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Gujarat High Court · body

2014 DIGILAW 11 (GUJ)

PURUSHOTTAM K. MAKWANA v. STATE OF GUJARAT

2014-01-07

C.L.SONI

body2014
JUDGMENT 1. The petitioner who is serving as Assistant Commissioner of Commercial Tax has filed this petition under Article 226/277 of the Constitution of India praying to issue direction to the respondents to consider his case for promotion to the post of Deputy Commissioner of Commercial Tax on the basis of the recommendation of the Departmental Promotion Committee (DPC) dated 19.10.2011. 2. The case put up by the petitioner in his petition is that one FIR came to be lodged, being C.R. No.I-6 of 2004, before Bhuj ACB Police Station against 27 persons, including the petitioner for the offences under Sections 120(B), 406, 409, 420, 465, 468, 471, 34, 114, 201 of the Indian Penal Code and Sections, 7,12, 13(1)(C)(D) and 13(2) of the Prevention of Corruption Act. The petitioner has averred in the petition that even after lodgment of the FIR in the year 2004, he came to be promoted to the post of Assistant Commissioner of Commercial Tax on 20.12.2006 from the post of Sales Tax Officer. It is his further case that the police has not filed charge-sheet in connection with the aforesaid FIR. It is averred by the petitioner that the DPC met on 19.10.2011 for considering the cases of eligible employees for promotion to the post of Deputy Commissioner of Commercial Tax and the DPC found him fit for promotion and recommended his name for promotion. It is further averred that even the Gujarat Public Service Commission (GPSC) also cleared his name for promotion. The petitioner has further averred that on the basis of the recommendation of the DPC, all eligible employees were issued promotion orders on 10.7.2012, however, the petitioner was denied the benefit of such order on the ground that the department could get sanction to prosecute him in respect of the offences alleged in the FIR. The petitioner has raised contention in the petition that since there was no charge-sheet filed by the police when the DPC considered his case with other employees, he could not have been denied promotion to the higher post. In support of such contention, the petitioner has placed reliance on a decision of the Hon’ble Supreme Court in the case of Union of India and others Vs. K.V. Jankiraman and others. reported in AIR 1991 SC2010. 3. In support of such contention, the petitioner has placed reliance on a decision of the Hon’ble Supreme Court in the case of Union of India and others Vs. K.V. Jankiraman and others. reported in AIR 1991 SC2010. 3. The petition is opposed by affidavit-in-reply on behalf of respondent No.1 stating that the DPC had considered 58 Assistant Commissioners, including the petitioner, for promotion and the petitioner was found fit for promotion. It is further stated that even the GPSC agreed with the opinion of the DPC vide its communication dated 31.1.2012, however since the department granted sanction to prosecute the petitioner, the name of the petitioner was dropped for promotion given vide order dated 10.7.2012 as per the provisions of para 3(3) of the Government Resolution dated 4.8.2007. It is stated that the Vigilance Commission had recommended for giving sanction to prosecute the petitioner and the Government after due consideration granted approval on 2.7.2012 for prosecution of the petitioner. It is further stated that the petitioner was given promotion to the post of Assistant Commissioner even after lodging of the FIR in 2004 because at the relevant time, there was no sanction granted by the Government to prosecute the petitioner. In further affidavit-in-reply, it is stated that the Anti Corruption Bureau had written a letter for sanction of the prosecution on 18.2.2011 and on the basis of such letter, the Vigilance Commission recommended for prosecution by its letter dated 29.3.2011 and it was, thereafter, the DPC met on 19.10.2011. Therefore, since the procedure for sanction was going on and since charge-sheet could be filed subsequently on 10.10.2012, the case of the petitioner for promotion could not be considered on account of such sanction given for prosecution of the petitioner. It is also stated that though the Anti Corruption Bureau had recommended to the department to suspend the petitioner, however instead of suspending the petitioner, the department transferred him. 4. The petitioner who has appeared in person submitted that the FIR was lodged in the year 2004 and thereafter, in 2006, he was promoted to the post of Assistant Commissioner of Commercial Tax. He submitted that for about eight years, neither sanction was obtained for prosecution nor charge-sheet was filed by the police. The petitioner submitted that when the DPC met to consider his case with other employees on 19.10.2011, neither sanction was granted to prosecute him nor charge-sheet was filed. He submitted that for about eight years, neither sanction was obtained for prosecution nor charge-sheet was filed by the police. The petitioner submitted that when the DPC met to consider his case with other employees on 19.10.2011, neither sanction was granted to prosecute him nor charge-sheet was filed. He further submitted that he has neither been suspended nor even any departmental inquiry is initiated against him. The petitioner has placed reliance on the decision in the case of K.V. Jankiraman (supra) so as to urge that when the DPC has considered his case since no charge-sheet was filed in connection with the FIR, no prosecution could be said to have been pending against him and therefore, he could not have been denied promotion relying on the resolution dated 4.8.2007 of the Government of Gujarat. The petitioner submitted that he has been denied promotion on wrong interpretation of the said resolution. He submitted that even as per the resolution dated 4.8.2007, he was entitled to be considered for promotion as by the said resolution, procedure for sealed cover was to be adopted by DPC if prosecution for criminal charge was pending on the date when DPC met. He submitted that simple lodging of the FIR without there being any further step for filing charge-sheet, could not be treated as prosecution for criminal charge on the date when the DPC met. He thus urged to allow his petition and direct the respondents to accord him promotion from deemed date when his juniors were promoted on the basis of the recommendation of the DPC dated 19.10.2011. 5. Learned Assistant Government Pleader Mr. Ronak Raval for the respondents submitted that much before the DPC met, the Vigilance Commission recommended for giving sanction to prosecute the petitioner on the basis of the FIR lodged against him. Mr. Rawal submitted that though sanction by the Government could be given after DPC met, however the same would not make any difference when ACB had already commenced steps for getting sanction prior to meeting of the DPC. Mr. Rawal submitted that charge-sheet in connection with the FIR could not be filed by the police on account of delay in getting sanction and therefore, in the facts of the case, it could not be said that there was no prosecution for criminal charge against the petitioner when DPC met. Mr. Mr. Rawal submitted that charge-sheet in connection with the FIR could not be filed by the police on account of delay in getting sanction and therefore, in the facts of the case, it could not be said that there was no prosecution for criminal charge against the petitioner when DPC met. Mr. Rawal submitted that now when sanction is given to prosecute the petitioner, the department is justified in dropping the name of the petitioner for promotion by placing reliance on the resolution dated 4.8.2007. He thus urged not to grant any relief to the petitioner. 6. Having heard the petitioner in person and learned Assistant Government Pleader Mr. Raval for the respondents and having perused the record of the petition, it appears that the petitioner is one of the accused as per the FIR at Annexure-A lodged on 12.9.2004 for the offences referred above. However, even after the FIR was lodged, the petitioner came to be promoted to the post of Assistant Commissioner of Commercial Tax. There is no dispute about the fact that for about eight years, the charge-sheet in connection with such FIR was not filed by the police and in the meantime, DPC met on 19.10.2011. There is also no dispute about the fact that the DPC found the petitioner fit for promotion with other 57 Assistant Commissioners. The GPSC also agreed with the opinion of the DPC vide its communication dated 31.1.2012. There is also no dispute about the fact that as on 19.10.2011, neither the charge-sheet was filed nor sanction was obtained by the department to prosecute the petitioner. Learned Assistant Government Pleader Mr. Rawal however submitted that since the procedure for getting sanction was initiated prior to meeting of the DPC and since such sanction was later on granted vide order dated 2.7.2012, prosecution for the criminal charge against the petitioner could be said to have been pending against the petitioner when DPC met. Mr. Rawal placed reliance on para 3(3) of the Government Resolution dated 4.8.2007 annexed with the affidavit- in-reply by the respondents as Annexure-I (page 42). At this stage, following paragraphs from the resolution dated 4.8.2007 need to be referred which are reproduced hereinbelow:- “2. The Hon’ble supreme Court of India has, in the case of Union of India V/s. K.V. Jankiraman etc. At this stage, following paragraphs from the resolution dated 4.8.2007 need to be referred which are reproduced hereinbelow:- “2. The Hon’ble supreme Court of India has, in the case of Union of India V/s. K.V. Jankiraman etc. ( AIR 1991 SC 2010 ), held that the disciplinary proceedings or prosecution against Government employee/ officer should be treated to have commenced only from the date of issuance of chargesheet (in the case of Departmental Inquiry) or from the date of filing of chargesheet in the appropriate Court of Law (in the case of prosecution) and not from any earlier stage, and that the “sealed cover procedure” should be resorted to only if the chargesheet has been issued to the concerned Government employee/ officer in the case of a Departmental Inquiry or the chargesheet has been filed in the appropriate Court of Law in the case of prosecution, on or before the date of meeting of the Departmental Promotion Committee. 3. In light of the above referred to judgments of the Apex Court, the instructions regarding following of the “sealed cover procedure” need to be amended suitably. Therefore, in amplification of the general instructions/ guidelines issued by the Government in GAD from time to time on the subject of “sealed cover procedure” to be followed by the DPC, it is clarified that at the time of consideration of the cases of Government employees/ officers, the “sealed cover procedure” shall be followed by the concerned DPC only in the cases falling under one of the following categories:- (1) Government employee/ officer under suspension; (2) Government employee/ officer in respect of whom a chargesheet has been issued and the disciplinary proceedings are pending; and (3) Government employee/ officer in respect of whom prosecution for a criminal charge is pending.” 7. Considering the contents of above paragraphs, the contention raised by learned Assistant Government Pleader Mr. Rawal cannot be accepted. As per para 2 of the resolution, the prosecution for criminal charge could be treated to have commenced from the date of filing of the charge-sheet. Undisputably, no charge-sheet was filed when the DPC met. Therefore, it could not be said that prosecution for criminal charge was pending against the petitioner on the day when DPC met. As per para 2 of the resolution, the prosecution for criminal charge could be treated to have commenced from the date of filing of the charge-sheet. Undisputably, no charge-sheet was filed when the DPC met. Therefore, it could not be said that prosecution for criminal charge was pending against the petitioner on the day when DPC met. In that view of the matter, the respondents were not justified in denying the benefit of promotion to the petitioner by placing reliance on para 3(3) of the resolution dated 4.8.2007. 8. It is nowhere found in the resolution nor even learned Assistant Government Pleader Mr. Rawal could point out any law that obtaining of sanction subsequently to prosecute an employee could be treated as pending prosecution for criminal charge against an employee on the day when his case is being considered by DPC for promotion. Learned Assistant Government Pleader Mr. Rawal also failed to point out any law to establish that if steps are taken for getting sanction to prosecute the Government employee for criminal charge prior to meeting of the DPC, same should be considered as pending prosecution when DPC met. In absence of any resolution or law pointed out, the Court needs to give effect to the provision made in the resolution dated 4.8.2007, as per which the prosecution for criminal charge could be said to be pending after the charge-sheet is filed. 9. In the case of K.V.Jankiraman(supra), the Hon’ble Supreme Court has held and observed in para 16 and 17 as under:- “16. 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 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. 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;" 17. 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. 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.” 10. It is not the case of the respondents that the petitioner is responsible for delay of about 8 years in filing the charge-sheet by the police nor even getting sanction at much belated stage. The petitioner is neither suspended nor even departmental inquiry is initiated against the petitioner. Therefore, in light of the principles of law settled by the Hon’ble Supreme Court in the above-referred cases and for above stated reasons, this Court is of the view that the petition is required to be allowed. However, the petitioner could be granted notional benefits of promotion with effect from the date his juniors were promoted till he is actually promoted. 11. In the result, the petition is allowed. The respondents are directed to consider the case of the petitioner on the basis of the recommendation of the DPC pursuant to its meeting dated 19.10.2011 held for considering the case of the petitioner with other employees for promotion to the post of Deputy Commissioner of Commercial Tax and to give him the benefits of promotion with effect from the date his juniors were promoted without actual benefits of salary till the petitioner is given actual promotion to the post of Deputy Commissioner of Commercial Tax. The respondents shall take such decision within a period of ONEMONTH from the date of receipt of copy of this judgment and order. Rule is made absolute accordingly.