Orissa High Court
State Of Odisha vs Anil Kumar Sethi And Others on 26 April, 2017
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.22393 of 2015
In the matter of application under Articles 226 and 227 of the Constitution
of India.
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State of Odisha ...... Petitioner.
- Versus-
Anil Kumar Sethi and Others ...... Opposite Parties.
Counsel for Petitioner : Mr. M. S. Sahoo, Additional Government
Advocate.
Counsel for Opp.Parties : M/s. Sameer Kumar Das, S. K. Mishra, P.
K. Behera & K. C. Nayak.
M/s. Biswabihari Mohanty, J. N. Panda, M.
Harichandan, B Tripathy & B. Samantaray
(for O.P. No.3)
M/s.Umesh Chandra Pattnaik, S. patnaik &
M. R. Sahoo (for O.P.1)
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 26.04.2017
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S. N. Prasad, J.This writ petition is under Articles 226 and 227 of the Constitution of India having been preferred by the State of Odisha assailing the order dtd.25.6.2015 passed by the Odisha Administrative Tribunal, Principal Bench, Bhubaneswar in O.A. No.1568 of 2014 whereby and where under the authorities have been directed to consider the case of the opposite party - applicant for promotion to the cadre of Executive Engineer (Civil) and if he is found suitable by 2 the departmental promotion committee, be given promotion to the said post from the date his immediate junior got such promotion i.e. w.e.f. 31.07.2014 with an observation that such promotion shall be made purely on ad hoc basis, subject to the final outcome of the Vigilance Case.
2. The brief facts of the case of the opposite party - applicant is that while he was continuing as Asst. Executive Engineer, became eligible to be considered for promotion to the post of Executive Engineer but he has been involved in a Vigilance case instituted against him for the offence U/s.13(2) read with Section.13(1)(e) of the Prevention of Corruption Act, 1988 and U/s.109 of the Indian Penal Code, as such without considering his case, juniors to him have been granted promotion, hence he approached the authority but when his grievance has not been redressed, approached to the Tribunal for redressal of his grievance vide O.A. No.1568 of 2014 wherein the Tribunal, after taking note of the judgment rendered in the case of Union of India Vrs. K.V. Jankiram and Others, reported in (1991) 4 SCC 109, has passed the order directing the authorizes to consider the case of the petitioner by taking into consideration the fact that although cognizance has been taken, but no charge-sheet has been served to the opposite party - applicant on the due date of consideration, hence the finding has been given entitling him to get promotion to the cadre of Executive Engineer (Civil) and accordingly direction has been passed to grant him promotion if found suitable by the departmental promotion committee with effect from the date when his juniors have been granted such promotion, however, with the observation that the promotion be made purely on ad hoc basis subject to the final outcome of the vigilance case.
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3. It has been submitted by the learned counsel for the opposite party - applicant that the tribunal has committed no illegality in passing such direction, rather the same is strictly in accordance with the propositions laid down by Hon'ble Apex court in the case of K.V. Jankiraman (supra).
He fortified his argument by submitting that since the charge-sheet has not been supplied to the opposite party - applicant on the due date of consideration by the duly constituted departmental promotion committee, hence he is coming under the parameter of the proposition laid down therein by the Hon'ble Apex Court and accordingly the tribunal has passed the order, hence the same suffers no infirmity.
4. While on the other hand, learned Additional Government Advocate representing the State of Odisha, assailing the order passed by the tribunal, has submitted that the tribunal has misconstrued the proposition laid down by Hon'ble Apex Court in the case of K.V. Jankiram because in that case the proposition has been laid down that merely on the ground of pendency of a disciplinary or criminal proceeding consideration for promotion cannot be with- held and the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed in the criminal court, but the tribunal, ignoring the said proposition, has gone into the finding reflected in the order of Hon'ble Apex Court in the case of K.V. Jankiraman rendered by its Full Bench which stipulates that it is only when a charge memo in a disciplinary proceeding or a charge sheet in criminal prosecution is issued to the employee then only it can be said that the departmental proceeding / the criminal prosecution is initiated against the employee.
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He submits that there is no occasion to supply the charge-sheet by the criminal court of competent jurisdiction, rather the charge-sheet is only to be supplied to the accused by the criminal court of competent jurisdiction at the time of supply of police paper.
He further submits that after submission of charge-sheet after completion of investigation under the provision of Sec.173 of the code of criminal procedure, a charge-sheet is to be submitted before a court, basis upon which the court used to take cognizance of an offence and the moment cognizance is being taken by the court, it will be said that there is prima facie case against the person against whom the charge-sheet has been submitted, hence on the date of taking cognizance it will be said to be initiation of judicial proceeding, here in the instant case cognizance has been taken by the court on 23.12.2013 and it is only after that the departmental promotion committee convened its meeting i.e. on 9.7.2014, hence the case of the petitioner can only be considered and kept in the sealed cover and it will only be opened after the conclusion of the criminal case, but this aspect of the matter has not been appreciated by the tribunal while dealing with the issue.
He further submits that there is no concept of granting ad hoc promotion having been evolved by the Hon'ble Apex Court in the case of K.V. Jankiraman, but however, learned Additional Government Advocate has fairly submitted that the government has come out with a notification on 4.7.1995 which contains provision for consideration of promotion on ad hoc basis subject to the decision to be taken by the appointing authority and under that notification 5 only there is provision to grant ad hoc promotion. On these grounds the order passed by the tribunal has been assailed.
5. We have heard the learned counsels for the parties and perused the documents available on record.
We, after hearing the learned counsels for the parties and after going into the fact of the instant case thought it proper to see the legality and propriety of the order by which the authorities have been directed to consider the case of the opposite party - applicant for promotion to the cadre of executive engineer.
There is no dispute about the settled proposition that right to consideration for promotion is the fundamental right and an employee cannot be denied from consideration of his case for promotion if he is eligible for that.
The matter regarding consideration of his case for promotion in a situation of pendency of departmental or judicial proceeding as to whether an employee, merely on the ground of pendency of the proceeding can be denied from consideration of his right to be promoted to the higher post, this issue fell for consideration before the Hon'ble Supreme Court in the case of Union of India and Others Vrs. K.V. Jankiram & Others (supra) wherein their Lordships, after taking into consideration the factual aspect have laid down the proposition by evolving the process to keep the matter of promotion under sealed cover in case of pendency of a departmental proceeding. Their lordships have also been pleased to observe therein that on which day the departmental or the judicial proceeding is said to be in motion, while answering this their lordships have been pleased to hold that the sealed cover procedure can be resorted to only after a charge memo 6 is served on the concerned official or the charge-sheet filed before the criminal court and not before that.
This proposition clearly stipulates that in connection with the departmental proceeding, the proceeding would be said to be initiated in the eye of law that is the day when the memo of charge is served upon the concerned official and in case of judicial proceeding the day when charge-sheet is filed before the criminal court, if that would be the situation, the case of such employee would be considered but the decision which has been taken by the committee would be kept in sealed cover awaiting the outcome of the proceeding, in case of exoneration in the departmental proceeding, the concerned employee shall be granted promotion with effect from the due date, in case any juniors have been granted promotion, he has to make room for such employee. In case of the criminal proseciton, in a situation of pendency of a criminal case, the sealed cover would be opened after the final outcome of the criminal case, so that the decision taken by the departmental promotion committee, kept in sealed cover, be given effect to.
It is also not in dispute that the cognizance which is to be taken by the competent court of criminal jurisdiction is after submission of the final form by the investigating agency in exercise of power conferred under Sec.173 of the code of criminal procedure and it is only on the basis of the charge-sheet, a competent court of criminal jurisdiction use to take cognizance on the basis of material available therein.
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In view thereof it cannot be said that the copy of the charge-sheet since has not been supplied to the concerned accused, the criminal case would not be said to be in motion.
We have examined the fact of this case on the basis of the proposition laid down in the case of K.V. Jankiraman. The fact which is not in dispute in this case is that the opposite party - applicant was involved in a criminal case being Vigilance Case No.TR No.43 of 2013 in which cognizance has been taken after submission of charge-sheet on 23.12.2013, the meeting of departmental promotion committee was held on 9.7.2014, hence on the date of consideration by the departmental promotion committee since the charge-sheet was submitted on 23.12.2013, hence the case of the opposite party - applicant ought to have been kept in sealed cover in view of the ratio laid down by the Hon'ble Apex Court in the case of K.V. Jankiraman, but the Tribunal, without appreciating this settled proposition of law, has directed the authorities to grant promotion to the opposite party - applicant to the higher post of the Executive Engineer (Civil) with effect from the date when his juniors have been granted promotion, although that would depend upon the final outcome of the vigilance case, but according to our conscious view, the said finding is incorrect, hence not sustainable in the eye of law, reason being that the tribunal while passing such order has not appreciated the fact that the day when the departmental promotion committee has held its meeting, i.e. on 9.7.2014, charge-sheet was already submitted on 23.12.2013, as such taking the ground that the charge-sheet since has not been issued to the applicant, the order of promotion has been passed, but there is no provision in the code of criminal procedure to supply the charge-sheet 8 to the delinquent employee the moment it is being submitted before the court, rather the appropriate stage for supply of charge- sheet is only at the time of supply of police paper to be supplied in view of provision of Section 207 of the code of criminal procedure. That is also not the requirement as per the proposition laid down since the Hon'ble Apex Court in the case of K.V. Jankiram has specifically laid down that the date of initiation of judicial proceeding would be the date of submission of charge-sheet before the competent court, and admittedly the charge-sheet has been submitted in the instant case against the opposite party - applicant on 23.12.2013, hence the day when the departmental promotion committee has held its meeting, the charge-sheet was submitted before the court, as such the order passed by the tribunal without taking into consideration this aspect of the matter cannot be said to be legal and justified.
5. So far as the finding of the Tribunal to grant promotion on ad hoc basis, the same cannot be granted in view of the judgment rendered by Hon'ble Apex Court in the case of K.V. Jankiraman since there is a concept of keeping the matter of promotion in sealed cover, but however, we have been informed by the learned counsel appearing for the State of Orissa that the State of Orissa has come out with a resolution on 4.7.1995 wherein the provision has been made to grant promotion on ad hoc basis, subject to consideration by the appointing authority, but that case has not been made out by the opposite party- applicant before tribunal and in its absence, the order of ad hoc promotion has been passed.
We, after taking into consideration this aspect of the matter and considering the reason stated herein above, are of the considered view that the 9 tribunal has passed an order which is not legally justified, hence not sustainable in the eye of law, as such the same is set aside.
In the result, the writ petition stands allowed.
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S.N.Prasad, J. Sanju Panda, J. Orissa High Court, Cuttack, Dated the 26th April, 2017/mkp