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Himachal Pradesh High Court · body

2014 DIGILAW 1044 (HP)

Rajinder Singh v. State of H. P.

2014-08-05

TARLOK SINGH CHAUHAN

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Judgment Tarlok Singh Chauhan, J. The petitioner was appointed as Forest Guard in the year 1985 and joined on 22.6.1985. In the year 1994, FIR No. 43/94 was registered against the petitioner and certain other persons by the Vigilance Department, which is still stated to be pending and most of the accused therein have either superannuated or expired. 2. The respondents made promotions vide order dated 13.6.2011 to the posts of Deputy Rangers and all the batch-mates of the petitioner as well as juniors of the petitioner has been promoted as Deputy Rangers. The petitioner vide his representation dated 4.10.2011 requested the authorities to grant him promotion, but to no avail. 3. By medium of this petition, the petitioner has prayed for writ of mandamus directing the respondents to promote the petitioner on and with effect from the date when his juniors were promoted alongwith all consequential benefits, since there was no charge framed nor was there any departmental inquiry pending against the petitioner. 4. The respondents filed the reply and claimed that inquiry and investigation in FIR No. 43/94 has now been completed and petitioner has been held responsible for large scale illicit felling causing loss of Rs.9,21,333/- and the government of Himachal Pradesh through its Additional Secretary (Forest) vide report No. FEE-AE/2553/2011 dated 21.1.2012 has recommended to prosecute the petitioner in the court of law for the said offence. It has further been stated that it was wrong on the part of the petitioner to state that neither any charges were framed nor any departmental inquiry was pending against the petitioner when his promotion was withheld on 13.6.2011, because investigation and inquiry in FIR No. 43/93 and the departmental inquiry for the charges leveled under Rule 14 of CCS & CCA Rules vide charge-sheet dated 18.4.2011 was pending against the petitioner on the date of promotion when his counterparts were promoted. 5. I have heard Sh. Sanjeev Bhushan, Advocate, learned counsel for the petitioner and Ms. Parul Negi, learned Deputy Advocate General for the respondents. 5. I have heard Sh. Sanjeev Bhushan, Advocate, learned counsel for the petitioner and Ms. Parul Negi, learned Deputy Advocate General for the respondents. Admittedly, the DPC on the basis of which promotions were made on 13.6.2011 was in fact convened on 27.2.2010 and on such day neither any charges had been framed nor any departmental inquiry was pending against the petitioner, because it is only on 21.1.2012 that Additional Secretary (Forest) has made recommendations to prosecute the petitioner in the court of law in connection with FIR No. 43/94 and in so far as the departmental proceedings are concerned, admittedly, the chargesheet for the first time has been issued on 18.4.2011. Thus there was no occasion for the respondents to have not promoted the petitioner or resorted to sealed cover procedure. 6. It is trite law that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in the 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. If the allegations are serious and the authorities are keen in investigating them then ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further if the charges 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. But in no event can the promotion 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 been issued to the employee. 7. The law with regard to resorting to sealed cover procedure is more than settled and reference can conveniently be made to the celebrated decision of Hon’ble three Judges’ Bench of Hon’ble Supreme Court in Union of India, etc. etc. vs. Jankiraman, etc. etc. AIR 1991 SC 2010 , wherein it was held as follows:- “6. 7. The law with regard to resorting to sealed cover procedure is more than settled and reference can conveniently be made to the celebrated decision of Hon’ble three Judges’ Bench of Hon’ble Supreme Court in Union of India, etc. etc. vs. Jankiraman, etc. etc. AIR 1991 SC 2010 , wherein it was held as follows:- “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 charge-memo 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/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. 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. We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal.” 8. For the reasons stated above, I find merit in the petition and accordingly, the same is allowed the respondents are directed to promote the petitioner from the date when his juniors were promoted i.e. with effect from 13.6.2011 including all consequential benefits and not restricted pay arrears and seniority etc. within a period of two months, failing which the respondents shall be liable to pay arrears alongwith interest at the rate of 9% per annum.