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2021 DIGILAW 164 (TRI)

Rajdev Singh Yadav v. Union of India

2021-09-16

AKIL KURESHI

body2021
JUDGMENT The petitioner has challenged departmental communications under which his request for promotion has been rejected. [2] Brief facts are as under : The petitioner is holding the post of Second-in-Command in Assam Rifles. On 31.07.2015 Assam Rifles issued what is titled as “tentative charge-sheet” in which it is alleged that while working in the Directorate General of Assam Rifles at Shillong between 6th December 2012 to 14th January, 2015 the petitioner failed to establish the source of cash deposits of Rs.17,43,994/- in his bank account which was done during the period between 10th December, 2011 to 3rd March, 2014. It is also alleged that the petitioner failed to establish the source of two fixed deposits of Rs.11,83,861/- and Rs.10,82,233/- in his bank accounts during the same period. Subsequently, on 29.07.2019 the first information report was also lodged against the petitioner in Shillong for offence punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act. In this complaint it was alleged that the petitioner was holding assets to the extent of Rs.1,19,59,865/- disproportionate to the known source of income. A detailed account of the petitioner’s known sources of income, his reasonable expenditure and the assets of the petitioner detected by the department were also listed. The CBI has submitted a charge-sheet in connection with the said criminal case on 30.03.2021. The criminal case is pending. [3] According to the petitioner, two persons in his cadre who are junior to him namely, Shri G.R. Pillai and Rampal Singh, in the meantime have been promoted to the next post of Commandant ignoring the claim of the petitioner. The petitioner, therefore, made representations to the department for grant of promotion. By the impugned communications, his request was refused. In one such communication dated 02.07.2020 it is stated that the criminal case is still under investigation and, therefore, the petitioner cannot be promoted for want of vigilance clearance. At that stage, the petitioner has filed the present petition. His request is that he should be promoted to the post of Commandant since when his turn arrived for consideration for promotion, neither departmental charge-sheet was issued nor charge-sheet filed in the criminal case. Obviously, the petitioner is placing heavy reliance on the decision of the Supreme Court in case of Union of India and others v. K.V. Jankiraman and others reported in (1991) 4 SCC 109 . Obviously, the petitioner is placing heavy reliance on the decision of the Supreme Court in case of Union of India and others v. K.V. Jankiraman and others reported in (1991) 4 SCC 109 . Learned counsel for the petitioner vehemently contended that on the date when the petitioner’s juniors were promoted, the department had not yet issued a departmental charge-sheet, nor CBI had presented its charge-sheet before the criminal court. Subsequent presentation of the charge-sheet would not take away the petitioner’s right which was denied at the relevant time. He, therefore, submitted that the respondents be directed to open the sealed cover containing the recommendations of the petitioner if they have followed sealed cover procedure, or else the respondents be directed to convene a review DPC to consider the case of the petitioner as on the date on which his juniors were considered. [4] On the other hand, learned Assistant Solicitor General appeared for the respondents and opposed the petition contending that the petitioner is facing serious charges. The CBI has investigated the allegations and filed a charge-sheet before the criminal court for commission of offence punishable under Section 13(2) of the Prevention of Corruption Act. It was found that the petitioner is holding large amount of assets disproportionate to his known source of income. [5] The Supreme Court in case of Jankiraman considered the question when a government servant whose right for being considered for promotion has arrived, can be denied such promotion on the ground of alleged misconduct or a criminal action. Referring to the memorandum of department of Personnel and Training providing for circumstances under which such promotion can be withheld, the Supreme Court considered the question as to when can it be stated that the departmental proceedings have been initiated against a government servant. In this context, it was held that mere preliminary inquiry would not be sufficient and promotion can be withheld only if either a departmental charge-sheet has been issued or charge-sheet is filed in the criminal case against the government servant. It was observed that in cases of serious allegations where neither of these two stages have been completed, the department is not without remedy and in appropriate cases the government servant can as well be placed under suspension upon which automatically he would be deprived of promotion. It was observed that in cases of serious allegations where neither of these two stages have been completed, the department is not without remedy and in appropriate cases the government servant can as well be placed under suspension upon which automatically he would be deprived of promotion. [6] This decision in case of Jankiraman has been followed in large number of subsequent decisions. For example, in case of Union of India and others v. Sangram Keshari Nayak reported in (2007) 6 SCC 704 which was cited by the counsel for the petitioner, the Supreme Court relying upon the decision in case of Jankiraman held that the government servant must be granted promotion since on the date on which his right to be considered for promotion had arisen, neither departmental charge-sheet was issued to him nor charge-sheet was filed in the criminal case. [7] However, in certain cases of serious allegations of fraud, corruption etc. the Supreme Court has also recognized a degree of leverage to the department. In case of State of Madhya Pradesh and another v. Syed Naseem Zahir and others reported AIR 1993 SC 1165 the Supreme Court noted that in the said case sealed cover procedure was adopted even though departmental inquiry was not yet instituted against the government servant. However, the Supreme Court refused to issue directions to open such sealed cover till departmental proceedings are concluded in view of the gravity of charges against the delinquent of having caused loss of Rs.84,00,000/- to the State Government. [8] In case of Union of India v. Kewal Kumar reported in (1993) 3 SCC 204 it was observed that in a case where CBI had recorded an FIR, sent the same to the superior authorities of the employee for taking necessary action and the competent authority had also taken a decision on the basis of FIR to initiate departmental proceedings against him for imposition of major penalty, sealed cover procedure would be attracted and the government servant could be deprived of the promotion unless exonerated of the charges. [9] In case of Delhi Development Authority v. H.C. Khurana reported in (1993) 3 SCC 196 the Supreme Court considered similar issue. It was observed that the meaning of the word “issue” (departmental charge-sheet) has to be gathered from the context in which it is used. [9] In case of Delhi Development Authority v. H.C. Khurana reported in (1993) 3 SCC 196 the Supreme Court considered similar issue. It was observed that the meaning of the word “issue” (departmental charge-sheet) has to be gathered from the context in which it is used. The decision to initiate departmental 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 departmental proceedings. The service of the charge-sheet on the government servant follows the decision to initiate departmental proceedings. The delay, if any, in service of the charge-sheet to the government servant after it has been framed does not have the effect of delaying the initiation of the departmental proceedings. [10] In case of Union of India and another v. R.S. Sharma reported in (2000) 4 SCC 394 was the case in which the government servant was not promoted though right to be considered for promotion had arisen till formal sanction to prosecute him was accorded by the department. Referring to the OM of the department of Personnel and Training regarding sealed cover providing that the case of the employee will remain in sealed cover “until he is completely exonerated of the charges against him”. It was held that in such a case the employee could not insist on promotion. [11] Reverting to facts of the present case, we may recall, the Assam Rifles first issued what is referred to as “tentative charge-sheet” which contained serious allegations of the petitioner failing to disclose the source of cash and fixed deposits in his bank accounts running into several lacs of rupees. In the year 2019, the department also filed a criminal complaint investigation of which was handed over to CBI. CBI issued the charge-sheet upon completion of the investigation in March, 2021 for offence punishable under Section 13(2) of the Prevention of Corruption Act alleging that the petitioner was holding assets worth over rupees one crore than his known source of income. The petitioner is thus facing serious allegations of holding large disproportionate assets. Even prior to filing of the FIR and submission of the charge-sheet by CBI the petitioner was facing allegations of cash and fixed deposits in his bank accounts source of which he could not disclose. The petitioner is thus facing serious allegations of holding large disproportionate assets. Even prior to filing of the FIR and submission of the charge-sheet by CBI the petitioner was facing allegations of cash and fixed deposits in his bank accounts source of which he could not disclose. [12] The Assam Rifles Act, 2006 contains several provisions for dealing with the delinquencies of the members of the Force as also to deal with their criminal actions through Assam Rifles Court which would follow summary procedure. Section 49 of the Act for example is a general provision which provides that any person who is guilty of any act or omission which though not specified in the Act, is prejudicial to good order and discipline of the Force shall on conviction by Assam Rifles Court be liable to suffer imprisonment for a term which may extend to seven years or such lesser punishment as in the Act provided. Section 57 pertains to punishment awardable by Assam Rifles Courts. The powers range from awarding death penalty to lesser punishments such as stoppage of pay and allowances for recovery or loss or damage caused by the convict. Section 58 also empowers the Assam Rifles Courts to impose alternative punishment which is lesser than those specified in the statutory provisions. Section 62 pertains to minor punishments which a Commandant can impose. Section 11 of the Act pertains to dismissal, removal or reduction by Director General or the other officers. Sub-section (1) of Section 11 provides that the Director General, Additional Director General or any Inspector General may dismiss, remove from service or reduce to a lower grade or rank any persons subject to the provisions of the Act. [13] Thus, the Assam Rifles Act, 2006 contains detailed provisions for proceeding against the petitioner departmentally as well as criminally. Criminal conviction may also result into punishments which are in the nature of imprisonment of defined terms or even lead to adverse service consequences. [14] In view of such peculiar provisions, the employees of the Assam Rifles cannot be equated with civilian staff of the Government of India for the purpose of considering the right for promotion in face of serious allegations pending against them. [14] In view of such peculiar provisions, the employees of the Assam Rifles cannot be equated with civilian staff of the Government of India for the purpose of considering the right for promotion in face of serious allegations pending against them. We may recall, the entire genesis of the judgment of the Supreme Court in case of Jankiraman was the office memorandum issued by the department of Personnel and Training which laid down conditions for denial of promotion to a government servant. It was in this context, the Supreme Court was examining the true import of the issuance of charge-sheet. These guidelines obviously would not govern the present case. To recall, the department had already taken a decision to proceed against the petitioner for allegations of undisclosed cash and fixed deposits in his bank accounts way back in the year 2015. In the year 2019, the department also lodged a criminal complaint against the petitioner for possessing vast assets in excess of his known sources of income and handed over the investigation to the CBI. Both these events took place before the petitioner’s case was ripe for promotion. The petitioner has not disclosed in the petition when his juniors were promoted. However, learned counsel for the petitioner under instructions stated that such promotions were granted in the year 2020. Even going by this statement and accepting it to be true, the department had already issued a tentative charge-sheet under the Assam Rifles Act and lodged a criminal complaint against the petitioner and handed over investigation thereof to the CBI. It is true that the CBI filed the charge-sheet against the petitioner only thereafter. However, in facts of the present case, the respondents cannot be directed to grant promotion to the petitioner till he is cleared of all the charges. [15] The respondents, however, must follow the sealed cover procedure till the proceedings against the petitioner are concluded. Upon his exoneration such sealed cover can be opened and recommendations acted upon. If no such procedure is followed, years later a situation may arise where the department may be asked to draw review DPC and to consider the case of the petitioner as on an anterior date which would be wholly undesirable. [16] In the result, subject to above observations, petition is dismissed. Pending application(s), if any, also stands disposed of.