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Himachal Pradesh High Court · body

2015 DIGILAW 424 (HP)

MAHINDER SINGH v. STATE OF HIMACHAL PRADESH

2015-04-30

TARLOK SINGH CHAUHAN

body2015
ORDER : 1. By medium of this writ petition, the petitioner has prayed for the following substantive relief:- "I. That the writ in the nature of mandamus may kindly be issued directing the respondent to grant the placement to the Petitioner as Superintendent of Police w.e.f. 13.11.2009 on which date the incumbents who are admittedly junior to the Petitioner have been placed as Superintendent of Police with all consequential benefits." The precise grievance of the petitioner is that, as on the date of review DPC held on 11.9.2009, the petitioner had neither been served with the charge-sheet in the departmental inquiry nor the criminal charges had been framed against him and despite that he was not granted the placement as Superintendent of Police, whereas, his juniors were ordered to be promoted. 2. The respondent in their reply have not denied this fact. The only defence taken by the respondent is that the petitioner was involved in a vigilance case registered vide FIR No. 13 of 2009 in Police Station, State Vigilance and Anti Corruption Bureau, Solan. The inquiry conducted by the inquiry officer had been received. Matter with regard to according prosecution sanction was under consideration and thereafter the challan would be filed. Beside this, another vigilance inquiry in FIR No. 7 of 2010, registered at the same Police Station for having disproportionate property than income, was also pending. Since there were two departmental inquiries pending against the petitioner, he was not recommended for promotion. It has further been stated that promotion or posting or placement to a higher post cannot be claimed as a matter of right especially when the incumbent is facing a number of vigilance/departmental proceedings. I have heard learned counsel for the parties and have gone through the records of the case. 3. What is the stage when a departmental proceeding or criminal prosecution can be said to be initiated against an employee? This question was decided more than two decades back in a celebrated case of Union of India v. Jankiraman, AIR 1991 SC 2010 and it was categorically held that it is only when a charge-memo in a departmental proceeding or a charge-sheet in a criminal prosecution is issued to the employee, it can be said that the departmental proceedings/criminal prosecution is initiated against him. It was further held that the sealed cover procedure is to be resorted only after the charge-memo/charge-sheet is issued. It was further held that the sealed cover procedure is to be resorted 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. Even the plea 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., was held to be not tenable. The relevant observations are quoted thus:- "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. 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 conclusion 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 findings of the Full Bench of the Tribunal." 4. In Coal India Ltd. v. Saroj Kumar Mishra, (2007) 9 SCC 625 the Hon'ble Supreme Court has held that a departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued. 5. Similarly, in Coal India Ltd. v. Ananta Saha, (2011) 5 SCC 142 , it was held as under:- "27. There can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a charge-sheet is issued to the delinquent employee. (Union of India v. K.V. Jankiraman, (1991) 4 SCC 109 and UCO Bank v. Rajinder Lal Capoor, (2007) 6 SCC 694)." This proposition of law was reiterated in a recent decision of Hon'ble Supreme Court in Union of India and others v. Anil Kumar Sarkar, (2013) 4 SCC 161 , wherein after considering the entire law on the subject it was observed as under:- "21. We also reiterate that the disciplinary proceedings commence only when a charge-sheet is issued. Departmental proceeding is normally said to be initiated only when a charge-sheet is issued." 6. Thus, the aforesaid being the settled position of law, this Court is at a loss to understand as to how the respondent could have withheld the consideration of the petitioner for placement to the post of Superintendent of Police, when admittedly neither charge-memo nor charge-sheet had been issued. In view of the settled position, this Court is left with no option but to allow the petition. Ordered accordingly. The respondent is directed to consider the case of the petitioner for placement as Superintendent of Police within a period of six weeks and in case the petitioner is found entitled for such placement, he shall be released and given all actual consequential benefits within another period of eight weeks. The petition is allowed in the aforesaid terms, leaving the parties to bear their costs.