AI Insights
Mukteshwar Prasad Singh, the petitioner, challenged the promotion of Manish Kumar, a junior officer, to the post of Income Tax Officer, claiming it was unjust as he was eligible for promotion but was denied due to an inordinate delay in the Departmental Promotion Committee's (DPC) meeting and his pending criminal prosecution. The petitioner argued that the delay and the procedural guidelines for promotions under investigation were not followed, leading to his wrongful deprivation of promotion. The respondents defended the promotion of Manish Kumar, citing the sealed cover procedure due to the petitioner's ongoing criminal case. The court dismissed the petition, agreeing with the respondents and referencing the Supreme Court's precedent in K.V. Jankiraman case.
Appeal Details
Counselvise Citation
[2017] 140 COUNSELVISE.COM (IT) 801748 (HC-JHARKHAND)
Assessee PAN
Bench
Appeal Number
CRN Number
Appellant
Respondent
Appeal Type
Others
Pronouncement Date
19-07-2017
Assessment Year
misc
Judgement Text
" IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P . (S) No. 3208 of 2015 Mukteshwar Prasad Singh ..... Petitioner vs. 1. Union of India through the Chairman, Central Board of Direct Taxes, North Block, New Delhi 2. The Chief Commissioner of Income Tax (CCA), Central Revenue Building, Bir Chand Patel Marg, Patna 3. The Commissioner of Income Tax (Audit), Central Revenue Building, Bir Chand Patel Marg, Patna 4. The Additional Joint Commissioner of Income Tax (Head Quarters), Administration Central Revenue Building, , Bir Chand Patel Marg, Patna 5. Manish Kumar, Ranchi ...... Respondents CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH HON’BLE MR. JUSTICE B.B.MANGALMURTI For the Petitioner : M/s. R. S. Mazumdar, Sr. Adv. Kumar Vaibhav & Rupali Dungdung, Advs. For the RespondentsI.T.Deptt.: Mr. Deepak Roshan, Adv. For the Respondent No. 5 : Mr. Shubham Gautam, Adv. 21/19.7.2017 Heard learned counsel for the parties. Being aggrieved by the order dated 2nd January, 2015 passed in O.A.No. 116/2013[R] by learned Central Administrative Tribunal, Circuit Bench at Ranchi, Patna Bench, Patna, the applicant is before this Court in the present writ petition. He had preferred Original Application for quashing of promotional order dated 30th January, 2012, whereunder junior to the applicant i.e. respondent no. 5 was promoted to the post of Income Tax Officer depriving him of the benefit of promotion without any cogent reason. Brief facts, bereft of unnecessary details, are being referred to hereinafter. The applicant/writ petitioner working as Inspector of Income Tax with effect from 14th December, 2001, was implicated in a disproportionate assets case by the C.B.I, in which chargesheet was filed and sanction for prosecution was accorded by order dated 20th July, 2005. The order of cognizance dated 7th December, 2005 was quashed by this Court giving liberty to prosecution to get the investigation of the case conducted by the competent authority under Section 17 of the 2. Prevention of Corruption Act, 1988 and file a final report under Section 173 Cr. P. C. After investigation of the case by the C.B.I through the competent authority, the issue of fresh sanction against the applicant came up. The sanction order was issued on 2nd March, 2011. According to the applicant, he was eligible for promotion as on 1st January, 2011. However, the Departmental Promotion Committee held its meeting on 22nd August, 2011 only. It decided to keep the case of the applicant in a sealed cover on account of the sanction for prosecution. The respondent no. 5, who was junior to him at Serial No. 53 in the meritlist, was granted promotion by the order dated 30th January, 2012, which was impugned in the original application. Learned Senior Counsel for the petitioner, Mr. R. S. Mazumdar has submitted that inordinate delay in convening the meeting of Departmental Promotion Committee has resulted in denial of the promotion to the petitioner though as on 1st January, 2011, sanction for prosecution has not yet been granted against him. Learned counsel has also referred to the Office Memorandum dated 14th September, 1992 (AnnexureA to the counter affidavit of respondent) issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, Government of Jharkhand. It is on the subject of promotion of Government Servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation; procedure and guidelines to be followed. Learned Senior Counsel further submits that detailed guidelines have been provided under Paras 4 and 5 of the Office Memorandum, which stipulate that cases of Government Servants, whose suitability for promotion to a higher grade has been kept in a sealed cover, are required to be reviewed on the expiry of six months and the department/D.P.C has to consider a number of aspects indicated at para5 thereof to come to a finding whether adhoc promotion can be given even during pendency of the disciplinary case/criminal prosecution against such Government servants. Though the petitioner has retired in the year 2016, but no such review has been held even once in his case. Therefore, the writ 3. petitioner is aggrieved to approach this Court. Learned counsel for official respondents has opposed the grounds urged by the petitioner. According to them, effective date, on which the case of such an employee/Government Servant can be considered fit for promotion, is the date on which the Departmental Promotion Committee meeting is held. If on the said date i.e. 26th August, 2011, the writ petitioner was suffering a sanction for prosecution in a C.B.I Case, he cannot claim promotion as a matter of right. His case has therefore been kept in a sealed cover in accordance with the office memorandum (AnnexureA) prescribed by Ministry of Personnel and in line with the judgment rendered by Hon'ble Supreme Court in the case of Union of India and others Vs. K.V.Jankiraman and others reported in (1991) 4 SCC 109. Therefore, there is no error in the judgment . Learned counsel for the private respondent submits that promotion of respondent no. 5 cannot be said to suffer on any count as urged by the writ petitioner, as the respondent no. 5 was next in line after the petitioner was placed in a sealed cover due to the aforesaid reason. We have considered the submission of learned counsel for the parties and gone through relevant material on record including the judgment. The relevant dates which are required to be taken into account for consideration of the case of the petitioner, are the date on which the sanction for prosecution was granted and the date on which the Departmental Promotion Committee meeting was held. Without doubt on the date on which the Departmental Promotion Committee was held i.e., 26th August, 2011, the sanction for prosecution of the petitioner was already granted on 2nd March, 2011 by the competent authority. In view of the pronouncement rendered by Hon'ble Supreme Court in the case of K.V.Jankiraman (Supra), the petitioner's case was not fit for promotion. In those circumstances, the Departmental Promotion Committee rightly recommended the petitioner's case to be kept in a sealed cover awaiting outcome of the criminal case. The opinion of Hon'ble Supreme Court in the case of Union of 4. India and others Vs. K. V. Jankiraman and others reported in (1991) 4 SCC 109 is quoted hereunder: “16. 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 chargememo in a disciplinary proceedings or a chargesheet 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 chargememo/chargesheet 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 appellantauthorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue chargememo/chargesheet, 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 chargememo/ chargesheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should 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: (ATC p. 196, para 39) “(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 to only after a charge memo is served on the concerned official or the chargesheet 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/chargesheet has already been issued to the employee. 5. Thus read, there is no inconsistency in the two conclusions. 18. We, therefore, repel the challenge of the appellant authorities to the said finding of the Full Bench of the Tribunal” We may, however, observe that the respondent department ought to have undertaken the exercise of review in terms of Office Memorandum dated 14th September, 1992 regarding which they have failed to offer any explanation. However, since the petitioner has now superannuated, no such useful purpose would be served by directing the respondent department to undertake this exercise at this stage. It is also informed that criminal case against the petitioner is still pending. Having regard to the aforesaid facts and the discussions made, we do not find any error in the impugned judgment warranting interference under Article 226 of the Constitution of India. Accordingly, the writ petition is dismissed. (Aparesh Kumar Singh,J) (B.B.Mangalmurti,J) jk "
Other Referred Cases
Union of India and others Vs. K.V.Jankiraman and others (1991) 4 SCC 109
Laws Referred To
Prevention of Corruption Act, 1988, Cr. P. C.
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