Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 2782 (ALL)

Dharam Narain Upadhyaya v. State of U. P.

2015-09-04

AKHTAR HUSAIN KHAN, NARAYAN SHUKLA

body2015
JUDGMENT Narayan Shukla, J. 1. Heard Mr. Sandeep Dixit and Ms. Nandita Bharti, learned counsel for the petitioner as well as Shri H.P. Srivastava, learned Additional Chief Standing Counsel for the respondents. 2. The petitioner is aggrieved with the office order dated 13 October 2014 issued by the Finance Department of the State Government, whereby the State Government has declined to act upon the recommendations of the selection committee for the reason that petitioner is facing a criminal prosecution in which the charge sheet has been filed in the Court. A criminal case had been registered as case crime No. 156 of 2002 P.S. Maniar District Ballia against the petitioner under Sections 420, 467, 468 & 471 I.P.C. and under Sections 7/13 of the Prevention of Corruption Act. Therefore, the petitioner's matter of promotion was kept in sealed cover in terms of office memorandum dated 28 May 1997. 3. The subject of the office memorandum is "The determination of procedure for following sealed cover proceedings in matters relating to promotion of State Government employees". The office memorandum has laid down the following procedure "1. The Departmental Selection Committee constituted for the purpose of considering promotion, shall consider all employees sin which, who under the relevant rules and Government Orders come within the zone of eligibility even though against any such employee, some proceedings/enquiry (miscellaneous enquiry departmental/preliminary enquiry, vigilance enquiry, departmental formal enquiry, enquiry by the Administrative Tribunal) or prosecution is pending or is contemplated or the employee concerned is suspended. The departmental selection committee shall without taking into account the pending/contemplated enquiry, consider all other relevant service records of such employee for judging the suitability of such employee for the purpose of promotion. 2. After the employee concerned is considered in the aforesaid manner by the Departmental Selection Committee, a clear recommendation regarding the suitability or otherwise of such employee for promotion shall be given by the Departmental Selection Committee. The same shall not be recorded in the minutes of the meeting held by the Departmental Selection Committee, but the recommendations shall be recorded in a separate sheet of paper kept in a sealed envelope, on which it would be clearly mentioned that it contains the recommendations of the Departmental Selection Committee with regard to promotion of the employee concerned. Such "sealed cover" procedure shall be adopted-- (a) Where such employee has been placed under suspension. Such "sealed cover" procedure shall be adopted-- (a) Where such employee has been placed under suspension. (b) Where such employee is facing disciplinary proceedings or proceedings are being conducted by the Administrative Tribunal and charge-sheet has been issued or (c) If on the basis of charges of criminal nature prosecution against such employee is pending i.e. charge-sheet has been submitted in the competent Trial Court. (3) Wherever any of such three circumstances are not available, each such matter shall be considered by the Departmental Selection Committee and after the recommendations are approved by the Competent Authority, promotion shall be made. However, where any of the three circumstances mentioned herein above are present, the recommendations of the Selection Committee shall be kept in a sealed envelope and such sealed envelope shall be opened only in the manner prescribed in the following paragraphs." 4. While pendency of a criminal prosecution against the petitioner, his matter was also considered by the selection committee and the recommendations of the Selection Committee was kept in a sealed cover. 5. Since no charge sheet had been filed in the Trial Court, aggrieved petitioner had filed a writ petition (SB) No. 1420 of 2012 before this Court and submitted that since none of the three ingredients of the office memorandum dated 28 May 1997 is available in the case, there was no reason to keep the petitioner's matter in sealed cover. This Court disposed of the writ petition with direction to open the sealed cover and pass an appropriate order in accordance with law. The State had challenged the aforesaid order before Hon'ble the Supreme Court in Special Leave to Appeal No. 27578 of 2013. The Hon'ble Supreme Court dismissed the Appeal with a finding that the order of the High Court does not call for our interference in exercise of our powers under Article 136 of the Constitution of India. The Supreme Court further granted four weeks time to the State (appellant) to comply with the orders and directions issued by the High Court. 6. Pursuant to the aforesaid direction, the State Government has passed the order impugned and rejected the petitioner's claim on the ground that since the criminal proceeding is pending against the petitioner, the recommendations of the Selection Committee can be given effect to only after termination of proceeding. 7. Mr. 6. Pursuant to the aforesaid direction, the State Government has passed the order impugned and rejected the petitioner's claim on the ground that since the criminal proceeding is pending against the petitioner, the recommendations of the Selection Committee can be given effect to only after termination of proceeding. 7. Mr. Sandeep Dixit, learned counsel for the petitioner alleged that a meeting of the departmental promotion committee was convened on 31 August 2012 to consider for promotion to the post of Secretary and Accounts Officer Grade-II in which the petitioner's case was also considered, but in his case sealed cover procedure was adopted on the ground of sanction of prosecution, whereas the petitioner's junior had been given promotion in the higher pay scale. The prosecution was sanctioned on 02.02.2011 by the State Government, whereas no charge-sheet had been filed against the petitioner till the date of meeting of the departmental promotion committee i.e. 31 August 2012. It is further stated that "the term prosecution is pending" has been clarified by the office memorandum itself in the manner that 'charge-sheet has been submitted in the competent Trial Court' and admittedly no charge-sheet had been submitted till the date of holding the DPC, therefore the office memorandum dated 28 May 1997 would not apply in the petitioner's case. In support of his submission he has also cited a case of Union of India and others v. K.V. Jankiraman and others (1991) 4 SCC 109 . The Division Bench comprising of three Judge held that '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. 8. The petitioner's claim has been countered by the respondents by filing the counter affidavit in which it has been stated that the State Government granted sanction for prosecution of the petitioner on 02.02.2011. In the said case the petitioner was arrested and sent to jail for more than forty eight hours on account of which he was placed under suspension vide order dated 30.08.2013 and a disciplinary proceeding was initiated under the U.P. Government Servant (Discipline & Appeal) Rules, 1999. Subsequently he was released from jail. In the said case the petitioner was arrested and sent to jail for more than forty eight hours on account of which he was placed under suspension vide order dated 30.08.2013 and a disciplinary proceeding was initiated under the U.P. Government Servant (Discipline & Appeal) Rules, 1999. Subsequently he was released from jail. The petitioner's matter of promotion was considered against the vacancies of the selection year 2010-11 and 2011-12 on 31 August 2012, but the recommendations of the Departmental Promotion Committee were kept in sealed cover. However, due to intervention of the Court it was opened on 08.09.2014, but its execution has been withheld on account of pendency of a criminal case and ultimately the charge-sheet has been filed on 18.09.2002. 9. In the case of Delhi Development Authority v. H.C. Khurana (1993) 3 SCC 196 , the charge sheet was framed on July 11, 1990 against the respondent. On July 13, 1990 the charge sheet was dispatched for being served upon him, but since he proceeded on two months' medical leave, the charge sheet was received by another employee who intimated him on November 28, 1990. The Departmental Promotion Committee met, and in view of the earlier decision to initiate disciplinary proceedings against the respondent, it followed the 'sealed cover procedure'. The charge-sheet was personally served on respondent only on January 25, 1991. Aggrieved respondent had filed a writ petition in Delhi High Court claiming his promotion to the post of Superintendent with effect from the date on which his juniors had been promoted. The High Court allowed the writ petition. The matter was reached before the Supreme Court. The question before the Supreme Court for consideration was whether the High Court had correctly applied the decision rendered in Union of India and others versus K.V. Jankiraman and others, reported in 1991 (4) SCC 109 . In the said case the office memorandum dated January 12, 1988 was relevant to be applied, the relevant part of it reads as under "(ii) Government Servant in respect of whom the disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;" 10. In the said case the office memorandum dated January 12, 1988 was relevant to be applied, the relevant part of it reads as under "(ii) Government Servant in respect of whom the disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;" 10. The Supreme Court held that these words clearly indicate that the sealed cover procedure was applicable in the cases where the 'disciplinary proceedings are pending' in respect of Government Servant; or 'a decision has been taken to initiate disciplinary proceedings' the guidelines attract sealed cover procedure. The second question for consideration was, what is the stage, when it can be said, that 'a decision can be taken to initiate the disciplinary proceedings? The Supreme Court held that "We have no doubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the charge-sheet, since issue of the charge-sheet is a consequence of the decision to initiate disciplinary proceedings". 11. In the case of Union of India and others v. R.S. Sharma (2000) 4 SCC 394 the Supreme Court considered the same very question and dealt with the office memorandum dated 12.01.1988 issued by the Department of Personnel and Training Government of India. Relevant extract of para 2 of the office memorandum reads as under "Cases where 'Sealed Cover Procedure' applicable 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 disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings; (iii) government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution; (iv) government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by the CBI or any agency, departmental or otherwise. 12. The Supreme Court held as under "16. 12. The Supreme Court held as under "16. Learned counsel for the respondent made an endeavour to contend that in the light of the decision of this Court in Union of India v. K.V. Janakiraman (1991) (4) SCC 109 the Sealed Cover Procedure can be resorted to only after Charge Memo is received or a charge-sheet is filed and that unless such an event had happened at the relevant time the Government employee cannot be denied of his promotion, if he is otherwise entitled to it. Learned counsel also submitted that Janakiraman was since followed in Union of India v. Dr. Sudha Salhan (1998) (3) SCC 394 ; Bank of India v. Degala Suryanarayana (1999) (5) SCC 762 . The clauses of second paragraph of the Sealed Cover Procedure considered in Janakiraman were not those involved in the present case and hence that decision is of no avail to the respondent. In the other two decisions the facts warranted application of the ratio contained in Janakiraman. The added factor in these two cases was that the public servant concerned had been exonerated of the charges framed by the criminal courts. In the present case the respondent is still facing the trial for serious offences, and hence the situation is different." 13. In the case of Union of India v. Kewal Kumar (1993) 3 SCC 204 the First Information Report was registered on 30 September 1988 by the Central Bureau of Investigation (CBI); the departmental authorities took a decision to initiate disciplinary proceedings on the basis of the First Information Report on 20.11.1989, however, the charge-sheet was actually issued to the respondent on August 1, 1990. The respondent challenged the action of the Departmental Promotional Committee to follow the sealed cover procedure before the Central Administrative Tribunal, Principal Bench, New Delhi. The Tribunal has accepted the respondent's claim and allowed his application holding that the sealed cover procedure could not be followed in view of the decision of Union of India v. K.V. Jankiraman (Supra). The Union of India has challenged the said decision before the Supreme Court. The question before the Supreme Court was whether the decision in K.V. Jankiraman (Supra) was correctly applied in the present situation? 14. The Supreme Court held as under "3. The Union of India has challenged the said decision before the Supreme Court. The question before the Supreme Court was whether the decision in K.V. Jankiraman (Supra) was correctly applied in the present situation? 14. The Supreme Court held as under "3. It is obvious that when the competent authority takes the decision to initiate a disciplinary proceeding or steps are taken for launching a criminal prosecution against the government servant, he cannot be given the promotion, unless exonerated, even if the government servant is recommended for promotion by the D.P.C., being found suitable otherwise in a case like the present, where the First information Report was registered by the Central Bureau of Investigation, and on that basis the decision had been taken by the competent authority to initiate disciplinary proceedings for imposition of major penalty on the respondent prior to the meeting of the D.P.C., the applicability of the sealed cover procedure cannot be doubted. The formulation of the charges required for implementing the decision of the competent authority to initiate the disciplinary proceedings is satisfied in such a case by the recording of the First Information Report by the Central Bureau of Investigation which records the allegations against the respondent, and provides the basis for disciplinary proceedings. The requisite formulation of the charges, in such a case, is no longer nebulous, being crystallised in the F.I.R. itself and, therefore, even if the charge-sheet was issued by its despatch to the respondent subsequent to the meeting of the D.P.C., this fact alone cannot benefit the respondent. 4. The question to examine in each case, is : Whether, the decision to initiate the disciplinary proceedings had been taken or steps for criminal prosecution initiated before the date on which the D.P.C. made the selection? The decision would depend on the facts of the case, keeping in view the object sought to be achieved by adopting the sealed cover procedure. The decision would depend on the facts of the case, keeping in view the object sought to be achieved by adopting the sealed cover procedure. It would be incongruous to hold that, in a case like the present, where the B.I. had recorded the F.I.R.; sent the same to the superior authorities of the respondent for taking necessary action; and the competent authority had taken the decision, on the basis of the F.I.R., to initiate disciplinary proceedings against the respondent for imposition of major penalty, there can be any doubt that the sealed cover procedure is attracted to avoid promoting the respondent, unless exonerated of those charges. These facts, which led to the adoption of the sealed cover procedure, are undoubtedly very material to adjudge the suitability of a person for promotion to a higher post. A decision to follow the sealed cover procedure in these circumstances cannot, therefore, be faulted." 15. In the case on hand the ingredient of para 2 (c) of office memorandum dated 28 May 1997 is relevant for consideration which is for ready reference is reproduced. "2 (c) If on the basis of charges of criminal nature prosecution against such employee is pending i.e. charge-sheet has been submitted in the competent Trial Court." 16. The charge against the petitioner is of financial misappropriation. Indisputably the State Government had sanctioned the prosecution to prosecute the petitioner on 2 February 2011. Later on the Departmental Promotion Committee held a meeting on 31 August 2012 and recommended the petitioner's case for promotion, however, the charge-sheet was filed on 18 September 2002. The dates and events enumerated above show that on the date of recommendation of petitioner's promotion by the Departmental Promotion Committee, the charge-sheet was not filed in the Trial Court. 17. Under the terms of office memorandum dated 28 May 1997 the term 'pendency of prosecution' has been clarified with the words that 'the charge-sheet has been submitted in the competent Trial Court'. 18. 17. Under the terms of office memorandum dated 28 May 1997 the term 'pendency of prosecution' has been clarified with the words that 'the charge-sheet has been submitted in the competent Trial Court'. 18. In the case of Union of India v. Kewal Kumar (supra) the Supreme Court considered its judgment rendered in the case of Union of India v. K.V. Jankiraman (Supra) and held that in K.V. Jankiraman itself it has been pointed out that the sealed cover procedure is to be followed where a Government Servant is recommended for promotion by the Departmental Promotion Committee but before he is actually promoted, if he is either placed under suspension or disciplinary proceedings are taken against him or decision has been taken to initiate the proceedings or criminal prosecution is launched or sanction for such prosecution has been issued or decision to accord such sanction is taken. The object of following the sealed cover procedure has been indicated by the Supreme Court in the case of Delhi Development Authority v. H.C. Khurana (1993) 3 SCC 196 the relevant paragraphs No. 13 and 14 are reproduced as under: "13. It will be seen that in Jankiraman also, emphasis is on the stage when 'a decision has been taken to initiate the disciplinary proceedings' and it was further said that 'to deny the said benefit (of promotion), they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee'. The word 'issued' used in this context in Jankiraman it is urged by learned counsel for the respondent, means service on the employee. We are unable to read Jankiraman in 'this manner. The context in which the word 'issued' has been used, merely means that the decision to initiate disciplinary proceedings is taken and translated into action by despatch of the chargesheet leaving no doubt that the decision had been taken. The contrary view would defeat the object by enabling the government servant, if so inclined, to evade service and thereby frustrate the decision and get promotion in spite of that decision. Obviously, the contrary view cannot be taken. 14. The contrary view would defeat the object by enabling the government servant, if so inclined, to evade service and thereby frustrate the decision and get promotion in spite of that decision. Obviously, the contrary view cannot be taken. 14. 'Issue' of the charge-sheet in the context of a decision taken to initiate the disciplinary proceedings must mean, as it does, the framing of the charge-sheet and taking of the necessary action to despatch the charge-sheet to the employee to inform him of the charges framed against him requiring his explanation; and not also the further fact of service of the charge-sheet on the employee. It is so, because knowledge to the employee of the charges framed against him, on the basis of the decision taken to initiate disciplinary proceedings, does not form a part of the decision making process of the authorities to initiate the disciplinary proceedings, even if framing the charges forms a part of that process in certain situations. The conclusions of the Tribunal quoted at the end of para 16 of the decision in Jankiraman which have been accepted thereafter in para 17 in the manner indicated above, do use the word 'served' in conclusion No. (4), but the fact of 'issue' of the charge-sheet to the employee is emphasised in para 17 of the decision. Conclusion No. (4) of the Tribunal has to be deemed to be accepted in Jankiraman only in this manner." 19. In view of the aforesaid proposition of law laid down by the Hon'ble Supreme court, we are of the view that the pendency of prosecution is not based upon the submission of charge-sheet in the competent Trial Court. Once the competent authority took a decision to initiate a criminal proceeding and sanctioned the prosecution, it is an appropriate stage to withhold the recommendations of the Departmental Promotion Committee from giving effect to. 20. In the case on hand the facts as mentioned above show that the prosecution had been sanctioned prior to the decision of Departmental Promotion Committee, therefore, we are of the view that it is the sufficient material to withhold the recommendation of Departmental Promotion Committee from giving effect to. 21. In view of the aforesaid discussion, we do not find error in the order dated 13 October 2014 issued by the Finance Department of the State Government. In the result the writ petition stands dismissed.