State Of Odisha And Others vs Purna Chandra Das And Others

In the matter of an application under Articles 226 and 227 of the Constitution of India.

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State of Odisha & others ... Petitioners -Versus- Purna Chandra Das & others ... Opp. Parties

For Petitioners : Mr. M.S. Sahoo Additional Government Advocate

For Opp. Parties : M/s. J. Das & S. Mohanty

(For Opposite Party No.1)

PRESENT:

THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY & THE HON'BLE DR. JUSTICE D.P. CHOUDHURY

___________________________________________________ Date of hearing: 03.08.2016 Date of Judgment: 29.08.2016 ___________________________________________________

Dr. D.P. Choudhury, J. Challenge has been made to the order passed by the

learned Odisha Administrative Tribunal, Bhubaneswar

(hereinafter called 'the Tribunal') passed on 23.11.2015 in O.A.

No.1129 of 2015. 2

FACTS

2. The factual matrix leading to the case is that the

opposite party No.1 who was applicant before the Tribunal, had

entered into Government service on 6.5.1981 as Inspector of

Factories and Boilers under the administrative control of the

Government in Labour and Employees State Insurance

Department. He was promoted to the post of Deputy Director of

Factories & Boilers vide office order No.11380 dated 13.12.2004

and was allowed to continue in the said post on regular basis

vide office order No.8452/LE dated 5th July, 2007. On the

recommendation of the Odisha Public Service Commission, the

opposite party No.1 in the present case who was applicant was

promoted to the post of Joint Director of Factories and Boilers

vide office order No.10893/LE dated 17.10.2008.

3. It is stated that in 2010 after amendment of the

Orissa Factories and Boilers Inspection Service Rules, 1984 the

opposite party No.1 came to the cadre of Joint Director of

Factories and Boilers, Level-II. He was also allowed to remain in-

charge of the Director of Factories and Boilers, Orissa vide order

dated 11.6.2013 after superannuation of the earlier Director.

4. It is stated that the opposite party No.1 was charge-

sheeted in Sambalpur Vigilance P.S. Case No.16 dated 3

31.3.2003. So, D.P.C. being held on 11.6.2012 for his promotion

to the post of Joint Director of Factories and Boilers of Level-I,

the opinion of the D.P.C. was kept in sealed cover. For that the

opposite party No.1 made representation on 30.3.2015 to

promote him on ad hoc basis to the post of Joint Director of

Factories and Boilers, Level-I by opening the sealed cover. As the

representation of the opposite party No.1 was not successful, he

filed application before the Tribunal and the Tribunal acceding to

his request directed the petitioner No.1 to open the sealed cover

and give him promotion on ad hoc basis in view of the

Government in General Administration Department Office

Memorandum No.1464 dated 4.7.1995. Against that order,

present writ application has been filed by the petitioners

challenging the same.

SUBMISSIONS

5. Mr. M. Sahoo, learned Additional Government

Advocate submitted that the Tribunal has committed material

irregularity by not considering the counter affidavit filed by the

State in which it is specifically stated that during pending of

vigilance case the opposite party No.1 should not be given any

type of promotion. He further submitted that the Tribunal has

over looked the fact that after the meeting of first D.P.C. held on 4

11.6.2012 again after two years the case of opposite party No.1

was considered on 4.8.2014 but in view of the allegation of the

opposite party No.1 in the pending vigilance case the

Government decided not to extend the benefit of ad hoc

promotion. Learned Tribunal has committed error by applying

the wrong proposition of law and relied upon the decisions of the

Hon'ble Apex Court which are not applicable to the present case.

While applying the decision of the Hon'ble Apex Court the

Tribunal has failed to consider that the decision of the Hon'ble

Apex Court relates to Departmental Proceeding but not to a

pending criminal case. Learned Tribunal has committed error

apparent on the face of record by not following the observations

of the Hon'ble Supreme Court in Bhajan Singh v. State of

Uttarakhand: (2013) 14 SCC 32 wherein the Hon'ble Court

following the case of Union of India & others v. K.V.

Janakiraman & others: (1991) 4 SCC 109 deprecated the

non-consideration of the relevant rules (in the present case

circulars) while considering the case of an employee for

promotion.

6. Mr. Sahoo, learned Additional Government Advocate

also submitted that the learned Tribunal has erred in law by

deciding the case against the law laid down by the Hon'ble 5

Supreme Court in State of M.P. v. J.S. Bansal and another:

(1998) 3 SCC 714 because the decision in J.S. Bansal's case

has been rendered after considering all the earlier decisions of

the Hon'ble Apex Court. Learned Tribunal has committed error by

following the decision in State of Punjab & others v. Chaman

Lal Goyal: (1995) 2 SCC 570 as the said decision has relied

application of the ratio of the facts and circumstances of that

case and said decision is not applicable to the present case

where there is circular of G.A. Department governing the sealed

cover procedure during pendency of the vigilance case which is a

criminal case whereas in Chaman Lal Goyal's case (supra) it is a

matter only relating to Departmental Proceeding and not a

vigilance case. Learned Additional Government Advocate,

therefore, submitted to set aside the order of the learned

Tribunal by allowing the writ petition.

7. Per contra, Mr. J. Das, learned Senior Advocate

submitted that the order of the Tribunal is in consonance with

the decision of the Hon'ble Apex Court and following the circular

of the State Government in G.A. Department issued in 1995.

According to him although the charge-sheet in vigilance case has

been submitted in the concerned court in 2003 but the case has

not been decided so far. Taking into such fact into consideration, 6

the Tribunal has not committed any error by directing the

petitioner No.1 to give promotion to the opposite party No.1 on

ad hoc basis. He also submitted that the opposite parties have

kept the present opposite party No.1 in-charge of a Director

since last two years and in the review D.P.C. there is nothing

found against him or his character and no other departmental

illegality or irregularity reported against him for which the

Tribunal after considering the facts has rightly directed to give

promotion on ad hoc basis.

8. Mr. Das, learned Senior Advocate submitted that

there is well settled law in the case of Union of India & others

v. K.V. Janakiraman & others: (1991) 4 SCC 109 where the

Hon'ble Apex Court have been pleased to observe that sealed

cover procedure is to be followed only when charge memo in a

disciplinary proceeding or a charge-sheet in a criminal

proceeding is issued to the employee. According to him, in

Chaman Lal Goyal's case (supra) as the Departmental

proceeding was pending long since, the Hon'ble Apex Court

deprecated the long pendency of the Departmental enquiry and

directed to consider for promotion without reference to and

without taking into consideration the charges of pending enquiry

and if he is found fit for promotion, he should be promoted 7

immediately. Not only but also the said decision has also been

followed by this Court in State of Orissa and others v.

Basanta Kumar Mohanty vide W.P.(C) No.10101 of 2015.

Thus, he submitted that there is no illegality with the order of

the learned Tribunal. He also drew our attention to the circular

issued by the petitioners in 1995 where it is clearly mentioned

that the delinquent would be considered for ad hoc promotion

subject to certain conditions when it is not known to the extent

of period that vigilance case will run to be concluded. Thus, Mr.

Das submitted to confirm the order of the Tribunal and dismiss

the writ application.

9. The point for consideration:-

(i) Whether the opposite party No.1 is entitled for ad hoc

promotion.

DISCUSSIONS

POINT NO.(i) :

10. It is the admitted fact that opp. Party no.1 got

promotion to the post of Joint Director of Factories & Boilers vide

office order no.10893/LE dated 17.10.2008. It is not in dispute

that after the Orissa Factories & Boilers Inspection Service Rules,

1984 came to be amended in 2010, opp. Party no.1 came to the

cadre of Joint Director of Factories & Boilers Level-II. It is also 8

not in dispute that he was considered for promotion by the DPC

held on 11.6.2012 to the post of Joint Director of Factories &

Boilers of Level-I and his case was kept in sealed cover because

of pendency of Vigilance case against him vide Sambalpur

Vigilance P.S. Case No.16 dated 31.3.2003 by following the G.A.

Department resolution No.3928 dated 18.2.1994.

11. The learned Tribunal has directed to open the sealed

cover and to promote opp. Party no.1 on ad hoc basis to the post

of Joint Director, Level-I on the application made by him. On

perusal of the impugned order it appears that the Tribunal has

passed the order by relying upon the G.A. Department office

Memorandum dated 4.7.1995 and the decision of the Hon'ble

Apex Court in State of Punjab v. Chaman Lal Goyal (supra)

and the decision of this Court in W.P.(C) No. 10101 of 2015

(State of Orissa and others v. Basanta Kumar Mohanty).

12. In the case of Union of India and others v. K.V.

Janakiraman & others (supra), where Their Lordships have

observed about the sealed cover procedure at para-16 as

follows:-

"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 9

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......"

13. With regard to the aforesaid decision it is made clear

that the sealed cover procedure is to be resorted to after the

charge memo in the Disciplinary Proceeding or charge sheet in

the criminal proceeding is issued. But there is a circular of the

G.A. Department issued in 1994. Pargraphs-3 and 8 of the said

office memorandum is produced below for better appreciation:-

"3. Promotion of officers to the various posts/services

At the time of consideration of cases of officers for promotion, details of such officers in the zone of consideration falling under the following categories should be specifically brought to the notice of the concerned Screening Committee:

(i) Government servants under suspension

(ii) Government servants in respect of whom a charge-sheet has been issued and disciplinary proceeding are pending; and

(iii) Government servants in respect of whom prosecution for criminal charge is pending.

xxx xxx xxx

8. It is necessary to ensure that the disciplinary case/criminal prosecution instituted against any officer is not unduly prolonged and all efforts to finalise expeditiously the proceeding should be taken so that the need for keeping the case of officers in a sealed cover is limited to the barest minimum. It has, therefore, been decided that the appointing 10

authorities concerned should review comprehensively the cases of Government servants, whose suitability for promotion to a higher grade has been kept in a sealed cover on the expiry of 6 months from the date of convening of the first Screening Committee which had adjudged his suitability and kept its findings in the sealed cover. Such a review should done subsequently also every six months. The review should, inter alia, cover the progress made in the disciplinary proceedings/criminal prosecution and further measures to be taken to expedite their completion."

14. From the aforesaid Circular issued the sealed cover

procedure is well understood. The aforesaid Circular has been

clarified by another clarification issued by the G.A. Department

dated 15.1.1999, where it has been mentioned that sealed cover

procedure is to be adopted only after the charge sheet is issued

to the employee and not before it. The clarification was issued

basing on the decision of the Hon'ble Apex Court in the case of

Union of India and others v. K.V. Janakiraman (supra).

Again the G.A. Department issued another Circular dated

28.5.2012, where another clarification was issued that sealed

cover procedure shall be followed in all criminal cases where

cognizance has been taken by the Court. So, the last one is the

clarificatory circular issued by the State Government stating

about the observance of the sealed cover procedure. Of course

such Circular has not been challenged in this case even if the

Hon'ble Apex Court has observed about the sealed cover 11

procedure and the same has been clarified by the State

Government in their Circular dated 15.1.1999.

15. Now adverting to the present case, it is found that

since 2003 the charge sheet against opp. Party no.1 has been

filed in the Sambalpur Vigilance Case. After that the D.P.C. was

held on 11.6.2012 under the Chairmanship of the then Chief

Secretary for considering promotion to the post of Joint Director

of Factories & Boilers, Level-I and in that proceeding the case of

opp. Party no.1 was considered, but his case was kept in a sealed

cover as opp. Party no.1 has been charge-sheeted in Sambalpur

Vigilance P.S. Case No.16 of 2003 which is sub-judice before the

Special Judge (Vigilance), Sambalpur. On the other hand, it is

found from the copy of the charge-sheet that opp. Party no.1 has

been charged by the Special Judge (Vigilance), Sambalpur for

commission of criminal misconduct of possessing the assets

worth of Rs.15,46,681/- which is disproportionate to his known

source of income punishable under Section 13(1)(e) read with

Section 13 (2) of the Prevention of Corruption Act, 1988. From

the aforesaid material, we are of the view that sealed cover

procedure has been rightly followed by the Department.

16. It is admitted fact that the Vigilance case is pending

and not disposed of, for which the sealed cover procedure is 12

continuing. At this juncture the observation of the Tribunal with

regard to their finding basing on the Circular issued by the G.A.

Department on 4.7.1995 and the decision of the Hon'ble Apex

Court in State of Punjab v. Chaman Lal Goyal (supra) requires

discussion.

17. On going through the decision of State of Punjab v.

Chaman Lal Goyal (supra) it appears that the case relates to

only the pendency of the Disciplinary Proceeding where enquiry is

not concluded, but there was no any criminal case or criminal

misconduct on the issue. So, the submission of the learned

Additional Government Advocate that the fact and circumstances

of the present case do not warrant the applicability of the

decision of State of Punjab v. Chaman Lal Goyal (supra) and

the decision of this Court in W.P.(C) No. 10101 of 2015 (State of

Orissa and others v. Basanta Kumar Mohanty) will not apply

has got force.

18. It is pertinent to note Para-2 of the Circular of G.A.

Department dated 4.7.1995 which reads as follows:-

"2. The Government, after careful consideration of all the aspects and in partial modification of the instructions contained in G.A. Department Office Memorandum No.3928-Gen., dated the 18th February, 1994 referred to above, have been now pleased to decide as follows:- 13

(i) The disciplinary authorities, while framing charges against a delinquent Government Servant, should carefully consider the circumstances while deciding whether the delinquency merit framing of charges u/r 15 u/r 16 of O.C.S. (CCA) Rules, 1962. In the cases, where a minor penalty proceedings have been drawn up u/r 16 of O.C.S. (CCA) Rules, 1962, the "Sealed Cover" procedure shall not be applicable.

(ii) Where, the major penalty proceedings have been drawn up u/r 15 of O.C. S. (CCA) Rules, 1962, the procedure envisaged in G.A. Department Office Memorandum No.3928, dated the 18th February, 1994 should be followed.

(iii) In the case, where criminal prosecution/disciplinary cases against the delinquent Government employees, have not come to an end even after the expiry of two years from the date of the meeting of the first Departmental Promotion Committee, the Appointing Authority may review the withheld promotion cases (provided the delinquent Government employees are not under suspension) to consider the desirability of giving the ad hoc promotion keeping in view the following aspects:-

(a) Whether the promotion of the employee will be against the public interest

(b) Whether the charges are grave enough to warrant continued denial of promotion.

(c) Whether there is likelihood of the case coming to a conclusion in the near future.

(d) Whether the delay in the finalization of the proceedings, departmental in a Court of Law, is not directly or indirectly attributable to the employees concerned. 14

(e) Whether there is any likelihood of misuse of the Official position that the employee may occupy after ad hoc promotion, which may adversely after the conduct of the departmental case/criminal prosecution.

In case the Appointing Authority considers that it would not be against the public interest to allow ad hoc promotion to the employee concerned, his case should be placed before the next D.P.C. to be held in the normal course to decide whether the employee is suitable for promotion on ad hoc basis. If the employee is considered suitable, on the basis of the totality of his record of service, without taking into account the pending disciplinary case/criminal prosecution against him, an order of promotion may be issued making it clear that:-

(i) the promotion is being made purely on ad hoc basis and the ad hoc promotion will not confer any right for regular promotion; and

(ii) The ad hoc promotion shall survive until further orders.

(iii) If should also be indicated in the orders that the Government reserve the right to cancel the ad hoc promotion at any time and revert the employee to the post from which he was promoted without assigning any reason therefore.

Which he was promoted assigning any reason therefore.

All other conditions contained in the aforesaid Office Memorandum remain unchanged.

SANTOSH KUMAR Special Secretary to Government" 15

19. In terms of the above Circular the petitioners have

considered the case of present opp. party no.1 for his ad hoc

promotion and the same have been already discussed by the

Tribunal in the impugned order. The learned Tribunal has

observed adversely to the points raised by the Review D.P.C.

held in 2014 denying ad hoc promotion to opp. Party no.1. The

Tribunal has noted that although there is nothing against opp.

Party no.1 and he was kept in charge of the Director for last two

years it is not known as to how the authority did not recommend

for ad hoc promotion. In fact the authority has not placed the

case in the Review D.P.C., but placed the matter before the

appointing authority to obtain consent if at all the case of opp.

Party no.1 can be considered by the next D.P.C. to allow ad hoc

promotion. Of course the G.A. Department Circular has given

certain circumstances enumerated in clause-3 of paragraph-2 of

the G.A. Department Circular dated 4.7.1995 to be considered by

the appointing authority before allowing to consider the case for

ad hoc promotion by the next D.P.C. The observation of the

Principal Secretary of the concerned Department has been

highlighted by the Tribunal but the observation of the appointing

authority is not available in the impugned order. However, it is 16

only available from the counter filed before the Tribunal that the

Government decided not to extend ad hoc promotion.

20. From the noting of the Principal Secretary of the

concerned Department, it appears that note has been put up

before the appointing authority (Hon'ble the Chief Minister) with

some adverse remarks to the extent that promotion of the Officer

would not be in the public interest because of serious criminal

charges in the Vigilance case for possessing disproportionate

assets by opp. party no.1, but the concerned Officer has failed to

follow the paragraph-2 of circular which states that while

considering the Officers for promotion on ad hoc basis the totality

of his service record should be verified without taking into

account the pending Disciplinary case/criminal prosecution

against him. When the Circular directs to consider the case bereft

of the criminal proceeding or disciplinary proceeding as the case

may be, the question of keeping the case of opp. Party no.1 away

from consideration for ad hoc promotion on the ground of

pendency of criminal case (vigilance) is absolutely groundless

and it cannot be said that it is against the public interest. It has

to be remembered that records of the Officers must be verified

and the post required to be filled up on ad hoc promotion

whether required in the public interest and whether the criminal 17

proceeding or Department proceeding is likely to be concluded in

near future and whether the post to be occupied will be misused

by the concerned person.

21. The noting of the concerned Principal Secretary is

clear enough in all respect and particularly it has been observed

that the opp. Party no.1 has been kept in charge of the Director

and no adverse has been reported so far. Considering all such

aspects we are of the opinion that it is a fit case where the case

of opp. party No.1 should be placed before the appointing

authority to be considered for ad hoc promotion and to follow

necessary consequences thereof as per the Circular dated

4.7.1995 bereft of the criminal case pending against him. Point

No.(i) is answered accordingly.

CONCLUSION:

22. The Circular dated 4.7.1995 does not disclose about

opening of sealed cover because the said Circular relates to ad

hoc promotion but not for regular promotion. The operative

portion of the impugned order reads thus:-

"Relying on the decisions referred to above, since there has been inordinate delay in disposal of the Vigilance case and it is not known to when the criminal case is likely to be disposed of, a government servant cannot be asked to wait for an indefinite period to get promotion. Accordingly the O.A. is allowed and respondent No.1 is directed to open the sealed cover in respect of promotion of the applicant 18

to the rank of Joint Director of Factories & boilers Level-I as per the decision of the DPC held on 11.6.2012 vide Annexure-4 and give effect to the said decision of the DPC. It is however, made clear that promotion, if any, given to the applicant is only adhoc, subject to the final result of the vigilance case pending against him and the respondent No.1 is at liberty to pass appropriate order modifying the order of promotion as per rule after conclusion of the said vigilance case. The benefit of adhoc promotion be extended to the applicant with effect from the date of decision, within a period of one month from the date of receipt of a copy of this order."

23. Although the operative portion of the impugned order

speaks about giving promotion on ad hoc basis, but directed to

open the sealed cover and give promotion to opp. Party no.1

basing on the decision of the D.P.C. held on 11.6.2012 vide

Annexure-4. The Circular dated 4.7.1995 does speak about

opening of sealed cover. We are, therefore, of the opinion that

the operative portion of the order of the Tribunal needs

modification. We, therefore, direct the appointing authority to

consider the case of opp. Party no.1 for ad hoc promotion by

following the Circular dated 4.7.1995 as more than two years

have been elapsed from the last D.P.C. held on 11.6.2012. We

further direct that the appointing authority would then send the

case of opp. party no.1 to be considered by the Review D.P.C. In

the event the D.P.C. considers him for ad hoc promotion bereft of

pending criminal (vigilance) case, necessary consequential order 19

will be passed as per the Circular dated 4.7.1995. The entire

exercise be completed within a period of two months from the

date of this order. The order of the Tribunal is modified to the

extent observed above.

The writ application is disposed of accordingly.

................................... Dr. D.P. Choudhury, J.

I. Mahanty, J.

I agree.

.................................. I.Mahanty, J.

ORISSA HIGH COURT: CUTTACK Dated the 29th August, 2016/Kar