State Of Chhattisgarh vs Mukesh Gupta

Heard Mr. Naman Nagrath, learned senior counsel, assisted by Mr. Jitendra Pali, learned Deputy Advocate General, appearing for the petitioners. Also heard Mr. Abhay K. Behara, learned senior counsel, assisted by Mr. Malay Shrivastava, appearing for the respondent No. 1 as well as Mr. Ramakant Mishra, learned Assistant Solicitor General, appearing for respondent No. 2.

This writ petition is filed by the State of Chhattisgarh, through the Chief Secretary, and the Director General of Police, against an order dated 15.12.2021 passed by the learned Central Administrative Tribunal, Jabalpur Bench, Jabalpur (for short, Tribunal), in Original Application No. 564/2020 (for short, OA), rejecting the preliminary objection regarding maintainability of the OA.

The OA was filed by the present respondent No. 1 against the petitioners herein i.e. the State of Chhattisgarh, through the Chief Secretary and the Director General of Police, who were respondents No. 1 and 3, respectively, in the OA, alongwith two others.

A preliminary objection was raised alongwith a reply filed on behalf of the present petitioners to the prayer for interim relief made by the applicant/respondent No. 1 herein in the OA.

The case presented in the OA may, briefly, be noticed;

(i) The applicant before the Tribunal is an IPS Officer of the 1998 batch of the erstwhile undivided Madhya Pradesh cadre and after reorganization of the State of Madhya Pradesh into two different States, namely, Madhya Pradesh and Chhattisgarh, the applicant was allocated to the Chhattisgarh cadre. While holding the post of Chief of Intelligence and Head of Economic Offences Wing and Anti Corruption Bureau of the State of Chhattisgarh, he had lodged first information report (for short, FIR) in three very sensitive cases in which charge-sheet was filed before the competent criminal court. One case was known as ‘Irrigation Scam’, another one as ‘Nagrik Apoorti Scam’ or ‘NAAN Scam’ and the third case was against the respondent No. 4 in the OA. He was awarded President’s Police Medal for Gallantry in the year 1996 as well as in the year 2011 because of his exemplary work.

(ii) In the year 2017, there were four permanent/regular posts of Director General of Police (DGP). In exercise of powers under the proviso to Rule 4(2) of the Indian Police Service (Cadre) Rules, 1954 (for short, 1954 Rules), the Government of Chhattisgarh created three temporary posts of DGP for a period of two years starting from 01.01.2018 to 31.12.2019 and accordingly, a proposal was sent to the Ministry of Home Affairs, Government of India, though no consent is required for creation of such temporary posts. A regular Departmental Promotion Committee (for short, DPC) meeting was held and by order dated 06.10.2018, three Additional DGPs including the applicant were promoted as DGP, on regular basis. Though the Government of India did not concur for creation of three additional posts, the same had no effect on creation of three additional temporary posts. The applicant, however, continued to hold the post of Chief of Intelligence and Head of Economic Offence Wing and Anti Corruption Bureau.

(iii) In the State Assembly elections that was held in the month of November, 2018, there was a change of guard and a different political party came to power and the respondent No. 4 became the Chief Minister, and on the very first date, i.e. on 17.12.2018, the applicant was transferred out without any posting. On 03.01.2019, the Investigating Officer of the Naan Scam was suspended and on 07.02.2019, an FIR, being FIR No. 6/2019, came to be registered against the applicant with the allegation that he had illegally intercepted telephone calls in the Naan Scam investigation. Thereafter, on 09.02.2019, the applicant was suspended. A second FIR, being FIR No. 7/2019, was lodged on 11.02.2019 with the allegation that the applicant had illegally intercepted the telephone calls in Irrigation Scam. On 06.03.2019, a charge-sheet was issued in a departmental proceeding on the same charges as in FIR Nos. 6/2019 and 7/2019. By order dated 18.04.2019, the High Court gave interim stay against the arrest of the applicant in the two FIRs registered against him and thereafter, on 17.06.2019, a third FIR, being FIR No. 605/2019, was registered. On 12.07.2019, the Tribunal, in OA No. 200/566/2019 passed an interim order directing the respondents therein not to keep any date of enquiry till 05.08.2019, which order, is being continued from time to time. The applicant filed Writ Petition (Cr) No. 230/2019 before the Hon’ble Supreme Court in August, 2019, stating that he had been constantly and continuously harassed by the State and on 02.09.2019, the Hon’ble Supreme Court stayed investigation in all the three FIRs. It is alleged that after passing of the order by the Hon’ble Supreme Court, the phones of the applicant, his two daughters, driver, maid servant, sister and brother-in-law were tapped. On 24.09.2019, the State Cabinet, without there being any agenda on the subject, decided to withdraw/cancel the promotion order dated 06.10.2018 whereby three officers including the applicant were promoted as DGP. However, neither the decision of the Cabinet of Chhattisgarh nor any consequential order withdrawing the promotion had been served upon the applicant. The applicant came to know about the said decision from the news item published by the Directorate of Publicity, Government of Chhattisgarh. In view of the aforesaid news report, he filed an interlocutory application before the Hon’ble Supreme Court to demonstrate bias and prejudice against him. The Hon’ble Supreme Court, in WP(Cr) No. 230/2019, by order dated 25.10.2019, directed that phone tapping be stopped forthwith and that the applicant shall not be arrested. By another order dated 04.11.2019, the investigation that was started against the counsel of the applicant was also stayed by the Hon’ble Supreme Court. A fourth FIR, being FIR No. 18/2020, came to be registered on 05.05.2020 against the applicant, father of the applicant and a lady Doctor. The Hon’ble Supreme Court, by order dated 25.06.2020, stayed the investigation in FIR No. 18/2020. A second disciplinary proceeding was initiated on 14.08.2020 against the applicant on the allegation that the applicant had solemnized ‘Gandharva Vivah’ on 01.06.1999 and a daughter was born out of such marriage, despite being already married.

(iv) Challenging the said communication dated 14.08.2020, the applicant alongwith his daughter filed WP (C) No. 1128/2020 before the Hon’ble Supreme Court. On 09.10.2020, the Hon’ble Supreme Court in WP(C) No. 1128/2020, passed an interim order that no disciplinary proceedings shall take place in pursuance of the communication dated 14.08.2020.

(v) On 12.09.2020, the applicant had come to learn from the local news reports that a DPC had been held for promotion to the post of DGP and the name of the applicant had been put in a sealed cover. He received a speed post letter on 21.09.2020 from the standing counsel for the State of Chhattisgarh in the Tribunal, wherein a caveat application dated 17.09.2020 along with a copy of an order dated 12.09.2020 were enclosed. By the said order dated 12.09.2020, two IPS officers of the 1988 batch alongwith one officer of the 1989 batch were promoted as Special DGP.

It is the case of the applicant that he had been promoted as DGP on regular basis way back on 06.10.2018, and therefore, his case can not be re-considered. Further case is that the order dated 12.09.2020 has also not been served upon him and that though by the letter dated 12.09.2020 he was not reverted to any lower post, it appears that by inference, the State wanted to construe the order dated 12.09.2020 as reversion order in respect of the applicant.

On the basis of the above factual matrix, the applicant made the following prayers before the learned Tribunal:

“a. Call for the records of the case.

b. Direct the Respondents to produce the order, if any, to cancel/withdraw the promotion of the applicant as DG (or to revert the applicant from the post of DG) and on such production quash and set aside the same.

c. Declare that the promotion of the applicant as DG vide order dated 06.10.2018 is lawful and valid and continues to be valid.

d. Direct the respondents to give all consequential benefits to the applicant.

e. Pass any other order/direction which this Hon’ble Tribunal thinks proper in the facts and circumstances of the case.

f. Direct the respondents to pay the cost of the litigation to the applicant.”

By way of interim relief, the applicant prayed for a direction to the respondents to maintain the status of the applicant as DGP based on his promotion order dated 06.10.2018.

In the preliminary objection regarding maintainability and reply to the interim relief, it is stated that the applicant had not approached the Tribunal with clean hands inasmuch as the plea taken by the applicant that he had no knowledge of the order/decision to withdraw his promotion, is false, and that apart, filing of the OA directly for the purpose of a direction for production of the said order/decision is not maintainable as the applicant had neither applied for getting a copy of the order/decision, nor had filed any application under the provisions of the Right to Information Act, 2005 to get a copy of the said order. In that connection, to show that the applicant had the knowledge of the Cabinet decision, reliance is placed on a legal notice dated 26.02.2020 wherein at paragraph 8, it is mentioned that a Cabinet decision was taken to withdraw the earlier order dated 06.10.2018 and on an IA filed before the Hon’ble Supreme Court, wherein it is mentioned that on 26.09.2019 an order has been passed withdrawing the promotion of the applicant along with two others. It is stated that by order dated 26.09.2019, temporary promotion given to three officers by order 06.10.2018, was withdrawn as concurrence was not granted by the Government of India and the said order was duly communicated to all the three officers. As concurrence was not granted, the State had no other option but to withdraw the order dated 06.10.2018 as there was a bar to continue with the order of promotion and as such, there being no legal ground to support the case, the OA is not maintainable. It is further stated that as one year had elapsed since the order dated 26.09.2019 was passed, the OA was clearly time-bared. At paragraph 15, it was stated that the original application deserved to be dismissed as it did not disclose any cause of action and for concealment of material facts, for which the applicant also deserved to be proceeded against in accordance with law. It is also pleaded that the said OA was barred by the principles of res judicata in view of filing of WP(Cr) No. 230/2019 by the applicant before the Hon’ble Supreme Court.

The learned Tribunal noted that, in essence, three preliminary objections had been raised regarding maintainability of the OA: (i) no particular order has been challenged, (ii) OA suffers from deliberate and conscious concealment of facts relating to cause of action of impugned position/order, which amounts to misrepresentation, and (iii) the OA is barred by limitation. The learned Tribunal held that there must be existence of service grievance for maintaining the OA under Section 19 of the Administrative Tribunals Act, 1985, and in the context, relied on the judgment of the Tribunal in Ila Choudhari v. Union of India, reported in 1989 (9) ATC, wherein the Tribunal had held that there must be an existence of service grievance for maintaining an OA, and concluded that the materials on record demonstrate that the applicant has a service grievance and there is no ambiguity in claiming the reliefs. The Tribunal negated the plea of misrepresentation alleged to be resorted to by the petitioner by holding that the conduct of the respondents in placing the order on record makes it clear that the order had not been served upon the applicant. The plea raised that the OA is barred by limitation was also rejected.

Mr. Naman Nagrath, learned senior counsel for the petitioners has submitted that as the applicant did not challenge any particular order and had filed the case before the learned Tribunal only on the basis of a caveat, it is apparent that there was no cause of action for filing the OA. It is submitted that there was no cause of action even otherwise inasmuch as creation of post and promotion of the applicant along with two others was without prior concurrence of the Government of India, which is mandatory. Despite the applicant having full knowledge of the relevant facts, demonstrated by the legal notice dated 26.02.2020 and the IA filed before the Hon’ble Supreme Court, a deliberate false plea was taken by feigning ignorance of the orders passed against him. It is further submitted that the OA is barred by limitation as one year had elapsed from the order dated 26.09.2019. It is emphatically submitted that the order dated 26.09.2019 was communicated to all the three officers and was duly mentioned in the Dak Book to the effect that the same was served upon the officers, including the applicant. It is submitted that the learned Tribunal did not consider the preliminary objection raised for dismissal of the OA in proper perspective.

Mr. Ajay K. Behara, learned counsel for the respondent No. 1 submits that all that is necessary for maintainability of an application before the learned Tribunal is that there must be a service grievance and it is not essential that there should always be a formal order in existence for approaching the Tribunal. He relies upon the order of the learned Tribunal for dismissal of this petition. He has also placed reliance on a judgment of the Hon’ble Supreme Court in the case of D.P. Maheshwari v. Delhi Administration & Others, reported in (1983) 4 SCC 293.

We have considered the submissions of the learned counsel for the parties and have perused the materials on record.

In D.P. Maheshwari (supra), the Hon’ble Supreme Court had observed that there was a time when it was thought prudent and wise policy to decide preliminary issues first but time appeared to have arrived for a reversal of that policy. It was observed that it was better that Tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardize industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues.

The specific case presented by the applicant is that neither a copy of the Cabinet decision nor the copy of the order dated 26.09.2019 by which the promotion order dated 06.10.2018 of the applicant along with two others, was withdrawn, was served upon him. Though reliance is placed by the petitioners on the legal notice dated 26.02.2020 and the IA filed by the applicant before the Hon’ble Supreme Court in WP(Cr) No. 230/2019, a perusal of the same does not indicate that a copy of the Cabinet decision or the order dated 26.09.2019 had been received by him. The learned senior counsel for the petitioners had drawn our attention to Annexure R/8 to the OA to contend that the same establishes beyond doubt that the order dated 26.09.2019 was served upon the applicant. Annexure R/8 is a document which was filed alongwith the preliminary objection. Annexure R/8 is a Stamp Account Register which has three columns, namely, issue number, to whom sent, and postage. Among various names, under the column ‘to whom sent’, the name of the applicant appears and as against him, postage of Rs.10 is shown. It is not indicated as to whether the same is sent by registered post or by hand. Evidently not by hand, because postage of Rs.10 is shown. While it may be true that the letter dated 26.09.2019 was sent, there is no conclusive material to demonstrate that the same has been served upon the applicant and that despite service of such letter, a false plea has been taken by the applicant.

From the order dated 12.09.2020, which was enclosed with the caveat, it transpired that two officers, who were earlier promoted along with the applicant as DGP, were again sought to be promoted as DGP in addition to one more officer, who, being of 1989 batch, was junior to the applicant. The case of the applicant is that he was promoted as DGP on 6.10.2018 on regular basis and as on 01.12.2019, his position was within the first four permanent cadre posts of the DGPs and thus, accommodated against one of the four permanent cadre posts. It is in that context, the applicant has sought for a direction to the respondents in OA (petitioners herein) for a direction for production of the order by which promotion order was withdrawn and to quash the same, if there was any such order, as the genesis and roots of subsequent events including promotion of three officers as DGP lies in such an order. For the purpose of disposal of this writ petition, we are not called upon to record any finding with regard to contentions advanced. However, with regard to the plea taken by the petitioners that the application filed by the applicant before the learned Tribunal is not maintainable, we are of the opinion that the attending facts and circumstances make it clear that the applicant is aggrieved by such orders as are noticed herein above and therefore, the learned Tribunal was justified in rejecting the contention of the petitioners that the OA was not maintainable on the ground that no order had been challenged.

So far as the question of limitation is concerned, it is to be noted that in view of Covid-19 pandemic, the Hon’ble Supreme Court, by taking suo moto cognizance of the situation, in WPC No. 3 of 2020, vide order dated 23.03.2020, had directed that the period of limitation in all proceedings in respective Courts/Tribunals across the country, irrespective of the limitation prescribed under the general laws or Special Laws whether condonable or not shall stand extended with effect from 15.03.2020 till further orders to be passed and the said order was extended from time to time. Later on, by an order dated 08.03.2021, amongst others, it was provided that in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 to 14.03.2021 shall stand excluded. The OA was filed on 19.10.2020 and therefore, the plea that the OA was barred by limitation, the same having been filed after one year of order dated 26.09.2019, has no legs to stand.

In view of the above discussion, we find no merit in this application and the same is, accordingly, dismissed. No cost.