The Judgment of the Court was delivered by
I.P Mukerji, J.:— The petitioner is a Junior Manager (Quality Assurance) in Garden Reach Ship Builders & Engineers Ltd., the respondent No. 2. He joined the post on 15th November, 2007. He came in the zone of consideration for normal promotion to the post of Assistant Manager in September, 2012 in the pay-scale Rs. 16,400/- to 40,500/-. His employer, for reasons best known to them, did not take the decision regarding promotion that year.
2. Now, it so happened that on 12 March, 2013, a Kanchan Dey lodged a complaint against the petitioner with Jagacha Police Station alleging that the latter had taken Rs. 5,46,000/- for the sale of a plot of land in his favour but had refused to execute the deed of conveyance. The Police registered a case against him No. 16/13 accusing him of theft and practising criminal intimidation. He was arrested on 24 April, 2013 but later released on bail on 30 April, 2013. His employer placed him on suspension between these two dates. On 8 May, 2013 however, the petitioner was allowed to resume his duties. By its decision dated 29 May, 2015 the Departmental Promotion Committee kept its recommendations regarding promotion of the petitioner in a sealed cover.
3. He says that he was due for promotion from September, 2012 to the post of Assistant Manager. He became so eligible because his track record was very good. At that point of time, there was no criminal proceeding against him. Therefore, his right to get promotion accrued in September 2012. Such alleged right is sought to be enforced by him through this writ.
4. Indeed, the petitioner produced a copy of a certificate dated 19 April, 2013 issued by the Chairman and Managing Director of the respondent no. 2. Saying “you have displayed very high order of devotion to duty and professionalism in the works undertaken by you. Your honesty of purpose, integrity, diligence, industrious and meritorious service is highly appreciated and commended.” The petitioner submits that if he was granted promotion to the post of Assistant Manager in September 2012 he would have become eligible for further promotion to the post of Deputy Manager with effect from July, 2016.
5. The petitioner makes several contentions. There is no allegation of pecuniary loss to the organisation. Rule 25(j) of Garden Reach Ship Builders and Engineers Limited Conduct, Discipline and Appeal Rules, 1977 contemplate that promotion of an officer shall be guided by Rule 25(A) which provides that if a criminal proceeding is pending against an officer, his promotion recommendation shall be kept in a sealed cover till the conclusion of the same.
6. Mr. Majumder for the petitioner argues that the criminal complaint must have a rational nexus with the nature of work being done by the employee. The charge against the petitioner in the criminal proceeding has got no nexus with the nature of employment. The petitioner has an excellent track record having been awarded 75% by the moderation committee in each of the Annual Performance Assessment Reports of the preceding four years.
7. It was also argued on behalf of the petitioner that the police have filed a charge sheet against him on 16 June, 2014. Adoption of the sealed cover procedure from 2013 onwards was bad in law. The cases cited by Mr. Majumder will be dealt with at the time of making discussion of the rival cases.
8. It is important to note the case of the respondents in the affidavit in opposition. After being on probation for one year from 15 September, 2007 the writ petitioner was confirmed on 20 November, 2008. Even on an earlier occasion there was an allegation of fraud against him. He tried to forge a letter on behalf of the respondent organisation in early 2011 that apparently on 10 January, 2011, he had closed his PF loan accounts with them. This was written to dishonestly gain some advantage in a house loan transaction with the bank. On 7 July, 2011 he was let off with a warning.
9. During his detention in custody from 24 April, 2013 to 30 April, 2013 the petitioner was deemed to be suspended under Rule 21 of the Garden Reach Ship Builders and Engineers Ltd. Conduct, Discipline and Appeal Rules 1977 as amended from time to time. On 8 May, 2013 the respondent No. 2 asked him to report to duty.
10. On 4 May, 2013 the promotion rules for the officers of the respondent no. 2 were amended laying down a procedure that when criminal case/disciplinary proceedings were pending against an officer, the assessment of the DPC would be kept in a sealed cover. On the conclusion of the disciplinary case/criminal prosecution, resulting in the exoneration of the allegations against the officer the sealed cover or covers shall be opened.
11. Let me deal with the points raised by the petitioner one by one. The first point raised by Mr. Majumder was that the promotion papers or recommendation could only be kept in a sealed box, if the offence for which the criminal prosecution was being instituted against the petitioner related to his work or work place. To be more specific the criminal prosecution had to relate to the employer employee relationship or the relationship between two employees or to the nature of work entrusted with the petitioner. If the prosecution related to an offence which was different, the promotion papers or recommendation could not be kept in a sealed cover. In this case, the alleged offence related to the personal affairs of the writ petitioner involving a private sale transaction. For this type of criminal prosecution the promotion of the writ petitioner could not be kept in a sealed box.
12. I find from the prayers in the writ petition that the Garden Reach Ship Builders and Engineers Limited Conduct, Discipline and Appeal Rules, 1977 as amended from time to time are not challenged.
13. In fact, in my opinion, there is nothing wrong with Rule 25A. It may well be the policy of the government, a statutory body or a government company, not to promote an officer when a criminal proceeding is pending against him, until an order of acquittal is obtained by him. In my opinion, whether the alleged offence concerns the personal matters of the petitioner or his role in his office does not matter. A government or any government organisation does not tolerate moral turpitude of any kind. Accusation of an offence can be taken as moral turpitude, good enough to deny promotion to an officer. But, an accusation moves through several stages in a criminal prosecution. From what stage is the accused to be denied promotion? It is very plainly laid down in Union of India v. K.V Jankiraman, reported in (1991) 4 SCC 109 : AIR 1991 SC 2010, cited by Mr. Majumdar that only upon an officer being chargesheeted that his promotion papers or recommendation are to be kept in a sealed cover.
14. In my opinion, once a charge has been framed against an accused, prima facie there is substance in the accusation. The accused can always pray for discharge before framing of charges on the ground that there is no sufficient material to substantiate the accusation.
15. The judgement in Union of India v. K.V Jankiraman, reported in (1991) 4 SCC 109 : AIR 1991 SC 2010 contains a very important dictum in paragraph 6 thereof that “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.”
16. The Supreme Court has given its reasons for this. Preliminary investigations sometimes take an inordinately long time and are deliberately delayed at the instance of some persons. Sometimes a charge sheet is not issued if the employer is not keen to get the alleged offence investigated. It takes a very long time for submission of a charge sheet. Withholding the promotion of an employee only on the ground that a criminal prosecution is pending against him would be unjust.
17. The decision citied by Mr. De in Union of India v. Dr. (Smt.) Sudha Salhan reported in JT 1998 (1) SC 622 relates to the case where departmental proceedings have been initiated against an employee and lays down the following law:
“The question, however, stands concluded by a three Judge decision of this court in Union of India v. K.B Jankiraman JT 1991 (3) SC 527 in which the same view has been taken. We are in respectful agreement with the above decision. We are also of the opinion if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the “sealed cover” procedure cannot be adopted. The recommendation of the Department Promotion Committee can be placed in a “sealed cover” only if on the date of consideration of the name for promotion the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officer, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the recommendation of the Departmental Promotion Committee would be opened, and the recommendation would be given effect to.”
18. I think the petitioner is absolutely right in his contention that the findings or recommendations of the said committee were kept in a sealed cover prematurely on 29 May, 2013. The Police submitted the charges only on 16 June, 2014.
19. In those circumstances, as the petitioner was entitled to promotion from September, 2012, that promotion should have been granted. Therefore, the recommendation of the departmental promotional Committee to put the recommendation regarding the petitioner in a sealed cover on 29 May, 2013 is to be taken as if those recommendations were put in a sealed cover on the date of submission of charge by the police i.e on 16 June, 2014.
20. This writ application is partly allowed by directing the respondents to promote the petitioner to the post of Assistant Manager with effect from the date when such promotion was due in 2012 with all consequential benefits like arrear pay, and allowances.
21. The prayer of the writ petitioner for his, onward promotion to the post of Deputy Manager cannot be allowed now because the charge sheet has already been filed on 16 June, 2014. His promotion was not due before that date. The criminal proceeding against him is still pending.
22. Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
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