Rajasthan High Court - Jaipur
S N Sethi vs U O I (Finance Dep Revenu )Ors on 13 February, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R D.B. Civil Writ Petition No.15031/2011 (S.N. Sethi Versus Union of India & Others) Date of Order :: 13th February, 2012 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Amit Mathur, counsel for the petitioner BY THE COURT: (PER HON'BLE BHAGWATI, J.)-
REPORTABLE: By way of the instant writ petiton, the petitioner has beseeched to quash and set-aside the order dated 11th August, 2011, whereby the Central Administrative Tribunal, Jaipur Bench (here-in-after to be referred to in short as Tribunal) dismissed Original Application No. 362/2010, wherein the petitioner-applicant beseeched for direction to be issued to the respondents to promote him as Superintendent Group-B on regular basis with all consequential benefits with effect from September, 2002.
2. Skipping unnecessary details, the facts necessary for the disposal of the instant writ petition succinctly stated are that the petitioner was working as Inspector in the Central Excise and Customs. On 18/19th July, 2002, a Meeting of Departmental Promotion Committee (DPC) was convened for promotion to the post of Superintendent Group-B from amongst Inspectors for filling up 124 vacancies including 118 new additional posts, for the vacancy of the year 2002-2003. The petitioner was duly considered by the DPC. Since the Commissioner had accorded sanction for prosecution against the petitioner for a criminal charge on 27th June, 2002, the findings in respect of the petitioner were kept in a sealed cover by the said Departmental Promotion Committee held on 18/19th July, 2002.
3. A representation dated 29th May, 2003 was submitted by the petitioner for his promotion to the grade of Superintendent Group-B and the same was disposed of vide letter dated 8th September, 2003. Aggrieved and dissatisfied with the letter/order dated 8th September, 2003, the petitioner filed OA no. 393/2004 before the Tribunal. The Tribunal allowed the OA and the impugned order dated 8th September, 2003 was quashed and set-aside and the respondents were directed to act on the recommendation of the Departmental Promotion Committee held on 18/19th July, 2002 so far as the petitioner was concerned and if found fit, he could be promoted to the grade of Superintendent group-B from retrospective date when his junior was promoted with effect from 23rd September, 2002 with all consequential benefits including arrears of pay and seniority. Pursuant to this order dated 9th May, 2005 rendered in Original Application No. 393/2004, the matter was examined and it was found that the case of the petitioner fell within the purview of para 7 of DOPT O.M. dated 14th September, 1992 and Establishment order dated 8th June, 2005 was issued mentioning the relevant instructions therein. The petitioner challenged para 7 of OM dated 14th September, 1992 by way of filing second Original Application No. 401/2005. Thereafter the petitioner filed third Original Application No. 353/2008 and the Tribunal adjudicated the said OA and remitted the case to the respondents directing them to hold the review DPC and assess the suitability of the petitioner for the post of Superintendent Group-B keeping in view the instructions of the DOPT OM dated 14th September, 1992.
4. Pursuant to the above order rendered by the Tribunal, a review DPC was held on 6th August, 2009 in respect of DPC held on 18/19th July, 2002 for considering the case of the petitioner for regular promotion to the grade of Superintendent Group-B. Since a charge sheet (challan) had been filed against the petitioner by the CBI before the court on 19th August, 2002 i.e. before 23rd September, 2002 when seniors and immediate juniors to the petitioner were actually promoted, the recommendations of the review DPC held on 6th August, 2009 in respect of the petitioner for regular promotion to the grade of Superintendent Group-B with effect from 23rd September, 2002 was deemed to be placed in a sealed cover and in terms of the DOPT O.M. dated 14th September, 1992, the petitioner would be eligible for regular promotion only when he was completely exonerated of the charges pending against him.
5. Heard learned counsel for the petitioner and carefully perused the relevant material on record including the impugned order rendered by the Tribunal.
6. Learned counsel for the petitioner canvassed that on 18/19th July, 2002, when the Departmental Promotion Committee met, neither the petitioner was placed by the respondents under suspension nor after completion of investigation, any charge sheet had been filed against him nor he was facing any trial of the criminal case nor the court had taken cognizance of the offences under the Prevention of Corruption Act, 1988 nor the court had set out the charges against him and nor any prosecution was pending against him. Hence, the decision of the Departmental Promotion Committee to keep the findings in a sealed cover was contrary to the law and against the principles settled in this regard by the Apex Court in umpteen cases. The petitioner has also implored that para 7 of OM dated 14th September, 1992 may be declared ultra-vires and merely filing of the challan in the criminal case should not be treated as pending prosecution and only the date on which cognizance is taken or charges are framed may be included in the definition of terms 'pending prosecution' so far as it relates to the OM dated 14th September, 1992. Learned counsel further canvassed that in view of the settled legal position, the impugned order rendered by the Tribunal is arbitrary and thus, deserves to be quashed and set-aside. He has cited the judgment of Hon'ble Apex court rendered in the case of Union of India etc. Versus K.V. Jankiraman etc. reported in AIR 1991 SC 2010 in support thereof.
7. Having reflected over the submissions made by learned counsel for the petitioner and carefully scanned the entire material, it is revealed that in a case of fraudulent export of rags through Inland Container Depot (ICD), Udaipur in the guise of ladies readymade garments with an intention to claim duty drawback on multi-fold higher value, the petitioner was found involved in the criminal conspiracy hatched by the exporters. The C.B.I. had registered a case against the exporters as well as departmental officers including petitioner vide FIR No. RC/JDH-1999-A, 0002 on 22.02.99. As per the report dated 28.07.2001 of SP, CBI Jodhpur, the petitioner had given false examination report on the shipping bills in as much as some of the cartons declared as having been checked by him did not even exist in the containers, while many other cartons declared as having been checked by him had not been opened at all. The SP, CBI, Jodhpur vide his report dated 28.7.2001 recommended launching of prosecution as well as initiation of disciplinary proceedings against the petitioner. It is further revealed that the Departmental Promotion Committee was convened for promotion to the post of Superintendent Group-B on 18/19th July, 2002, whereas the Commissioner had already accorded sanction to prosecute the petitioner for a criminal charge on 27th June, 2002. Secondly, pursuant to the meeting of Departmental Promotion Committee, promotion orders were issued on 23rd September, 2002, whereas the Central Bureau of Investigation, after completion of investigation had already filed the charge sheet against the petitioner in the Court on 19th August, 2002.
8. The argument put-forth by learned counsel for the petitioner on the ground of 'cognizance', 'setting out the charges' and with regard to interpretation of 'pending prosecution' seems to be totally irrelevant and vexatious as the legal position on all these issues is well settled.
9. It is relevant to record about 'taking cognizance' of the offence that there is no charm in the word cognizance. It is nowhere defined in the Code of Criminal Procedure. It is a word of somewhat indefinite import. It is perhaps not always used in exactly the same sense. It is argued upon the basis of Emperor Versus Sourindra Mohan Chuckerbutty reported in ILR 37 Calcullata 412 that-
taking cognizance does not involve any formal action or indeed action of any kind, but occurs as soon as Magistrate, as such, applies his mind, to the suspected commission of an offence.
10. The word 'cognizance' is used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings: Rather it is the condition precedent to the initiation by the Magistrate. Cognizance is taken of the cases and not of the persons and there must be nothing in theory to prevent a Magistrate or a Judge from taking cognizance of a case even where the offenders are unknown.
11. Thus, it is a settled law that the Magistrate takes cognizance of an offence when he applies his judicious mind to the facts and circumstances or he suspects a case or to the suspects of commission of an offence.
12. Learned counsel for the petitioner has cited the judgment of K.V. Jankiraman (supra) in support of his argument and he canvassed that if the investigation was pending, then the authorities could not adopt the sealed cover procedure, but the DPC despite this pronouncement of the Hon'ble Apex Court, adopted the sealed cover procedure in case of the petitioner.
13. This argument put forth by learned counsel for the petitioner is also found to be contrary to the pronouncement made by the Apex court in the case of Jankiraman (supra). The Hon'ble Apex Court is found to have observed that the pendency of 'preliminary investigation' prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. The Apex Court further observed from its experience that 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.
14. It is pertinent to note that the word investigation has been defined in Section 2(h) of the Criminal Procedure Code, 1973. 'Investigation' includes all the proceedings under this Code for the collection of evidence, conducted by a Police Officer or by any person who is authorized by a Magistrate in this behalf. It is necessary to clarify the distinction between preliminary investigation and the investigation of a criminal case. It is made clear that the 'investigation' of any criminal case commences after lodging the First Information Report under Section 154 of CrPC 1973, whereas the 'preliminary investigation' is held by the Police before the registration of First Information Report so as to ascertain whether the facts emerging on record do constitute the commission of a cognizable offence. A 'preliminary investigation' held by the police on a complaint of an aggrieved person for demand of dowry to the Director General of Police is neither an enquiry nor any investigation within the meaning of Section 2(g) of Criminal Procedure Code. The Hon'ble Apex Court in the case of Jankiraman has referred to the case of 'preliminary investigation'. This judgment does not hold good on the facts of the instant case for the simple reason that the CBI was investigating the case against the petitioner for a criminal charge. It was not the 'preliminary investigation' being conducted by CBI against him. It is very relevant to record that since the 'investigation' had been completed and there was ample evidence collected by CBI against the petitioner, the CBI requested the Commissioner to accord sanction to prosecute the petitioner and the Commissioner having gone through the entire evidence collected by the CBI during investigation, accorded sanction to prosecute the petitioner for a criminal charge on 27th June, 2002. Now we come to para 2 of OM dated January 12, 1988, which reads thus:
Cases of Government Servants, to whom sealed cover procedure will be applicable-
2. At the time of consideration of the cases of government servants for promotion, details of government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:
(i) Government servants under suspension;
(ii)Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;
(iii)Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution.
(iv)Government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by the CBI or any other agency, departmental or otherwise.
15. A bare perusal of para 2 of the OM reveals that the sealed cover procedure shall be applicable in the cases of government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution or an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by CBI or any other agency.
16. Adverting to the facts of the instant case, it is tangibly made out that the CBI had completed the investigation and obtained sanction to prosecute the petitioner from the Commissioner on 27th June, 2002 itself i.e. prior to the meeting of Departmental Promotion Committee on 18/19th July, 2002 was convened. Since the sanction for prosecution against the petitioner had been issued by the Commissioner on 27th June, 2002 prior to the meeting on 18/19th July, 2002 of the Departmental Promotion Committee was convened, the sealed cover procedure was very much applicable in the case of the petitioner. The case of the petitioner is fully covered by clauses (iii) & (iv) to para 2 of OM dated 12.1.1988.
17. Learned counsel for the petitioner has also reiteratedly pressed upon the term 'pending prosecution' and contended that no prosecution was pending against the petitioner, hence the sealed cover procedure was not applicable in his case.
18. In the case of SA Venkatramanan Versus Union of India reported in AIR 1954 SC 375, the Apex Court observed that the words prosecution and punishment have no fixed connotation and they are susceptible of both wider and narrower meaning, but in Article 20 (2) of the Constitution, both these words have been used with reference to an offence and the word offence has to be taken in the sense, in which it is used in General Clauses Act as meaning an act or omission made punishable by any law for the time being in force. It follows that the prosecution must be in reference to the law, which creates the offences and the punishment must be in accordance with the law prescribed. Hence, in the light of the judgment, this Court is not to take the narrower meaning of the term 'pending prosecution'. Be that as it may, it is tangible from the material on record that the Commissioner had already accorded sanction to prosecute the petitioner on 27th June, 2002 prior to the meeting of Departmental Promotion Committee was convened on 18/19th July, 2002. Hence, the 'sealed cover procedure' was very much applicable in the case of the petitioner, who was working as Inspector in the Central Excise and Customs Department at the relevant point of time.
19. The Tribunal, having discussed all the facts and critically analyzed the legal position ad-longum rightly observed that the recommendations of the Departmental Promotion Committee were deemed to be placed under sealed cover and until and unless the petitioner was completely exonerated of the charges, the sealed cover could not be opened. The impugned order of the Tribunal is well merited based on sound and cogent reasoning, which suffers from no infirmity or illegality. We are in full unison with the findings arrived at by the Tribunal in this regard.
20. The up-shot of the case is that learned counsel for the petitioner has utterly failed to convince us to take a contrary view to that of the view taken by the Tribunal and the learned counsel has also miserably failed to make out any case in his favour and we do not find any ground so as to interfere with the impugned order and the writ petition thus, being totally devoid of substance deserves to be dismissed at the threshold.
21. For the reasons stated above, the writ petition being bereft of any merit stands dismissed accordingly.
(MAHESH BHAGWATI),J.(NARENDRA KUMAR JAIN-I),J.
All Corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Dilip Khandelwal Personal Assistant