Union of India & Others v. Radhamoni S. Menon & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **WEDNESDAY, THE 28TH DAY OF MARCH 2012/8TH CHAITHRA 1934** ## **OP (CAT).No. 4305 of 2011 (Z)** **----------------------------OA.557/2011 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH ------------------** ## **PETITIONERS / RESPONDENTS :** **-----------------------------------------------** **1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATIONS, DEPARTMENT OF POSTS, NEW DELHI - 110 001.** **2. THE COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, CENTRAL REVENUE BUILDING I.S. PRESS ROAD, KOCHI - 18.** **3. JOINT COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI.** **4. THE DEPARTMENT PROMOTION COMMITTEE FOR PROMOTION FROM THE POST OF INSPECTORS, TO THE POST OF SUPERINTENDENT OF CENTRAL EXCISE REPRESENTED BY ITS CONVENER COMMISERATE, COCHIN.** ## **BY ADV. SRI.P.PARAMESWARAN NAIR, ASG OF INDIA** ## **RESPONDENT / APPLICANTS :** **--------------------------------------------** **1. RADHAMONI S. MENON, INSPECTOR OF CENTRAL EXCISE, HEADQUARTERS, COCHIN.** **2. SUSAMMA ABRAHAM, INSPECTOR OF CENTRAL EXCISE, HEADQUARTERS, COCHIN.** **...2/-** ## **OP (CAT).No. 4305 of 2011 (Z) -2-** **3. SUSHAMA DEVI, INSPECTOR OF CENTRAL EXCISE, CENTRAL EXCISE DIVISIONAL OFFICE, S.T. NAGAR, THRISSUR.** **4. USHA A., INSPECTOR OF CENTRAL EXCISE, HEADQUARTERS, COCHIN.** **BY ADV. SRI.S.RAMESH BABU** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 28-03-2012, ALONG WITH OPCAT. 968/2012 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...3/-** ## **OP (CAT).No. 4305 of 2011 (Z)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **EXT.P1 : TRUE COPY OF THE ORIGINAL APPLICATION NO. 557 OF 2011 ALONG WITH ITS ANNEXURE FILED BY THE RESPONDENT BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXT.P2 : COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN O.A. NO. 557 OF 2011 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** - **EXT.P3 : COPY OF THE ORDER DATED 20.10.2011 PASSED IN O.A. NO. 557 OF 2011.** **EXT.P4 : COPY OF THE COMMON ORDER DATED 08.07.2011 PASSED BY HON'BLE CAT IN OA NO. 665/2010 & 681/2010.** **EXT.P5 : COPY OF THE DOPT OM DATED 14.12.2007.** **EXT.P6 COPY OF THE DOPT OM DATED 14.09.1992.** ## **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.A. TO JUDGE** **Mn** ## **THOTTATHIL B. RADHAKRISHNAN & C.T.RAVIKUMAR, JJ.** ---------------------------------------- O.P(CAT).No.4305 of 2011 & Nos.968, 998 & 999 of 2012 ---------------------------------------Dated this the 28[th] day of March, 2012 ## **JUDGMENT** ## Thottathil B.Radhakrishnan, J. - 1.These writ petitions are filed by the Government of India challenging the orders passed by the Central Administrative Tribunal, holding that the sealed cover procedure adopted in relation to the employees involved in these litigations for DPC held on 31.5.2011 is bad in as much that procedure was not contemplated or provided for in terms of the governing laws. - 2.In its gist, the view of the Tribunal is that after the law was laid by the Apex Court in **Union of India** v. **K.V.Janakiraman** [AIR 1991 SC 2010], the Government of India, through the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training), came out with O.M. No.22911/4/91 Estt (A) dated 14.9.1992, in supersession of the 2 OP(CAT).4305/1 & con. cases earlier guidelines governing the concept of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation and therefore, the said O.M. governs the situation, in terms of which, the employees involved in these litigations are not those under the Government service in respect of whom, prosecution for criminal charge is pending; and therefore, the sealed cover procedure cannot be sustained; it has to be opened up and the Government servants concerned should be considered for promotion as against vacancies that fall for the DPC decision in the meeting held on 31.5.2011. - 3.Learned Central Government counsel, making a strenuous effort to dislodge the views of the Tribunal, is arguing for the position that in terms of a later O.M. by the same department in the Ministry concerned, issued on 14.2.2007, guidelines regarding the grant of vigilance clearance in terms of Central Civil Service (Central civil posts) were issued, in terms of which, the situation under which vigilance clearance shall not OP(CAT).4305/1 & con. cases 3 be withheld have been enumerated. It is pithily argued that the case of the Government servants involved in these litigations do not fall under those guidelines. Learned Central Government counsel made reference to the judgment of the Apex Court in **Union of India** v. **Kewal Kumar** [(1993) 3 SCC 204] to point out that sealed cover procedure may be resorted to in situations which fall under that decision. He also made reference to **Union of India** v. **R.S.Sharma** [(2000) 4 SCC 394] to point out how matters relating to cases involved in investigation and allied matters by the CBI has to be considered. The Central Government counsel also made reference to **Food Corporation of India** v. **V.P.Bhatia** [(1998) 9 SCC 131] regarding the provisions contained in the vigilance manual of the Central Vigilance Commission. He further made reference to the decision in **Union of India & Others** v. **Mihir Kumar Bandopadhyay & Others** [(2009) 16 SCC 329] to contend that the Government servants involved in these litigations are insisting on a direction which will run OP(CAT).4305/1 & con. cases 4 contrary to the express language of the unchallenged departmental instructions. 4.Per contra, learned counsel appearing for the employees argued that **Janakiraman** (supra) has been clearly explained later on by the Apex Court in **Union of India & Others** v. **Sangram Keshari Nayak** [(2007) 6 SCC 704] and in view of the provisions of the afore-referred O.M. Dated 14.9.1992, as also the departmental clarification regarding promotion to higher cadre or post issued as per G.I., Department of Personnel and Training O.M.No.11012/6/2008/Estt.(A) dated 7.7.2008, there is no room to upset the decision of the learned Tribunal. According to him, the Tribunal has come to the only conclusion available on the basis of the relevant statutory provision, the binding OMs and the precedents directly governing the point. He also stated that there is no question of the Government servants involved in these litigations seeking any relief contrary to the provisions of any O.M. or there is no OP(CAT).4305/1 & con. cases 5 need for them to challenge any provision of any O.M. that governs the field. 5.O.M.No.22011/2/86-Estt.(A) dated 12.1.1988 issued by the Department of Personnel & Training in the Ministry of Personal public Grievances and Pension and subsequent instructions issued from time to time on the subject of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation, governed the situation available for quite some time. In the wake of the law laid by the Apex Court in **Janakiraman** (supra) and having reviewed all the earlier instructions and directions, including the aforesaid O.M. dated 12.1.1988, the department of Personnel & Training issued the O.M. dated 14.9.1992, paragraph (2) of which is pointedly relevant to decide the case in hand. “At the time of consideration of the cases of Government servant for promotion details of Government servant in the OP(CAT).4305/1 & con. cases 6 consideration zone for promotion falling under the following category should be specifically brought to the notice of the Departmental Promotion Committee. - i. Government servants under suspension - ii. Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending:and - iii. Government servants in respect of whom prosecution for criminal charge is pending. (emphasis supplied). “ 6.As can be seen from the impugned order of the Tribunal, as per DOP&T O.M.No.22012/1/99-Estt(D)dated 25.10.2004, certain clarifications were further issued. It is true that guidelines regarding grant of vigilance clearance was issued as per O.M. No.11012/11/2007-Estt(A) dated 14.12.2007. That O.M. gets a clarification through O.M. dated 7.7.2008 referred to above, wherein, among other things, it is clearly stated in clause 2 (iv) that the term 'empanelment' occurring in paragraph 1 of the O.M. dated 14.12.2007 relating to the guidelines for grant of vigilance clearance does not cover the case of promotion and 7 OP(CAT).4305/1 & con. cases that cases of promotion of Government servants during the pendency of disciplinary proceedings would be regulated by the O.M. dated 14.9.1992 and O.M. dated 25.10.2004 and, after the imposition of any of the prescribed penalties, as per O.M. dated 15.12.2004. 7.With the aforesaid, it needs to be noted that the full Bench of the Central Administrative Tribunal had concluded, among other things, that the sealed cover procedure can be regulated only after a charge framed is served on the concerned official or the charge sheet filed before the criminal court and the finding of the Tribunal to that extent was affirmed by the Apex Court in **Janakiraman** . It was this laying down of the law that led to the issuance of O.M. dated 14.9.1992. **Kewal Kumar** (supra) was a case where the department had decided to initiate disciplinary proceedings against the employee concerned for imposition of major punishment. Such decision was taken by the competent authority on the basis of the FIR registered by the CBI prior to the meeting of the DPC. OP(CAT).4305/1 & con. cases 8 Therefore, in that case, there was disciplinary proceedings initiated in so far as the establishment is concerned, before the DPC meeting, on the basis of the FIR lodged by the CBI. 8. **R.S.Sharma** (supra) dealt with a case where the action by recourse to sealed cover procedure was considered in the context of a case where formal sanction was accorded to prosecute the employee concerned before the employee was actually promoted on the basis of a DPC where sealed cover procedure was not resorted to. The Apex Court indicated as to what procedure would follow. It is said that the result of the DPC will then be in a sealed cover and retained without being effectuated till the officer gets exonerated and that sealed cover be opened only after exoneration and he would only then be actually promoted. In fact, the findings of the Apex Court in this case run in conformity with the provisions of clause 7 of the O.M. dated 14.9.1992, which again stand clarified in O.M. dated 25.10.2004. 9 OP(CAT).4305/1 & con. cases - 9.In so far as the effect of the Vigilance Manual of Central Vigilance Commission is concerned in **Food Corporation of India** (supra), all that we need to say is that the recommendation of CVC will have to be applied, however subject only to the clarification that we have noted in the O.M. dated 7.7.2008 that it would not have any application in cases which fall under clause 2(iv) of that O.M. - 10.Reverting to **Mihir Kumar Bandopadhyay** (supra) relied on - by the CGC to point out that without challenging the department instructions, the employee cannot seek relief de hors the clear terms of the department instructions of the O.M., we are clear in our mind that the learned counsel for the employee is right in pointing out that no relief is sought in contradiction of the contents of the provisions of any O.M. In fact they stand by the O.M.s dated 14.9.1992 and 7.7.2008, read along with O.M. Dated 25.10.2004. 10 OP(CAT).4305/1 & con. cases 11.Having regard to what is aforesaid, now, examining the provision in paragraph 2(iii) of O.M. dated 14.9.1992 and the clarificatory contents of the O.M. dated 25.10.2004 in the light of **Janakiraman** and **Sangram Keshari Nayak** (supra), we cannot but hold that the question of a government servant being treated as one against whom prosecution for criminal charge is pending would arise only depending on the question whether the court had framed charge against the employee at any time before the DPC in question. On facts, this issue has been rightly answered by the Tribunal in favour of the employees by holding that on 31.5.2011, when the DPC considered them for promotion, there was no criminal case pending against them. The said finding cannot be found fault with on ground that there is an erroneous interpretation of the applicable laws concerned or on any ground of jurisdiction. We hasten to add that we have not expressed anything n relation to any other aspects of the issue or issues that arise out of the situation, including as to criminal cases or any other proceedings between the employer and the employees. OP(CAT).4305/1 & con. cases 11 In the result, these writ petitions fail. They are accordingly dismissed. Sd/- **THOTTATHIL B. RADHAKRISHNAN Judge** Sd/- **C.T.RAVIKUMAR Judge** kkb.28/3.