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Judgment
J.V. Bhairavia (Member J)
Aggrieved with the order dated 01.07.2022 whereby the respondents cancelled the promotion to the post of Inspector of Police granted to the applicant vide order dated 16.01.2021, the applicant has filed the present OA, under Section 19 of the Administrative Tribunal Act, 1985, seeking relief for quashing the impugned order 01.07.2022 (Annex. A/4) and further praying for issuance of direction to the respondents to allow him to continue as Inspector of Police since the impugned order has been passed without affording him any opportunity of hearing or show cause as a result of which he has been reverted to the lower post.
The brief facts as stated by the applicant are as under:-
2.1 Initially the applicant was appointed as a Sub Inspector in J&K police. Thereafter, on recommendation of the Departmental Promotion Committee, he was promoted as Inspector of Police vide order dated 16.01.2021 (Annex.A/1). Presently the applicant is working as Inspector in Police Component (Special Operation Group), Surankote, Punch, Jammu.
2.2 After the applicant was promoted, the respondent no. 3 had issued charge sheet dated 12.4.2022 (Annex.A/2) with respect to the pending criminal complaint case against the applicant under the FIR No. 101/2013 registered for the alleged offence u/s 336/34 RPC and Sec. 30 of the Arms Act at the Police Station Kanachak in the year 2013. The applicant was directed to submit his reply to the alleged charges within seven days. In response to it, he had submitted his detailed reply/explanation dated 13.04.2022 (Annex.A/3), stating that the Chargesheet was issued in violation of the procedure laid down in Rule 359 (4) and (5) of the Police Manual and ‘the misconduct’ as alleged, was related to the offence registered in the year 2013 for which the case was subjudice before the Court and the same remained pending for no fault on his part. He requested the disciplinary authority to drop the charges on the aforesaid ground as also the charge memo had been issued belatedly i.e. after almost a decade as the FIR was registered in 2013 whereas the charge memo was issued only on 12.04.2022 i.e. after over 9 years.
2.3 It is stated that recently the applicant came to know that vide order dated 10.05.2022 the Disciplinary Authority has awarded punishment of forfeiture of annual increment of the applicant. In this regard, it is contended that without supplying any inquiry report or even an opportunity to defend, the Disciplinary Authority has passed order which is in utter violation of the principles of natural justice and therefore the said order of punishment is nullity in the eye of law. Since applicant has not received the copy of the said punishment order dated 10.05.2022 has not been placed on record.
2.4 Thereafter, vide impugned order dated 01.07.2022 (Annex.A/4) the respondent no.2 cancelled the promotion granted to him to the post of Inspector of Police on 16.01.2021 and further directed to review the same afresh after the outcome of the case FIR No. 101/2013 registered in Police Station Kanachak. Hence, this OA.
Learned counsel for the applicant mainly submitted that before cancellation of his promotion order and demoting him to a lower post, he was not served with any show cause notice and as such without granting any opportunity of being heard the impugned order has been passed arbitrarily and in utter violation of Articles 14, 16 and 311 (2) of the Constitution of India as well in violation of the principles of natural justice.
3.1 It is submitted that if any departmental proceedings or judicial proceedings were initiated against the applicant then the departmental promotion committee ought to have followed the sealed cover procedure in terms of Rule 110 of the Civil Service Regulations (CSR) but said procedure cannot be allowed to follow after the recommendation by the DPC for grant of promotion. But in the present case , the respondents have not followed the said rules at the time of recommendation in the year 2021. After more than one year of his promotion same has been ordered to be cancelled vide impugned order by the respondents, the said order has been passed arbitrarily and in violation of the principles of natural justice.
3.2 It is submitted that in fact after considering the service record of the applicant, the DPC had recommended his name for promotion and accordingly he was granted promotion. It is submitted that the pending criminal proceedings related to FIR registered in the year 2013, the said pending judicial proceedings/case cannot be made a sole ground to deny promotion to him for all times to come by the review DPC. In this regard, learned counsel for the applicant has placed reliance on judgment passed by the Hon’ble Apex Court in the case of State of Punjab and Ors. Vs. Chamanlal Goyal reported in 1995 SCC 2570 (Annex.A/5) and submitted that promotion cannot be denied due to the delay in completing the criminal proceedings. He also placed reliance on judgment passed by Hon’ble Madras High Court dated 16.8.2016 in the case of P. Periyasamy Vs. Commissioner of Transport and further submits that in the case the pending criminal case, till the applicant declared guilty and any punishment is awarded, the respondents ought not to have cancelled the order of his promotion. It is submitted that the impugned order of cancellation of promotion is also in violation of Rule 110 of the Civil Services Regulations (Annexs. A/6 to A/8 colly).
3.3 It is submitted that that after the applicant was promoted as Inspector of Police on 16.01.2021 a review DPC had taken into consideration the subsequent events viz., initiation of disciplinary proceedings against him vide charge memo dated 12.04.2022 and the punishment order passed by the said authority on 10.05.2022 for cancelling his promotion. In this regard, further it is submitted that the material which did not exist at the time of recommendation of the name of the applicant by the DPC i.e. in the month of January 2021, same cannot be looked into. Therefore, the review DPC has exceeded its power and arbitrarily passed the impugned order. Further, it is submitted that the order passed by the disciplinary authority dated 10.05.2022 did not speak about any reversion of the applicant to the post of Sub Inspector but it was only with respect to forfeiture of annual increment for one year while applicant was working as Inspector of Police. It is submitted that the said order dated 10.05.2022 as such cannot be made basis to withdraw the promotion order. Therefore the impugned order has been issued in violation of Articles 14,16 and 311(2) of the Constitution of India and is required to be quashed.
3.4 It is submitted that since the copy of the said order dated 10.05.2022 has not been supplied, the applicant reserves his right to challenge the same as and when it is served upon him.
Per contra, on receipt of notice issued by this Tribunal, the respondents have filed their counter reply and denied the claim of the applicant.
The respondents mainly submitted that during preparation of promotion list for the year 2021 for the post of Inspector, the PHQ Jammu forwarded the service records of the applicant herein vide letter dated 19.06.2020 and it was communicated that there was nothing adverse against the applicant. Further, the Director ACB, J&K, Srinagar and CIV PHQ vide letters dated 20.11.2020 and 28.11.2020, also communicated that there was no incriminating material against the applicant. Based upon the said letters/report as also the Service Record of the applicant, the DPC found him fit for inclusion in the promotion list and accordingly he was promoted as Inspector vide order dated 16.01.2021 with immediate effect.
4.1 Further, it is stated by the respondent that subsequent to applicant’s promotion, the AIG (CIV), PHQ vide letter dated 22.03.2021 forwarded the online grievance lodged by one Shri Munshi Ram resident of Kanuchak, Jammu that the applicant herein was facing charges under Sections 336/34 RPC and Section 30 of the Arms Act with respect to FIR No. 101/2013 in FIR No. 101/2013 registered at Police Station Kanachak, Jammu and the case is pending before the Forest Magistrate, Jammu.
4.2 Learned counsel representing the respondents also argued that at the time of preparation of promotion list, the details of pending criminal case/proceeding against the applicant was never communicated to the PHQ as also to the DPC. Had the said details been brought to the notice of the DPC, the applicant would never have been promoted and the DPC would have adopted the ‘Sealed Cover Procedure’ due to this very reason. Since these details were not brought to the knowledge of the DPC, the procedure of sealed cover as stipulated under Rule 110 (A) of the CSR Rules, could not be followed by the DPC and erroneously, the name of applicant was recommended for the promotion.
4.3 It is submitted that after the applicant was promoted as Inspector, a departmental inquiry was initiated against him and the charges levelled against him were proved and the Disciplinary Authority vide order No. 151 of 2022 dated 10.05.2022, awarded a punishment of forfeiture of his annual increment for one year.
4.4 Further, it is submitted that the Rule 110-A of CSR stipulates the sealed cover procedure is to be applied in respect of promotion of Government Servant in the eventuality of certain conditions which includes (a) Suspension, (b) Charge sheet issued and disciplinary proceedings are pending and (c) Charge Sheet for Criminal Offence has been filed in the Court of Law or sanction for prosecution has been issued.
4.5 Further, it is contended by the respondents that the Ministry of Personnel Public Grievances and Pension, Department of Personnel & Training, New Delhi vide OM dated 13.04.1988 had issued instructions and guidelines to the effect that the procedure of any DPC may be reviewed, if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC or if there have been grave error of the procedure followed by the DPC. Since applicant herein was promoted due to non submission of material facts to the DPC by the unit concerned, the DPC proceedings warranted a review in terms of the Instruction issued by the DoP&T vide OM dated 13.04.1998. Accordingly, in the case of the applicant a review DPC was held and it was found that at the relevant time, the applicant was facing criminal proceedings before the Court of Law and the said criminal proceeding has not been finalized by the Court as yet. Further, the review DPC has found that he was awarded punishment of forfeiture of annual increment. Hence, vide impugned order dated 01.07.2022 the competent authority cancelled the promotion order dated 16.01.2021 qua the applicant herein and further recommended that the promotion case of the applicant be reviewed after the outcome of pending criminal case/criminal proceedings.
Therefore, learned counsel for the respondents submits that the impugned order dated 01.07.2022 passed by the review DPC, is in consonance with the provisions of Rule 110-110-A of CSR, as also same was passed by following the Guidelines issued by the DoP&T vide O.M. dated 13.04.1998. The impugned order is just and proper; hence, the applicant is not entitled for any relief as sought in this O.A.
The applicant has filed rejoinder and reiterated his submissions. In addition, it is submitted that, in terms of Art. 311 of the Constitution of India, without giving him a reasonable opportunity of being heard or any show cause orally or in writing, applicant could not have been reduced in the rank/lower post. Further, it is stated that pendency of criminal case with regard to FIR registered in the year 2013 cannot be formed basis to deny his promotion in the year 2021-22.
5.1 It is also stated by the applicant that even during the pendency of the trial in a criminal case, the benefit of promotion can be granted. As per the provision of Rule 110 of the Civil Service Regulations (CSR), it is obligatory on the part of competent authority to ensure six monthly review of the sealed cover cases.
5.2 In the present case, the details were forwarded by the Zonal Office Head Quarter to the competent authority vide their letters dated 19.06.2020, 20.11.2020, 25.11.2020 & 28.11.2020 wherein, it was correctly conveyed to the competent authority as also to the DPC that there was nothing incriminating against the applicant.
5.3 It is submitted that the entire process of withdrawing/cancelling the promotion of the applicant has been initiated at the instant of online grievance lodged by one Shri Munshi Ram, who is the original complainant in FIR No. 101/2013 and is father-in-law of applicant’s sister. Because of the matrimonial dispute, a case was registered before the matrimonial court in Jammu. The sister of the applicant had also filed separate case/litigation for maintenance and same was pending before the family court in Rajouri. The FIR was lodged by the complainant on false and frivolous ground and in order to harm the service career of the applicant to settle his personal animosity. The higher authorities i.e. Zonal Police Head Quarter being aware of the false nature of the case and the fact that there was no evidence to connect the applicant with the alleged offense in question, they had forwarded the case of applicant for promotion with a recommendation that there was no incriminating material against the applicant.
5.4 In support of aforesaid submission learned counsel for the respondents placed reliance on the following judgments/orders :
(i) Ram Ujarey Vs. UOI passed by Hon’ble Apex Court.
(ii) Order passed by Hon’ble High Court of Chhatishgarh in the case of Prem Narain Sringar Vs. State of Chhatishgarh decided on 27.7.2021 in WP (C) No. 6423/2010
(iii) Judgment/ order passed by the said High Court in WP (S) No. 4699/2010 decided on 12.9.2017 in the case of Rajkumar Gonekar Vs. State of Chhatishgarh and Ors.
(iv) Judgment dated 28.12.1973 passed by Hon’ble High Court of J&K in the case of G.S.Boroca Vs. State of J&K and another.
Heard the counsel for both the parties and perused the material on record.
It emerges from the record that the respondents in their counter reply have admitted that during the preparation of the list of promotion for the post of Inspector in the year 2021, the PHQ Jammu forwarded the service record of the applicant vide letter dated 19.6.2020 and conveyed to the competent authority that nothing adverse was there against the applicant. Further, vide letter dated 20.11.2020 and 28.11.2020, the Director, ACB, J&K, Srinagar and CIB, PHQ conveyed to the competent authority that there was no incriminating material against the applicant.
It is evident that after considering the aforesaid service record of the applicant, the DPC constituted vide PHQ order dated 12.1.2021 found the applicant fit for his inclusion in the promotion list for the post of Inspector of Police. Accordingly, his name was recommended for promotion and vide order dated 16.1.2021 he was promoted with immediate effect.
Undisputedly, after the applicant had assumed the charge of the promotional post as Inspector in the month of January 2021, the AIG (CIV) PHQ vide letter dated 22.3.2021 had conveyed to the competent authority about receipt of online grievance lodged by one Munshi Ram, that at the time of DPC, the applicant herein was facing charges before the competent court with regard to offence u/s 336/34 of RPC and Sec. 30 of Arms Act registered against the applicant with Kanachak Jammu Police Station being FIR No 101/2013 and conveyed that due to the said criminal case, the matter was still subjudice. This fact was further confirmed by ADGP, Jammu Zone vide his letter dated 1.6.2021.
It is noticed that subsequent to grant of promotion to the applicant, said promotion order dated 16.01.2021 came to be cancelled vide impugned order dated 01.07.2022 after about one and a half year for the reason of non submission of material facts by the concerned Unit about pendency of criminal proceeding against the applicant at the relevant time before the DPC. The respondents herein mainly submitted that had the facts of pendency of criminal case been brought to the notice of DPC at the relevant point of time, the applicant would not have been promoted but his promotion proceedings would have been kept in a sealer cover till the out come of said criminal case as per the DPC norms and provisions stipulated in Rule 110-A of CSR. Therefore, the decision of DPC had been taken up for review in terms of instructions issued by the DoP&T vide OM dated 13.04.1988 and as per the recommendation of the Review DPC, the competent authority vide impugned order dated 1.7.2022 cancelled the promotion order dated 16.1.2021 of the applicant and further decided to review his case afresh after outcome of the criminal case.
At this stage, here it is appropriate to refer to the provision stipulated in Rule 110-A of CSR which provides the sealed cover procedure in respect of promotion of a Government servants which is to be applied in the event of three conditions laid down in the said regulation i.e.:-
(a) Suspension
(b) Charge sheet issued and disciplinary proceedings are pending
(c) Charge Sheet for Criminal Offence has been filed in the Court of Law or sanction for prosecution has been issued.
In the present case, it is not in dispute that at the time of DPC, the Charge sheet against the applicant was filed in the Court against the applicant and he was facing charges for the offence under Section 336/34 of RPC and under Section 30 of the Arms Act. In other words, criminal proceedings were pending against him at the time of DPC. Therefore, as per the provisions of Rule 110 (A) (1) (iii), the Sealed Cover Procedure was required to be adopted, however, the said procedure was not followed by the DPC at that time for non submission of relevant details of pendency of criminal proceedings against the applicant.
It is important to mention that the officer was promoted without the relevant information about the pending criminal case which was due to failure in submission of material facts to the DPC by the concerned Unit. Once the facts about pending criminal proceeding came to the notice, the earlier DPC proceedings warranted a review by the fresh DPC in pursuance to the OM No. 22013/1/97/Estt.(D) dated 13.04.1998 issued by the DoP&T wherein, the clear instructions had been issued in the matter. The relevant instructions in issued to all the concerned as under :
“ The procedure of any DPC may be reviewed only if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of DPC or if there have been grave errors in the procedure followed by the DPC. Thus if may be necessary to convene Review DPC to rectify certain unintentional mistakes’’.
11 At this stage, it is appropriate to refer to the judgment passed by the Hon’ble Apex Court in case of Delhi Development Authority Vs. S.C.Khurana reported in 1993 (2) SLR 509 wherein, to reconcile the conflicting interests of Government servant and the Administration with respect to consideration of issue of promotion during the pendency of disciplinary proceedings, it was held that, it is just and fair to adopt a sealed cover procedure in such circumstances. In the said case, there were allegations of irregularities on the part of the delinquent employee and for it, Chargesheet was dispatched on 13.07.1990 by the Disciplinary Authority and the Charge Memo was served. In the meantime, on 28.11.1990, the DPC met and discuss the case of applicant/delinquent for his promotion and followed the sealed cover procedure, which in effect meant keeping his promotion in abeyance till the outcome of the domestic inquiry. The said employee challenged the same before the Hon’ble Delhi High Court which allowed the prayer of the employee and directed the employer to consider his case, if he has been otherwise found suitable. Aggrieved by the said judgment, an Appeal came to be filed by the employer before Hon’ble Apex Court. While quashing and setting aside the judgment of Hon’ble Delhi High Court and allowing the Appeal of the appellant DDA the Hon’ble Apex Court by considering the rule provision for applying the sealed cover procedure held as under :-
“7. Before we refer to Jankiraman1 we may advert to clause (ii) of para 2 of O.M. dated January 12, 1988 which was the guideline applicable at the material time, in the present case, and is as under:
“(ii) Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;”(emphasis supplied)
These words clearly indicate that the sealed cover procedure was applicable, in cases where the ‘disciplinary proceedings are pending’ in respect of the government servant; or ‘a decision has been taken to initiate disciplinary proceedings’. Thus, on a decision being taken to initiate disciplinary proceedings, the guidelines attract the sealed cover procedure. The reason is obvious. Where a decision has been taken to initiate the disciplinary proceedings against a government servant, his promotion, even if he is found otherwise suitable, would be incongrous, because a government servant under such a cloud should not be promoted till he is cleared of the allegations against him, into which an inquiry has to be made according to the decision taken. In such a situation, the correctness of the allegation being dependent on the final outcome of the disciplinary proceedings, it would not be fair to exclude him from consideration for promotion till conclusion of the disciplinary proceedings, even though it would be improper to promote him, if found otherwise suitable, unless exonerated. To reconcile these conflicting interests, of the government servant and public administration, the only fair and just course is, to consider his case for promotion and to determine if he is otherwise suitable for promotion, and keep the result in abeyance in sealed cover to be implemented on conclusion of the disciplinary proceedings; and in case he is exonerated therein, to promote him with all consequential benefits, if found otherwise suitable by the Selection Committee. On the other hand, giving him promotion after taking the decision to initiate disciplinary proceedings, would be incongrous and against public policy and principles of good administration. This is the rationale behind the guideline to follow the sealed cover procedure in such cases, to prevent the possibility of any injustice or arbitrariness.
Adverting to the facts of the instant case, as noted herein above admittedly at the relevant time the material facts about issuance of the chargesheet against the applicant for criminal offence and pendency of the criminal proceedings before the Forest Court, Jammu were not brought to the notice of the DPC by the concerned unit of the respondents herein. Therefore, there was no occasion for the DPC to adopt or apply the procedure of sealed cover in the case of applicant at the relevant time. At this stage, we also take note of the fact that applicant had never refuted the fact of pendency of criminal case against him as such he admitted the same.
In our considered view in the light of statutory provision of Rule of 110-A(1)(iii) of CSR, had the fact of pendency of criminal proceedings against him was brought to the notice of the DPC, the sealed cover procedure as provided under Rule 110-A(1) would have been applied by the DPC in terms of the statutory provision of rules. Since at that time the material fact of pendency of criminal proceedings against applicant had not been brought to the notice of DPC and details of pendency of criminal proceedings, have now been placed on record, it had become necessary to convene the Review DPC in terms of DoP&T OM dated 13.4.1998 as referred herein above. And this is what the respondents have done. Therefore, we do not find any legal infirmities on the part of respondents to place the decision of the earlier DPC under review by way of convening the Review DPC in the case of applicant as per the DoP&T OM dated 13.04.1998 as referred herein above.
At the same time, the counsel for the applicant attempted to argue that pendency of criminal case for long time cannot be a bar for consideration of his case for grant of promotion and in support of it, he placed reliance on various judgments including the case of State of Punjab Vs. Chamanlal Goyal wherein, it was held that promotion cannot be denied due to the delay in completing the criminal proceedings. In this regard it is required to be mentioned that since the applicant was promoted without taking into consideration the fact about pendency of criminal proceedings against him and as noted herein above, the Instructions/Guidelines contained in the DoP&T OM dated 13.04.1998 it warranted the review of the decision of the DPC by a review DPC. Accordingly, the Review DPC was convened. The said review DPC by following the statutory mandate under Rule 110-A (1) of CSR, decided to follow the sealed cover procedure and since the promotion was already issued a year and half ago to the applicant, the competent authority rightly decided to cancel the promotion order with a further direction to convene another Review DPC for consideration of case of his promotion afresh after the outcome of pending criminal case. At the time of subsequent review DPC, the case of applicant was directed to be considered afresh and in our considered view, the said decision which is impugned herein, cannot be said to have been passed in violation of applicable rules/provisions. Therefore, the submission of the applicant is not acceptable and the judgments relied upon are also not applicable in the facts and circumstances of the present case.
So far as the submission of the applicant that the impugned order has been passed in violation of the principles of natural justice since the respondent Department has not issued any show cause or had given any opportunity of being heard before his case was placed before the Review DPC and issuance of order for cancellation of his promotion is concerned, at this stage, it is apt to mention that this Tribunal is conscious about the mandate of Article 311 (2) of the Constitution of India. At the same time, it is noticed that as per the statutory provisions under the CSR, if a Government servant is served with a chargesheet and the criminal proceeding is pending against him and the details of which have been placed before the DPC, it becomes mandatory for the DPC to follow the ‘Sealed Cover Procedure’ as prescribed under the Rules. The necessity to follow the said sealed cover procedure has been crystallized by Hon’ble Apex Court in the case of Delhi Development Authority Vs. S.C.Khurana(supra). Therefore, in the instant case, since it is not in dispute that the applicant was served a charge sheet by the police with respect to FIR No. 101/2013 registered for the offence u/s 336/34 RPC and u/s 30 of the Arms Act and the criminal case is pending before the competent court, under the circumstances, in our considered view, even if any show cause notice had been issued and replies had been received from the applicant, it is clear that requirement of observance of such statutory rules (Rule 110-A(1)(iii) of sealed cover in the present case, could not have been waived. Therefore, the submission of the applicant that the impugned order has been passed without following the principles of natural justice though apparently attractive, is not applicable in the facts of the present case as already narrated above.
16 So far as the submission of the applicant with regard to disciplinary proceedings initiated against him and punishment awarded by the disciplinary authority without supplying the report of inquiry and without affording him due opportunity to submit his defense is concerned, it is important to mention that in the present OA the applicant has only challenged the order dated 01.07.2022 whereby his promotion has been cancelled. It is admitted by the applicant that till date he has not received copy of order passed by the Disciplinary Authority and therefore, same has not been placed on record. Nor is it the subject matter of the present case. Therefore, we do not find it appropriate to deal with the said submission. At this stage we make it clear that we have not expressed any opinion with respect to the decision of the disciplinary authority as referred by the applicant herein.
In view of above discussions, we do not find any legal infirmities in the impugned order dated 01.07.2022. Accordingly, the O.A. fails and is dismissed. The interim relief granted earlier, if any, stands vacated.