Balram Kumar vs State Of Himachal Pradesh And Others

Tarlok Singh Chauhan, J

The instant petition was filed before the erstwhile Tribunal for grant of following reliefs:

“(i) That impugned order dated 31.3.2015 passed by the Disciplinary Authority whereby the applicant has been imposed the penalty of Censure and the communication dated 23.11.2015 passed by the appellate authority whereby the appeal has been rejected may kindly be quashed and set aside.

ii) That the respondents may be directed to open the recommendations of the Departmental Promotion Committee, with respect to the Applicant, convened on 21.6.2011 and they may be directed to promote the applicant as Deputy Controller (F&A) from the date his juniors have been promotedinpursuancetothe recommendations of Departmental Promotional Committee convened on 21.6.2011 with all consequential benefits and he may be further promoted to the post of Joint Controller from the day his immediate junior has been promoted i.e. 2013 that too with all consequential benefits.

iii) That the respondents may further be directed to grant the benefit of increment under Assured Career Progression Scheme on completion of 4 years service w.e.f. 2010, i.e. when the applicant became eligible for the same with all consequential benefits along with arrear @ 9% interest p.a.”

The petitioner was initially appointed as a Clerk in the Police Department, where he joined his duties on 10.1.1985. Thereafter, the petitioner qualified the Subordinate Accounts Service (in short ‘SAS’) Examination Part­I and Part­II and was appointed as Section Officer in the office of District Education Officer, Lahaul & Spiti at Keylong. Subsequently, vide office order dated 28.2.2006, the petitioner came to be promoted to the post of Assistant Controller (F&A) and was transferred to DRDA, Chamba.

The petitioner was again transferred to the office of Deputy Commissioner, Chamba, where he joined on 4.8.2007. While working as such, FIR No.165/2009 dated 7.7.2009 came to be registered at Police Station, Sadar, Chamba under Sections 7, 13(2) of the Prevention of Corruption Act, in which the petitioner was also arraigned as one of the accused. The case was put up for trial and vide judgment dated 30.12.2011, the petitioner alongwith other co­accused found guilty and convicted by the learned Trial Court.

Aggrieved by the judgment of conviction and sentence, the petitioner approached this Court by filing Criminal Appeal No.16 of 2012, which was allowed and the petitioner was acquitted of all the charges levelled against him vide judgment dated 22.11.2013.

However, prior to the order of acquittal, the petitioner came to be charge­sheeted and as many as three charges were initially framed against him. However, later on, first two charges were dropped and only Article No.III of the charge­sheet was directed to be enquired into vide office order dated 18.10.2014. Article­III of the charge­sheet reads as under:­

“ARTICLE­III

Shri Balram Kumar, Assistant Controller (F&A) has not performed his duties honestly by concealing the fact regarding his sentence by the Special Judge, Chamba, Due to this Act on the part of delinquent officer, the image of the department has been hurt and the officer has failed to live up to the faith, the Government has bestowed upon him. Therefore, this act on the part of Shri Balram Kumar, is unbecoming of a Government servant and is in violation of provisions of Rule 3(I)(i)(ii)(ii) of CCS Conduct Rules, 1964.”

The Inquiry Officer enquired into the charge and vide report dated 16.2.2015 held Article­III to have been proved.

For completion of facts, it needs to be noticed that proceedings of DPC for the post of Deputy Controller (F&A) was convened by the respondents on 21.6.2011 and since the petitioner was eligible but was facing criminal trial, his case was kept in a sealed cover. According to the petitioner, his name was reflected at Sr. No.43, when the DPC was convened and his junior Shri Ashok Kumar Chauhan, who stood at Sr. No.44 was promoted to the post of Deputy Controller in pursuance to the recommendations of the DPC held on 21.6.2011. However, despite order of acquittal, the petitioner was not granted the benefit of promotion from the date his junior had been promoted. Hence this petition.

The respondents have contested the petition by filing reply, wherein factual aspects have not been denied. However, the only defense taken by the respondents is that in terms of para 16.32 (iv) (b) of Hand Book on Personnel Matters, Vol.­I (Second Edition), it has been provided that “if any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in criminal prosecution against him, the findings of sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to penalty imposed on him.”

It is further submitted that since the petitioner was served with a charge sheet vide memorandum dated 31.8.2012, the inquiry report on the charge sheet was received on 11.2.2015 and disciplinary authority imposed penalty of ‘Censure’ vide order dated 31.3.2015, therefore, the case of the petitioner in terms of the aforesaid paragraph was rightly considered for promotion by the respondents in the immediate next DPC meeting held on 23.4.2015.

I have heard learned counsel for the parties and gone through the material placed on record.

At the outset, it needs to be noticed that the petitioner as regards the criminal case was honorably acquitted by this Court, as would be evident from a perusal of paragraphs No.30 and 31 of the judgment, which reads as under:­

“30. It is also intriguing that earlier on 30.6.2009 during meeting between appellant and complainant, a bearer cheque of Rs. 58,000/- dated 1.7.2009 Ex.PW- 5/A in the name of appellant was handed over by the complainant to the appellant as bribe money but after six days the appellant refused to encash the cheque and demanded bribe money Rs.58,000/- in cash in two instalments of Rs.45,000/- before inspection and Rs.13,000/- after inspection. The attempt to pay bribe money through cheque is highly suspicious inasmuch as normally no officer would accept bribe money through cheque. The prosecution has miserably failed to prove demand, acceptance and recovery of bribe money worth Rs.45,000/- from appellant. The prosecution has miserably failed to prove the charge against appellant beyond reasonable doubt. In view of above discussion, the learned Special Judge has misconstrued, misinterpreted the evidence in convicting and sentencing the appellant. The view taken by the learned Special Judge is perverse, the impugned judgment of conviction and sentence is not sustainable.

The result of above discussion is that the appeal is allowed, the conviction and sentence recorded by learned Special Judge, Chamba of the appellant is set-aside. The appellant is acquitted of the charge and his bail bonds are discharged.”

Now, as regards the contention of the respondents regarding the applicability of para 16.32 (iv)(b) to deprive the petitioner for promotion, I find the same to be totally misplaced and inapplicable to the facts of the present case, as it is Clause 16.32(iv)(a), which is clearly applicable in the present case and the same reads as under:

“(iv) Action after completion of disciplinary case/criminal prosecution

(a) On the conclusion of disciplinary case/criminal prosecution which results in dropping of allegations against the Govt. servant, the sealed cover or covers shall be opened. In case the Government servant is completely exonerated, the due date of his promotion will be determined with reference to the position and with reference to the date of promotion of next junior on the basis of such position. The Government servant may be promoted, if necessary, by reverting the junior­most officiating person. He may be promoted notionally with reference to the date of promotion of his junior. However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the appointing authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. It is not possible to anticipate and enumerate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non­availability of evidence due to the acts attributable to the employee etc. These are only some of the circumstances where such denial can be justified.”

The petitioner had been completely exonerated and, therefore, due date of his promotion was required to be determined with reference to the position assigned to him in the findings kept in the sealed cover and with reference to the date of promotion of next junior on the basis of such position.

As regards the denial of promotion to the petitioner only on the ground that he has been censured, the same is not tenable for the simple reason that instruction 16.13 contained in Chapter 16 of the Hand Book on Personal Matters Volume­I Second Edition clearly provides that the imposition of minor penalty of Censure does not by itself stand against the consideration of the case of such person for promotion.

This provision, i.e., 16.13 has already been considered by a Division Bench of this Court, of which I was one of the Member, in LPA No.715 of 2011 titled Board of Directors of H.P Milkfed, Shimla and another Vs. Chet Ram and another, decided on 9.9.2014. In that case, the petitioner was facing departmental inquiry and his case had been kept in sealed cover and eventually led to penalty of censure, which was made as a ground for non­promotion of the petitioner. The learned Single Judge allowed the petition by directing the respondents to consider the case of the petitioner for promotion to the higher post after opening the sealed cover. Aggrieved thereby, the employer filed the Letters Patent Appeal (supra), wherein the main ground of attack was again that the departmental inquiry was drawn against the writ petitioner, wherein he had been found guilty and penalty of censure was imposed upon him. Rejecting the stand of the employer, this Court held as under:­

“6. The main ground of attack of the appellants is that the departmental inquiry was drawn against the writ petitioner,was found guilty and penalty of censure was imposed upon him. Thus, the writ petitioner was not entitled to promotion.

Therefore, the only question, which remains for consideration is whether the Writ Court has rightly directed the writ respondents to open the sealed cover and consider the case of the petitioner for promotion to the higher post. It is clear from a perusal of the impugned judgment that the learned Single Judge has considered instruction 16.13 contained in Chapter 16 of the Hand Book on Personnel Matters Volume-I (Second Edn.), which provides that imposition of minor penalty of censure does not stand against consideration of the case of such person for promotion. It is apt to reproduce relevant portion of instruction 16.13 hereunder:

“16.13 Minor penalties do not constitute a bar to eligibility and consideration for promotion. The imposition of minor penalty of censure does not by itself stand against the consideration of such person for promotion.”

During the course of hearing, the learned counsel for the appellants has also argued that in view of the judgments of the Apex Court, in Union of India and others vs. A.N. Mohanan, (2007) 5 SCC 425 and Union of India and others vs. Mihir Kumar Bandopadhyay and others, (2009) 16 SCC 329, the direction given by the learned Single Judge to consider the case of the petitioner by opening the sealed cover is not legally correct and at the best, the case of the writ petitioner could be considered for promotion in the next DPC.

The judgments relied upon by the learned counsel for the appellants are distinguishable for the simple reason that instruction 16.13 (supra) was not part of the rules/instructions which were considered in those judgments. Instruction 16.13 (supra), at the cost of repetition, specifically provides that imposition of minor penalty of censure does not stand against considering the case of such person for promotion, but is to be considered after opening the sealed cover read with entire service record. Therefore, no fault can be found with the findings recorded by the Writ Court.”

Question the decision of the respondent to censure the petitioner, it is vehemently argued by Shri Onkar Jairth, learned counsel for the petitioner that respondents after dropping two serious charges could not have imposed penalty of censure upon the petitioner that too for a minor charge as quoted above.

However, I find no merit in this contention for the simple reason that the petitioner stood convicted by the learned Sessions Court vide judgment dated 30.12.2011 and even as per the case of the petitioner himself, information regarding the conviction was imparted after more than eight months on 15.9.2012.

No doubt. there is no time limit or frame within which an employee is required to inform his department/departmental superior of such conviction, whether the offence is of a serious nature or is purely technical, yet the Government servant is required to inform his official superiors of the fact of his conviction and the circumstances connected therewith as soon as it is possible for him to do so. Failure on the part of the Government servant to inform his official superiors has to be regarded as suppression of material information and will render him liable to disciplinary action on this ground alone.

In taking this view, I am duly supported by MHA OM No.25/70/49­Ests., dated 20.12.1949, Rule 19(1), Central Civil Services (Conduct) Rules, 1964.

Even in the absence of any instructions, it is otherwise reasonable to expect from a Government servant, who is convicted in a criminal court to inform his official superiors of the fact of his conviction and the circumstances connected therewith, as soon as possible for him to do so.

The Court can well appreciate the fact that as soon as the Government servant is convicted, he would normally not be in his state of mind and would take time to reconcile with the situation apart from making arrangements for assailing the conviction and obtaining the order from the competent court for such suspension of the sentence. Even then this would at best take some days or lets take to be even one month but in no event it could have been more than 8 months like the instant case. Therefore, the petitioner has rightly been imposed with the penalty of “censure”.

In view of the aforesaid discussion, this Court had not inclined to interfere with the penalty of censure as imposed by the respondents. However, as observed above, instructions 16.13 (supra) does not constitute a bar of eligibility and consideration for promotion. Accordingly the present petition is partly allowed by directing the respondents to open the sealed cover and in case the petitioner is found eligible then to promote him as Deputy Controller on and w.e.f. the date Shri Ashok Kumar Chauhan, his junior came to be promoted, pursuant to the recommendations of DPC convened on 21.6.2011, with all consequential benefits. The petitioner be considered for promotion to the post of Joint Controller from the date his immediate juniors have promoted, i..e, in the year 2013 that too with all consequential benefits, if found to be qualified and eligible.

As regards the claim of the petitioner for grant of benefit of increment under Assured Career Progression Scheme on completion of four years w.e.f. 2010, the respondents shall consider the same and in case the petitioner is found eligible then the same be paid to him promptly alongwith arrears within a period of three months, failing which they shall be liable to pay this amount alongwith interest @ 9% p.a.

The petition is allowed in the aforesaid terms, leaving the parties to bear their own costs. Pending application(s), if any, shall stand disposed of.

For compliance, to come up on 31.8.2022.