C.W.P.No.2426 of 1997 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.2426 of 1997 Date of Decision:- 02.07.2010 S.S.Sandhu ....Petitioner(s) vs. Union of India and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Dr.Balram Gupta, Sr. Advocate, with Ms.Anamika Negi, Advocate, for the petitioner. Mr.Gurpreet Singh, Sr.Panel Counsel, for the respondents. *** AUGUSTINE GEORGE MASIH, J. Through this writ petition, the petitioner has prayed for issuance of a writ in the nature of Certiorari for quashing the punishment of censure awarded to the petitioner vide order dated 14.9.1993 (Annexure P-7) and to grant him all consequential benefits including necessitating opening of the sealed cover by the Departmental Promotion Committee Meeting held in October, 1991 and promote the petitioner as Second-in-Command with effect from the year 1991. Counsel for the petitioner contends that departmental proceedings under Rule 16 of the Central Civil Service (CCA) Rules, 1965 were instituted against the petitioner vide memorandum dated 15.9.1989 according to which when the petitioner was on deputation with the C.W.P.No.2426 of 1997 -2- Department of Revenue Intelligence and posted as Assistant Director, Directorate of Revenue Intelligence (hereinafter referred to as DRI) during the period September 1985 and February 1986, a search was conducted in the house of Sh.Suraj Bhan Gupta by Sh.J.P.Jain, Intelligence Officer, under the supervision and in the presence of the petitioner and a huge number of watches of different makes and watch movements worth Rs.53,06,140/- and currency amounting to Rs.4,66,000/- were recovered. At the time of seizure of the said watches, the petitioner utterly failed to advise the proper procedure to count the watches, sealing of the same to Sh.J.P.Jain, Intelligence Officer, under the signatures of independent witnesses and storage of the same at the proper place and return of watches/watch movements to the party. The allegation regarding the petitioner being instrumental in getting the misappropriation of watches/watch movements done by Sh.J.P.Jain, was also made against the petitioner and accordingly, it was stated that the petitioner failed to maintain absolute integrity and devotion to duty, thereby committed misconduct by contravening the provisions of Rule 3(1)(i) and (ii) of the Central Civil Service (Conduct) Rules, 1964. Counsel submits that none of these charges levelled against the petitioner can hold the field for the simple reason that the petitioner although was initially present at the time of search but on receipt of a telephonic message from the Headquarters, had left the place and returned to the Headquarters. During this time, one Sh.S.S.Rana, Assistant Director who had gone to conduct search in the shop of Sh.Suraj Bhan Gupta joined Sh.J.P.Jain while he was in the process of searching and completed the search at the house in Delhi. The rest of the search was conducted by Sh.J.P.Jain, under the supervision of Sh.S.S.Rana, Assistant Director. The C.W.P.No.2426 of 1997 -3- seized goods were brought to the office and kept under the custody of Sh.J.P.Jain, Intelligence Officer, ever since that date, the petitioner disassociated himself from the search and were controlled and supervised by Sh.S.S.Rana, Assistant Director, who dealt with the same exclusively. Sh.J.P.Jain being the Intelligence Officer/Seizing Officer remained the custodian of the seized goods, and was required to deposit the seized goods in terms of the instructions with the customs godown but he failed to do so. The petitioner had reminded Sh.J.P.Jain in this regard vide communications dated 3.10.1985 and 7.10.1985 (Annexures P-2 and P-3) respectively. The petitioner who was on deputation with the Directorate of Revenue Intelligence, returned to his parent department i.e. C.R.P.F. on 23.1.1986. The allegation with regard to the return of the seized goods by Sh.J.P.Jain is dated 3.2.1986 and accordingly the charges against the petitioner cannot be sustained as also the punishment of censure imposed upon him. He contends that the criminal proceedings initiated against Sh.J.P.Jain, Intelligence Officer, for misappropriation of the seized goods ended up in his acquittal of all the allegations levelled against him, vide order dated 16.3.1992 passed by the Metropolitan Magistrate, New Delhi. It was categorically held that the entire property for which the receipt was obtained from the parties at the time of release, was returned to the parties under the orders of the higher Officers. The prosecution failed to prove the receipt, Exhibit PW1/C, as the same was not in the writing of Sh.Suresh Kumar Gupta, who it was alleged to have executed the said receipt while taking delivery of the goods and a finding was given that there was no misappropriation at all in the case. The relevant portion of the judgment has been appended as Annexure P-4 with the writ petition. Counsel, thus, C.W.P.No.2426 of 1997 -4- contends that the punishment of censure imposed upon the petitioner is based on no evidence and, therefore, cannot be sustained and deserves to be set aside, as a consequence thereof, he prays that the recommendation of the Departmental Promotion Committee kept in sealed cover held in October 1991, 1992 and 1993 be directed to be opened and the petitioner promoted as Second-in-Command from the post of Assistant Commandant. His further contention is that the delay in concluding the departmental proceedings against the petitioner was on the part of the respondents for which the petitioner should not be penalized and he be held entitled to promotion as per the instructions dated 14.9.1992 (Annexure P-9) issued by the Department of Personnel and Training, Government of India, which provided that in case the departmental proceedings continue, the Appointing Authorities concerned should review comprehensively the cases of the government servants whose suitability for promotion to a higher grade has been kept in a sealed cover on expiry of six months from the date of convening the first Departmental Promotion Committee. He accordingly, submits that in the light of these instructions, the petitioner deserves to be promoted with effect from the year 1991 when his case was first kept in sealed cover by the Departmental Promotion Committee, especially when after the imposition of punishment of censure on 14.9.1993, the petitioner stands promoted as Second-in-Command in the year 1994 when the Departmental Promotion Committee meeting was held. Counsel, on this basis, prays that the present writ petition be allowed and a direction be issued to the respondents to promote the petitioner as Second-in-Command as per the recommendations of the Departmental Promotion Committee held in October 1991 by opening the sealed cover. C.W.P.No.2426 of 1997 -5- On the other hand, counsel for the respondents submits that the petitioner was functioning as an Assistant Director while on deputation with the Directorate of Revenue Intelligence. The petitioner authorized Sh.J.P.Jain, Intelligence Officer, to conduct the search of the premises of Sh.Suraj Bhan Gupta. The petitioner was physically present at the premises and the search was conducted under his supervision. This fact is amply borne out from the report (Annexure R-1) at the reverse side of the search warrant issued by the petitioner which had been submitted by Sh.J.P.Jain and the same had been counter-signed by him. The petitioner had accepted the fact that he remained present at the premises throughout when the search was conducted, in his statement before the Central Bureau of Investigation on 7.6.1988. He has further stated therein that the seized goods were kept in a sealed container. The petitioner in his note dated 18.11.1985 and in his statement before the Central Bureau of Investigation had mentioned and stated that the seized goods were kept in his room. He submits that the communications dated 3.10.1987 and 7.10.1987 (Annexures P-2 and P-3) respectively are not available on the record and hence, cannot be relied upon. He, on this basis, contends that the presence of the petitioner having been admitted by him during the search of premises proves beyond doubt the lack of supervision on behalf of the petitioner during the search and seizure and non-following of the proper procedure. The petitioner has not been punished for the charges of misappropriation of the seized goods but only for his failure to advise the proper procedure to count the watches, sealing of the same under the signatures of the independent witnesses and storage of the same at the proper place. The case of the petitioner for promotion to the rank of Second-in-Command was duly C.W.P.No.2426 of 1997 -6- considered by the Departmental Promotion Committee on 23/24.10.1991, 28.10.1992 and 8.7.1993 along with other eligible officers. Since disciplinary proceedings were pending against the petitioner, the recommendations of the Departmental Promotion Committee meetings were kept in sealed cover as per Rules. On finalization of the disciplinary proceedings against the petitioner vide order dated 14.9.1993, his case was again considered by the Departmental Promotion Committee on 3.8.1994 and having been found fit for promotion, he was promoted to the rank of Second-in-Command vide order dated 12.10.1994. The reliance placed by the petitioner on instructions dated 14.9.1992 (Annexure P-9) for considering his case and reviewing the same after a period of six months from the date of first Departmental Promotion Committee had met, is misplaced. What has been stated in those instructions is that in case after the holding of the first Departmental Promotion Committee meeting, the disciplinary proceedings are not concluded within the period of two years, then the case of the concerned government servant be considered for ad hoc promotion. Counsel contends that the instructions (Annexure P-9) have been duly complied with in the case of the petitioner as the first Departmental Promotion Committee meeting was held on 23/24.10.1991 where its recommendations were kept in a sealed cover and the disciplinary proceedings against the petitioner were concluded on 14.9.1993, which was within a period of two years. On that basis, he contends that all aspects have been taken into consideration and on consideration of the same, the punishment of censure has rightly been imposed upon the petitioner. The petitioner has rightly been promoted as per the instructions dated 14.9.1992 and the order of censure dated 14.9.1993 (Annexure P-7) is fully justified C.W.P.No.2426 of 1997 -7- and in accordance with law. He has referred to the recommendations of the Union Public Service Commission on the proposed punishment of the petitioner when the case was referred to it. I have heard counsel for the parties and have gone through the records of the case as well as the original records of the Department submitted by the counsel for the respondents. The petitioner joined the Central Reserve Police Force in the year 1976 as Deputy Superintendent of Police (Class I). The petitioner earned promotions and was working as an Assistant Commandant. The next rank for promotion was Second-in-Command. The petitioner became eligible for consideration to the rank of Second-in-Command in the year 1991 and the Departmental Promotion Committee meeting was held in 23/24.10.1991. The recommendations of the Departmental Promotion Committee were kept in a sealed cover on account of pendency of disciplinary proceedings against the petitioner which were initiated against him vide memo dated 15.9.1989. These disciplinary proceedings under Section 16 of the CCS (CCA) Rules 1965 were instituted on the statement of imputation/misconduct/ misbehaviour on the basis of which action was proposed to be taken against him. The following charges were levelled against him: “That the said Shri S.S.Sandhu was posted as Asstt. Director, DRI during the period Sept. 1985 and Feb 1986. While working in the aforesaid capacity, it was part of his duty to associate and supervise the search of house/business premises of the parties under the Customs Act. C.W.P.No.2426 of 1997 -8- As per note dated 24.9.85 of Sh. J.P.Jain to this effect, that he had conducted the search of the House No. 57, Darya Ganj, Delhi, belonging to Shri Suraj Bhan Gupta under supervision of Shri S.S.Sandhu in his presence. As a result of house search, Shri J.P.Jain recovered huge number of watches of different makes, watch movements worth Rs.53,06,140/- and the details of which are given in panchnama and its annexures. At the time of seizure of the said watches, said Shri J.P.Jain and Shri S.S. Sandhu utterly failed to advise the proper procedure to count the watches, sealing of the same under signatures of independent witnesses, storage of the same at proper place and return of watches/watch movements to the party. Thus, according to Panchnama dated 23.9.85 and its annexures, total 15,069 HMT watches, 2784 Allwyn watches, 1747 Willson watches, 1243 watch movements etc. were seized by Shri J.P.Jain under the supervision of Sh.S.S.Sandhu whereas Shri J.P. Jain returned watches against different receipts issued to Sh.Suresh Kumar Gupta s/o Sh. Suraj Bhan Gupta. Out of the several receipts, Shri Suresh Kumar Gupta disputed the receipt of the watches/watch movements as mentioned in the encircled marginal portion of receipt dt. 3.2.86 for which the complaint was lodged to the deptt. regarding non- receipt of the same worth Rs. 2 lakhs (approx.). The C.W.P.No.2426 of 1997 -9- expert also opined that the encircled portion mentioned at Q-2 of the receipt dated 3.2.86 was not written by Shri Suresh Kumar Gupta. The total number of watches/watch movements seized by Shri J.P.Jain under supervision of Sh. S.S.Sandhu of different categories do not tally with those mentioned in the receipts. Thus, Sh. S.S.Sandhu remained instrumental in getting the misappropriation of watches/watch movements done by Sh.J.P.Jain. Thus, in the aforesaid manners,said Shri S.S.Sandhu failed to maintain absolute integrity and devotion to duty and thereby committed misconduct by contravening the provisions of Rule 3(1)(i) and (ii) of CCS(Conduct) Rules,1964.” A perusal of the above charges would show that basically there were two charges against the petitioner; the first one being that the petitioner had utterly failed to advise Sh.J.P.Jain, Intelligence Officer, who had conducted the search, proper procedure to count the watches, sealing of the same under the signatures of the independent witnesses, storage of the same at proper place and return of watches/watch movements to the party. While the second charge was that the total number of watches/watch movements seized by Sh.J.P.Jain under supervision of the petitioner of different categories do not tally with those mentioned in the receipts. In this way, the petitioner remained instrumental in getting the misappropriation of watches/watch movements done by Sh.J.P.Jain. The petitioner has in his reply taken a stand that as per the instructions of the Department, the C.W.P.No.2426 of 1997 -10- presence of the petitioner at the spot of search was not mandated. He, although admitted that he had, at the start of the search, been present at the place and was supervising the same but thereafter on receipt of information from the Head Office, he had left the said place and the Panchnama of the seizure had not been drafted/drawn in his presence. After the petitioner had left the place, Sh.S.S.Rana, Assistant Director had supervised the search and seizure. He had also taken a stand that he had directed Sh.J.P.Jain, Intelligence Officer to deposit the seized goods at the customs godown vide letters dated 3.10.1985 and 7.10.1985 (Annexures P-2 and P-3) but these documents are not available in the records of the Directorate and, therefore, the same cannot be accepted. He had further taken a stand that at the time of return of the seized goods i.e. 3.2.1986 he had already been repatriated to his parent department on 23.1.1986 and, therefore, did not know anything about that aspect. These submissions of the petitioner when weighed in the light of the documents on record, it is proved that the petitioner was physically present at the premises when the search was conducted and he was supervising the same. Reference to the report (Annexure R-1) at the reverse side of the search warrant issued by the petitioner given by Sh.J.P.Jain, which has been endorsed by him and thereafter his statement given to the Central Bureau of Investigation on 7.12.1987 wherein he had stated that during the search of the premises, the petitioner had remained there throughout and that the seized goods were kept in a sealed container in his room. This fact is further apparent from the petitioner's note dated 18.11.1985. Counsel for the petitioner as also counsel for the respondents C.W.P.No.2426 of 1997 -11- have relied upon the recommendations made by the Union Public Service Commission when the Punishing Authority had sought advice and referred the case of the petitioner for imposing punishment upon him. The said communication is dated 7.6.1993, paras 3 and 4 whereof read as follows:- “3. The records of the case have been examined by the Commission very carefully and they observe that there are two basic allegations against the charged offer: (i) A search, in the house No. 57, Daryaganj was conducted under charged officer's supervision and presence. As a result of this a huge number of watches of different makes and watch movement worth Rs.53,06,140/- were recovered at the time of seizure but he failed to adopt the proper procedure to count the watches, sealing of the same under signatures of independent witnesses, storage of the same at proper place and return of watches/watch movements to the party, and (ii) The charged officer remained instrumental in getting misappropriation of the watches/watch movement worth Rs.2 lakhs approximately by Shri J.P.Jain, one of the search team. It is alleged that the charged officer failed to maintain absolute integrity and exhibited negligence in the discharge of his official duties which led to the loss of Rs.2 lakhs. The disciplinary authority has tentatively held that a minor penalty be imposed on C.W.P.No.2426 of 1997 -12- the Charged Officer. 3.1 As regards the first allegation, the Commission observe that the charged officer has admitted that he authorized the search and was present in the beginning of the search. However, Shri S.S.Rana and other officers of Delhi zone Unit took over and he went back to Headquarters. Since he was not present during seizure of Watches nor was it supervised by him, the question of failure to observe proper procedure does not arise. The Commission observed that the charged officer has himself admitted that search/seizure operations are supervised by the officers of the rank of Assistant Directors. Therefore, the charged officer cannot claim that the question of supervising the search operation by him does not arise. In his statement on record of the DRI he had admitted that he was present during the whole operation. There is nothing on record to show that he had gone back to Head-quarters immediately after DZU officers joined the operation. The fact that the operation was supervised by the charged officer is proved by the note submitted by the seizing officer Shri Jain next day which was inspected and initialed by the charged officer. The charged officer did not record that he had not supervise the search operation as mentioned by Shri Jain. Hence the charged officer's contention about not being physically present during this search or C.W.P.No.2426 of 1997 -13- not being responsible for supervising the operation is not convincing. From the statement of Shri S.S.Rana and others available on record, it is clear that watches were not counted properly and sealed under the signature of independent witnesses, panchnama is not signed by the charged officer. The charged officer vide his own note dated 18.11.85 had admitted presence of goods in his room for more than two months. There is no record of charged officer having reminded Shri Jain or any other officer to properly deposit the goods lying in his room. The Commission further observe that in view of the available evidence on record, the allegation of not following proper procedure or seizure is proved against the charged officer. 3.2 As regards second allegation that the charged officer remained instrumental in getting the misappropriation of watches/watch movements done by Shri J.P.Jain, the co-accused, the Commission observe that Shri Jain had been acquitted by the court and the court held the allegation of misappropriation of watches against Shri Jain as not proved. The allegation against the charged officer also cannot be proved in the light of court judgment. 4. In the light of the findings as discussed above and taking into account all other aspects relevant to the case, the Commission consider that the ends of justice would C.W.P.No.2426 of 1997 -14- be met in this case if the penalty of 'censure' is imposed on Shri S.S.Sandhu. They advise accordingly.” This advice of the Union Public Service Commission was accepted by the respondents and accordingly, punishment of censure was imposed upon the petitioner vide order dated 14.9.1993 (Annexure P-7). A perusal of the above shows that the punishment of censure has been imposed on the petitioner for his failure to adopt the proper procedure to count the watches, sealing of the same under the signatures of the independent witnesses, storage of the same at proper place only and he has not been punished for the charges of misappropriation or facilitation thereof. The imposition of punishment upon the petitioner is, thus, fully justified and does not call for any interference by this Court. The prayer of the counsel for the petitioner that the case of the petitioner should have been considered for promotion by opening the sealed covers which contained the recommendations of the Departmental Promotion Committees also cannot be accepted as the instructions dated 14.9.1992 (Annexure P-9), reliance whereof has been made by the counsel for the petitioner, also do not support the case of the petitioner. The relevant paras of the said instructions read as follows:- “3. On the conclusion of the disciplinary case/criminal prosecution which results in dropping of allegations against the Govt. servant, the sealed cover or covers shall be opened. In case the Govt. servant is completely exonerated, the due date of his promotion will be determined with reference to the position assigned to him in the C.W.P.No.2426 of 1997 -15- findings kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The Govt. servant may be promoted, if necessary, by reverting the junior most officiating person. He may be promoted notionally with reference to the date of promotion of his junior. However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so what extent, will be decided by the appointing authority by taking into consideration all the facts and circumstances of the disciplinary proceedings/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. It is not possible to anticipate and enumerate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary. However, there may be cases where the proceedings, whether disciplinary or criminal are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts C.W.P.No.2426 of 1997 -16- attributable to the employee etc. These are only some of the circumstances where such denials can be justified. 3.1 If any penalty is imposed on the Govt. servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him. 5. In spite of the six monthly review referred to in para 4 above, there may be some cases, where the disciplinary case/criminal prosecution against the Govt. servant is not concluded even after the expiry of two years from the date of the meeting of the first DPC, which kept its findings in respect of the Govt. servant in a sealed cover. In such a situation, the appointing authority may review the case of the Govt. servant, provided he is not under suspension, to consider the desirability of giving him ad hoc promotion keeping in view the following aspects :- a) Whether the promotion of the officer will