Kerala High Court
Union Of India vs K.C.Johny on 6 September, 2013
Author: Babu Mathew P.Joseph
Bench: Thottathil B.Radhakrishnan, Babu Mathew P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
MONDAY, THE 9TH DAY OF DECEMBER 2013/18TH AGRAHAYANA, 1935
OP (CAT).No. 3651 of 2013 (Z)
------------------------------
AGAINST THE ORDER IN OA 728/2013 of CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH,DATED 06-09-2013
PETITIONERS : -
-------------
1. UNION OF INDIA,
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT(REVENUE)
OF INDIA REVENUE DEPARTMENT,
NORTH BLOCK, NEW DELHI-110 001.
2. THE CHAIRPERSON,
CENTRAL BOARD OF EXCISE AND CUSTOMS,
NORTH BLOCK,
NEW DELHI-110 001.
3. THE JOINT SECRETARY (ADMIN),
CENTRAL BOARD OF EXCISE AND CUTOMS,
NORTH BLOCK,
NEW DELHI-110 001.
BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
RESPONDENT: -
-----------
K.C.JOHNY,
S/O.K.O.CHACKO,
ADDITIONAL COMMISSIONER OF CENTRAL EXCISE,
KOCHI-682 018.
BY ADV. SRI.PHILIP T.VARGHESE
BY ADV. SRI.M.RAVI
BY ADV. SRI. K. MADHU
BY ADV. SRI.THOMAS T.VARGHESE
BY ADV. SRI.ALEX M.THOMBRA
BY ADV. SMT.ACHU SUBHA ABRAHAM
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 04-11-2013,
THE COURT ON 09.12.2013 DELIVERED THE FOLLOWING:
OP (CAT).No. 3651 of 2013 (Z)
------------------------------
APPENDIX
PETITIONERS' EXHIBITS : -
---------------------
Exhibit P1 : TRUE COPY OF O.A.NO.728/2013 FILED BEFORE THE
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
Exhibit P2 : TRUE COPY OF THE ORDER DATED 6.9.2013 IN
O.A.NO.728/2013 OF THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM.
Exhibit P3 : TRUE COPY OF THE DOPT OFFICE MEMORANDUM
NO.22011/4/91-ESTT.(A) DATED 14.9.1991.
Exhibit P4 : TRUE COPY OF THE DOPT OFFICE MEMORANDUM
NO.22012/1/99-ESTT(D) DATED 25.10.2004.
Exhibit P5 : TRUE COPY OF THE DOPT OFFICE MEMORANDUM
F.NO.22034/4/2012-ESTT(D) DATED 2.11.2012.
RESPONDENT'S EXHIBITS : - NIL.
--------------------
// TRUE COPY //
P.A. TO JUDGE
DMR/-
Thottathil B.Radhakrishnan
&
Babu Mathew P.Joseph, JJ.
= = = = = = = = = = = = = = = = = = = = = = = = OP(CAT).No.3651 of 2013-Z = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 9th day of December, 2013 Judgment Thottathil B.Radhakrishnan, J.
1.Heard Adv.John T. Paul, the learned counsel appearing on behalf of the establishment and Adv.M.Ravi, the learned counsel appearing for the respondent.
2.This original petition is filed by the establishment - Union of India and others - challenging an interlocutory order passed by the Central Administrative Tribunal directing them to act on the basis of the approval accorded by the Appointment Committee of the Cabinet; that is to say; resultantly, to promote the respondent against a regular vacancy of the post of Commissioner of Central Excise and Customs. OPCAT3651/13 -: 2 :-
3.Departmental Promotion Committee - DPC - in its meeting held on 15.3.2013 recommended the name of the respondent for the approval by the Appointment Committee of the Cabinet, for short, 'ACC', for promotion to the post of Commissioner of Central Excise and Customs. ACC cleared that file on 11.7.2013. On 30th July, 2013, the establishment issued an order wherein other officers were shown to have been promoted, excluding the respondent. Respondent challenged this before the CAT.
4.By way of interim relief, the respondent sought a direction to the establishment to temporarily promote him as Commissioner of Central Excise and Customs in the available vacancy.
5.On 6.8.2013, the Tribunal heard the original application at the stage of admission and issued the following order:
"Heard the learned counsel for the applicant.OPCAT3651/13 -: 3 :-
The case of the applicant in this OA is that according to the applicant even after ACC has cleared the case for promotion to the post of Commissioner, Central Excise & Customs, in the order issued vide Annexure A1 his name is conspicuously missing whereas as many as 27 juniors figure in. The counsel for the applicant submits that there has been no blot in the entire career of the applicant; no adverse remark/bench mark has been communicated and when the ACC has already cleared as per the knowledge of the applicant, the respondents are not correct in withholding the promotion to the post of Commissioner, Central Excise & Customs. The counsel for the applicant has invited our attention to paragraph 4(b) of the OA relating to certain incident that has occurred in 2011 and said that this cannot be a reason for denying him the promotion to the post of Commissioner, Central Excise & Customs.
Notices to the respondents 1-3. Mr.Rajesh for Mr.Sunil Jacob Jose, SCGSC accepts notices on behalf of the respondents. Let reply be filed within four weeks, rejoinder, if any within two weeks, thereafter.OPCAT3651/13 -: 4 :-
As regards interim relief the counsel for the respondents shall obtain the instructions within two weeks in respect of the following:-
a) Whether the DPC has recommended the name of the applicant for promotion as Commissioner, Central Excise & Customs;
b) Whether the ACC has approved the name of the applicant for such promotion to the post of Commissioner, Central Excise & Customs;
c) Whether any decision was taken to issue any charge sheet to the applicant and if so the date thereof;
d) Whether any charge sheet pending under the provisions of the relevant rules against the applicant has been issued (dispatched/served), if so, the date thereof.
List the matter on 26.08.2013, when relevant records of selection be also produced for our perusal.
A copy of this order be made available to OPCAT3651/13 -: 5 :- the counsel for the parties."
6.On 26.8.2013, the Tribunal issued a further order to the following effect:
"List on 04.09.2013, by which time the following action shall be taken by the respective parties:-
(a) The applicant shall file an affidavit reflecting therein the date on which he proceeded for training abroad and the last day he attended the office or on duty prior to leaving India.
(b) The respondents shall indicate, in addition to the information sought for vide directions at (a) to (d) of the order of this Tribunal dated 06.08.2013, the date on which the Vigilance report in respect of the applicant and others was sought for and communicated for effecting promotion orders. A counsel statement on behalf of the respondents is sufficient.OPCAT3651/13 -: 6 :-
List on 04.09.2013.
A copy of this order be made available to the counsel for the parties."
7.The order of interim relief impugned in this original petition, was issued on 6th September, 2013, before the establishment had placed its reply affidavit or any further relevant material.
8.Going by the materials before us, it appears that a reply affidavit dated 7.10.2013 was thereafter placed before the Tribunal on behalf of the establishment relying on different office memoranda and also showing the fact situation that proceedings for imposition of major penalty has been initiated against the employee concerned, and also as to why his name was not included in the promotion order.
9.The learned counsel for the establishment argued that the learned Tribunal has misapplied the precedents referred to in its impugned order and OPCAT3651/13 -: 7 :- the office memoranda dated 14th September, 1992, 25th October, 2004 and 2nd November, 2012 issued by the Department of Personnel & Training have been wholly misconstrued, though they have been issued in consonance with the law laid by the Apex Court. He further argued that the Tribunal erred in taking the view that the case of the employee in this case falls within the category of Union of India v. Sangram Keshari Nayak [(2007) 6 SCC 704] and the decision rendered by the Division Bench of this Court in V.M.Shamsuddin v. Union of India and others [2007(3) KLJ 252].
10.Per contra, the learned counsel for the respondent employee argued that the impugned order does not deserve visitation by this Court in exercise of authority under Article 227 of the Constitution of India and the balance of convenience has been duly considered while issuing it. Counsel further argued that the respondent had a vested right to be promoted along with the other persons whose names have OPCAT3651/13 -: 8 :- been included in the promotion order and such vested right accrued much before the charge sheet was actually served on the respondent employee. He also argued that the disciplinary proceedings will not be affected adversely if the respondent is actually promoted.
11.At the outset, we may notice that Shamsuddin (supra) was rendered by the Division Bench of this Court in relation to a person who had actually superannuated and the charge sheet was served on him after his date of superannuation. It was in that context that Delhi Development Authority v. H.C.Khurana [AIR 1993 SC 1488], Pratap Singh v. State of Punjab [AIR 1964 SC 72] and Union of India and others v. Dinanath Shantaram Karekar and others [(1998) 7 SCC 569] were relied on by the Division Bench to hold that the disciplinary proceedings initiated by serving the charge sheet after the date of superannuation does not stand. The judgment rendered in Shamsuddin also reflects the anxiety as to how OPCAT3651/13 -: 9 :- delay in the executive exercise had essentially left a person who was the head of a particular department, to escape even disciplinary proceedings after the Special Police Establishment of the Central Bureau of Investigation, hereinafter, 'CBI', had prima facie found the allegations against the employee in that case to be substantiated as regards misuse of official position and criminal conspiracy in awarding a contract involving Rs.17,34,000/-. Shamsuddin was not decided dilating on the provisions of the governmental instructions contained in the office memoranda regarding the procedure to be adopted with regard to promotions and disciplinary proceedings.
12.Sangram Keshari Nayak (supra) relied on by the Tribunal, dealt with certain provisions in a circular relating to sealed cover proceedings. That judgment considered the rights of a person who has been found fit to be promoted and who has been recommended by the DPC for promotion at a OPCAT3651/13 -: 10 :- time when no vigilance enquiry was pending against that employee. The provisions dealt with therein do not deal with provisions which are in pari materia with clauses 7, 4 and 7 of office memoranda dated 14th September, 1992, 25th October,2004 and 2nd November, 2012 respectively, while Union of India and another v. R.S.Sharma [(2000) 4 SCC 394], referred to in Sangram Keshari Nayak (supra), was decided by the Apex Court, also noticing the provisions of the nature as would be relevant to the case in hand.
13.O.M. dated 14th September, 1992 was issued by the Department of Personnel & Training - DoPT - after a review of the instructions governing the field as they then stood in existence. This exercise was carried out noticing the law laid by the Hon'ble Supreme Court in Union of India v. K.V.Jankiraman [AIR 1991 SC 2010]. Paragraph 2 of that O.M. enumerates matters that have to be brought to the notice of the DPC at the time of consideration of the cases of the Government OPCAT3651/13 -: 11 :- servants for promotion. The three circumstances enumerated therein are as follows:
"i) Government servants under suspension;
ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
iii) Government servants in respect of whom prosecution for criminal charge is pending."
Now, paragraph 7 of that O.M. dated 14th September, 1992 reads as follows:
"7. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges OPCAT3651/13 -: 12 :- against him and the provisions contained in this O.M. will be applicable in his case also."
Certain clarifications were thereafter found necessary and therefore, O.M. dated 25th October, 2004 was issued. That O.M. states, among other things, as follows:
"4. If the conditions indicated in para-2 of DoPT Office Memorandum dated 14th September, 1992, arise only after the DPC has made its recommendations and therefore, the recommendations could not be placed in the sealed cover, para-7 of the said Office Memorandum provides that the recommendations of the DPC shall be deemed to have been placed in the sealed cover and he shall not be promoted until he is exonerated of the charges. Therefore, after the recommendations of DPC have been approved by the competent authority, it is necessary to again seek the status position from the concerned vigilance division before issuing promotion order in respect of any officer included in the approved panel of names to OPCAT3651/13 -: 13 :- ensure that there is no hindrance in issuing the promotion order in respect of the concerned officer."
This was followed up later by O.M. dated 2nd November, 2012, also further dilating on the law laid in Jankiraman (supra). Paragraph 7 of that O.M. reads as follows:
"7. The law on sealed cover based on the judgment of the Apex Court in Union of India vs. K.V.Jankiraman etc. (AIR 1991 SC 2010), is by now well settled. The O.M. dated 14.9.92 confined the circumstances for adopting sealed cover to the three situations mentioned in para 2 of the said O.M. Even after recommendation of the DPC, but before appointment of the officer if any of the three situations arise, the case is deemed to have been kept in sealed cover by virtue of para 7 of the O.M. dated 14.9.92."
14.With the aforesaid, reverting to the facts of the case in hand, it can be noted that Special OPCAT3651/13 -: 14 :- Unit, CBI, Mumbai Branch registered a case, stated to be on the basis of reliable source information, to the effect that the voice recordings/transcription between Shri Manish Sanghani, a partner of a shipping agency had deep-rooted connection with Customs, Excise & DRI officials and was habitually paying bribe in the shape of money and also in the form of other consideration such as arranging ticket for Air Journey, providing hotels, costly mobile phones and other electronic gadgets without any consideration and also influencing the public servant for transfers and posting of various officials. We have perused the files as shown to us on behalf of the establishment. We see that the CBI had essentially concluded that there were materials against the persons who are enlisted by it as wrongdoers. The recommendation for prosecution did not find favour with the departmental authorities and ultimately, with the intervention of CVC, disciplinary proceedings were ordered to be initiated, either for major OPCAT3651/13 -: 15 :- penalty or minor penalty as may be, depending upon the gravity of the allegations. This led to the issuance of charge-sheet. The fact of the matter remains that the memo of charges was served on the delinquent and he is yet to be issued with a promotion order in consonance with the decision of the DPC and ACC clearing him for promotion. This means that the case of the employee, the respondent before us, would squarely fall within the afore-quoted provisions of the three office memoranda which are of prime importance. Those office memoranda were not considered by the Tribunal. In fact, there was no opportunity to do so having regard to the fact that the establishment did not place all requisite materials before the Tribunal in time. But one thing is certain. As noted by this Court in Shamsuddin (supra), the department officials, including the vigilance, ought to have acted at the appropriate time. We have seen the files, as recorded earlier. It may be inappropriate that we express anything at this point of time, more OPCAT3651/13 -: 16 :- particularly because, the disciplinary proceedings against the respondent has been initiated and an enquiry officer has been appointed. We have also seen the inter- departmental views and as to how the vigilance enquiry against the officers has ultimately come to be. On the basis of the office memoranda noted above, which are not under challenge, the respondent could not have been issued and granted the benefit of the impugned interlocutory order. It is issued in excess of jurisdiction and in violation of the contents of the circulars which are binding on the respondent as well. The impugned interlocutory order has, therefore, to be set aside.
In the result, this original petition is allowed setting aside the impugned order dated 6.9.2013 of the Tribunal without in any manner impairing the disciplinary proceedings commenced against the respondent and clarifying that those proceedings will go on untrammelled by anything OPCAT3651/13 -: 17 :- stated herein or in the Tribunal's order impugned in this original petition.
Sd/-
Thottathil B.Radhakrishnan Judge Sd/-
Babu Mathew P.Joseph Judge Sha/