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2020 DIGILAW 844 (JHR)

Purushottam Kumar Singh v. State of Jharkhabnd

2020-09-03

SANJAY KUMAR DWIVEDI

body2020
JUDGMENT : I.A. No.10743 of 2019 has been filed for ignoring the defects as pointed out by the Office. 2. For the reasons narrated in the interlocutory application, the defects are ignored. 3. I.A. No.10743 of 2019 stands allowed and disposed of. 4. Heard Mr. Manish Kumar, the learned counsel appearing for the petitioner and Mr. Rohit, the learned AC to Addl. Advocate General-I appearing on behalf of the respondent State. 5. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard on merit. 6. The petitioner has preferred this writ petition for quashing the order dated 07.12.2018 whereby the petitioner’s representation pursuant to the order dated 26.09.2018 passed in W.P.(S) No.3529 of 2014 has been rejected. The further prayer is made for providing financial upgradation in the pay scale under 1st and 2nd Assured Progression Scheme as well as for 3rd MACP. The prayer for promotion is also made. 7. The facts of the present case, in short compass, is that the petitioner has joined the service on 01.07.1987 as direct recruit Assistant Engineer having been appointed through Combined Competitive Examination duly conducted by Bihar Public Service Commission. After bifurcation of the State, cadre of the petitioner has been allocated to the State of Jharkhand and thereafter, the petitioner started discharging his duties in the capacity of Assistant Engineer in Special Division, Rural Development Department, Jamshedpur. The petitioner was posted in Swarnrekha Project. A criminal case has been instituted against him along with other being Rajnagar P.S. Case No.33 of 2000, in which even after lapse of more than 14 years, the investigation has not been completed and the charge sheet has not been submitted before the competent court of criminal jurisdiction. Now the charge sheet has been submitted on 23.10.2018 for the same set of allegation, subject matter of First information Report, a departmental proceeding was also initiated against the petitioner under the Rule 55 of the Civil Services (Classification, Control and Appeal) Rules vide order dated 23.06.2008. The order of punishment has been passed against the petitioner directing to recover a sum of Rs.57,000/-. The order of punishment has been passed against the petitioner directing to recover a sum of Rs.57,000/-. Thus, the departmental proceeding has come to an end with a direction to recover the said amount. The punishment order was challenged by the petitioner in W.P.(S) No.3990 of 2010 which was dismissed as withdrawn vide order dated 17.11.2016. The petitioner has also moved before this Court in W.P.(S) No.3529 of 2014 which was disposed of on 26.09.2018 with a direction to the petitioner to file a representation and the same will be decided by the respondent State. After the said direction, the petitioner has approached the competent authority by way of filing a representation and now which has been considered and it has been rejected and that is why, the present writ petition has been filed. 8. Mr. Manish Kumar, the learned counsel appearing on behalf of the petitioner assailed the impugned order on the ground that the petitioner has joined the service on 01.07.1987 and 1st Time bound promotion was due on 01.07.1999, 2nd Time bound promotion was due on 01.07.2011 and the 3rd MACP is due on 01.07.2017. He further argues that for the period for which the financial upgradation are due, there is no criminal proceeding pending against the petitioner and in the said criminal case, no charge sheet was filed before 23.10.2018. He further argues the case by way of referring to paragraph no.20 of the writ petition and submits that the petitioner has been singled out for promotion as the similarly situated person namely Kaushalesh Kumar and Ram Vinesh Singh, who were also accused in the same criminal case, have already been granted the financial upgradation. He further submits that now he has received the instruction from the petitioner and the document has also been provided to him by which the said Kaushalesh Kumar has been provided with the 3rd MACP on 06.03.2020 whereas, the petitioner has been discriminated. By way of referring Annexure-7 to the writ petition, he submits that there is resolution of the Government of Jharkhand wherein it is prescribed as to in the cases of which type of proceeding the consideration for promotion of the employee shall not be taken place. By way of referring Annexure-7 to the writ petition, he submits that there is resolution of the Government of Jharkhand wherein it is prescribed as to in the cases of which type of proceeding the consideration for promotion of the employee shall not be taken place. He further submits that none of the description provided in the procedure of promotion describes in the said resolution are applicable in the case of the petitioner, whereas, only on the ground of sanctioning for prosecution for the petitioner, the claim of the petitioner has been rejected which is not in accordance with law. He further submits that the case of the petitioner has been considered by the screening committee on 10.05.2018 and the departmental promotion committee on 13.08.2018, respectively and the departmental promotion committee decision has been kept in sealed-cover. He further submits with much emphasis that the charge sheet has been submitted in the criminal case on 23.10.2018. Thus, on the date of screening committee and the departmental promotion committee, there were no criminal proceeding pending in view of the fact that the charge sheet has not been submitted. He further submits that it is a well-settled provision of law that in any case, unless the charge sheet is submitted, it will not be deemed that any proceeding is pending against the petitioner. To substantiate his argument, he relied in the case of “Union of India v. K.V. Jankiraman” reported in (1991) 4 SCC 109 . Paragraph nos.16 and 17 of the said judgment are quoted hereinbelow: “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 should 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: (ATC p. 196, para 39) “(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 to 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. 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.” 9. He further relied in the case of “Union of India and Ors. v. Sangram Keshari Nayak” reported in (2007) 6 SCC 704 . Paragraph nos. 10, 12 and 13 of the said judgment are quoted hereinbelow: “10. Mr S.K. Dholakia, learned Senior Counsel appearing on behalf of the respondent, on the other hand, would contend that Para 6 of the said circular must be read in the context of Para 2 thereof. 12. The terms and conditions of an employee working under the Central Government are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India or under a statute. The right to be promoted to a next higher post can, thus, be curtailed only by reason of valid rules. Such a rule again, however, cannot be construed in a manner so as to curtail the right of promotion more than what was contemplated by law. 13. Whereas Para 6 of the said circular letter provides for a sealed cover procedure to be adopted by the DPC, the same has to be taken recourse to only in the event circumstances mentioned in Para 2 thereof arise after the recommendations of the DPC. The recommendations of the DPC, therefore, can be refused to be given effect to only inter alia when one or the other conditions mentioned in Para 2 of the said circular stand satisfied which in the instant case would mean that as against the respondent a charge-sheet had been issued or, in other words, a disciplinary proceeding was pending. Admittedly, a charge-sheet was issued as against him only on 24-9-1999.” 10. Per contra, Mr. Admittedly, a charge-sheet was issued as against him only on 24-9-1999.” 10. Per contra, Mr. Rohit, the learned AC to Additional Advocate General-I appearing on behalf of the respondent State submits that the criminal proceeding is pending against the petitioner and the sanction has been accorded for the same and in that view of the matter the authority concerned has rejected the claim of the petitioner. The learned counsel appearing for the respondent State has not been able to distinguish the judgment relied by the learned counsel for the petitioner in this case. 11. The Court has proceeded to examine the arguments advanced by the learned counsel for the petitioner as well as the learned counsel appearing for the respondent State. The Court has perused the Annexure-7, the circular, wherein the procedure for not considering for promotion has been prescribed and in that resolution it is not disclosed that only on the ground of sanction for prosecution for criminal case, the promotion shall not be provided to the Government employee. This particular resolution has been considered by the Hon’ble Supreme Court in the case of “Union of India and Ors. v. Sangram Keshri Nayak” [supra], particularly, in paragraph no.13 of the said judgment. The said resolution has been considered by the Hon’ble Supreme Court and the Hon’ble Supreme Court came to the conclusion that at the time of departmental promotion committee if the charge sheet is not there, it will be deemed that no proceeding is pending. This aspect of the matter has been considered in a well-celebrated judgment of the Hon’ble Supreme Court in “K.V. Jankiraman” case [supra]. The petitioner has been discriminated as disclosed in paragraph no.20 of the writ petition. Now, it has been submitted at Bar that on 06.03.2020, one Kaushalesh Kumar has been provided 3rd MACP whereas, the petitioner is similarly situated, the benefit of 2nd Time bound promotion and 3rd MACP has been denied only on the ground of sanctioning for the criminal proceeding. When the screening committee and departmental promotion committee was considered, charge sheet was not there and in that view of the matter it will be deemed that there was no occasion to keep the decision of the departmental promotion committee in a sealed-cover. The Court also considered this aspect of the matter that now the 1st ACP has been granted to the petitioner on 11.09.2019. The Court also considered this aspect of the matter that now the 1st ACP has been granted to the petitioner on 11.09.2019. There is no justification for the State to the effect that if it has come to the conclusion to grant the 1st ACP in the year 2019, why the petitioner is not entitled for the other benefits, as claimed in the writ petition. It is well settled that withholding of promotion on the ground of charge sheet subsequent to the date of consideration for promotion is impermissible. The argument of Mr. Rohit, the learned State counsel is not acceptable to the Court in view of the fact that only on the ground of sanction for initiation of a criminal proceeding, the claim of the petitioner has been rejected and in view of the celebrated judgment of the Hon’ble Supreme Court in the case of “K.V. Jankiraman” [supra], the impugned order cannot sustain in the eye of law and, accordingly, the impugned order dated 07.12.2018 contained in Annexure-6 is quashed. 12. The petitioner is entitled for consequential benefits and, accordingly, his 2nd Time bound promotion and 3rd MACP shall be released as has been done in the case of one namely, Kaushalesh Kumar on 06.03.2020. 13. In view of the above fact that on the date of departmental promotion committee there is no charge sheet, the petitioner’s promotion result is also need to be published. Accordingly, the sealed-cover shall be opened and it will be communicated to the petitioner. 14. With the above observation and direction, this writ petition [W.P. (S) No. 1765 of 2019] stands allowed and disposed of.