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Madhya Pradesh High Court · body

2007 DIGILAW 1241 (MP)

RAJ KISHORE JHA v. STATE OF M. P.

2007-12-03

ABHAY M.NAIK

body2007
Judgment ( 1. ) APPLICANT/petitioner was initially appointed in the year 1991 on the post of Block Development Officer in the Department of Panchayat and rural Development, Government of M. P. Certain complaints were received against the petitioner in the year 1995-96. After due enquiry punishment of stoppage of one increment for two years with non-cumulative effect has been awarded to him by respondent No. 1 vide order dated 1-8-1997 marked as annexure A/1. The appeal, preferred against the same, was dismissed by the deputy Secretary of Panchayat and Rural Development Department vide order dated 17-12-1998 contained in Annexure A/2. In the meantime, D. P. C. was held to consider the promotion of Block Development Officers to the post of additional Assistant Development Commissioner on 28-8-1998. Pursuant thereto the impugned promotion order vide Annexure A/4 was passed on 31-12-1998 promoting thereby certain juniors including respondent No. 4. Orders Annexures a/1 and A/2 were challenged initially before the M. P. State Administrative tribunal at Jabalpur in O. A. No. 158/00 whereas the order of promotion contained in Annexure A/4 has been challenged in O. A. No. 450/00 giving rise to the present writ petition. Return was submitted in O. A. No. 158/00 whose copy is on record as Annexure R/1. In paragraph 2 it has been clearly mentioned that the applicants name was not placed before D. P. C. for consideration as he was undergoing punishment at the relevant time when the D. P. C. met. Thus, D. P. C. was admittedly held on 28-8-1998 when the appeal against Annexure A/1 was pending before the Appellate Authority. In such situation the authorities ought to have been adopted the sealed cover procedure as prescribed by the Honble supreme Court in the case of Union of India etc. vs. K. V. Jankiraman etc. AIR 1991 SC 2010 . Since the order of punishment had not attained finality when the D. P. C. met, it was obligatory on the part of the respondents to adopt the sealed cover procedure as held by the Honble Supreme Court in paragraph 6 of its order which reads as under :-"6. On the first question, viz. AIR 1991 SC 2010 . Since the order of punishment had not attained finality when the D. P. C. met, it was obligatory on the part of the respondents to adopt the sealed cover procedure as held by the Honble Supreme Court in paragraph 6 of its order which reads as under :-"6. On the first question, viz. , as to when for the purposes 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 chargememo in a disciplinary proceedings or 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 the 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/chargesheet. 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. 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 " (1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official; (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. " ( 2. ) FURTHER, it may be seen that the orders contained in Annexures A/1 and a/2 i. e. punishment order and appellate order have been quashed by this Court on 11-3-2005 in W. P. No. 14541/03 (Old O. A. No. 158/00 ). Copy of this order is also on record. Thus, the reasons for which the petitioners name was not placed before the D. P. C. stood vanished on account of quashment of Annexures A/1 and a/2. Copy of this order is also on record. Thus, the reasons for which the petitioners name was not placed before the D. P. C. stood vanished on account of quashment of Annexures A/1 and a/2. Such quashment will have the effect of wiping out the allegations for which the disciplinary proceeding was initiated against him which further entitles him to be considered for promotion to the post of Additional Assistant Development commissioner. Had D. P. C. adopted the sealed cover procedure such a sealed cover could have been opened and implemented. Since the D. P. C. did not consider the petitioners name for promotion and he became entitled to be considered on account of quashment of Annexure A/1 and A/2. His case deserved to be considered even on 28-8-1998 though through sealed cover procedure. After quashment, he fully became entitled to be considered for promotion to the aforesaid post. Since he was not considered at the relevant time and has become now fully entitled, his case for promotion deserves to be considered by review D. P. C. ( 3. ) IN the result, the writ petition deserves to succeed and is accordingly allowed. Respondents are directed to convene the review D. P. C. within a period of three months from the date of receipt of certified copy of this order for consideration of the petitioner for promotion to the post of Additional Assistant development Commissioner. Needless to say that consequential benefits would follow the outcome of the review D. P. C. Petition, accordingly, stands allowed. No order as to costs. Petition allowed.