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2016 DIGILAW 699 (ORI)

State of Odisha v. Purna Chandra Das

2016-08-29

D.P.CHOUDHURY, INDRAJIT MAHANTY

body2016
JUDGMENT : D.P. CHOUDHURY, J. 1. Challenge has been made to the order passed by the learned Odisha Administrative Tribunal, Bhubaneswar (hereinafter called ‘the Tribunal’) passed on 23.11.2015 in O.A. No. 1129 of 2015. FACTS 2. The factual matrix leading to the case is that the opposite party no. 1 who was applicant before the Tribunal, had entered into Government service on 6.5.1981 as Inspector of Factories and Boilers under the administrative control of the Government in Labour and Employees State Insurance Department. He was promoted to the post of Deputy Director of Factories & Boilers vide office order no. 11380 dated 13.12.2004 and was allowed to continue in the said post on regular basis vide office order no. 8452/LE dated 5th July, 2007. On the recommendation of the Odisha Public Service Commission, the opposite party no. 1 in the present case who was applicant was promoted to the post of Joint Director of Factories and Boilers vide office order no. 10893/LE dated 17.10.2008. 3. It is stated that in 2010 after amendment of the Orissa Factories and Boilers Inspection Service Rules, 1984 the opposite party no. 1 came to the cadre of Joint Director of Factories and Boilers, Level-II. He was also allowed to remain in-charge of the Director of Factories and Boilers, Orissa vide order dated 11.6.2013 after superannuation of the earlier Director. 4. It is stated that the opposite party no. 1 was charge-sheeted in Sambalpur Vigilance P.S. Case No. 16 dated 31.3.2003. So, D.P.C. being held on 11.6.2012 for his promotion to the post of Joint Director of Factories and Boilers of Level-I, the opinion of the D.P.C. was kept in sealed cover. For that the opposite party no. 1 made representation on 30.3.2015 to promote him on ad hoc basis to the post of Joint Director of Factories and Boilers, Level-I by opening the sealed cover. As the representation of the opposite party no. 1 was not successful, he filed application before the Tribunal and the Tribunal acceding to his request directed the petitioner no. 1 to open the sealed cover and give him promotion on ad hoc basis in view of the Government in General Administration Department Office Memorandum No. 1464 dated 4.7.1995. Against that order, present writ application has been filed by the petitioners challenging the same. SUBMISSIONS 5. Mr. 1 to open the sealed cover and give him promotion on ad hoc basis in view of the Government in General Administration Department Office Memorandum No. 1464 dated 4.7.1995. Against that order, present writ application has been filed by the petitioners challenging the same. SUBMISSIONS 5. Mr. M. Sahoo, learned Additional Government Advocate submitted that the Tribunal has committed material irregularity by not considering the counter affidavit filed by the State in which it is specifically stated that during pending of vigilance case the opposite party no. 1 should not be given any type of promotion. He further submitted that the Tribunal has over looked the fact that after the meeting of first D.P.C. held on 11.6.2012 again after two years the case of opposite party no. 1 was considered on 4.8.2014 but in view of the allegation of the opposite party no. 1 in the pending vigilance case the Government decided not to extend the benefit of ad hoc promotion. Learned Tribunal has committed error by applying the wrong proposition of law and relied upon the decisions of the Hon’ble Apex Court which are not applicable to the present case. While applying the decision of the Hon’ble Apex Court the Tribunal has failed to consider that the decision of the Hon’ble Apex Court relates to Departmental Proceeding but not to a pending criminal case. Learned Tribunal has committed error apparent on the face of record by not following the observations of the Hon’ble Supreme Court in Bhajan Singh v. State of Uttarakhand, (2013) 14 SCC 32 wherein the Hon’ble Court following the case of Union of India & Others v. K.V. Janakiraman & Others, (1991) 4 SCC 109 deprecated the non-consideration of the relevant rules (in the present case circulars) while considering the case of an employee for promotion. 6. Mr. Sahoo, learned Additional Government Advocate also submitted that the learned Tribunal has erred in law by deciding the case against the law laid down by the Hon’ble Supreme Court in State of M.P. v. J.S. Bansal and Another, (1998) 3 SCC 714 because the decision in J.S. Bansal’s case has been rendered after considering all the earlier decisions of the Hon’ble Apex Court. Learned Tribunal has committed error by following the decision in State of Punjab & Others v. Chaman Lal Goyal, (1995) 2 SCC 570 as the said decision has relied application of the ratio of the facts and circumstances of that case and said decision is not applicable to the present case where there is circular of G.A. Department governing the sealed cover procedure during pendency of the vigilance case which is a criminal case whereas in Chaman Lal Goyal’s case (supra) it is a matter only relating to Departmental Proceeding and not a vigilance case. Learned Additional Government Advocate, therefore, submitted to set aside the order of the learned Tribunal by allowing the writ petition. 7. Per contra, Mr. J. Das, learned Senior Advocate submitted that the order of the Tribunal is in consonance with the decision of the Hon’ble Apex Court and following the circular of the State Government in G.A. Department issued in 1995. According to him although the charge-sheet in vigilance case has been submitted in the concerned court in 2003 but the case has not been decided so far. Taking into such fact into consideration, the Tribunal has not committed any error by directing the petitioner no. 1 to give promotion to the opposite party no. 1 on ad hoc basis. He also submitted that the opposite parties have kept the present opposite party no. 1 in-charge of a Director since last two years and in the review D.P.C. there is nothing found against him or his character and no other departmental illegality or irregularity reported against him for which the Tribunal after considering the facts has rightly directed to give promotion on ad hoc basis. 8. Mr. Das, learned Senior Advocate submitted that there is well settled law in the case of Union of India & Others v. K.V. Janakiraman & Others, (1991) 4 SCC 109 where the Hon’ble Apex Court have been pleased to observe that sealed cover procedure is to be followed only when charge memo in a disciplinary proceeding or a charge-sheet in a criminal proceeding is issued to the employee. According to him, in Chaman Lal Goyal’s case (supra) as the Departmental proceeding was pending long since, the Hon’ble Apex Court deprecated the long pendency of the Departmental enquiry and directed to consider for promotion without reference to and without taking into consideration the charges of pending enquiry and if he is found fit for promotion, he should be promoted immediately. Not only but also the said decision has also been followed by this Court in State of Orissa and Others v. Basanta Kumar Mohanty vide W.P. (C) No. 10101 of 2015. Thus, he submitted that there is no illegality with the order of the learned Tribunal. He also drew our attention to the circular issued by the petitioners in 1995 where it is clearly mentioned that the delinquent would be considered for ad hoc promotion subject to certain conditions when it is not known to the extent of period that vigilance case will run to be concluded. Thus, Mr. Das submitted to confirm the order of the Tribunal and dismiss the writ application. 9. The point for consideration:- (i) Whether the opposite party no. 1 is entitled for ad hoc promotion. DISCUSSIONS POINT NO. (i) : 10. It is the admitted fact that opposite party no. 1 got promotion to the post of Joint Director of Factories & Boilers vide office order no. 10893/LE dated 17.10.2008. It is not in dispute that after the Orissa Factories & Boilers Inspection Service Rules, 1984 came to be amended in 2010, opposite party no. 1 came to the cadre of Joint Director of Factories & Boilers Level-II. It is also not in dispute that he was considered for promotion by the DPC held on 11.6.2012 to the post of Joint Director of Factories & Boilers of Level-I and his case was kept in sealed cover because of pendency of Vigilance case against him vide Sambalpur Vigilance P.S. Case No. 16 dated 31.3.2003 by following the G.A. Department resolution no. 3928 dated 18.2.1994. 11. The learned Tribunal has directed to open the sealed cover and to promote opposite party no. 1 on ad hoc basis to the post of Joint Director, Level-I on the application made by him. 3928 dated 18.2.1994. 11. The learned Tribunal has directed to open the sealed cover and to promote opposite party no. 1 on ad hoc basis to the post of Joint Director, Level-I on the application made by him. On perusal of the impugned order it appears that the Tribunal has passed the order by relying upon the G.A. Department office Memorandum dated 4.7.1995 and the decision of the Hon’ble Apex Court in State of Punjab v. Chaman Lal Goyal (supra) and the decision of this Court in W.P. (C) No. 10101 of 2015 (State of Orissa and others v. Basanta Kumar Mohanty). 12. In the case of Union of India and Others v. K.V. Janakiraman & Others (supra), where Their Lordships have observed about the sealed cover procedure at para-16 as follows:- “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……” 13. With regard to the aforesaid decision it is made clear that the sealed cover procedure is to be resorted to after the charge memo in the Disciplinary Proceeding or charge sheet in the criminal proceeding is issued. But there is a circular of the G.A. Department issued in 1994. Pargraphs-3 and 8 of the said office memorandum is produced below for better appreciation:- “3. Promotion of officers to the various posts/services: At the time of consideration of cases of officers for promotion, details of such officers in the zone of consideration falling under the following categories should be specifically brought to the notice of the concerned Screening Committee: (i) Government servants under suspension; (ii) Government servants in respect of whom a charge-sheet has been issued and disciplinary proceeding are pending; (iii) Government servants in respect of whom prosecution for criminal charge is pending. xxx xxx xxx 8. xxx xxx xxx 8. It is necessary to ensure that the disciplinary case/criminal prosecution instituted against any officer is not unduly prolonged and all efforts to finalise expeditiously the proceeding should be taken so that the need for keeping the case of officers in a sealed cover is limited to the barest minimum. It has, therefore, been decided that the appointing authorities concerned should review comprehensively the cases of Government servants, whose suitability for promotion to a higher grade has been kept in a sealed cover on the expiry of 6 months from the date of convening of the first Screening Committee which had adjudged his suitability and kept its findings in the sealed cover. Such a review should done subsequently also every six months. The review should, inter-alia, cover the progress made in the disciplinary proceedings/criminal prosecution and further measures to be taken to expedite their completion.” 14. From the aforesaid Circular issued the sealed cover procedure is well understood. The aforesaid Circular has been clarified by another clarification issued by the G.A. Department dated 15.1.1999, where it has been mentioned that sealed cover procedure is to be adopted only after the charge sheet is issued to the employee and not before it. The clarification was issued basing on the decision of the Hon’ble Apex Court in the case of Union of India and Others v. K.V. Janakiraman (supra). Again the G.A. Department issued another Circular dated 28.5.2012, where another clarification was issued that sealed cover procedure shall be followed in all criminal cases where cognizance has been taken by the Court. So, the last one is the clarificatory circular issued by the State Government stating about the observance of the sealed cover procedure. Of course such Circular has not been challenged in this case even if the Hon’ble Apex Court has observed about the sealed cover procedure and the same has been clarified by the State Government in their Circular dated 15.1.1999. 15. Now adverting to the present case, it is found that since 2003 the charge sheet against opposite party no. 1 has been filed in the Sambalpur Vigilance Case. After that the D.P.C. was held on 11.6.2012 under the Chairmanship of the then Chief Secretary for considering promotion to the post of Joint Director of Factories & Boilers, Level-I and in that proceeding the case of opposite party no. 1 has been filed in the Sambalpur Vigilance Case. After that the D.P.C. was held on 11.6.2012 under the Chairmanship of the then Chief Secretary for considering promotion to the post of Joint Director of Factories & Boilers, Level-I and in that proceeding the case of opposite party no. 1 was considered, but his case was kept in a sealed cover as opposite party no. 1 has been charge-sheeted in Sambalpur Vigilance P.S. Case No. 16 of 2003 which is sub-judice before the Special Judge (Vigilance), Sambalpur. On the other hand, it is found from the copy of the charge-sheet that opposite party no. 1 has been charged by the Special Judge (Vigilance), Sambalpur for commission of criminal misconduct of possessing the assets worth of Rs.15,46,681/-which is disproportionate to his known source of income punishable under Section 13(1)(e) read with Section 13 (2) of the Prevention of Corruption Act, 1988. From the aforesaid material, we are of the view that sealed cover procedure has been rightly followed by the Department. 16. It is admitted fact that the Vigilance case is pending and not disposed of, for which the sealed cover procedure is continuing. At this juncture the observation of the Tribunal with regard to their finding basing on the Circular issued by the G.A. Department on 4.7.1995 and the decision of the Hon’ble Apex Court in State of Punjab v. Chaman Lal Goyal (supra) requires discussion. 17. On going through the decision of State of Punjab v. Chaman Lal Goyal (supra) it appears that the case relates to only the pendency of the Disciplinary Proceeding where enquiry is not concluded, but there was no any criminal case or criminal misconduct on the issue. So, the submission of the learned Additional Government Advocate that the fact and circumstances of the present case do not warrant the applicability of the decision of State of Punjab v. Chaman Lal Goyal (supra) and the decision of this Court in W.P. (C) No. 10101 of 2015 (State of Orissa and others v. Basanta Kumar Mohanty) will not apply has got force. 18. It is pertinent to note Para-2 of the Circular of G.A. Department dated 4.7.1995 which reads as follows:- “2. 18. It is pertinent to note Para-2 of the Circular of G.A. Department dated 4.7.1995 which reads as follows:- “2. The Government, after careful consideration of all the aspects and in partial modification of the instructions contained in G.A. Department Office Memorandum No. 3928-Gen., dated the 18th February, 1994 referred to above, have been now pleased to decide as follows:- (i) The disciplinary authorities, while framing charges against a delinquent Government Servant, should carefully consider the circumstances while deciding whether the delinquency merit framing of charges u/r 15 u/r 16 of O.C.S. (CCA) Rules, 1962. In the cases, where a minor penalty proceedings have been drawn up u/r 16 of O.C.S. (CCA) Rules, 1962, the “Sealed Cover” procedure shall not be applicable. (ii) Where, the major penalty proceedings have been drawn up u/r 15 of O.C. S. (CCA) Rules, 1962, the procedure envisaged in G.A. Department Office Memorandum No. 3928, dated the 18th February, 1994 should be followed. (iii) In the case, where criminal prosecution/disciplinary cases against the delinquent Government employees, have not come to an end even after the expiry of two years from the date of the meeting of the first Departmental Promotion Committee, the Appointing Authority may review the withheld promotion cases (provided the delinquent Government employees are not under suspension) to consider the desirability of giving the ad hoc promotion keeping in view the following aspects:- (a) Whether the promotion of the employee will be against the public interest. (b) Whether the charges are grave enough to warrant continued denial of promotion. (c) Whether there is likelihood of the case coming to a conclusion in the near future. (d) Whether the delay in the finalization of the proceedings, departmental in a Court of Law, is not directly or indirectly attributable to the employees concerned. (e) Whether there is any likelihood of misuse of the Official position that the employee may occupy after ad hoc promotion, which may adversely after the conduct of the departmental case/criminal prosecution. In case the Appointing Authority considers that it would not be against the public interest to allow ad hoc promotion to the employee concerned, his case should be placed before the next D.P.C. to be held in the normal course to decide whether the employee is suitable for promotion on ad hoc basis. In case the Appointing Authority considers that it would not be against the public interest to allow ad hoc promotion to the employee concerned, his case should be placed before the next D.P.C. to be held in the normal course to decide whether the employee is suitable for promotion on ad hoc basis. If the employee is considered suitable, on the basis of the totality of his record of service, without taking into account the pending disciplinary case/criminal prosecution against him, an order of promotion may be issued making it clear that:- (i) the promotion is being made purely on ad hoc basis and the ad hoc promotion will not confer any right for regular promotion; (ii) The ad hoc promotion shall survive until further orders. (iii) If should also be indicated in the orders that the Government reserve the right to cancel the ad hoc promotion at any time and revert the employee to the post from which he was promoted without assigning any reason therefore. Which he was promoted assigning any reason therefore. All other conditions contained in the aforesaid Office Memorandum remain unchanged. SANTOSH KUMAR Special Secretary to Government” 19. In terms of the above Circular the petitioners have considered the case of present opposite party no. 1 for his ad hoc promotion and the same have been already discussed by the Tribunal in the impugned order. The learned Tribunal has observed adversely to the points raised by the Review D.P.C. held in 2014 denying ad hoc promotion to opposite party no. 1. The Tribunal has noted that although there is nothing against opposite party no. 1 and he was kept in charge of the Director for last two years it is not known as to how the authority did not recommend for ad hoc promotion. In fact the authority has not placed the case in the Review D.P.C., but placed the matter before the appointing authority to obtain consent if at all the case of opposite party no. 1 can be considered by the next D.P.C. to allow ad hoc promotion. In fact the authority has not placed the case in the Review D.P.C., but placed the matter before the appointing authority to obtain consent if at all the case of opposite party no. 1 can be considered by the next D.P.C. to allow ad hoc promotion. Of course the G.A. Department Circular has given certain circumstances enumerated in clause-3 of paragraph-2 of the G.A. Department Circular dated 4.7.1995 to be considered by the appointing authority before allowing to consider the case for ad hoc promotion by the next D.P.C. The observation of the Principal Secretary of the concerned Department has been highlighted by the Tribunal but the observation of the appointing authority is not available in the impugned order. However, it is only available from the counter filed before the Tribunal that the Government decided not to extend ad hoc promotion. 20. From the noting of the Principal Secretary of the concerned Department, it appears that note has been put up before the appointing authority (Hon’ble the Chief Minister) with some adverse remarks to the extent that promotion of the Officer would not be in the public interest because of serious criminal charges in the Vigilance case for possessing disproportionate assets by opposite party no. 1, but the concerned Officer has failed to follow the paragraph-2 of circular which states that while considering the Officers for promotion on ad hoc basis the totality of his service record should be verified without taking into account the pending Disciplinary case/criminal prosecution against him. When the Circular directs to consider the case bereft of the criminal proceeding or disciplinary proceeding as the case may be, the question of keeping the case of opposite party no. 1 away from consideration for ad hoc promotion on the ground of pendency of criminal case (vigilance) is absolutely groundless and it cannot be said that it is against the public interest. It has to be remembered that records of the Officers must be verified and the post required to be filled up on ad hoc promotion whether required in the public interest and whether the criminal proceeding or Department proceeding is likely to be concluded in near future and whether the post to be occupied will be misused by the concerned person. 21. The noting of the concerned Principal Secretary is clear enough in all respect and particularly it has been observed that the opposite party no. 21. The noting of the concerned Principal Secretary is clear enough in all respect and particularly it has been observed that the opposite party no. 1 has been kept in charge of the Director and no adverse has been reported so far. Considering all such aspects we are of the opinion that it is a fit case where the case of opposite party no. 1 should be placed before the appointing authority to be considered for ad hoc promotion and to follow necessary consequences thereof as per the Circular dated 4.7.1995 bereft of the criminal case pending against him. Point No. (i) is answered accordingly. CONCLUSION: 22. The Circular dated 4.7.1995 does not disclose about opening of sealed cover because the said Circular relates to ad hoc promotion but not for regular promotion. The operative portion of the impugned order reads thus:- “Relying on the decisions referred to above, since there has been inordinate delay in disposal of the Vigilance case and it is not known to when the criminal case is likely to be disposed of, a government servant cannot be asked to wait for an indefinite period to get promotion. Accordingly the O.A. is allowed and respondent no. 1 is directed to open the sealed cover in respect of promotion of the applicant to the rank of Joint Director of Factories & boilers Level-I as per the decision of the DPC held on 11.6.2012 vide Annexure-4 and give effect to the said decision of the DPC. It is however, made clear that promotion, if any, given to the applicant is only adhoc, subject to the final result of the vigilance case pending against him and the respondent no. 1 is at liberty to pass appropriate order modifying the order of promotion as per rule after conclusion of the said vigilance case. The benefit of adhoc promotion be extended to the applicant with effect from the date of decision, within a period of one month from the date of receipt of a copy of this order.” 23. Although the operative portion of the impugned order speaks about giving promotion on ad hoc basis, but directed to open the sealed cover and give promotion to opposite party no. 1 basing on the decision of the D.P.C. held on 11.6.2012 vide Annexure-4. The Circular dated 4.7.1995 does speak about opening of sealed cover. Although the operative portion of the impugned order speaks about giving promotion on ad hoc basis, but directed to open the sealed cover and give promotion to opposite party no. 1 basing on the decision of the D.P.C. held on 11.6.2012 vide Annexure-4. The Circular dated 4.7.1995 does speak about opening of sealed cover. We are, therefore, of the opinion that the operative portion of the order of the Tribunal needs modification. We, therefore, direct the appointing authority to consider the case of opposite party no. 1 for ad hoc promotion by following the Circular dated 4.7.1995 as more than two years have been elapsed from the last D.P.C. held on 11.6.2012. We further direct that the appointing authority would then send the case of opposite party no. 1 to be considered by the Review D.P.C. In the event the D.P.C. considers him for ad hoc promotion bereft of pending criminal (vigilance) case, necessary consequential order will be passed as per the Circular dated 4.7.1995. The entire exercise be completed within a period of two months from the date of this order. The order of the Tribunal is modified to the extent observed above. The writ application is disposed of accordingly. I. Mahanty, J. – I agree.