IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 7160/2010 Reserved on: 27.4.2011 Decided on: 05.05.2011 _____________________________________________ Om Prakash. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Ajay Sharma, Advocate. For the Respondents: Mr. Vikas Rathore, Dy. A.G. and Mr. R.P. Singh, Asstt. A.G. for respondents No.1 & 2. Mr. S.C. Sharma, Advocate vice Mr. Balram Sharma, Advocate for respondent No.3. ____________________________________________________ Justice Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that the meeting of the Staff Selection Authority was convened on 13.9.2010 for recommending the name of the officers for promotion to the post of D.G.M., A.G.M and Officers Grade-I categories. The case of the petitioner was also considered for promotion to the post of Grade-I Officer 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 by the Staff Selection Authority. Petitioner was found eligible for promotion, in all respects, after taking into consideration his Annual Confidential Reports for the last three years and other laid down criteria. Name of the petitioner was recommended for promotion alongwith six incumbents for promotion to the post of Grade-I Officer on merit-cum- seniority. However, the authority had decided to keep the names of Rajinder Chauhan and petitioner under sealed cover keeping in view the vigilance/Departmental inquiry pending against them, respectively. The Board of Directors of respondent No.3-Bank accepted/approved the recommendations dated 13.9.2010 of the Staff Selection Authority on 14.9.2010. The Managing Director of respondent No.3-Bank was authorized to seek approval under rule 56 (3) of the Himachal Pradesh State Cooperative Societies Rules, 1971 (hereinafter referred to as ‘the Rules’ for brevity sake) and issue promotion/posting orders thereafter. In sequel to the approval accorded by the Board of Directors of the Bank/respondent No.3, Managing Director sent the case for approval to respondent No.2 on 17.9.2010. Respondent No.2 accorded approval to the recommendations made by the Managing Director under rule 56 (3) of the Rules on 25.9.2010. 3 2. Mr. Ajay Sharma has vehemently argued that on the date when the Staff Selection Authority meeting was convened on 13.9.2010, no charge-sheet was issued to the petitioner. He then contended that even on the date when the resolution was approved by the Board of Directors, i.e. 14.9.2010, no charge-sheet was issued to the petitioner. He also argued that even on 17.9.2010 when the Managing Director of respondent No.3-Bank had sought the approval under rule 56 (3) of the Rules from respondent No.2, no charge-sheet was issued to the petitioner. He has lastly contended that respondent-Bank could not keep the name of the petitioner in a sealed cover on 13.9.2010. According to him, this action of the respondent-Bank is arbitrary. 3. Mr. Vikas Rathore, learned Deputy Advocate General and Mr. S.C. Sharma have strenuously argued that since departmental proceedings were pending against the petitioner, respondent-Bank had decided to keep the name of the petitioner in a sealed cover. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. Case of the petitioner was considered for promotion to the post of Grade-I Officer on 13.9.2010. Petitioner was found eligible for promotion, in all respects, 4 after taking into consideration his Annual Confidential Reports for the last three years. His name was recommended by the staff Selection Authority on the principle of merit-cum-seniority. However, his name has been kept under the sealed cover. Thereafter, necessary approval was sought by the Managing Director of the respondent-Bank after completing all the codal formalities from respondent No.2. Respondent No.2 has accorded necessary approval on 25.9.2010. A charge-sheet has been issued to the petitioner vide Annexure P-4 only on 20.9.2010. The petitioner was earlier working as D.G.M. in Mandi Branch. According to the respondents, on the basis of audit para for the year 2004-2005, petitioner was served with a show cause notice on 22.5.2010. He has filed reply to the same on 2.6.2010. Thus, it is evident that on the date when the Staff Selection Authority has met on 13.9.2010, no charge-sheet was issued to the petitioner. Merely, a show cause notice was issued to the petitioner before that date, to which he has filed the reply. In these circumstances, the action of the respondent No.3 to keep the name of the petitioner under sealed cover is purely and surely arbitrary. 6. What is arbitrary has been succinctly explained by their Lordships of the Hon’ble Supreme Court in East 5 Coast Railway and another versus Mahadev Appa Rao and others, (2010) 7 SCC 678 as under: “20. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non- application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.” 7. Their Lordships of the Hon’ble Supreme Court in Union of India and others versus K.V. Jankiraman and others, (1991) 4 SCC 109 have held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. Their Lordships have further held that the sealed cover procedure is to be resorted to only after the charge-memo/charge- sheet is issued. Their Lordships have held as under: “16. On the first question, viz., as to when for the purposes of the sealed cover procedure the 6 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 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. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/ charge- sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc., does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are 7 inconsistent with each other. Those conclusions are as follows: "(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official; (2)................................................... (3)....................................... (4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;" 17. There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench-has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/ criminal proceedings are pending against the employee. To deny the said benefit they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions.” 8. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. The decision of the respondent No.3 dated 13.9.2010 to keep the name of the petitioner under sealed cover is quashed and set aside. Respondent No.3 is directed to open the sealed cover within a period of two weeks from today and thereafter respondent No.3 shall seek necessary approval as per rule 56 8 (3) of the Rules from respondent No.2. Respondent No.2 shall accord necessary approval as has been done in the case of other five incumbents within a period of two weeks thereafter. Petitioner shall be promoted to the post of Grade-I Officer from the due date with all the consequential benefits. There shall, however, be no order as to costs. (Rajiv Sharma), Judge May 05, 2011 *awasthi*