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2005 DIGILAW 295 (GAU)

Chanu Das v. State of Tripura

2005-04-07

R.B.MISRA

body2005
JUDGMENT R.B. Misra, J. 1. I have heard Mr. P.K. Biswas and Mr. S. Bhattachaijee, learned Counsels for the Petitioner. I have also heard Mr. T.D. Majumder, learned Counsel for the Respondents. 2. In this present writ petition the prayer has been made for issuance of writ in the nature of Mandamus to open the sealed cover kept by the Departmental Promotion Committee in the year 1997 and also consequential the service benefits to the Petitioner. 3. The main point of adjudication in the present writ petition is that whether after acquittal of incumbent from the criminal offences in a trial by the Trial Court/Sessions Court and after being exonerated from the charges in the Departmental Proceedings, the Petitioners case of promotion kept in sealed cover after considering him by the Departmental Promotion Committee could be opened or not or it may wait the outcome of Criminal Appeal preferred by the State Government in the High Court against his acquittal? 4. The facts necessary for adjudication of the writ petition in conspectus are that the Petitioner was appointed as Sub-Inspector of Police on 9.9.1981 by the State of Tripura and was shown at Sl. No. 89 in the Gradation list on 1.12.1995 and at Sl. No. 3 in the Seniority List of Scheduled Caste category candidates. The Petitioner was expecting his promotion and submitted several representations, however, no outcome was communicated to him despite his representation on 23.11.1998. On 1.12.1998 the Petitioner was informed by the Respondents that due to pendency of Departmental proceeding against him and for his alleged involvement and implication in murder case, his case for promotion has been kept in a sealed cover. A criminal case was pending and Criminal Appeal Case No. ST 96(WT/A)90 was being adjudicated against him. It appears that the Petitioner was acquitted by the learned Trial Court on 23.12.1999 in absence of any evidence and on merits, however, the State of Tripura has preferred a Criminal Appeal No. 32 of 2000 in High Court against such acquittal which is pending for consideration. During pendency of Criminal Appeal above mentioned a Departmental Proceeding was also processed where too the Petitioner was exonerated. The Petitioner on earlier occasion has preferred Writ Petition No. W.P. (C) 611 of 2001 seeking directions to the Respondents to communicate the result of the Departmental proceedings. During pendency of Criminal Appeal above mentioned a Departmental Proceeding was also processed where too the Petitioner was exonerated. The Petitioner on earlier occasion has preferred Writ Petition No. W.P. (C) 611 of 2001 seeking directions to the Respondents to communicate the result of the Departmental proceedings. In compliance to the order dated 27.5.2002 passed by this Court in W.P. (C) No. 611 of 2001, the Petitioner was informed by letter No. 1653 dated 30.9.2003 that the Petitioner was exonerated from all the charges levelled against him. The Petitioner had filed the present writ petition for directing the Respondents to open the sealed cover of the Departmental Promotion Committee. 5. The Petitioner referred the Office Memorandum No. 22011/4/91-Estt (A), dated 14.9.1992 by which the Government of India issued a guideline on the subject of promotion of Government servants against whom disciplinary Court proceedings are pending. The Petitioner also has referred and relied the State of Tripura's Memo No. F. 23(16)-GA/91, dated 8.4.1993 adopting the above said Govt. of India's Office Memorandum. 6. It has been argued on behalf of the learned Counsel for the Petitioner that the Petitioner was not found guilty of the criminal offences on merits and was given benefit of doubt in the criminal case by the trial Court and was also fully exonerated from the alleged charges in the departmental proceedings, therefore, his case for promotion kept in sealed cover is to be opened now and consequential benefits are to be extended to him accordingly. 7. It has been contended on behalf of the Petitioner that the Departmental Promotion Committee was convened in the year 1995 where the Petitioner's case was kept in sealed cover and the same was to be only opened after the acquittal of the Petitioner from the criminal charges in the criminal trial or after being exonerated from all the charges in departmental proceedings. Though the criminal appeal ended in the acquittal, against which State's Criminal Appeal No. 32/2000 in the High Court, is still pending adjudication. As such the Petitioner cannot be said to have been absolved from the offences despite the fact that the trial Court has given him benefit of doubt. Though the criminal appeal ended in the acquittal, against which State's Criminal Appeal No. 32/2000 in the High Court, is still pending adjudication. As such the Petitioner cannot be said to have been absolved from the offences despite the fact that the trial Court has given him benefit of doubt. Criminal Appeal is integral part and sequence of criminal trial till discharge in the criminal appeal by the High Court, the benefit of doubt from the alleged offences cannot be said to be complete and final in favour of the Petitioner. In this circumstances, the Respondents cannot be directed to open the sealed cover of the decision of the DPC in respect of promotion of the Petitioner. 8. On the other hand the learned Counsel for the Petitioner has referred and relied upon the following decisions: (1) 1994 Suppl. (3) SCC 674 Para 2, Salekh Chand and Salek Chand v. Commissioner of Police and Ors. (2) AIR 1991 SC 2010 Para 7, Union of India v. Janakiraman. (3) AIR 1995 SC 2407 Para 14, Bank of India v. Degala Suryan Avayana. (4) AIR 2000 SC 2767 Para 2, Delhi Jal Board v. Mahinder Singh. 9. It has been argued on behalf of the Petitioner that the Office Memorandum dated 14th September, 1992 of Government of India has been adopted by State of Tripura on 8.4.1993 which does not contemplate that once the Petitioner has been acquitted from the criminal charges by the trial Court, the same shall not be treated to be final acquittal from criminal offences in the criminal prosecution till criminal appeal, if any preferred by the State is finally adjudicated upon. 10. According to the learned Counsel for the Petitioner, if a criminal appeal is not decided in decades to come, in that case, the purpose and spirit of Office Memorandum above mentioned shall be redundant. Once the employee is acquitted on merits by giving him benefit of doubt by the Trial Court/Sessions Court, he shall be absolved from the charges and shall be treated to have been acquitted for the purpose of opening sealed cover of his promotion and the period during pendency of criminal appeal shall not come in the way. For convenience, relevant portion of Office Memorandum dated 14th September, 1992 is produced below: 2. For convenience, relevant portion of Office Memorandum dated 14th September, 1992 is produced below: 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 a charge sheet has been issued and the disciplinary proceedings are pending; and (iii) Government servants in respect of whom prosecution for a criminal charge is pending. 5.2. After a decision is taken to promote a Govt. servant on an ad-hoc basis an order of promotion may be issued making it clear in the order itself that: (i) The promotion is being made on purely ad-hoc basis and the ad-hoc promotion will not confare any right for regular promotion, and (ii) The promotion shall be until further orders. It should also be indicated in the orders that the Government reserve the right to cancel the ad-hoc promotion and revert at any time the government servant to the post from which he was promoted. 5.3. If the Government servant concerned is acquitted in the criminal prosecution on the merits of the case or fully exonerated in the departmental proceeding the ad-hoc promotion already made may be confirmed and the promotion treated as a regular one from the date of the ad-hoc promotion with all attendant benefits. In case the Government servant could have normally got his regular promotion from a date prior to the date of his ad-hoc promotion with reference to his placement in the DPC proceedings kept in the sealed cover (s) and the actual date of promotion of the persons ranked immediately junior to him by the same DPC, he would also be allowed his due seniority and benefit of notional promotion as envisaged in Para-3 above. 5.4. If the Government servant is not acquitted on merits in the criminal prosecution but purely on technical grounds and Government either proposes to take up the matter to a higher court or to proceed against him departmentally or if the government servant is not exonerated in the departmental proceedings, the ad-hoc promotion granted to him should be brought to an end. 11. 11. In K.V. Jankiraman (Supra) it has been observed by the Hon'ble Supreme Court as below: It is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee 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. The plea 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 the purity of administration to increment etc., would not be in the interest of the purity of administration to reward the employee with a promotion, 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 should not take much time to collect the relevant evidence and finalise the charge. 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 to resort to the sealed cover procedure. The authorities thus are not without a remedy. 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. When an employee is completely exonerated in criminal/disciplinary proceedings and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post. The normal rule of "no work no pay" is not applicable to such cases where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. The normal rule of "no work no pay" is not applicable to such cases where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases. There may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide, whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. Therefore to deny the salary to an employee would not in all circumstances be illegal. Supreme Court did not approve last sentence in the first sub-paragraph after CI. (iii) of paragraph 3 of the said Memorandum, viz. "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", and directed that in place of the said sentence the following sentence be read in the Memorandum: However, whether the officer concerned will be entitled to any arrears of pay for die period of notional promotion proceeding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. 12. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. 12. In Sulekh Chand and Salek Chand (Supra) it has been observed by the Hon'ble Supreme Court as below: Once the acquittal was on merits the necessary consequence would be that the delinquent is entitled to reinstatement as if there is no blot on his service and the need for the departmental enquiry is obviated. The material on the basis of which his promotion was denied was the sole ground of the prosecution under Section 5(2) and that ground when did not subsist, the same would not furnish the basis for DPC to overlook his promotion. Moreover, since the departmental enquiry was itself dropped the very foundation on which the DPC had proceeded is clearly illegal. The Appellant is entitled to the promotion with effect from the date his immediate junior was promoted with all consequential benefits. 13. In Degala Suryanarayana (Supra) it has been observed by the Hon'ble Supreme Court as below: 14. However, the matter as to promotion stands on a different footing and the judgments of the High Court have to be sustained. The sealed cover procedure is now a well established concept in service jurisprudence. The procedure is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him and hence the findings as to his entitlement to the service benefit of promotion, increment etc. are kept in a sealed cover to be opened after the proceedings in question are over See Union of India v. K.V. Janakiraman AIR 1991 SC 2010 , 2113. As on 1.1.1986 the only proceedings pending against the Respondent were the criminal proceedings which ended into acquittal of the Respondent wiping out with retrospective effect the adverse consequences, if any, flowing from the pendency thereof. The departmental enquiry proceedings were initiated with the delivery of the chargesheet on 3.12.1991. In the year 1986-87 when the Respondent became due for promotion and when the promotion committee held its proceedings, there were no departmental enquiry proceedings pending against the Respondent. The sealed cover procedure could not have been resorted to nor could the promotion in the year 1986-87 withheld for the D.E. proceedings initiated at the fag end of the year 1991. The sealed cover procedure could not have been resorted to nor could the promotion in the year 1986-87 withheld for the D.E. proceedings initiated at the fag end of the year 1991. The High Court was therefore right in directing the promotion to be given effect to which the Respondent was found entitled as on 1.1.1986. In the facts and circumstances of the case, the order of punishment made in the year 1995 cannot deprive the Respondent of the benefit of the promotion earned on 1.1.1986. 14. In Mahinder Singh (Supra) the Hon'ble Supreme Court has observed as below: 2. The learned single judge of the High Court accepted the writ Petitioner's contention following two judgments of this Court reported in (1999) 5 SCC 762 : AIR 1999 SC 2407 ; Bank of India v. Degala Suryanarayana and in (1998) 4 SCC 154 : AIR 1998 SC 1833 ; State of A.P. v. N. Radhakrishnan and allowed the writ petition. It was held that once the first disciplinary inquiry resulted in favour of the writ Petitioner, the benefit of the fillings of DPC in the sealed cover should be given to the writ Petitioner notwithstanding the pendency of a second inquiry. In the two judgments of this Court which were followed by the learned single Judge, it was held that if a person's case had been considered for promotion by the Departmental Promotional Committee and because of pendency of certain charges, the findings of DPC were kept in a sealed cover, he was entitled to the benefit of the findings of the selection. If they were in his favour if the disciplinary inquiry ended in his favour, notwithstanding the fact that by the date, some other enquiry might have been pending against him. 15. I have heard learned Counsels for the parties. If they were in his favour if the disciplinary inquiry ended in his favour, notwithstanding the fact that by the date, some other enquiry might have been pending against him. 15. I have heard learned Counsels for the parties. I find that the case of the Petitioner for promotion was considered way back in the year 1996 where the case of the Petitioner was kept in sealed cover and in the outcome of the criminal trial as well as the Departmental proceedings the Petitioner was acquitted and exonerated since the Petitioner has been given benefit of doubt in respect of the criminal charges by the Sessions Court/Trial Court on merits and has also been fully exonerated from the allegations in the Departmental proceedings then for the purpose of extending the benefit of Office Memorandum dated 14.9.1992 of Govt. of India and in consequence thereof the Office Memorandum dated 8.4.1993 of State of Tripura, pendency of Criminal Appeal, if any, of the State Government shall not come in the way. 16. Clause 5.3 of Office Memorandum dated 14.9.1992 simply contemplates that if a Government servant is acquitted in criminal prosecution on merits or is fully exonerated in the Departmental proceedings, then the sealed cover kept by the Departmental Committee shall be opened and the employee has to be given the promotion in terms of the outcome indicated in the sealed cover and from the date their immediate juniors are promoted along with due seniority and other benefits. Since the Petitioner has been acquitted in the criminal trial and is also fully exonerated from the Departmental proceedings, therefore, the case of promotion kept in sealed cover is to be opened. Therefore, Mandamus is issued to the Respondents to open the case of the Petitioner kept in sealed cover preferably within one month and consequent upon the outcome of sealed cover, the Petitioner shall be given consequential benefit in service and since the Petitioner has not discharged any service on the promotional post, therefore the Petitioner is not entitled to any pay and allowances of the promotion post but, he is entitled to the seniority from the date of promotion. In view of the above observations the point of adjudication in the present writ petition is dealt with accordingly. 17. In view of the aforesaid observations, the writ petition is allowed. No order as to cost. Petition allowed.