Vijay Bahadur Singh V. Union Of India And 3 Others

WRIA/11817/2018

AI Insights

The case revolves around Vijay Bahadur Singh, the petitioner, who challenged the Central Administrative Tribunal's decision regarding his entitlement to arrears of salary following his notional promotions after being exonerated from a criminal case. The petitioner argued that despite his promotions, he was not granted the corresponding arrears of salary for the period during which his promotions were withheld due to a criminal case. The Tribunal had denied his claim, stating that his acquittal was not honorable and was based on technical grounds, which influenced the decision on his entitlement to arrears. The High Court, however, found that the Tribunal's decision was perverse and not supported by the evidence, leading to the setting aside of the Tribunal's order and granting the petitioner his claimed arrears.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 818528 (HC-ALLAHABAD)
• Appeal Type: Others
• Pronouncement Date: 05-01-2023
• Assessment Year: misc
• Other Referred Cases: CBI Vs. Krishan Dev and 5 others
• Laws Referred To: Prevention of Corruption Act, 1988
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: MANU GHILDYAL
• Assessee Lawyers: SHAILENDRA
• Keywords: Arrears of Salary; Central Administrative Tribunal; Criminal Case; Exoneration; Notional Promotion; Writ petition
• Section: 19

Judgement Text

"Court No. - 42 Case :- WRIT - A No. - 11817 of 2018 Petitioner :- Vijay Bahadur Singh Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Shailendra,In Person Counsel for Respondent :- S.S.C.,Manu Ghildyal Hon'ble Suneet Kumar,J. Hon'ble Rajendra Kumar-IV,J. 1. Heard Shri Vijay Bahadur Singh, (in person), Shri Manu Ghildyal, learned counsel appearing for the fourth respondent- Principal Director General of Income Tax (HRD) ICADR Building, Plot No. 6 Vasant Kunj Institutional Area, Phase-II, New Delhi-110070. 2. Petitioner by the instant writ petition has raised challenge to the impugned judgment and order dated 14.02.2018, passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad, in Original Application No.514 of 2014. A further direction has been sought for payment of arrears of salary and other consequential benefits for the post of Assistant Commissioner of Income Tax with effect from 10.04.1997 till the fixation of salary of the petitioner on the post of Deputy Commissioner of Income Tax, Joint Commissioner, Income Tax and Additional Commissioner of Income Tax along with interest. 3. The learned Tribunal in para-6 of the impugned judgment has noted that some of the reliefs as claimed by the petitioner, in particular, grant of Non Functional Selection Grade (NFSG), has already been granted. Further, the respondent/petitioner had retired from service, therefore, the question of promotion at this stage cannot be considered, accordingly, the relief at Clause 8(e) was not pressed. The application came to be confined on a limited issue with regard to payment of arrears of salary to the applicant/petitioner for the period he was deprived promotion due to pendency of the criminal case against him. The relevant portion of para-6 of the impugned reads thus: Counsel further submitted that only relief now the applicant claiming is regarding the payment of arrears of salary as the applicant has been granted promotional notionally and after exoneration of the applicant from the criminal case, he is entitled for the salary for that period. 4. The learned Tribunal has rejected the claim of the petitioner for arrears of salary. Hence, the instant writ petition. 5. The brief facts noted in the impugned judgment and order is that the applicant/petitioner came to be appointed on the post of Inspector Tax Officer and is working with the department since 21.03.1977, services of the respondent/petitioner was confirmed. The petitioner after putting in 37 years of service superannuated on 31.08.2014. The case of the petitioner while working as Income Tax Officer came up for consideration for promotion on the post of Assistant Commissioner of Income Tax, however, in the meantime a criminal case came to be instituted against the petitioner and other accused, consequently, following the department circulars, the case of the petitioner was placed in sealed cover. In other words, since 10.04.1997 till the pendency of the criminal case until 20.12.2011, petitioner was considered for promotion by the Departmental Promotion Committee (DPC) but the recommendation was kept in sealed cover. It is after the petitioner came to be exonerated by the 2 of 8 Trial Court, vide judgment and order dated 20.12.2011, several orders were passed by the department promoting the petitioner notionally from the date of joining of his juniors. Accordingly, vide order dated 15.06.2012, the petitioner came to be promoted Assistant Commissioner, Income Tax, thereafter, vide order dated 11.02.2013, the petitioner was promoted on the post of Deputy Commissioner, Income Tax, thereafter, on the post of Joint Commissioner, Income Tax, vide order dated 28.11.2013 and finally, on the post of Additional Commissioner, Income Tax, with effect from 30.07.2014, from retrospective date i.e. 01.01.2009. 6. In the aforenoted factual background the petitioner claimed arrears of salary relying upon Office Memorandum dated 14.09.1992, issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, Government of India, wherein, in para-3 of the memorandum, it is provided that on the conclusion of disciplinary proceedings or criminal prosecution as the case may be which results in dropping of allegations against the government servant, the sealed cover shall be opened. Further, in case, the government servant is completely exonerated, due date of his promotion shall be determined with reference to the post assigned to him in the findings kept in sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. 7. The petitioner this far has no grievance as the petitioner was granted relief on being exonerated in the criminal case. The grievance of the petitioner is confined to the arrears of 3 of 8 salary for the period for which promotion was not granted or withheld. The relevant portion of para-3 of the aforenoted memorandum being relied upon by the petitioner is extracted. “……….He may be promoted notionally with reference to the date of promotion of his junior. However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion and if so to what extent, will be decided by the appointing authority by taking into consideration all the fact and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reason for doing so.” 8. It is submitted that the orders issued by the department granting notional promotion was silent in respect of denial of arrears of salary, whereas, the memorandum mandates entitlement of arrears of pay for the period of notional promotion preceding the date of actual promotion will be decided by the appointing authority by taking into consideration all the facts and circumstances of the disciplinary proceedings/criminal prosecution. Where the authority denies arrears of salary or part of it will record its reasons for denying so. It is not in dispute, inter se parties, that reasons for denying the arrears of salary was not recorded, either in the orders passed granting notional promotion to the petitioner, nor, it was available from the notings on the file/records of the petitioner. 9. The stand of the department before the Tribunal was that since the petitioner was not exonerated honourably but on technical grounds for want of sanction, petitioner is not entitled to arrears of salary. In this factual background, the 4 of 8 learned Tribunal returned a finding in para-9 and 10 of the impugned judgment. Para 9 and 10 is extracted: 9. So far as first part of the applicant’s contention is concerned, we are afraid that the applicant’s acquittal was not honorable acquittal as it was based on two factors, i.e., firstly, sanction to prosecute the applicant was not obtained and this was a technical ground on which the case of the applicant fails. Secondly, the applicant was given the benefit of doubt and the CBI court also mentioned that applicant was not really involved in the fraud. However, the CBI court has not ruled out that the applicant was negligent in discharging his duties. So far as legal position is concerned, in various cases, the Hon’ble Supreme Court held that acquittal should be honorable acquittal. Even if the judge has failed to mention that it is honorable acquittal, it has to be inferred from the findings and language used by the judge. It is also not disputed that the standard of proof in a criminal case is a proof beyond all reasonable doubts. The Hon’ble Supreme Court held in various cases that if an employee is not honourably acquitted by a criminal court, no right is conferred on the employee to claim any service benefit with reference to the charges. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons in criminal case, but can be guilty of misconduct is disciplinary proceedings. 10. In the light of the above settled position when we examined the judgment rendered by the CBI Court in the above noted case, we find that the judgment is based on two sets of facts. Firstly, that the sanction was not obtained in respect of the applicant for doubts and there was lack of evidence in clearly establishing the fact of involvement of the applicant in fraud. However, the CBI court has not ruled out negligence on the part of the applicant. Thus, relying upon his own contention of the applicant, the arrears and other dues can be denied when acquittal is based on three reasons as mentioned below:- 5 of 8 (i)Whether the delay is attributable to the employee in the conduct of criminal prosecution; (ii) Whether acquittal is based on benefit of doubt; and (iii)Whether the acquittal is non-availability of evidence due to acts attributable to employee. And the applicant’s case falls under above said clauses (ii) and (iii) 10. It is submitted by the petitioner that the finding returned by the Tribunal is per se perverse and on misreading of the judgment rendered by the Trial Court in CBI Case No. 4 of 1977 (CBI Vs. Krishan Dev and 5 others). Petitioner was arrayed as accused No. 2 along with four other accused. Petitioner was the only accused charged under the Prevention of Corruption Act, 1988, read with Section 120(B) IPC. As many 30 prosecution witnesses were examined in support of the charge and several documentary evidence was exhibited. With regard to the sanction of the competent authority, it is noted by the trial court that the competent authority, who had granted sanction was not produced for examination, but the second investigating officer was produced, the first investigating officer was also not examined. The second investigating officer as per his testimony had taken over the investigation in February, 1997, whereas, the alleged sanction was granted by the competent authority on 15.02.1996. In other words, it is noted by the learned trial court that all the materials pertaining to the investigation was not placed before the competent authority, further, sanction could not have been granted during pendency of the investigation. In view thereof, a finding was returned by the Trial Court that the sanction is bad in law. Having regard to Section 19 of the Prevention of Corruption of Act, 1988, which categorically mandates that no 6 of 8 courts shall take cognizance of an offence punishable under Section 7, 11 ,13 and 15 alleged to have been committed by a public servant except with the previous sanction of the authority. The trial for want of valid and legal sanction stands vitiated. 11. Thereafter, the Trial Court, proceeded to examine the witnesses and the records, insofar, as it relates to the petitioner, a finding came to be returned that the prosecution failed to prove the case of corruption and the involvement of the petitioner in commission of the offence beyond reasonable doubt. The court was of the opinion that at the most it is a case of dereliction of official duty but ingredients of the offence is not established in the backdrop of the evidence relied upon by the CBI. 12. In view thereof, we are of the opinion that the impugned judgment and order returning a finding that acquittal of the petitioner is based on benefit of doubt and acquittal is on non- availability of the evidence is per se perverse. The burden of proving the charge was upon the prosecution and if they fail to prove the charge in a full fledged trial where 30 witnesses were examined and large number of document relied upon. In any case the trial against the petitioner stood vitiated for want of valid and legal sanction in view of Section 19 of the Prevention of Corruption Act, 1988. Further, no disciplinary proceedings was held against the petitioner after the decision of the Trial Court. It is not the case of the respondents that the arrears of salary was deprived to the petitioner on the principle of No work No Pay. Whereas, the Office Memorandum 7 of 8 mandates that the officer is entitled to arrears of salary on exoneration, and on denial of arrears of pay reasons for doing so will be recorded. Admittedly, no reasons was recorded and the same could not have been assigned by the respondent on affidavit for the first time. It cannot be held that it was not an honourable acquittal. In other words the stand of the respondents before the Tribunal is an after thought not borne from the record. 13. In the circumstances, we are unable to persuade ourselves to agree with the findings returned by the learned Tribunal. Accordingly, the writ petition is allowed and order dated 14.02.2018, passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad, is set aside and quashed. 14. The respondents are directed to pay and release the arrears of salary to be computed with effect from 10.04.1997 till 30.11.2013, within a period of three months, from the date of service of this order failing which, petitioner shall be entitled to simple interest @ 6% on the amount from the due date. Order Date :- 05.01.2023 Piyush/- 8 of 8 Digitally signed by :- PIYUSH YADAV High Court of Judicature at Allahabad "