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2013 DIGILAW 1061 (AP)

Kartar Singh v. Bharat Dynamics Ltd.

2013-11-22

DAMA SESHADRI NAIDU

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ORDER Dama Seshadri Naidu, J. 1. By the time of filing the writ petition, the petitioner was working as Sub-Inspector (Fire) in the respondent organisation. The respondent authorities proposed to revert the petitioner from the said post to that of the Assistant Sub-Inspector (Fire) on the ground of pendency of a criminal case. Towards the said objective, the authorities issued a show cause notice, dated 26-06-2007 to the petitioner seeking his explanation as to why he should not be reverted. Assailing the said notice, the petitioner filed the present writ petition. The facts in brief are that the petitioner joined the 1st respondent service on 18.09.1990 as driver/head constable. He was subsequently promoted notionally as Asst., Sub-Inspector w.e.f. 22.03.1996 through orders issued in November, 2003. Later, the petitioner's case was considered for promotion to the post of Sub-Inspector (Fire Cadre) in the year 2004 for the panel year of 2001. In fact he was promoted with effect front 23.07.2001. 2. When the petitioner was working as the Sub-Inspector the 1st respondent issued a show-cause notice, dated 26.06.2007 calling upon the petitioner to explain as to why he should not be reverted back to the Assistant Sub-Inspector (Fire). As a matter of clarification, in the said show cause notice it was stated that the service rendered by the petitioner in the post to which he was wrongly promoted Would not be reckoned for the purpose of increment or any other purpose in the grade/post to which he would not have been normally promoted, but for the erroneous promotion/appointment. The tenor of the show cause notice essentially is that the case of the petitioner can only be considered for promotion to the rank of SI/Fire after the finalisation of pending criminal proceedings. 3. The crux of the issue was that an accident took place on 16.12.1996 at about 3-10 p.m., near Red Fort, New Delhi, when the petitioner was driving a truck bearing registration No. UP 14F 2459. The accident resulted in the death of a scooterist. 3. The crux of the issue was that an accident took place on 16.12.1996 at about 3-10 p.m., near Red Fort, New Delhi, when the petitioner was driving a truck bearing registration No. UP 14F 2459. The accident resulted in the death of a scooterist. Holding the petitioner guilty of rash and negligent driving a crime was registered by the Delhi Police in F.I.R. No. 1497 of 1996 under Sections 279 and 304-A of I.P.C. It is further revealed that simultaneously an enquiry was conducted by the department and held that the said accident took place only due to negligence and carelessness of the deceased himself and that the petitioner was not responsible for the accident and the resultant death of the deceased. It appears that only in the light of the departmental enquiry, the petitioner was considered for promotion and was accordingly promoted. 4. Based on the above facts, the learned counsel for the petitioner has contended that despite the clean chit given by the departmental authorities, the impugned show cause notice has come to be issued seeking reversion of the petitioner on the ground that the Criminal proceedings were pending against him. It is further contended by the learned counsel that it is not a mere show cause notice but a final order of reversion in disguise and that calling for an explanation is a mere formality. In other words, the respondent authorities have already prejudged the issue and declared that the petitioner's promotion was wrongly given and that he should be reverted. According to the learned counsel, since the proposed action of the respondents is a fait accompli, no purpose would be served by submitting an explanation on the part of the petitioner. 5. The learned counsel has contended that the accident took place in 1996 and the petitioner was completely exonerated in a duly held departmental enquiry. The promotion that had been given to the petitioner was due to him in terms of the seniority. The learned counsel has further contended that the petitioner was promoted by the DPC after finding him to be fit for the promotional post. Since the petitioner has been working in the promotional cadre for the last more than three years, there cannot be a review of the decision by DPC at this length of time. The learned counsel has further contended that the petitioner was promoted by the DPC after finding him to be fit for the promotional post. Since the petitioner has been working in the promotional cadre for the last more than three years, there cannot be a review of the decision by DPC at this length of time. It is the contention of the learned counsel for the petitioner that there has been no suppression of any material fact at any point of time. Accordingly the learned counsel has urged the court to quash the said notice, dated 26.06.2007 and issue further consequential directions in that regard. 6. Per contra, the learned standing counsel, in tune with the averments made in the counter affidavit filed by the respondent authorities, has strenuously opposed the claims and contentions of the petitioner. It has been specifically contended that the fact of pendency of criminal case was not brought to the notice of DPC. The learned standing counsel has further submitted that, in terms of the regulations governing the service conditions of the petitioner, if there is any criminal proceeding pending against an employee, his promotion should be kept in a sealed cover and be given effect to only after the conclusion of the said criminal proceedings. 7. The learned counsel for the Central Government has raised a preliminary objection as to the very maintainability of the writ petition against a show cause notice. 8. Heard the learned counsel for the petitioner and the learned counsel for the Central Government, apart from perusing the record. 9. Addressing the preliminary objection raised by the respondents as to the maintainability of writ petition against a show cause notice, it may have to be stated that in view of the subsequent developments, the said objection has now become quite academic. The record reveals that initially this Court granted stay on 16.07.2007 in W.P.M.P. No. 18233 of 2007 suspending the operation of the show cause notice and the same was challenged in W.A. No. 754 of 2011. A Division Bench of this Court, however, dismissed the said appeal confirming the interim direction of the learned single Judge, which was quite elaborate in considering all the aspects that have gone into the initiation of the proceedings by the respondents. 10. A Division Bench of this Court, however, dismissed the said appeal confirming the interim direction of the learned single Judge, which was quite elaborate in considering all the aspects that have gone into the initiation of the proceedings by the respondents. 10. Be that as it may, since the solitary contention on the part of the respondents is that the petitioner should not have been provided with promotion pending the criminal proceedings, the writ petition could be disposed of by answering the said submission taking into account the subsequent developments. The learned counsel for the petitioner has placed on record today a copy of the judgment dated 13.04.2012 in F.I.R. No. 1497 of 1996 on the file of Ms. Charu Aggarwal: MM(05): North District, Tis Hazari Court, Delhi. A perusal of the said judgment indicates that the petitioner, being an accused therein for the offences punishable under Sections 279 and 304-A of I.P.C., was acquitted of all the charges. Thus, as the very substratum of the case of the respondents has been removed, it has inevitably to fall to the ground. Now the show cause notice is robbed of its force and vitality in the light of the subsequent developments as have been stated above. No longer does the need survive to keep the name of the petitioner in the sealed cover or to effect reversion until the conclusion of the criminal proceedings, which indeed stood concluded. The whole issue thus has become academic and the very contention of the respondents stands answered in the form of clean acquittal by a competent court. In the light of the above observations, the writ petition is allowed by setting aside the impugned show cause notice No. V-15014/CISF/BDL(KB)/Disc/07-2774, dated 26.06.2007, which in any event does not survive in the light of the above developments. No order as to the costs. As a sequel, miscellaneous petitions, if any pending in this writ petition, shall stand closed.