Allahabad High Court
Yogendra Singh Yadav vs State Of U.P. And Others on 20 October, 2022
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 37 Case :- WRIT - A No. - 6422 of 2021 Petitioner :- Yogendra Singh Yadav Respondent :- State of U.P. and Others Counsel for Petitioner :- Pratik Chandra,Sr. Advocate Sri Ashok Khare Counsel for Respondent :- C.S.C.,Purnendu Kumar Singh Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Pratik Chandra and Sri Purnendu Kumar Singh, learned counsel Singh appearing for the Respondent Nos. 2 to 5.
2. This petition has been filed by the petitioner challenging the order dated 04.02.2021 passed by the Respondent No. 2 and also the consequential order dated 27.02.2021 passed by the Respondent No. 2 with a further prayer that the respondents be directed not to interfere in the working of the petitioner as Assistant Engineer (Electricity Distribution Sub Division) Banda Rural, District-Banda and not to adopt Sealed Cover Procedure in respect of promotion of the petitioner as Assistant Engineer in the Department.
3. It is the case of the petitioner that he was appointed as a Junior Engineer initially on Ad hoc basis in 2007, and thereafter, confirmed on the post in question and was transferred from place to place. Lastly he was working in the office of the Executive Engineer Electricity Distribution Division, Kanpur Dehat. A dispute arose with regard to implementation of Rajiv Gandhi Gramin Vidyutikaran Yojna 2005-2006 and the petitioner was directed by the Superintending Engineer to appear before the Inspector in-charge of Vigilance Inquiry, Sri Ajit Kumar on 29.11.2018 at Jhansi to get his statement recorded. The petitioner then came to know that a First Information Report was lodged under section 409, 420, 120-B and Section 13 (1)(C), 13(1)(D), 13 (2) of the Prevention of Corruption Act, 1988 at PS- Navabagh, District Jhansi on 05.07.2019 against 9 persons including the petitioner in respect of irregularities pertaining to implementation of Rajiv Gandhi Rural Electrification Scheme as aforesaid. While the investigation was pending, proceedings for promotion were undertaken by the department and eligibility list was issued, the petitioner's name was included in the said eligibility list. A direction was issued by the Headquarter to provide information about pendency of any disciplinary/criminal proceedings or issuance of charge sheet if any in either of such proceedings against the officers whose name were mentioned in the eligibility list. No information was sent in so far as the petitioner was concerned. The petitioner was considered by the DPC and his name appeared in the list of selected candidates for the post of Assistant Engineer under the 40% promotion quota as evident from the order issued by the Managing Director, UPPCL on 26.10.2019. The petitioner joined as Assistant Engineer, Electricity Distribution Division, Jhinjak, Kanpur Dehat on 30.10.2019, and thereafter was directed to join the office of the Chief Engineer, Electricity Distribution Zone, Banda. The petitioner was also sent for training on 17.01.2020, and he completed his training and was directed to join at Electricity Distribution Division, Karvi-2, District Chitrakoot. The petitioner joined as Sub Divisional Officer, EDD Sub Division, Karvi-2, District Chitrakoot and was later on transferred to Electricity Distribution Sub Division, Banda Rural where he joined on 23.08.2020. The Respondent No. 2 has proceeded to pass an impugned order dated 04.02.2021 cancelling his earlier order of promotion dated 26.10.2019 and has further directed that the case of the petitioner shall be deemed to have been put under sealed cover as per the provisions of the Government Order dated 28.05.1997. Consequent to this order the petitioner has been reverted to his substantive post of Junior Engineer and the Respondent No.3 the Accounts Officer, UP Power Corporation Limited has further directed for payment of salary of the post of Junior Engineer to the petitioner, the salary that the petitioner was getting before his promotion The petitioner has joined in pursuance of the impugned order and is getting salary of Junior Engineer.
4. It has been argued by the learner Counsel appearing for the petitioner that the impugned order has been passed without giving any opportunity of hearing to the petitioner. As per clause 11 of the Government Order dated 28.05.1997, if Departmental Promotion Committee recommends the name of an employee, but before the implementation of the order of promotion, any relevant fact comes to the knowledge of the authorities, which relevant fact would have resulted in placing the case of the employee concerned under sealed cover, then the order of promotion shall not be given effect, to and the Recommendation of the DPC shall be treated to have been placed under Sealed Cover. Since the petitioner was already promoted and then the report regarding Open Vigilance Inquiry in terms of Government Order Dated 05.07.2019 came to light, his case was not covered under Clause 11 of the Government Order dated 28.05.1997. It is not as if the petitioner was made an accused in the criminal FIR lodged against him without the knowledge of the respondent authorities. The respondent authorities including the Superintending Engineer had knowledge of Open Vigilance Inquiry and had also directed the petitioner to appear before the Vigilance Officer concerned on 27.08.2020 for recording his statement.
5. It has also been argued by Shri Ashok Khare, learned Senior Advocate that till date only investigation is being carried out by the Investigation Officer. No charge sheet has been submitted before the competent trial court. Therefore, it could not be said that any criminal proceedings are pending against the petitioner and the Order impugned has been passed on misconceived grounds. It is not disputed by the respondent that no disciplinary/departmental proceedings were initiated on the basis of alleged irregularities in the implementation of Rajiv Gandhi Rural Electrification Scheme. No charge sheet in any departmental proceeding has been served upon the petitioner. Therefore, the two requisite conditions for putting the petitioners case under Sealed Cover Procedure as per the Government Order dated 28.05.1997 are non-existent in so far as the petitioner is concerned. The petitioner has not been suspended at any point of time and he was working as Junior Engineer. The counsel for the petitioner has placed reliance upon the judgement rendered in the case of Union of India and Others Vs. K.V. Janki Raman 1991 (4) SCC 109 , wherein it has been held that promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are proposed to be initiated against the employee concerned. Disciplinary proceedings can be said to be pending only when charge sheet is issued to the delinquent employee. Criminal proceedings can be said to be pending only when charge sheet is submitted by the Investigating Officer before the competent trial court.
6. Learned Senior Counsel for the petitioner has also pointed out Clause 10 of the Government Order dated 28.05.1997 wherein it has been stated that in case of prolonged pendency of disciplinary proceedings/ criminal proceedings, the case of the employee concerned can be considered for grant of Ad Hoc promotion by the Departmental Promotion Committee.
7. Sri Purnendu Kumar Singh, on the basis of counter affidavit filed by the respondents, says that financial embezzlement to the tune of Rupees 1,600/- crores was found in the implementation of Rajiv Gandhi Rural Electrification Scheme in 14 Districts of Uttar Pradesh including Banda where the petitioner was posted. Initially an Inquiry was held by the Vigilance Cell of the Corporation but taking into account the seriousness of the matter the Special Secretary, Department of Energy, Government of U.P. by his letter No. 1263 dated 15.06.2015 has informed the Corporation that the matter has been taken up for Open Vigilance Inquiry by the UP Vigilance Establishment and has directed the Corporation to provide all necessary help for the proper conduct on the Vigilance Inquiry. The Deputy Secretary, Department of Energy, Government of UP has also by his letter No. Janch-17/24-P-2-2019-Satarkta (15)/2012 dated 19.06.2019 has informed that the petitioner is one of the accused and has been found prima facie guilty of financial embezzlement.
8. It has also been submitted by Sri Purnendu Kumar Singh that the Office Memorandum No.1849 issued by the Power Corporation dated 08.10.1997 has adopted the Sealed Cover Procedure as given in the Government Order dated 28.05.1997 and it was only because of misinformation that the petitioner had been promoted and therefore the impugned order has been passed cancelling his promotion and treating the recommendations of the DPC to be kept in Sealed Cover in so far as the petitioner is concerned.
9. It has, however, not been disputed by Sri Purnendu Kumar Singh that the counter affidavit does not say whether the Investigating Officer in pursuance of the Vigilance Inquiry has filed a charge sheet against the petitioner in the competent trial court. He says that the counter affidavit was filed by the respondents in the month of September 2021 and one year has lapsed, therefore, he does not know the current situation.
10. This court feels that if and when charge sheet is filed before the competent trial court, the provisions of Government Order dated 28..05.1997 would become applicable and not before that. The prerequisites for placing the case of the petitioner under sealed cover did not exist at the time of issuance of the impugned order dated 04.02.2021 as per law settled by the Supreme Court in the case of Union of India and Ohers versus K.V. Janki Raman. In the said case, the Supreme Court was considering a Government Order issued by the Government of India, Department of Personnel and Training dated 30.01.1982 where Sealed Cover Procedure was proposed to be adopted in the case of officers who are under suspension, or against whom disciplinary proceedings are pending for a long time, or a decision had been taken by the Competent Authority to initiate the disciplinary proceedings, or against whom prosecution had been launched in a Court of Law, or sanction for prosecution had been issued at the appropriate time when the DPC was being held. It was also provided in the said Government Order that after the findings are kept in sealed cover, in any subsequent DPC held thereafter, if the employee still facing disciplinary/criminal proceedings, his case shall be considered again and the DPC shall record its finding and keep the same also in sealed cover. The Government Order dated 30.01.1982 was further modified by Government Order dated 12.01.1988, and a further guideline was issued that the same Sealed Cover Procedure was to be applied where the Government Servant is recommended for promotion by the DPC, but before he is actually promoted he is either placed under suspension or disciplinary proceedings are initiated against him or decision has been taken to initiate proceedings or criminal prosecution is launched or sanction for such prosecution has been issued, or decision to afford such sanction is taken.
11. The Supreme Court considered the question as to when for the purpose of Sealed Cover Procedure, the disciplinary / criminal proceedings can be said to have commenced, and the Court observed that it is only when Charge Memo is issued in disciplinary proceedings or a Charge Sheet is filed in a Criminal Court it could be said that disciplinary proceedings / criminal proceedings are pending against the employee concerned. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authority to adopt the Sealed Cover Procedure. The Court also considered the contentions raised by the Counsel for the appellant (Union of India) that where there are serious allegations it takes time to collect necessary evidence and to prepare and issue a Charge Memo/ Charge Sheet and it would not be in the interest of purity of Administration to award the employee with the promotion, increment etc., but observed that such argument did not impress their Lordships. It was observed as follows:-
"..........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/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 employees 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......."
12. The judgement of the Supreme Court in K. V. Janki Raman(Supra) has been reinstated in Union of India Vs. Sangram Keshari Nayak 2007(6) SCC 704 and Harsh Kumar Sharma Vs. State of Punjab, 2017 (4) SCC 366, where the Supreme Court has again held that only after charge sheet is filed, criminal proceedings can be said to be pending.
13. It is evident from the observations made by the Supreme Court in the case of K.V. Janki Raman(Supra) that either the employee concerned should be suspended, or Charge Sheet in disciplinary proceedings should have been issued to him, or charge sheet in Criminal Case should have been filed before the competent trial court before Sealed Cover Procedure could have been adopted.
14. In the case of the petitioner, till the date of filing of the counter affidavit in September, 2021, Charge Sheet had not been filed by the Investigating Officer / Vigilance Officer before the competent trial court, hence, the orders impugned are set aside.
15. Let consequential orders be passed by the Respondent No.2 within a period of six weeks from the date a copy of this order is produced before him.
16. The Writ Petition stands allowed.
Order Date :- 20.10.2022 Darpan Sharma