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2001 DIGILAW 313 (HP)

BIRBAL SINGH v. STATE OF HP

2001-11-02

NARINDER SINGH THAKUR

body2001
JUDGMENT Honble Mr. Narinder Thakur, Member (Judl.):- This original application has been filed by the applicant against impugned action of respondents, whereby they have not promoted the applicant to the post of Superintendent Grade-II in the pay scale of Rs. I 6400-10640/- despite the fact that the junior persons have been promoted. The applicant is seeking mainly the relief of quashing the impugned action of respondents, whereby they have not promoted the applicant w.e.f. 25.10.2000 when his juniors were promoted with further prayer to issue direction to respondents to issue promotion order of the applicant immediately w.e.f. 25.10.2000 by-granting all consequential benefits including interest @ 18% P.A. on the arrears of salary. 2. The facts germane to the present contraversy are that the applicant was promoted as Senior Assistant by the respondent department on 31-1-1987 and as per the seniority list issued by the respondents on 20.7.2000 (Annexure A-1) the name of the applicant finds mention at serial No. 53 with seniority number assigned as 21. 3. That the respondent No, 2 vide letter No. Ft. 43-29/92 (E-III) dated 7.9.2000 (Annexure A-2) has sought for the ACRs of the Senior Assistant from concerned department and the name of the applicant finds mention in this letter at Sr. No. 12. The Acrs of the applicant were sent by the office of the applicant to the respondent No. 2 on 13.9.2000 (Ann. A-3) and thereafter the Departmental Promotion Committee took place on 21-9-2000. 4. That however on 4-10-2000 (Ann. A-4) the respondent No. 3 has issued an office order whereby the applicant was placed under suspension. It is further contended that the respondent No. 3 is not competent to place the applicant under suspension nor has he informed to the appointing authority the circumstances in which the order was made by him. As such the suspension order is not sustainable in the eyes of law. It is also stated that no charge sheet has been issued to the applicant till the filing of the original application nor the contemplated enquiry has been ordered. 5. The respondent No. 2 vide order dated 25-10-2000 (Annexure A-5) has issued the promotion orders of senior assistant and has not promoted the applicant. The respondent No. 2 has not even given reasons for not promoting the applicant. 5. The respondent No. 2 vide order dated 25-10-2000 (Annexure A-5) has issued the promotion orders of senior assistant and has not promoted the applicant. The respondent No. 2 has not even given reasons for not promoting the applicant. The respondent No. 2 has not even considered the applicant for promotion presumably for the contemplated disciplinary proceedings, which has not been commenced till the filing of the original application. It is further stated that respondent No. 2 cannot withhold the promotion in this manner as no charge sheet has been issued to the applicant till the filing of the original application. As such an action on the part of respondent No. 2 is directly in contravention of the law laid down by the Honble Apex Court in AIR 1991 Supreme court 2010 titled as Union of India, etc. Vs. K.V. Jankiraman etc., wherein the Honble Apex Court has held as under. "6. On the first question, viz, as to when for the purpose of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings of a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/ charge-sheet it would not be in the interest of purity of administration to reward the employee with a promotion, increment etc., does not impress us. 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. 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 would 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 employee 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. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: (2).................................. (3).................................. (4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;" There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench-has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/ criminal proceedings are pending against the employee. To deny the said benefit they must be at the relevant time pending at the stage when charge-memo/ charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions. We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal." 6. It is further stated by the applicant that this Tribunal in OA-2128/ 98 titled as Sant Ram Vs. State of H.P. has also followed the law laid down by the Honble Apex Court cited above. We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal." 6. It is further stated by the applicant that this Tribunal in OA-2128/ 98 titled as Sant Ram Vs. State of H.P. has also followed the law laid down by the Honble Apex Court cited above. The said judgement of this Tribunal was even circulated by respondent No. 2 to all the concerned on 1.11.1999 (Annexure A-6), but he himself has not followed the same and therefore, such an action on the part of respondent No. 2 is not only arbitrary and illegal but also amounts to contempt of Court. 7. The applicant had made representation in this regard to the respondent No. 2 on 7.11.2000 (Annexure A-7, A-8, A-9, & A-10). The respondent No. 2 has not taken any decision on the said representations. The applicant has finally made representation to respondent No. 2 on 29.11.2000 (Annexure A-11) and the same was not decided. 8. In the counter filed by the respondent department it has been mainly pointed out that while the applicant was functions as Incharge Account Branch, Wild Life Division Kullu, a special audit of NORAD PROJECT1 was got conducted by the Planning Department through the Chartered Accountant for the Year 1999-2000 to expedite reimbursements. During the course of audit of the vouchers of R.O. Wild Life Manali, Wild Life Division Kullu the Case Memo No. 328690 dated 28.3.2000 and 328691 dated 29.3.2000 relating to the purchase of cement from H.P. State Civil Supply Corporation Manali were found tempered with. After ascertaining the facts, the case was registered with police vide Fir No. 152/2000 dated 7.9.2000 in compliance to the directions of Additional Principal Chief Conservator of Forests, H.P. received vide has D.O. letter dated 6.9.2000 (Annexure R-l & R-II Thereafter respondent No. 2 directed respondent No.3 vide his D.O. letter dated 19.9.2000 (Annexure R-III) to enquire into the matter and examine the role of Divisional Accountant. It reveals from the preliminary enquiry reports of respondent No.3 submitted to respondent No.2 vide his D.O. Letter dated 5.10.2000 (Annexure R-IV) aad dated 28.11.2000 (Annexure R-V). that 13 more Bills/Cash Memos were found tampered with in addition to two already pointed out by the Chartered Accountant, The applicant was found guilty of the Commission. It reveals from the preliminary enquiry reports of respondent No.3 submitted to respondent No.2 vide his D.O. Letter dated 5.10.2000 (Annexure R-IV) aad dated 28.11.2000 (Annexure R-V). that 13 more Bills/Cash Memos were found tampered with in addition to two already pointed out by the Chartered Accountant, The applicant was found guilty of the Commission. The applicant was found negligent in proper scrutiny of 15 cash memos/bills and failed to point out tempering and conspicuous cutting/ over writings thereon. Keeping in view the facts narrated above the applicant was placed under suspension vide office order dated 4-10-2000 (Annexure R-VI) by the respondent No.3. It is admitted that respondent department has not promoted the applicant for the contemplated departmental enquiry and result of his promotion has been kept in sealed cover. It is further contended that the promotion of the applicant was withheld because he was placed under suspension by respondent No.3 vide office order No. 46/ 2000 dated 4.10.2000 (Annexure R-VI) due to his involvement in disciplinary proceedings much before the promotion order of Superintendent Grade-III which were issued on 25.10.2000. There was a fool proof evidence of the complicity of the applicant in scrutinizing and recommending for sanction the fraudulent claims spread over a period of about one year at several months. The applicant failed to protect the Government interests by actively conniving before putting the Bills/Cash Memos for sanction. In view of all the facts, the D.P.C has rightly put the result of the applicant in sealed cover 9. It is also contended by the respondents that they adopted the sealed cover in pursuance of Item No. 16.32 (VII) Hand Book on Personnal Matters Vol. I (Second Edition) which provides that the sealed cover procedure is applicable to officers coming under cloud after holding of the D.P.C. but before promotion. 10. The matter being covered in OA-2128/98 with the consent of the parties. I have heard the learned Assistant Advocate General and learned counsel for the applicant and gone through the pleadings carefully. 11. The admitted facts are that the Departmental Promotion Committee taken place on 21.2.2k. It is admitted by the respondents in reply to para 6.3 of their reply. The matter being covered in OA-2128/98 with the consent of the parties. I have heard the learned Assistant Advocate General and learned counsel for the applicant and gone through the pleadings carefully. 11. The admitted facts are that the Departmental Promotion Committee taken place on 21.2.2k. It is admitted by the respondents in reply to para 6.3 of their reply. In para 6.4 of the reply it has further been stated that the applicant has been charge sheeted Vide Chief Conservator of Forests-cum- Chief Wild Life Warden, H.P. Hamirpur, Memorandum No.7013 dated 2.2.2001 (Annexure R-VIII), which was much later to the holding of D.P.C. on 21.9.2000. It is well settled by the Honble Apex Court in Jankiraman case supra that the sealed cover cannot be adopted until the charge sheet has been issued. As such the applicant has wrongly been deprived of legitimate right of promotion to the post of Superintendent Grade-II from the date his juniors were promoted from 25.10.2000. Many of the contentions in the reply are irrelevant to the present controversy. When no disciplinary proceedings were pending against the applicant and no charge sheet was served upon the applicant when D.P.C met, its recommendation I should not have been kept in the sealed cover in the light of above discussion. I allow the present original application and direct the respondents to open the sealed cover and grant the applicant all the consequential benefits from the due date within one month from the date of this order, if he is found fit by the DPC. With these observations the original application is finally disposed.