recommendation of the DPC has been kept in sealed cover keeping in mind the parameters fixed in the DoP&T OM referred to above. The exercise directed above shall be conducted and completed within a period of 60 days fr9om the date of receipt of a copy of this order and result of such consideration be communicated to the applicant within the time stipulated.
7. In the result, the OA stands disposed of leaving the parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS