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2024 DIGILAW 623 (JHR)

Junus Kachhp v. State of Jharkhand

2024-06-26

S.N.PATHAK

body2024
JUDGMENT : S.N. PATHAK, J. Heard the parties. 2. Petitioner has approached this Court for a direction in the nature of mandamus commanding the respondents to grant promotion/ ad hoc promotion to the petitioner subject to final outcome of the Sadar (Town) P.S. Case No. 63/11 corresponding to G.R. Case No. 224/11. 3. Shorn of unnecessary details, the petitioner was appointed on 12.10.1995 to the post of Junior Engineer in the erstwhile State of Bihar under the Building Construction Department. Thereafter, he has worked on the same post for last 28 years to the full satisfaction of the respondent-authorities. During his service tenure he was granted 1st ACP w.e.f. 13.10.2007 vide Office Order No. 440(s) dated 20.01.2017 and 2nd ACP w.e.f. 09.10.2015 vide Office Order No. 441(s) dated 20.01.2017. It is the further case of petitioner that vide Order No. 650(s) dated 23.02.2021, seniority list of Junior Engineers under the control of Road Construction Department was prepared in which the name of petitioner reflects at Sl. No. 826. It is the further case of petitioner that on 07.02.2011, an FIR being Palamu Sadar (Town) P.S. Case No. 63/11 under Sections 409/420 I.P.C. was registered against the petitioner along with two other co-accused, on the complaint of Medical Officer, Police Hospital, Palamu. In the said criminal case, though charges have been framed by the learned Trial Court on 06.08.2019 under Sections 409/420/120(B) but till date no further action has been taken. It is the specific case of petitioner that till date the learned Trial Court has not found the petitioner guilty of the charges but still on the ground of assumption and presumption, the petitioner has been denied the benefits of promotion/ ad hoc promotion and juniors to him in the seniority list have been promoted to the next higher post i.e. Assistant Engineer. Aggrieved by such action of the respondents, the petitioner has knocked the door of this Court. 4. Ms. Khalida Haya Rashmi, learned counsel appearing for the petitioner submits that petitioner was appointed in the year 1995 and thereafter, served the respondent-Department for 28 long years to the full satisfaction of the respondent-authorities. Aggrieved by such action of the respondents, the petitioner has knocked the door of this Court. 4. Ms. Khalida Haya Rashmi, learned counsel appearing for the petitioner submits that petitioner was appointed in the year 1995 and thereafter, served the respondent-Department for 28 long years to the full satisfaction of the respondent-authorities. It has been further argued that one fine morning a criminal case was lodged but the said case was lodged by an outsider and not by the respondent-authorities and due to pendency of the said criminal case, petitioner was never considered for promotion to the post of Assistant Engineer till date. 5. On the other hand, respondents have filed counter-affidavit. Mr. Niraj Kumar Mishra, learned counsel appearing for the respondent-State by vehemently opposing the contention of learned counsel for the petitioner argues that promotion is not a right of an employee. However, there is right for consideration. The case of petitioner has been considered and it has been found that ACRs have not yet been received by the respondents or by the Departmental Promotion Committee for consideration. Admittedly, there is pending criminal case against the petitioner in which charge-sheet has been filed, prosecution sanctioned and as such, till final outcome of the criminal case, the case of petitioner for promotion could not be considered. Justifying the action of the respondents, it has been submitted that as and when criminal case is finalized, the case of petitioner for promotion shall be considered by the respondents. 6. Having heard the rival submissions of the parties across the bar, this Court is of the view that pendency of the criminal case, prolonged for years together, cannot be a ground for rejection of case of an employee for promotion. The employee is entitled for promotion atleast once in the entire service career. 7. In the present case, the petitioner’s case has not been considered rather, withheld on the ground that there is a criminal case pending against the petitioner. From the documents brought on record and from the arguments advanced by the parties, it is admitted that the criminal case was lodged by an outsider and not by the respondent-authorities. In the case in hand, petitioner’s claim is that till disposal of the criminal case atleast the case of petitioner may be considered for ad hoc promotion. Admittedly, promotion is not a right but there is a right of consideration. 8. In the case in hand, petitioner’s claim is that till disposal of the criminal case atleast the case of petitioner may be considered for ad hoc promotion. Admittedly, promotion is not a right but there is a right of consideration. 8. The Hon’ble Apex Court in case of Union of India and Ors. Vs. K.V. Jankiraman and Ors. [ (1991) 4 SCC 109 ] has held as under : 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 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. 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. 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. Further, the Hon’ble Apex Court in case of State of Punjab & Ors. Vs. Chaman Lal Goyal [ (1995) 2 SCC 570 ] has held as under : 9. Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing. Now, let us see what are the factors in favour of the respondent. They are: (a) That he was transferred from the post of Superintendent of Nabha Jail and had given (sic up) charge of the post about six days prior to the incident. While the incident took place on the night intervening 1-1-1987/2-1-1987 the respondent had relinquished the charge of the said office on 26-12-1986. He was not there at the time of incident. (b) The explanation offered by the Government for the delay in serving the charges is unacceptable. There was no reason for the Government to wait for the Sub-Divisional Magistrate’s report when it had with it the report of the Inspector General of Prisons which report was not only earlier in point of time but was made by the highest official of the prison administration, Head of the Department, itself. The Inspector General of Prisons was the superior of the respondent and was directly concerned with the prison administration whereas the Sub-Divisional Magistrate was not so connected. In the circumstances, the explanation that the Government was waiting for the report of the Sub-Divisional Magistrate is unacceptable. Even otherwise they waited for two more years after obtaining a copy of the said report. Since no action was taken within a reasonable time after the incident, he was entitled to and he must have presumed that no action would be taken against him. Even otherwise they waited for two more years after obtaining a copy of the said report. Since no action was taken within a reasonable time after the incident, he was entitled to and he must have presumed that no action would be taken against him. After a lapse of five and a half years, he was being asked to face an enquiry. (c) If not in 1992, his case for promotion was bound to come up for consideration in 1993 or at any rate in 1994. The pendency of a disciplinary enquiry was bound to cause him prejudice in that matter apart from subjecting him to the worry and inconvenience involved in facing such an enquiry. 11. The principles to be borne in mind in this behalf have been set out by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak. Though the said case pertained to criminal prosecution, the principles enunciated therein are broadly applicable to a plea of delay in taking the disciplinary proceedings as well. In paragraph 86 of the judgment, this Court mentioned the propositions emerging from the several decisions considered therein and observed that “ultimately the court has to balance and weigh the several relevant factors — balancing test or balancing process — and determine in each case whether the right to speedy trial has been denied in a given case”. It has also been held that, ordinarily speaking, where the court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges, or the conviction, as the case may be, will be quashed. At the same time, it has been observed that that is not the only course open to the court and that in a given case, the nature of the offence and other circumstances may be such that quashing of the proceedings may not be in the interest of justice. In such a case, it has been observed, it is open to the court to make such other appropriate order as it finds just and equitable in the circumstance of the case. 12. Applying the balancing process, we are of the opinion that the quashing of charges and of the order appointing enquiry officer was not warranted in the facts and circumstances of the case. 12. Applying the balancing process, we are of the opinion that the quashing of charges and of the order appointing enquiry officer was not warranted in the facts and circumstances of the case. It is more appropriate and in the interest of justice as well as in the interest of administration that the enquiry which had proceeded to a large extent be allowed to be completed. At the same time, it is directed that the respondent should be considered forthwith for promotion without reference to and without taking into consideration the charges or the pendency of the said enquiry and if he is found fit for promotion, he should be promoted immediately. This direction is made in the particular facts and circumstances of the case though we are aware that the rules and practice normally followed in such cases may be different. The promotion so made, if any, pending the enquiry shall, however, be subject to review after the conclusion of the enquiry and in the light of the findings in the enquiry. It is also directed that the enquiry against the respondent shall be concluded within eight months from today. The respondent shall cooperate in concluding the enquiry. It is obvious that if the respondent does not so cooperate, it shall be open to the enquiry officer to proceed ex parte. If the enquiry is not concluded and final orders are not passed within the aforesaid period, the enquiry shall be deemed to have been dropped. 13. The High Court has relied upon the decision of this Court in State of M.P. v. Bani Singh on the question of delay. That was a case where the charges were served and disciplinary enquiry sought to be initiated after a lapse of twelve years from the alleged irregularities. From the report of the judgment, the nature of the charges concerned therein also do not appear. We do not know whether the charges there were grave as in this case. Probably, they were not. There is another distinguishing feature in the case before us: by the date of the judgment of High Court, the major part of the enquiry was over. This is also a circumstance going into the scales while weighing the factors for and against. Probably, they were not. There is another distinguishing feature in the case before us: by the date of the judgment of High Court, the major part of the enquiry was over. This is also a circumstance going into the scales while weighing the factors for and against. As stated hereinabove, wherever delay is put forward as a ground for quashing the charges, the court has to weigh all the factors, both for and against the delinquent officer and come to a conclusion which is just and proper in the circumstances. In the circumstances, the principle of the said decision cannot help the respondent. 9. By efflux of time it has been held that promotion becomes right of an employee when same has not been considered throughout of his service career. Even in view of Clause-4 of the Resolution of State Government issued in the year 2008, wherein it is stipulated that during the pendency of criminal case or departmental proceeding which has prolonged for years together, an employee is atleast entitled for ad hoc promotion. In the instant case, admittedly petitioner was not considered for promotion in view of pendency of the criminal case which is pending since 2011. 10. The issue regarding adhoc promotion during the pendency of the criminal case also fell for consideration before this High Court in case of State of Jharkhand vs. Vinod Mani Diwakar and Ors. [2010 (2) JLJR 89] wherein, the Division Bench of this High Court affirmed the order of Central Administrative Tribunal holding therein that the petitioner was entitled for promotion as the criminal case which is pending for more than 20 long years has not been decided till date and as such the case of the petitioner cannot be ignored. In the instant case, a criminal case against the petitioner has been pending since 2011 and almost 13 years have elapsed but the respondents have not taken any decision regarding grant of adhoc promotion of the petitioner. It would be apposite to direct the respondent-authorities to consider the case of the petitioner for adhoc promotion during the pendency of the criminal case. 11. It would be apposite to direct the respondent-authorities to consider the case of the petitioner for adhoc promotion during the pendency of the criminal case. 11. In view of the peculiar facts and circumstances and in view of the legal propositions as laid down by the Hon’ble Apex Court as well as by the different High Courts, I hereby direct the respondents to hold a fresh DPC for consideration of the case of the petitioner for grant of promotion regular/ adhoc, taking into consideration the ratio laid down by the Hon’ble Apex Court in case of Union of India and Ors. Vs. K.V. Jankiraman and Ors. (supra) and State of Punjab & Ors. Vs. Chaman Lal Goyal (supra) and further the judgment passed by this Court in case of State of Jharkhand Vs. Vinod Mani Diwakar & Ors. (supra) and pass a reasoned order to that effect within a period of three months from the date of receipt/ production of a copy of this order. 12. Needless to say, if the petitioner is found entitled for regular/ adhoc promotion, the same shall be granted to him with all consequential benefits, within a period of four weeks thereafter. 13. With the aforesaid observations and directions, the writ petition stands allowed.