IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE NINETEENTH DAY OF APRIL TWO THOUSAND AND TEN HON’BLE SRI JUSTICE B. PRAKASH RAO HON’BLE SRI JUSTICE G. BHAVANI PRASAD Writ Petition No.18010 of 2000 Between: The Chief of the Naval Staff, Naval Headquarters, New Delhi and others .. Petitioners AND Shri B. Venkata Rao .. Respondent Writ Petition under Article 226 of the Constitution of India praying to issue a writ of order or direction more particularly one in the nature of Writ of Certiorari calling for the records relating to O.A. No.404 of 1998 on the file of the Central Administrative Tribunal, Hyderabad Bench and quash the order in O.A. No.404 of 1998, dated 16-07-1999. ORDER: (per Justice G. Bhavani Prasad) The writ petition has been filed challenging the order in O.A. No.404 of 1998, dated 16-07-1999 of the Central Administrative Tribunal, Hyderabad Bench. The background for the writ petition is that the respondent was promoted along with others as Foreman (Mechanical) with retrospective effect from 01-07-1995 vide proceedings, dated 26-03-1997 in compliance with the directions given by the Central Administrative Tribunal in O.A. No.259 of 1991 and batch. But the promotion was subsequently kept in dark by proceedings, dated 25-09-1997 on the ground of pendency of disciplinary proceedings. The respondent was, in fact, placed under suspension with effect from 01-06-1995, which was revoked by an order, dated 14-02-1996 and earlier to the same, a charge-sheet was issued against him. As the charge-sheet was pending, though no enquiry had been commenced, the Tribunal directed the writ petitioners to pass a final order on the charge-memo, dated 15-09- 1995 within four months, in default of which, the charge-sheet stood quashed and if so quashed, his promotion should be implemented as per rules. The writ petitioners contend that the respondent working as Chargeman Grade-II (Mechanical) was placed under suspension on 01-06-1995 and a charge memo was issued on 15-09-1995, but the suspension was later revoked while the enquiry was in progress. Promotion to the next category of Chargeman Grade-I (Mechanical) is purely on the basis of selection-cum-seniority and promotion was given to the respondent by the proceedings, dated 26-03-1997, as the 1st petitioner was unaware of the pendency of the disciplinary proceedings. When it was noticed, the promotion was kept in abeyance until further orders pending enquiry under the disciplinary rules. The respondent requested in the Original Application before the Central Administrative Tribunal to declare the said proceedings, dated 25-09-1997 keeping his promotion in abeyance, as illegal and when the Tribunal found that the respondent cannot aspire for promotion when the enquiry was incomplete, he could not be granted any relief. Though the petitioners tried to complete the enquiry within the time stipulated by the Tribunal, the respondent protracted it by filing his defence reply only on 27-01-2000 and the enquiry officer could submit his report only on 28-03-2000. The respondent cannot take advantage of his own delay and hence, the orders of the Central Administrative Tribunal are requested to be reversed. The respondent in his counter-affidavit contended that the sealed cover procedure can be resorted to only, if the charge sheet is filed in the disciplinary proceedings by the time of consideration of the promotion. But here the department itself promoted him obviously waiving such procedure. The respondent was always cooperating with the enquiry officer and the department itself was at fault in protracting the enquiry. He was asked to submit his written brief only by proceedings, dated 31-12- 1999 and he immediately submitted the same on 27-01-2000 without any delay. The authority was empowered to hold ex parte enquiry in case of any such default by the respondent and the ordinary time limit for passing final orders on the enquiry report is three months as per instruction No.11 under Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules. The Tribunal has the power to mould the relief to suit the facts and circumstances and the enquiry was protracted beyond four months due to the default of the department and the presenting officer as detailed in the counter-affidavit. It was uniformly held by the Apex Court and other superior Courts that a balancing process requires the enquiry to be allowed to be completed, while any consideration for promotion, if the employee is found fit, should be immediate irrespective of pendency of any charges and enquiry subject to review after the conclusion of the enquiry. The Courts also usually directed the employee to cooperate with the enquiry, while empowering the enquiry officer to proceed ex parte in the event of non-cooperation, while further directing the enquiry to be deemed to have been dropped, if not concluded, within a reasonable time. The respondent, therefore, desired the writ petition to fail. Sri A. Rajasekhar Reddy, learned Assistant Solicitor General for the writ petitioners and Sri Meherchand Nori, learned counsel for the respondent are heard and the learned counsel for the respondent relied on five precedents, which will be referred to in due course. The point for consideration is whether the order of the Tribunal is susceptible to interference ? Point: The Apex Court was considering the issue of promotion vis- à-vis disciplinary proceedings in Union of India v. K.V. Jankiraman[1] and referred to what came to be known in service jurisprudence as sealed cover procedure. The sealed cover procedure was noted to be adopted when an employee is due for promotion, increment, etc., but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over. The Apex Court held that the sealed cover procedure is to be resorted to only after the charge memo/charge-sheet is issued and the pendency of preliminary investigation prior to that stage will not be sufficient to adopt the sealed cover procedure, as such preliminary investigations may take inordinately long time or they may be kept pending deliberately. The Apex Court also noted that if the charges are that serious, the authorities have the power to suspend the employee, which itself permits resort to the sealed cover procedure. In Union of India v. A.N. Mohanan[2], following Union of India v. K.V. Jankiraman (1 supra), it was held that where any penalty has been imposed, the findings of the sealed cover are not to be acted upon and the case of promotion may be considered by the next DPC (Departmental Promotion Committee) in the normal course. In Union of India v. Sangram Keshari Nayak[3], the Apex Court while referring to Union of India v. K.V. Jankiraman (1 supra) treating the charge-sheet as the cut off date when the departmental proceeding can be said to have been initiated, considered the principle to be distinguishable where an officer comes under a cloud before promotion but after recommendation for promotion by the Departmental Promotion Committee, in which event it has to be considered that his case had been placed in sealed cover. In S.B. Battacharjee v. S.D. Majumdar[4], the Apex Court considered that the right to promotion is not a fundamental right, but right to be considered for promotion is a fundamental right, which postulates an effective and meaningful consideration. The Apex Court further laid down that the Departmental Promotion Committee must take into consideration the merit and merit only. I n Union Public Service Commission v. S. Thiagarajan[5], the Apex Court opined that if an officer, against whom disciplinary proceedings are pending, is considered by the selection committee, his name is included in the select list provisionally, if he is otherwise found suitable for inclusion. But he cannot be appointed to the service till his inclusion becomes unconditional and final. It was held that an officer, who is included in the zone of consideration, has to be considered by the selection committee even if disciplinary proceedings are pending against him, under the relevant promotion regulations. In the light of the principles laid down in the above precedents relied on by the learned counsel for the respondent, it is clear that there appears nothing illegal in the orders of the Tribunal. The suspension of the respondent with effect from 01- 06-1995 was revoked by proceedings dated 14-02-1996 and it was only subsequently that the promotion order was issued by the Naval Head Quarters/the Cadre Controlling Authority on 26-03- 1997 with retrospective effect from 01-07-1995. As such, on the date on which the respondent was notionally considered for promotion and was promoted, that is, on 01-07-1995, the suspension, which was revoked by the proceedings, dated 14-02- 1996, cannot be considered to be in existence, while the suspension was any how not in physical existence by the time of the promotion order issued with retrospective effect on 26-03- 1997. Similarly, when the promotion was given with effect from 01-07-1995, the pendency or effect of the disciplinary proceedings has to be considered with reference to the said date and admittedly, the charge memo was issued to the respondent only on 15-09-1995 much later to the deemed date of promotion on 01- 07-1995. If so, there could have been no recourse to any provision for inclusion in the list for promotion without actual promotion or resort to any sealed cover procedure or any postponement of actual promotion until complete exoneration of any charges. As issuance of a charge memo/charge-sheet is sine qua non for considering a departmental/disciplinary proceeding to have been initiated and as the promotion given with retrospective effect relates back to a date much prior to the issuance of the charge memo, the matter must be considered to be pending only at the stage of preliminary investigation by the date of deemed promotion, which cannot result in withholding of the promotion of the respondent. That apart, the charges were admittedly not of such gravity as would require suspension of the respondent as seen from the own stand of the department in revoking the suspension by proceedings, dated 14-02-1996. To claim that the Chief of the Naval Staff was unaware of the pendency of the disciplinary proceedings against the respondent when the promotion proceedings were issued on 26-03-1997, presents the petitioners in a very poor light and no reasons for such ignorance were brought on record. The proceedings dated 26-03-1997 show that the promotion of the respondent was after the DPC of 1995, which was not alleged to be at any time after the service of the charge memo on the respondent on 15-09-1995. It is further seen from the orders keeping the promotion of the respondent in abeyance, dated 20-06- 1997 that the promotion was kept in abeyance due to the suspension of the respondent pending enquiry, while any such suspension was revoked much earlier by the proceedings dated 14-02-1996. The orders keeping the promotion in abeyance were, thus, on the basis of non-existent suspension by the time of such proceedings and were obviously not on the basis of issuance of any charge memo/charge-sheet or the pendency of any disciplinary/ departmental proceedings. For the alleged misconduct in 1994-95 for which a charge-sheet was issued on 15-09-1995, the promotion due to the respondent with effect from 01-07-1995 is sought to be kept in abeyance without finalising the disciplinary proceedings even till after two and half years compelling the respondent to approach the Central Administrative Tribunal with O.A. No.404 of 1998. The actual orders of abeyance were, of course, only six months old by the time of the Original Application, but the fundamental principles of natural justice, equity and good conscience are plainly offended by the writ petitioners not expediting the conclusion of enquiry even after the filing of O.A. No.404 of 1998, dated 30-03-1998 till the impugned order of the Tribunal on 16-07-1999. Though it is true that the Tribunal felt that the respondent was not free from any cloud, as the proceedings in pursuance of the charge-sheet were inconclusive, the judicial conscience of the Tribunal was obviously offended when even the enquiry did not commence on the charge- sheet, dated 15-09-1995 even till its order on 16-07-1999. The Tribunal appropriately moulding the relief directing the petitioners to pass final orders within four months from the date of receipt of a copy of the order of the Tribunal and in default, treating the impugned charge-sheet as quashed, cannot, under the circumstances, be considered as unjust or unreasonable or to be violative of any principles of service jurisprudence. The suffering of the respondent is not only grossly disproportionate to the nature of the charges against him, but also has to be remedied by the judicial process, which was what the Tribunal had ordered in tune with the principles laid down by the superior Courts in similar cases (one such decision of the Apex Court being extracted in the counter-affidavit of the respondent). Under the circumstances, the extraordinary original jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked to nullify the impugned orders of the Central Administrative Tribunal and consequently, the writ petition has to fail. Accordingly, the writ petition is dismissed without costs. __________________ B. PRAKASH RAO, J _____________________ G. BHAVANI PRASAD, J Date: 19-04-2010 Svv [1] AIR 1991 SUPREME COURT 2010 [2] (2007) 5 Supreme Court Cases 425 [3] (2007) 6 Supreme Court Cases 704 [4] (2007) 10 Supreme Court Cases 513 [5] 2007(2) Supreme 364