Letters Patent Appeal No.117 OF 2005 (Appeal against the order dated 11.1.2005 passed by a learned Single Judge of this Court in C.W.J.C.No.5583 of 1999) BIJAY KUMAR THAKUR--------------------------------Appellant Versus THE STATE OF BIHAR & ORS-------------------Respondents ----------- For the Appellant : Mr.M.S.Madhup, Advocate, Mr.Ashok Kumar, Advocate. For the Respondents : Mr.Arup Kr.Chongdar, J.C. to A.A.G.II. ---------- P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD THE HON'BLE DR. JUSTICE RAVI RANJAN -------- Prasad & Ranjan, JJ: Writ-petitioner-appellant, aggrieved by the order dated 11.1.2005 passed by a learned Single Judge in C.W.J.C.No.5583 of 1999, has preferred this appeal under Clause 10 of the Letters Patent. Short facts giving rise to the present appeal are that the writ petitioner-appellant (hereinafter referred to as the writ- petitioner) was appointed to the Bihar Administrative Service and joined as Deputy Collector on 17.11.1985. By order dated 10.1.1991 he was granted Junior Selection Grade with effect from 17.11.1987 on adhoc basis. His case for grant of Junior Selection Grade on regular basis was taken alongwith the Officers of his batch in the year 1994 and it was deferred on the ground of non- availability of the annual confidential reports. Similarly when the matter was taken up in the year 1995 it was again deferred on the 2 purported ground that allegation against him is pending consideration. It is writ petitioner‟s assertion that no allegation against him was being enquired, in fact it was in relation to another Bijay Kumar and on a misconception his promotion was deferred. Thereafter his matter for grant of Junior Selection Grade was considered in the year 1999 and on the ground of pendency of a departmental proceeding same has been deferred. Writ-petitioner aggrieved by non-grant of Junior Selection Grade and Senior Selection Grade preferred the writ application seeking issuance of writ in the nature of mandamus for grant of the aforesaid grades, at least from the date his junior was promoted. By reason of the impugned order, writ petitioner‟s prayer has been rejected and aggrieved by the same he has preferred this appeal. Before we advert to the submission, it is relevant here to state that a memo of charge was served on the petitioner on 16.3.1992, to which he replied on 5.5.1992. Thereafter by resolution dated 27th of February, 1998, decision was taken to initiate a departmental proceeding against him. By the said memo the Commissioner of departmental enquiry was appointed as the Enquiry Officer and the writ petitioner was directed to obtain from the said Enquiry Officer the memo of charge and the list of witnesses and then to submit the explanation. It is further relevant here to state that the departmental proceeding initiated against 3 the petitioner is in respect of the charge pertaining to the district of Dhanbad which admittedly on the reorganization of the State had fallen within the territory of the State of Jharkhand after coming into force of the Bihar Reorganization Act. It was contended that even if it is assumed that the departmental enquiry was initiated against the petitioner in the year 1998, the charge being in relation to the misconduct said to have committed in the district of Dhanbad and the proceeding having not been concluded, it would be deemed that the departmental proceeding initiated against the petitioner stood closed. The aforesaid submission did not find favour with the learned Single Judge. Mr.Madhup, appearing on behalf of the appellant in this appeal has altogether taken a different stand and he contends that as the charge was not communicated to the writ petitioner, the departmental proceeding shall not be taken to have been initiated. Hence promotion ought not to have been deferred on that ground. In this connection, our attention has been drawn to the recital in the resolution dated 27th of January, 1988 in which the petitioner has been asked to obtain the memo of charge and the list of witnesses from the Enquiry Officer. Our attention has also been drawn to Rule 55 of the Civil Services Classification Control and Appeal Rules. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Union of India, etc. Vs. K.V.Jankiraman, etc. [1992(1) PLJR 27] and our attention has 4 been drawn to paragraph 6 of the judgment which reads 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 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 inconsistent with each other. Those conclusions are as follows : 5 “(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;” 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, We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal.” (Underlining ours) Reliance has also been placed on a decision of the Supreme Court in the case of Coal India Ltd. & Ors. Vs. Saroj Kumar Mishra [2007(3) PLJR 47] and our pointed attention has been drawn to paragraph 11 as also paragraph 21 of the judgment which read as follows: “11. Both First Appellant as also Mahanadi Coalfields Ltd. are „State‟ within the meaning 6 of Article 12 of the Constitution of India. Their action must, therefore, satisfy the test of reasonableness and fairness. Although an employee of a State is not entitled to promotion to a higher post as a matter of right, he is entitled to be considered therefore in terms of Article 16 of the Constitution of India. A right of promotion can be withheld or kept in abeyance only in terms of valid rules. Rules operating in the field do not provide that only because some allegations have been made as against an officer of the company, the same would itself justify keeping a valuable right to be considered for promotion of an employee in abeyance. When a question of that nature comes up for consideration before a superior court, the extant rules operating in the field must necessarily be construed in the right of the constitutional scheme of equality. 21. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued.” J.C. to A.A.G.II, however, contends that for the purpose of consideration of the case for grant of promotion, the departmental proceeding shall be taken to have been initiated on the day, the authority decided to do that and service of memo of charge shall not be the decisive factor. He points out that memo of charge was drawn and the writ petitioner was asked to obtain it from the Enquiry Officer. Having appreciated the rival submission, we do not find any substance in the submission of Mr.Madhup and the decisions relied on are clearly distinguishable. Even if we assume in favour of the writ petitioner that the memo of charge was not served alonwith the resolution by which the departmental proceeding was initiated shall not make any difference. Fact of 7 the matter is that before the case of the writ petitioner was considered, the State Government had decided to initiate departmental proceeding against him. It was not the stage of preliminary investigation. Memo of charges was drawn and the writ petitioner was directed to collect it from the Enquiry Officer. In such circumstance, it can not be said that charge-memo was not issued to the writ petitioner. For the purpose of consideration for grant of promotion it should be the date on which the decision is taken and not the date on which it is served. There may be a case in which the employer takes the decision to initiate departmental proceeding against an employee on a particular day and on the very next day his matter of promotion is considered, it shall be absolutely illogical to say that in such circumstance the employer will not take into account the decision which it had taken a day earlier in respect to the employee. Now referring to the decision of the Supreme Court in the case of K.B.Jankiraman, same is clearly dinstinguishable. In the said case it was observed that pendency of preliminary investigation prior to the issuance of charge memo will not be sufficient to adopt the sealed cover procedure. In the case in hand it was not the stage of preliminary investigation but memo of charge instead of being served on the writ petitioner, he was directed to obtain it from the Enquiry Officer. It is worth mentioning that the aforesaid decision came up for consideration before the Supreme Court in the case 8 of Union of India and another v. R.S.Sharma [AIR 2000 Supreme Court 2337] in which while considering the case of K.B.Janki raman, the Supreme Court observed as follows : “16. Learned counsel for the respondent made an endeavour to contend that in the light of the decision of this Court in Union of India v. K. V. Janakiraman, (1991) 4 SCC 109 : (1991 AIR SCW 2276 : AIR 1991 SC 2010 : 1991 Lab IC 2045) the Sealed Cover Procedure can be resorted to only after Charge Memo is received or a charge-sheet is filed and that unless such an event had happened at the relevant time the Government employee cannot be denied of his promotion, if he is otherwise entitled to it. Learned counsel also submitted that Janakiraman was since followed in Union of India v. Dr. Sudha Salhan, (1998) 3 SCC 394 : (1998 AIR SCW 884 : AIR 1998 SC 1094 : 1998 Lab IC 957); Bank of India v. Degala Suryanarayana, (1999) 5 SCC 762 : (1999 AIR SCW 2529 : AIR 1999 SC 2407 : 1999 Lab IC 2919). The clauses of second paragraph of the Sealed Cover Procedure considered in Janakiraman were not those involved in the present case and hence that decision is of no avail to the respondent. In the other two decisions the facts warranted application of the ratio contained in Janaliraman. The added factor in these two cases was that the public servant concerned had been exonerated of the charges framed by the criminal Courts. In the present case the respondent is still facing the trial for serious offences, and hence the situation is different. 17. We may also point out, in this context, that in Delhi Development Authority v. H.C.Khurana, (1993)2 JT (SC) 695 : (1993 AIR SCW 1417 : AIR 1993 SC 1488 : 1993 Lab IC 1143) and Union of India v. Kewal Kumar, (1993) JT (2) (SC) 705 : (1993 AIR SCW 1737 : AIR 1993 SC 1585 : 1993 Lab IC 1317) this Court found that the ratio in Janakiraman (1991) AIR SCW 2276 : AIR 1991 SC 2010 : 1999 Lab IC 2045) is applicable only to the situations similar to the cases discussed therein, and hence the Sealed Cover Procedure resorted to by the DPC in those two cases was upheld by this Court.” 9 As regards the decision of the Supreme Court in the case of Saroj Kumar Mishra (Supra), same is also distinguishable. In paragraph 11 of the judgment quoted above, the Supreme Court has observed that right of promotion cannot be withheld or kept in abeyance only in terms of valid Rules and only because some allegations have been made against an Officer, same would itself not justify keeping a valuable right to be considered for promotion in abeyance. In the present case, it is not only on allegation grant of selection grade has been deferred but a conscious decision has been taken to initiate departmental proceeding against him. In fact memo of charge was drawn and writ petitioner was asked to obtain it from the Enquiry Officer. Therefore it cannot be said that the case of promotion of the writ petitioner has been withheld only on the ground of some allegations having been made against the writ petitioner. As observed earlier, the misconduct alleged against the petitioner is for the period when the writ petitioner was posted at Dhanbad which on reorganization of the State has fallen within the jurisdiction of the State of Jharkhand. Mr.Madhup has pointed out that as the departmental enquiry was not under way, it was the State of Jharkhand which would be competent to hold the enquiry and finalise the same. In this connection he has drawn our attention to the letter dated 22nd February, 2001 and our 10 particular attention has been drawn to the decision as taken under Clause 3 of issue no.1. According to him, the charge being in relation to misconduct said to have been committed in the District of Dhanbad and the proceeding having not been concluded, on the reorganization of the State it would be deemed that departmental proceeding initiated stood closed. He points out that it is Clause (c) shall govern the field and not Clause (b). We deem it expedient to reproduce the same : “CLARIFICATIONS ON THE ISSUES REFERRED BY THE GOVERNMENT OF BIHAR, HOME (SPECIAL) DEPARTMENT Issue 1: There is no clarity as to which State, Bihar or Jharkhand will pursue cases of disciplinary proceedings, allegations, vigilance enquiries, etc. in respect of State services posted in Jharkhand State GOI‟s Clarification: In so far as disciplinary proceedings are concerned, the following situations may arise: (a) In so far disciplinary proceedings are concerned, the following situations may arise: In such a case, the enquiry papers should be transferred to the State of Jharkhand and the disciplinay authority of the State of Jharkhand or equivalent rank may take a decision based on the enquiry report. (b) Where an enquiry is under way and has not been completed before the appointed day: In such a case, it would be desirable that the State of Bihar finalise the enquiry started at its end before the appointed day, even if it means that the enquiry officer may have to visit the other State to complete the process. (c) Where enquiry has not yet been initiated before the appointed day but prima facie a case has been registered: 11 In such a case, where no departmental enquiry has been initiated, normally the State of Jharkhand would be competent to hold the departmental enquiry and finalise the same. However, in cases of misconduct relating to those territories which were part of the State of Bihar existing immediately before the appointed day, the enquiry may be conducted by the State of Bihar and papers transferred to the disciplinary authority in the State of Jharkhand to take a final decision. Action on the above lines could also be taken in respect of vigilance enquiries, allegations, etc., in respect of officers provisionally ordered to serve in connection with the affairs of the State of Jharkhand.” We have held that the departmental proceeding was initiated against the petitioner but not completed before the appointed date, hence Clause (b) of the aforesaid decision shall apply and it shall be the State of Bihar, which shall be competent to finalise the enquiry. Clause (C) aforesaid shall apply in the case in which no departmental enquiry has been initiated. It is relevant here to state that in the departmental enquiry initiated against the petitioner he has been visited with penalty. It is an admitted position that the petitioner has challenged the same in a separate proceeding. Any observation made by us in this appeal shall have no bearing on that. Accordingly, we are of the opinion that the learned Single Judge did nor err in declining the relief to the writ petitioner. 12 In the result, we do not find any merit in the appeal and it is dismissed accordingly, but without any order as to costs. (Chandramauli Kr.Prasad, J.) (Dr. Ravi Ranjan, J.) Patna High Court Dated, 19th of September,2008. AFR/Narendra/