State
of M.P. Vs. J.S. Bansal & Anr [1998] INSC
79 (9 February 1998)
S. Saghir
Ahmad, G.B. Pattanaik S. Saghir Ahmad, J.
ACT:
HEAD NOTE:
THE
9TH DAY OF FEBRUARY, 1998 Present:
Hon'ble
Mr. Justice S. Saghir Ahmad Hon'ble Mr. Justice G.B. Pattanaik Dr. A.M. Singhvi,
Sr. adv., Mrs. Madhur Dadlani, Satish K. Agnihotri, Advs. with him for the
appellant G.L. Sanghi, Sr. Adv., S.K. Gambhir, Vivek Gambhir, Advs. with him
for the Respondent Sakesh Kumar, K.L.Hathi, Advs. for M/s. Hathi & Co.,
Advs. for the Respondent No.2
The
following Judgment of the Court was delivered:
Respondent
No.1 while working as superintending Engineer (E&M) in the public Health
Engineering Department was issued a charge-sheet on 16.11.94 which was
challenged by him in O.A.No. 1219/94 in the Gwalior Bench of the Madhya Pradesh
Administrative Tribunal (for short, `the Tribunal') on the ground that besides
containing stale charges it was issued with the male fide intention to
forestall the consideration of his name for inclusion in the panel of
candidates for promotion to the post of chief Engineer (E&M). The claim
petition was allowed by the Tribunal by its order dated 17.5.95 and the S.L.P.
filed by the state of Madhya Pradesh, in this Court, was dismissed on 16.10.95
with the following order:- "Delay condoned.
While
we agree that some of the observations made by the Tribunal are sweeping and
not entirely correct in law, we are satisfied that the conclusion arrived at by
the Tribunal is correct. We are not inclined to interfere in the matter,
particularly in view of the fact that though the Lokayukta report was received
in 1986, the charges were served only in 1994, i.e. after about eight years. In
the meantime, the respondent had also been promoted in 1987. It is in view of
these facts and circumstances that we are not inclined to interfere in the
matter. The special Leave Petition is dismissed."
2.
Respondent No. 1, thereafter, filed another case (O.A.No. 876/95) before the
Tribunal for the relief that the State Government may be directed to convene
the meeting of the Departmental Promotion Committee for considering his name
for promotion to the post of Chief Engineer and that the State Government may
be restrained from starting any fresh departmental proceeding. This O.A. was
disposed of finally by the Tribunal by its order dated 8.12.95 and the
direction was issued to the appellant to hold the meeting of the Departmental
Promotion Committee within six weeks. The further relief that no fresh
departmental proceedings be initiated against him was refused by the Tribunal.
On 31st of January, 1996 state Government filed an application before the
Tribunal for extension of time for convening the meeting of Departmental
Promotion Committee but the Tribunal instead of granting extension, directed, by
its order dated 2.2.96, to produce the original records before it so that it
may be found out as to why the convening of the Departmental Promotion
committee was being delayed. While the matter was pending before the Tribunal,
a fresh charge-sheet was issued to respondent No. 1 and 2 others were kept in
the "Sealed Cover". This Procedure was adopted by the Departmental
Promotion Committee because of the pendency of the departmental proceedings
against Respondent No.1 on the basis of the charge-sheet issued to him on
5.2.96.
3. The
Tribunal which already had before it the application of the State Government
for extension of the time (M.A.32/96), for convening the meeting of the
Departmental Promotion Committee, passed an order on 14.2.96 restraining the
State Government from promoting any person junior to respondent No.1 to the
post of chief Engineer. A further order for status quo was passed by the
Tribunal on 27.2.96 4. Respondent No.1 in the meantime, filed anther O.A. No. 237/96
before the Tribunal on 11.3.96 with the prayer that the State Government may be
directed to open the "Sealed Cover" containing the recommendations of
the Departmental Promotion committee. This O.A. was clubbed with M.A. 32/96.
The
orders of the Tribunal, passed on 14.2.96 and 27.2.96 were challenged by the
State Government in a Writ Petition No. 1420 of 1996 before the High Court of
Madhya Pradesh which by its order dated 15.4.96 stayed the operation of the
aforesaid order as also further proceedings in M.A.32/96.
5.
O.A. No. 237/96 was taken up by the Tribunal and it disposed of the application
of Respondent No.1 for interim relief by its order dater 21/4/96 and directed
the State Government to open the "Sealed Cover" and to implement the
recommendations contained therein.
6. In
the meantime, contempt proceedings were drawn up against the officers of the
State Government for the implementing the order of the Tribunal that the
"Sealed Cover" be opened and the recommendations of the Departmental
Promotion Committee, held on 12.2.96, may be implemented.
Consequently,
the "Sealed Cover" was opened which contained the recommendation of
departmental Promotion Committee as under:- "Committee has found Shri J.S Bansal,
superintending Engineer (E&M) fit for promotion to the post of Chief Engineer
(E&M) as he fulfills the prescribed criterion.
Promotion
to be done only on being exonerated from Departmental Enquiry/Disciplinary
Proceedings."
7.
Before us, it is the Tribunal's order, dated 21.4.96 which is under challenge.
As pointed out earlier, the Tribunal, by its order, had directed that the
"Sealed Cover" be opened and the case of the respondent No. 1 for
promotion to the post of Chief Engineer may be further processed.
8. In
passing this order, the Tribunal has relied upon the India, AIR 1996 SC 484 = (1995) 6 SCC
749, in which it has been, inter alia, observed as number:
"8.
It is true that pending disciplinary proceeding, the appellant was promoted as
Assistant Commissioner of Income Tax. Two courses in this behalf are open to
the competent authority, viz., sealed cover procedure which is usually
followed, or promotion, subject to the result of pending disciplinary action.
Obviously, the appropriate authority adopted the latter course and gave the
benefit of promotion to the appellant. Such an action would not stand as an
impediment to take pending disciplinary action to its logical conclusion. The
advantage of promotion gained by the delinquent officer would be no impediment
to take appropriate decision and to pass an order consistent with the finding
of proved misconduct."
9. It
may be pointed out at the outset that the Tribunal was not justified in placing
reliance upon this decision for passing the impugned order of interim relief as
the delinquent officer (B.C. Chaturvedi), against whom a C.B.I. enquiry was
held on the allegation that he was in possession of assets disproportionate to
his known income, was not prosecuted under Prevention of Corruption Act as the
C.B.I. was of the opinion that if was not in possession of strong proof which would
ultimately result in his conviction and, therefore, recommended that Mr. B.C. Chaturvedi
may be departmentally tried. A charge-sheet was, thereafter, issued to Mr. B.C.
Chaturvedi and regular departmental enquiry was held in which misconduct on his
part was found proved and he was dismissed from service. The Tribunal, before
whom the order of dismissal was challenged, reappreciated the evidence and
upheld the findings recorded in the departmental proceedings but converted the
order of dismissal into one of compulsory retirement. During the pendency of
the departmental proceedings, Mr. Chaturvedi was promoted as Assistant
Commissioner of Income Tax. Thus, in that case, it was not the mere question of
granting interim relief of "promotion subject to the result of the
departmental proceedings" but the order of dismissal and its subsequent
conversion into the order of compulsory retirement which was under the
consideration of the Court.
The
grant of interim relief, during the pendency of the departmental enquiry, was
not directly in issue in that case and the observations were in the nature of
mere obiter dicta.
10.
The question whether recourse to "Sealed Cover" procedure can be
adopted in a case where departmental proceedings are pending on the date on which
the delinquent officer is considered for promotion and whether the The Tribunal
could pass an interim order that the employee may be considered and promoted to
the next higher post irrespective of the departmental proceedings, contemplated
or pending, was considered by this court in Union of India observed as under:-
"4. The appeal is accordingly allowed and the impugned order passed by the
central Administrtive Tribunal directing the Union of India, Ministry of
Finance of consider the respondent for promotion to the post of commissioner of
Income tax, level II, is set aside, While setting aside the impugned order of
the Tribunal we would like to record that the Tribunal had no jurisdiction
whatever while dealing with a petition to quash the contemplated departmental
enquiry against the respondent, to make an interim order of this nature. We are
also not satisfied as to the correctness of the view expressed by the Tribunal
that a contemplated departmental inquiry or pendency of a departmental
proceeding cannot be a ground for withholding consideration for promotion or
the promotion itself. We are not aware of any rule or principle to warrant such
a view. As at present advised, we do not subscribe to the view expressed by the
Tribunal."
11. After
this decision, the office Memorandum No.22011/1/79 Estt. (A) dated January 30, 1982 issued by the Government of India
(Department of Personnel and Training) was reconsidered and in its place office
Memorandum No.22011/2/86 Estt.(A) dated January 12, 1988 was issued.
12.
Both these memoranda were considered by this Court in SCC 109 in which it was
laid down that consideration of and employee for promotion, selection grade,
crossing of efficiency bar or higher scale of pay cannot be withheld merely on
the ground of pendency of any preliminary enquiry on the ground of pendency of
any preliminary enquiry of criminal investigation but the "Sealed Cover
Procedure" can be resorted to if a charge-sheet has been issued or the
departmental proceedings are pending or the employee has been placed under
suspension. It was also laid down that if on a consideration of the name of the
delinquent employee, the recommendations of the Departmental Promotion
Committee were kept in a "Sealed Cover" on account of the pendency of
departmental proceedings, the "Sealed Cover" could be opened only in
the case of complete exoneration of the employee from all charges and notional
promotion could be given to him from the date on which his juniors were
promoted. But if any penalty is imposed on the employee in disciplinary
proceedings, the "Sealed Cover" is not required to be acted upon and
his case for promotion is to be considered in the usual manner by the next
Departmental Promotion Committee.
13.
Undoubtedly, an employee has a right of being considered for promotion but he
cannot claim promotion as of right. Right to be considered for promotion is
obviously different and distinct from right of promotion. Even if disciplinary
proceedings are initiated against an employee and those proceedings are pending
on the date on which names of other employees are considered for promotion to
the next higher post along with other employees. His name cannot be omitted
from consideration merely because of the pendency of the departmental
proceedings. An employee cannot be denied this right at the interlocutory stage
of the departmental proceedings as he is still to be found guilty on the basis
of the evidence which might be produced against him during those proceedings.
Till the charges are established, his right to be considered cannot be defeated
as he is not under the cloud of having been found guilty but is only suspected
to be guilty. Mere suspicion is not a substitute for proof.
Consideration
for promotion along with other eligible candidates is done so as to give effect
to the Fundamental Right available even to a delinquent employee under Article
14 and 16 of the constitution. Once the name is considered for promotion, the
recommendations of the Departmental Promotion Committee are required to be kept
in a "Sealed Cover" obviously for the reason that if the employee is
ultimately found to be not guilty and the charges set out against him are found
as "not established", he may be promoted immediately to the next
higher post.
14. In
view of the law laid down by this Court in Tejinder Singh's case and Jankiraman's
case (supra) and in view of the service Rule/Executive instruction relating to
"Sealed Cover Procedure", Departmental Promotion Committee, in such a
situation, would be well within its right to place its recommendations in the
"Sealed Cover" so that the "Sealed Cover" may be opened on
the conclusion of the Departmental proceedings and recommendations contained
therein may be given effect to without delay. An interim order, therefore, that
the "Sealed Cover" be opened and the recommendations of the
Departmental Promotion Committee for the promotion of the delinquent officer
may be given effect to even during the pendency of the departmental proceedings,.
subject to its final result, is not usually or always or as a matter of course,
granted. This rule can be departed from only in exceptional cases depending
upon the circumstances of a particular case having regard to the fact that
integrity, honesty and sincerity are the hall-mark of public services under the
Union of the State and that efficiency of administration depend upon the effort
made by persons holding public offices to serve the country and the Nation with
devotion and an attitude of sacrifice without any iota inkling of "self
service".
15.
Learned counsel for the respondent has contended that when the charge-sheet was
first issued to the respondent, it was quashed by the Tribunal on the ground of
delay in initiating the departmental proceedings for charges which were very
old and stale. The decision of the Tribunal was upheld by this Court as the
S.L.P filed by the State of Madhya Pradesh
was dismissed. The second charge-sheet on the basis of which the present
departmental proceedings have been initiated also contains stale charges and,
therefore, the said charge-sheet would also be ultimately quashed by the
Tribunal particularly when the departmental proceedings have been initiated
with the mala fide intention of forestalling the promotion of the respondent to
the post of Chief Engineer. It is contended that the charge-sheet was issued
just one day before the meeting of the Departmental Promotion Committee which
makes it obvious that it was deliberately issued so that at the time of the
consideration of respondent's name for promotion, the recommendations may be
placed in the "Sealed Cover" and his juniors may be promoted.
16. It
is true that the charge-sheet was issued on 5.2.96, i.e., a day before the
Departmental Promotion Committee was to meet. The Departmental Promotion
committee met on 6.2.96 but actually considered the name of the respondent in
its meeting held on 12.2.96. Whether the charge-sheet was deliberately issued
to prompt the Departmental Promotion Committee to take recourse to the
"Sealed Cover Procedure" is a question of fact which has yet to be
decided by the Tribunal on merits on the basis of the evidence which might be
led by the parties. That being so. it can hardly be made a basis for interim
relief.
17. As
to the contention of the learned counsel for the respondent that the charges in
the present charge-sheet are also stale and this charge-sheet is also likely to
be ultimately quashed by the Tribunal, it would suffice to point out that the
Tribunal itself has, in its order, indicated that out of 10 charges, the first
8 charges, relate to the period 1979 to 1987 but charges No. 10 and 11 relate
to 1991 and 1992. These charges, namely, charge No.10 and 11 which relate to
the year 1991 and 1992 cannot be said to be stale.
18.
Learned counsel, then, placed reliance upon the Chamanlal Goyal, (1995) 2 SCC
570, and contended that in view of the fact that the "Sealed Cover"
has already been opened and it has been found that the respondent has been
recommended to be promoted to the post of Chief Engineer, and interim order can
be legitimately passed that he shall be promoted to the post of Chief Engineer,
an interim order can be legitimately passed that he shall be promoted to the
post of Chief Engineer subject to the result of enquiry proceedings pending
against him. This decision does not notice the Three judge decision in Jankiraman's
case.
Moreover,
it was held that the order of the High Court by which the charge-sheet as also
the order appointing an Enquiry Officer were quashed, was not warranted by the
circumstances of the case and that it was in the interest of justice as also in
the interest of administration that the departmental enquiry, which had already
proceeded to a large extent, be allowed to be completed. This court also
directed that the delinquent employee may 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 was found fit for promotion, he should be
promoted immediately. The Court hastened to add:- "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."
19.
This order was passed on the conscious consideration of the fact that the
charge-sheet and departmental proceedings had been quashed by the High Court
and, therefore, the Court merely balanced the equities by directing that the
petitioner, in that case, may be considered and promoted, if found fit.
20. It
was further observed that the promotion so made during the pendency of the
enquiry shall be, subject to review after the conclusion of the enquiry in the
large of the findings recorded in the departmental proceedings. This decision,
therefore, cannot be pressed in aid in this case.
21.
Dr. A.M. Singhvi, learned Senior Counsel appearing on behalf of the State of
Madhya Pradesh has contended that in view of the law laid down by this Court in
Jankiraman's case, the judgment passed by Tribunal cannot be sustained
particularly as the charges against the respondent relate to financial
irregularities, two of which are recent in time and cannot be said to be stale.
It is also contended that the allegation of malice made against the State
Government is still at the initial stage of mere assertion which is unsubstantiated
and cannot be treated even as laying down a foundation for any interim relief.
Dr. Singhvi also contended that part of the evidence on behalf of the State has
already been recorded by the enquiry officer and the enquiry proceedings would
be completed within the time frame fixed by this Court provided the respondent
cooperates in those proceedings.
22.
Having regard to the facts and circumstances of the instant case, we are firmly
of the view that the Tribunal was not justified in passing the impugned order
that the "Sealed Cover" be opened and the recommendations of the
Departmental Promotion committee be given effect to. The "Sealed Cover
Procedure" was rightly adopted by the Departmental Promotion Committee and
there was no reason to interfere with that procedure.
23. It
is pointed out that the post of Chief Engineer (E&M) has already been
filled up and respondent No. 2 has already been promoted. It is, however,
stated on behalf of respondent No. 1 that a post of chief Engineer(E&M), on
which Mr. K.K. Murab was promoted, has fallen vacant as Mr. Murab has retired
from service on attaining the age of superannuation in November, 1997 and this
post is still lying vacant. it is contended that on this vacant post,
respondent No.1 can be promoted subject to the result of the departmental
enquiry.
24.
Having given our anxious consideration to the respective contentions, we think
that the interest of justice would be best served by directing that if the post
of Chief Engineer (E&M), held by Mr. K.K.Murab has since fallen vacant, as
pointed out by the counsel for the respondent, and if the said post is still
lying vacant, and no promotion has so far been made on that post, it shall not
be filled up by the State Government and shall be kept vacant so that if and
when respondent No.1 is ultimately found to be not guilty in departmental
proceedings, he may be promoted on that post without delay particularly as he
has already been found by the Departmental Promotion Committee to be fit for
promotion. We also direct that the departmental proceedings, pending against
respondent No 1, shall be completed, provided respondent No, 1 cooperates. within
a period of four months. the post of chief Engineer, referred to above which
has fallen vacant on the retirement of Mr. K.K.Murab, shall not be filled up
for four months, if the same has not already been filled up in the meantime.
25.
The appeal is disposed of in the manner indicated above without any order as to
costs.
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