Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 1114 (MP)

State of M. P. v. Ajit Kumar Shrivastava

2020-10-13

RAJEEV KUMAR DUBEY, SANJAY YADAV

body2020
ORDER 1. The State of Madhya Pradesh through its functionaries calls in question the order dated 14.8.2020 passed by the Central Administrative Tribunal, Jabalpur Bench, Jabalpur (for short ‘Tribunal’) in Contempt Petition No.200/00017/2020. 2. The Contempt Petition is filed by respondent seeking action against respondent therein for alleged willful disobedience of order dated 11.10.2019 passed in Original Application No.387/2019, which is filed by the respondent for following directions : (i) summon the entire relevant record from the possession of the official respondents for its kind perusal. (ii) hold that the delay on part of the respondents for a period of more than three years i.e. 22.4.2016 till the decision of this O.A. is illegal, unjust, malicious and unlawful. (iii) quash and set aside the show cause notice dated 22.4.2016 and all subsequent disciplinary proceedings on ground of inordinate delay. (iv) command and direct that the next due promotion of the applicant herein will not be affected by the pendency of the disciplinary proceedings in any manner whatsoever. (v) Any other order/orders, which this Hon’ble Court deems fit and proper. 3. The relevant facts on record reveal that the said show cause notice was issued on the recommendations of the Inquiry Committee, wherein the reply was filed on 24.5.2016. The matter got deliberated on various dates and was forwarded to the UPSC on 24.9.2019 for necessary approval of punishment under rule 9(3) of the All India Services (Discipline and Appeal) Rules, 1969. The Original Application was filed in April, 2019, wherein, on 11.10.2019, following order came to be passed : “The applicant apprehends that the State Government may take some further action. Needless to say that when the matter is pending before us, we expect that State Government shall not take further step in the matter till next date of hearing.” 4. Apparently, the order is not clear as to the nature of action which the Tribunal expected of the State not to take. 5. Be that as it may. Alleging that to harass the applicant by bypassing and circumventing the order of the Tribunal, the Competent Authority will either adopt the sealed cover procedure to keep the applicant out of zone of consideration. 5. Be that as it may. Alleging that to harass the applicant by bypassing and circumventing the order of the Tribunal, the Competent Authority will either adopt the sealed cover procedure to keep the applicant out of zone of consideration. It was further urged that the applicant has reliable information that he has been excluded from being considered from the upcoming DPC for the promotion to the next higher promotional post i.e. Principal Chief Conservator of Forest (PCCF) on the ground of integrity, and for the said reasons, the applicant had moved representations on 28.2.2020, 9.3.2020 and 12.3.2020 to the respondent authorities which have not been considered yet and the applicant has categorically stated that the act of withholding promotion of the applicant is a clear contempt that is being committed by the Authorities. 6. The contentions were contradicted in the reply. It was categorically stated : “… that the act of respondents for adopting sealed cover procedure in case of petitioner is a bonafide act. It is clear from the minutes of DPC dated 12.5.2020 that, the interim order of the Hon’ble Tribunal was well considered by the DPC Authority. Since the necessary approval of minor punishment was sent to UPSC much before the interim order passed by this Hon’ble Tribunal i.e. 11.10.2019 and such proposal was returned such by UPSC with some queries and requested to send a fresh proposal after removing deficiencies/queries. ... All this process was done before 11.10.2019. Therefore, as decided above, there is not any willful disobedience in adopting sealed cover procedure in the case of petitioner by the answering respondents. The act of answering respondents are bonafide and not deliberate and has to be condoned by the Hon’ble Tribunal. ..” 7. In these factual background, the Tribunal passed the impugned order on 14.8.2020 : “We have carefully gone through the proceedings of the DPC (Annexure R/2) and as per this document, we do not find any whisper of words regarding our interim order. However, in the reply of M.A., it has been specifically submitted by the replying respondents that the interim order of the Tribunal was well considered by the DPC. So it seems that while filing the reply, the respondents have not applied their mind. At this stage, in the interest of justice, we direct the respondents to open the sealed cover qua the petitioner and take appropriate further decision. So it seems that while filing the reply, the respondents have not applied their mind. At this stage, in the interest of justice, we direct the respondents to open the sealed cover qua the petitioner and take appropriate further decision. Let this exercise be done within a period of two weeks and compliance report be filed in the Court by way of supplementary affidavit by the next date of hearing.” 8. Question is whether it was within the competence of the Tribunal to have directed for opening the sealed cover when in fact no specific order was passed in Original Application. In Original Application, as noticed above, the reliefs sought were : (i) summon the entire relevant record from the possession of the official respondents for its kind perusal; (ii) hold that the delay on part of the respondents for a period of more than three years i.e. 22.4.2016 till the decision of this O.A. is illegal, unjust, malicious and unlawful; (iii) quash and set aside the show cause notice dated 22.4.2016 and all subsequent disciplinary proceedings on ground of inordinate delay; (iv) command and direct that the next due promotion of the applicant herein will not be affected by the pendency of the disciplinary proceedings in any manner whatsoever; and (v) any other order/orders, which this Hon’ble Court deems fit and proper. 9. Evidently, the interim order was only to the extent that the State Government is expected not to take further step; in context to which relief of the petition, is not clear from the said interim order. It was thus within the competence of the Authority to have acted in accordance with law. There was no stay, nor could there be any, from preventing the Department taking action as per law. 10. Being trite it is that, in case where an incumbent is facing departmental proceeding, the recommendations of DPC are required to be kept in sealed cover, till the departmental proceedings reaches its logical end. In State of M.P. v. J.S. Bansal 1998 (I) JLJ 243 = AIR 1998 SC 1015 , in somewhat similar fact situation, it is held : “10. In State of M.P. v. J.S. Bansal 1998 (I) JLJ 243 = AIR 1998 SC 1015 , in somewhat similar fact situation, it is held : “10. The question whether recourse to “Sealed Cover” procedure can be adopted in a case where departmental proceedings are pending on the date on which the delinquent officer is considered for promotion and whether the Tribunal could pass an interim order that the employee may be considered and promoted to the next higher post irrespective of the departmental proceedings, contemplated or pending, was considered by this Court in Union of India v. Tejinder Singh [ (1991) 4 SCC 129 in which it was observed as under: (SCC pp. 131-32) “4. The appeal is accordingly allowed and the impugned order passed by the Central Administrative Tribunal directing the Union of India, Ministry of Finance to consider the respondent for promotion to the post of Commissioner of Income Tax, Level II, is set aside. While setting aside the impugned order of the Tribunal we would like to record that the Tribunal had no jurisdiction whatever while dealing with a petition to quash the contemplated departmental enquiry against the respondent, to make an interim order of this nature. We are also not satisfied as to the correctness of the view expressed by the Tribunal that a contemplated departmental inquiry or pendency of a departmental proceeding cannot be a ground for withholding consideration for promotion or the promotion itself. We are not aware of any rule or principle to warrant such a view. As at present advised, we do not subscribe to the view expressed by the Tribunal.” ... 14. In view of the law laid down by this Court in Tejinder Singh case [ (1991) 4 SCC 129 ] and Jankiraman case [ (1991) 4 SCC 109 ] and in view of the Service Rule/executive instruction relating to “Sealed Cover Procedure”, Departmental Promotion Committee, in such a situation, would be well within its right to place its recommendations in the “Sealed Cover” so that the “Sealed Cover” may be opened on the conclusion of the departmental proceedings and recommendations contained therein may be given effect to without delay. An interim order, therefore, that the “Sealed Cover” be opened and the recommendations of the Departmental Promotion Committee for the promotion of the delinquent officer may be given effect to even during the pendency of the departmental proceedings, subject to its final result, is not usually or always or as a matter of course, granted. This rule can be departed from only in exceptional cases depending upon the circumstances of a particular case having regard to the fact that integrity, honesty and sincerity are the hallmarks of public services under the Union or the State and that efficiency of administration depends upon the effort made by persons holding public offices to serve the country and the nation with devotion and an attitude of sacrifice without any iota or inkling of “self-service”. ... 16. It is true that the charge-sheet was issued on 5.2.1996, i.e., a day before the Departmental Promotion Committee was to meet. The Departmental Promotion Committee met on 6.2.1996 but actually considered the name of the respondent in its meeting held on 12.2.1996. Whether the charge-sheet was deliberately issued to prompt the Departmental Promotion Committee to take recourse to the “Sealed Cover Procedure” is a question of fact which has yet to be decided by the Tribunal on merits on the basis of the evidence which might be led by the parties. That being so, it can hardly be made a basis for interim relief. 17. As to the contention of the learned counsel for the respondent that the charges in the present charge-sheet are also stale and this charge-sheet is also likely to be ultimately quashed by the Tribunal, it would suffice to point out that the Tribunal itself has, in its order, indicated that out of 10 charges, the first 8 charges relate to the period 1979 to 1987 but Charges 10 and 11 relate to 1991and 1992. These charges, namely, Charges 10 and 11 which relate to the years 1991 and 1992 cannot be said to be stale. ... 22. Having regard to the facts and circumstances of the instant case, we are firmly of the view that the Tribunal was not justified in passing the impugned order that the “Sealed Cover” be opened and the recommendations of the Departmental Promotion Committee be given effect to. ... 22. Having regard to the facts and circumstances of the instant case, we are firmly of the view that the Tribunal was not justified in passing the impugned order that the “Sealed Cover” be opened and the recommendations of the Departmental Promotion Committee be given effect to. The “Sealed Cover Procedure” was rightly adopted by the Departmental Promotion Committee and there was no reason to interfere with that procedure.” 11. When the impugned order is tested on the anvil of above analysis, we are convinced that the Tribunal committed jurisdictional error in directing opening of sealed cover in a proceeding in Contempt Petition. 12. In view whereof, the impugned order dated 14.8.2020 passed by Tribunal is set aside. 13. The writ petition is allowed to the extent above. No costs. Ashish Anand Bernard, Deputy Advocate General for petitioner/State; Manoj Kumar Sharma for respondent.