Case: Pramod Kumar Vs. The Oriental Insurance Co. Ltd. And Another

4. For deciding these issues, it will be material to consider the background and certain dates / events.5. The Petitioner is working as a Manager in Scale IV Class I employee category with Respondent No.1-Insurance Company. There is Promotion Policy for Officers-2006 in Vogue. There was a promotion process initiated by Respondent No.1 in the year 2017 for Scale V. The promotion programme was declared. The Petitioner has participated in that selection process. However, he was not selected in the final merit list. The relevant dates are as follows :									(a)7April2017            									Calingap licationsforthepostof ScaleVOficers–published            													(b)Nodate            									Petitionerapliedforthatpost            													(c)Nodate            									Provisional     List     of     eligible candidates      for      online      test (Petitioners name    atSr.No.36- published(pg.37)            													(d)Nodate            									Interview        schedule      published containing   names   of  Petitioner (pg.38)            													(e)2  June2017            									Result– Listofselected Oficers published            						6. According to the Petitioner, he was not being informed about why his name does not appear in the merit list. He was told orally by Offices of Respondent No.1 that Sealed Cover Procedure was followed. When the Petitioner could not succeed in convincing Officers of Respondent No.1, this Petition is filed. The Petitioner has asked for following reliefs :-(a) writ of mandamus thereby disclosing the decision of DPC to the Petitioner;(b) to issue writ of mandamus directing Respondents to open Sealed Cover Procedure;(c) to issue writ of mandamus against the Respondents to promote the Petitioner to the Scale V Post.7. The Respondents have appeared and contested the Petition.8. It will be material to consider the averments made in their affidavitin-reply. They have pleaded the following facts :(a) Sealed Cover Procedure was followed in promotional exercise of 2017-18;(b) Vigilance Department has not given vigilance clearance in the name of the Petitioner as its mandatory requirement;(c) Vigilance Department remarked that Case was referred to CVC for first stage advice on 15 June 2016 with recommendations of CVO and DA;(d) CVC vide letter dated 20 October 2016 handed over case to SP Bank Securities CBI New Delhi for detailed investigation.9. The Petitioner has filed a copy of FIR registered on 12 January 2018 with CBI, New Delhi. It is under Section 120-B read with 420 of IPC and under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act 2018. According to the Petitioner, the Petitioner has not been named directly or indirectly in that FIR and this FIR was not lodged when Departmental Promotion Committee selected the names. Whereas, according to the Respondents, though the Petitioner has not been named in the FIR, there are two other Officers of the Insurance Company, who have been named and there is involvement of two companies through their Directors. Furthermore, it is alleged that other persons are involved and involvement of the Petitioner is there and investigation will make all the things clear. The Respondents contend that initially the apprehension of the company gets fortified as sanction was sought to prosecute the Petitioner and it was granted on 11 May 2020 by Chairman-cum Managing Director (Pg.75).

Reasoning:
Prior to dealing with them, it will be material to consider the law laid down by the Honble Supreme Court in case of Union of India Vs. K.V. Jankiraman And Others (1991) 4 Supreme Court Cases 109  . In that matter, the Honble Supreme Court dealt with various civil appeals arising out of different orders passed by Central Administrative Tribunal. In para8 questions involved in those appeals were narrated. They are :-(1) from which date the disciplinary or criminal proceeding can be said to be pending against an employee;(2) when the employee is held guilty, what is a course to be adopted and;(3) when employee is exonerated what are the benefits which enures to him.11. While dealing with those questions, Honble Supreme Court has considered the provisions of Office memorandum dated 13 January 1982 and 26 September 1986 issued by Government of India. It was held that from the date of issuance of a charge-sheet or a charge memo, Sealed Cover Procedure needs to be followed. It was observed that employee is not having a right to promotion, but certainly he has right to be considered for promotion. The contingencies under which Sealed Cover Procedure is to be followed was reiterated.16. So far as the first category is concerned, there is no question of ambiguity about the line of action to be proposed in respect of such an employee. Dispute arose only in respect of an employee falling under the second category. We are dealing with that category. It is very well true that an employee has got right to be considered for promotion (though he has no right of promotion). At the same time, it is true that any organization should promote only such an employee whose record is clear. Even though he fits into all criterias fixed for promotion, but if he is having blemished record, certainly an organization may not consider him for promotion at least till the time, he is cleared from all the allegations.17. It is true that functioning of any organization is governed by set of rules. They are binding on an organization as well as on employees working in it. So if an organization want to deny promotion to an otherwise eligible employee the person at the helm of the affairs of the organization can not arbitrarily deny the promotion. If there are allegations of misuse of official position by an employee, the person at the helm of affair need to verify and scrutinize the allegations. Such allegations may lead to initiation of disciplinary inquiry and sometime also may lead to initiation of criminal prosecution.18. In the present case the Petitioner is subjected to departmental inquiry and he is also facing a criminal prosecution. These facts were not in existence at the time, DPC hold its meeting. The Petitioner is exonerated in the departmental inquiry. The Inquiry Report dated 28 October 2021 is shown to us during hearing. Respondents claim that yet the findings given (exonerating the Petitioner and two others) is not confirmed by disciplinary authority.As said above initiation of departmental inquiry/criminal prosecution was not in existence at the time of holding of DPC. Admittedly, the minutes of meeting of DPC were neither produced nor shown to us. So what prompted the administration of Respondent No.1- company to place materials before DPC and which compelled DPC not to include name of the Petitioner in the promotion list20. If we will read the averments from the Respondents affidavit, we may finding following particulars :-a) The result of the Petitioner was kept in a sealed cover by Departmental Promotion Committee because Vigilance Department has not given the vigilance clearance, which is mandatory requirement;b) Vigilance remarked that the case was referred to CVC for First Stage Advice on 15 June 2016 with recommendation of CVO and DA. CVC vide letter dated 20 October 2016 handed over the case to SP, Bank Securities and Fraud Cell, CBI, New Delhi for detailed investigation;c) Sanction for prosecution has been accorded by C.A. vide letter dated 11 May 2020.21. Even those correspondence were not filed on record. They are referred in para No.10 of the affidavit-in-reply of Respondents. The Petitioner has filed an affidavit-in-rejoinder.23. Nowhere, the Petitioner has denied the averments relating to pending case with Chief Vigilance Commissioner and handing over the case to Superintendent of Police, CBI, New Delhi.26. When we have considered all these OMs cumulatively, we may find that Ministry of Personnel has tried to balance the rights of an employee to get the promotion on one hand and also tried to protect the interest of administration to get the candidate promoted, who is having unblemished record. It is the delicate job on which the administration has to do. The difficulty arises when case of a particular employee does not fall within either of the three contingencies. But one can very well say that there is insistence on the vigilance clearance (where the case falls under either of the three categories or otherwise). It is true that when Honble Supreme Court dealt with the case of Union of India Vs. K.V. Jankiraman And Others (supra), three OMs referred by us were not in force.27. It is very well true that averments by the Respondents about sending the case to Chief Vigilance Commissioner and referring the matter to CBI were not disputed by the Respondents. The copy of the FIR dated 12 January 2018 was filed by the Petitioner himself. This FIR is lodged by Deputy Superintendent of Police, CBI, New Delhi. It is filed on the basis of the preliminary inquiry dated 14 November 2017. Whereas the remark of Vigilance Department of sending the case to CVC dated 15 June 2016 and CVC has handed over the case to CBI vide dated 20 October 2016. Though the date of meeting of DPC is not available, we may find that the list of successful candidates was declared on 22 June 2017.28. There were in all seven candidates. So one may very well say that two letters of 2016 were very much in existence prior to preliminary inquiry is registered on 14 November 2007. It is true that name of the Petitioner has not been named in the FIR. It is very well true that at the time of lodging of an FIR and particularly, when it involves documents, name of each and every culprits may not be known. It is part of an investigation. If one reads FIR, we may find modus-oparandi. One of the business of the Respondent-company is Marine Insurance. The vessels are insured. The FIR alleges that there was reinsurance taken from private companies by Respondent No.1-company. There is allegation that infact the original Marine Insurance Policies were not issued and forged documents were prepared and premium was parted away from funds of the Respondentcompany to private insurance companies and as such Respondent No.1 company was duped. In that exercise, some of the named officers of the company, representatives of the private companies were involved. Admittedly, a Chairman has granted sanction to prosecute the Petitioner vide Order dated 11 May 2020. It is but natural to grant sanction if the materials placed before him warrant and it is the requirement under the provisions of Prevention of Corruption Act.29. Now we have got Inquiry Report dated 29 October 2021, thereby exonerating the Petitioner. The decision taken by Disciplinary Authority is not made known. It is very well true that one cause of action may lead to initiation of Departmental Enquiry on one hand and launching criminal prosecution on the other hand. Both these proceedings are required to be tried on the basis of available material and nature of inquiry, purpose of inquiry and outcome are different. Finding in one of them is not binding in other proceedings.30. After considering all materials, what we feel is that the DPC is justified in not considering name of the Petitioner for promotion. This is the case which does not either fall under any of the three categories, nor it can be said that there is no suspicion over behavior of the Petitioner. The fact that Chief Vigilance Commissioner had sent case to CBI itself indicate that there is a criminal element involved in it. The case of the Respondents is fortified by the act of granting sanction subsequently. The fact that the sanction is granted itself suggest that there is sufficient material to file chargesheet against the Petitioner. Every time DPC may not deal with a clear case. Here we are affirming decision of the DPC also due to nonrebuttal by the Petitioner about sending case to CVC and to CBI.32. We have perused the judgments relied upon by the Respondents on the point of delay. On facts, learned Counsel for the Petitioner differentiated the ratios laid down in those judgments. It is true that in approaching the writ court diligence is very decisive factor in favour of the Petitioner. The observations in those judgments are on the basis of facts of those cases. The conclusion cannot be applied universally. The bottom line is that the writ court needs to consider whether the Petitioner has approached the court after inordinate delay which is unexplained and unjustified.33. On this background, if facts of this petition are perused, we may find that the DPC was conducted on 22 June 2017, whereas the Petitioner is filed in the year 2019. It is undisputed fact that the Respondents have not informed to the Petitioner in writing why he was denied the promotion. Prior to filing the petition, the Petitioner has started pursuing with the higher officials. There are the correspondence starting from 11 March 2019 and last correspondence is of 30 August 2019 made with PMO. It shows that the Petitioner was not sitting idle and he has chosen to approach the court when he could not get justice from the higher officials. For these reasons, we do not think that on the ground of delay, the Petitioner is required to be non-suited.