Research › Browse › Judgment

Calcutta High Court · body

1999 DIGILAW 371 (CAL)

Sohanlal Agarwal v. Union of India

1999-07-16

Ruma Pal, S.N.Bhattacharjee

body1999
JUDGMENT : - Ruma Pal, J.: The petitioner is an employee of the South Eastern Railways. He claims to have been wrongfully deprived of placement in the selection grade. He filed an application before the Central Administrative Tribunal under section 19 of the Administrative Tribunals Act, 1985 challenging an order of the Railway Board which was communicated to the petitioner by the Deputy General Manager under cover of a letter dated 14.12.92. The order reads : "The claims of Shri S.L. Agarwal for placement in Selection Grade were duly considered. The findings of the DPC have, however, been kept in sealed cover as he is facing several vigilance cases." 2. The then relevant instructions dated 21.9.88 allowed the sealed cover procedure to be adopted inter alia when : "(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." 3. The Tribunal delivered an elaborate judgment on 26.8.93. It was found that the disciplinary proceedings were initiated by issuing a charge sheet on 21.12.90 which was served on the petitioner on 3.1.91 after the promotion to selection grade was made on 4.1.90. It was also found : “On perusing the relevant file produced before us, we find that there can be no doubt that the CBI has started one case under section 5(1)(e) read with section 5(2) of Prevention of Corruption Act, 1947 corresponding to section 13(1)(e) read with section 13(2) of Prevention of Corruption Act, 1988. The said case was registered on 28.4.88. We find that there are also other cases which have been investigated and the final decision has been taken in respect of that main case which was initiated in April, 1988 to start a criminal prosecution against him after obtaining instruction as well as initiation of DA enquiry against the present applicant. The said case was registered on 28.4.88. We find that there are also other cases which have been investigated and the final decision has been taken in respect of that main case which was initiated in April, 1988 to start a criminal prosecution against him after obtaining instruction as well as initiation of DA enquiry against the present applicant. The other cases are also being investigated by the CBI, but the final decision in none of the cases has yet been taken..................................from the records produced before us, there can be no doubt that in respect of serious allegations of corruption and similar grave misconduct, the CBI already submitted a charge-sheet against the application in April, 1988 and from the records produced before us, we are satisfied that the CBI was investigating on serious allegation of corruption against the applicant from long before the holding of the DPC in 1989." 4. Accordingly having regard to the Ministry of Railways Circular dated 21.9.88 and the decisions of the Supreme Court in Union of India vs. K.V. Jankiraman, AIR 1991 SC 2010 ; Union of India vs. Kewal Kumar, 1993 SCC (L&S) 744 and Delhi Development Authority vs. H.C. Khurana, 1993 (3) SCC 196 the Tribunal was "unable to hold that the respondents have committed any illegality in adopting the sealed cover procedure in connection with the promotion of the present application to the selection grade. Until and unless the departmental enquiry is completed, we cannot issue any direction upon the respondents to open the sealed cover and to give the applicant promotion with effect from the date his next junior has been given promotion and the action of the respondents to adopt the sealed cover procedure in this case cannot in any way be faulted in the facts and circumstances disclosed in this case." The application was accordingly dismissed. 5. In 1997, the petitioner filed an application for review of the order dated 26.8.93 on the ground that the earlier order wrongly recorded that the CBI had issued a charge sheet in 1988. 5. In 1997, the petitioner filed an application for review of the order dated 26.8.93 on the ground that the earlier order wrongly recorded that the CBI had issued a charge sheet in 1988. The application for review was dismissed on 20.3.98 stating ".......what the Tribunal had in mind was the FIR which was filed by the CBI and not the charge-sheet which obviously could not have been filed before the sanction for prosecution could be given" and holding that ".......the apparent error in the earlier part of the page 13 of the impugned judgment does not in any way materially affect the final outcome of the case and this cannot be treated as an error apparent on the fact of the record." 6. The petitioner then filed this writ application impugning the decisions of the Tribunal Dated 5th October, 1993 and 20th March, 1998 and asking for placement in the selection grade and for ad-hoc promotion. 7. A preliminary objection was taken by the respondents to the jurisdiction of this Court. It was submitted that the decision in L. Chandra Kumar vs. Union of India, 1997 (3) SCC 261 , operated prospectively and as such this Court did not have jurisdiction to entertain applications under Article 226 or 227 in respect of orders passed before the date of the decision in L. Chandra Kumar’s case. 8. The submission is unacceptable. The Supreme Court in L. Chandra Kumar affirmed the High court's powers under Articles 226 and 227 and made the approach to the High Court a precondition to the ventilation of grievances against orders of the Tribunal before the Supreme Court. To quote from paragraph 92 of the judgment "no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved patty can move the Supreme Court under Article 136 of the Constitution." 9. As several decisions of the Tribunal had already been challenged directly before the Supreme Court prior to the rendering of the decision in L. Chandra Kumar’s case, the Supreme Court was careful to protect those pending challenges by making its decision operate prospectively. As several decisions of the Tribunal had already been challenged directly before the Supreme Court prior to the rendering of the decision in L. Chandra Kumar’s case, the Supreme Court was careful to protect those pending challenges by making its decision operate prospectively. This is clear from paragraph 94 of the decision where it has been said "to maintain the sanctity of judicial proceedings, we have invoked the doctrine of prospective overruling so as not to disturb the procedure in relation to decisions already rendered". There was no intention to keep the previous procedure of directly approaching the Supreme Court in respect of any other matter. On the merits however we are of the view that the writ application must be dismissed. 10. The first submission of the petitioner was that the sealed cover procedure applied only to cases of promotion and not to grant of selection grade. The submission is contrary to the express statement of the law in Jankiraman's case (supra). "The 'sealed cover procedure' is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over." (Emphasis supplied). The words "et cetera" indicates benefits of a monetary nature and would include being placed in the selection grade. The point was also never argued before the Tribunal by the petitioner. 11. The second submission was that the sealed cover procedure could be resorted to only when the disciplinary proceedings were initiated and not when they were contemplated. Reliance has been placed on Union of India vs. Sudha Salah, AIR 1998 BC 1094 and State of Madhya Pradesh vs. Syed Naseem Zahir, AIR 1993 BC 1165 in this context. The petitioner has also relied on instructions issued by the Ministry of Railways with regard to the sealed cover procedure on 2.1.93 which has deleted clause (iv) of the instructions issued on 21.9.88 quoted earlier. 12. The petitioner has also relied on instructions issued by the Ministry of Railways with regard to the sealed cover procedure on 2.1.93 which has deleted clause (iv) of the instructions issued on 21.9.88 quoted earlier. 12. The submission is misconceived for several reasons : (a) No doubt on 2.1.93, in super session of all previous instructions, the Ministry of Railways issued a fresh instruction which allows the sealed cover procedure to be followed only when : "(i) Government servants under suspension; (ii) Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending; (iii) Government servants in respect of whom prosecution for a criminal charge is pending." These instructions do not have retrospective operation. By the time' they came into force, conditions (ii) and (iii) were both fulfilled in the case of the petitioner. (b) In Sudha Salhan’s case (supra) the Supreme Court was not considering guidelines such as those contained in clause (iv) of the 1988 instructions. It appears that the guideline in that case allowed for a sealed cover procedure only if disciplinary proceeding had been initiated or the employee was under suspension. 13. In any event in Union of India vs. Kewal Kumar [Civil Appeal No. 1584 of 1993 : Judgment dated 12th April, 1993] the words "initiation of disciplinary proceedings was given a wide interpretation." It was said : "The formulation of the charges required for implementing the decision of the competent authority to initiate the decision of the competent authority to initiate the disciplinary proceedings, is satisfied in such a case by the recording of the First Information Report by the Central' Bureau of Investigation which records the allegations against the respondent, and provides the basis for disciplinary proceedings. The requisite formulation of the charges, in such a case, is no longer nebulous, being crystallised in the FIR itself and, therefore, even if the charge sheet was issued by its despatch to the respondent subsequent to the meeting of the DPC this fact alone cannot benefit the respondent." 15.(c) Syed Naseem Zahir's case (supra) is similarly distinguishable. Significantly in that case, despite the fact that the sealed cover procedure was adopted wrongly, the Supreme Court directed it to continue because it was "difficult to ignore glaring facts in a given case and act mechanically". 16. Significantly in that case, despite the fact that the sealed cover procedure was adopted wrongly, the Supreme Court directed it to continue because it was "difficult to ignore glaring facts in a given case and act mechanically". 16. The Tribunal in its detailed judgment dated 26.8.93 had carefully considered the law, and facts and we see no reason to interfere with the reasoning on any principles of judicial review under Article 226 or supervision under Article 227. 17. The challenge to the order dated 26.8.93 is in any event grossly delayed. No arguments have been put forward in support of the challenge to the order dated 20.3.98 refusing to review the order dated 26.8.93. 18. A prayer was then made by the petitioner that this Court should direct the authorities and the CBI to conclude the proceedings expeditiously. There is no such prayer. Besides, the Departmental proceedings have continued apace. The Enquiry Officer's, report has been submitted. The Disciplinary Authority has disagreed with the Enquiry Officer and has forwarded his reasoning to the petitioner on 7.10.98. It does not appear that the petitioner has replied to this. As far as vigilance cases are concerned the CBI is not a party to these proceedings and as such no directive can be issued against it. For all these reasons the writ application is dismissed without any order as to costs. S.N. Bhattacharjee, J.: I agree. Writ application dismissed.