Hc/Dvr Shiv Kumar Singh vs Ministry Of Home Affairs & Ors.
2010 Latest Caselaw 407 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision : 25th January, 2010

+                        W.P.(C) 4631/2008

        HC/DVR SHIV KUMAR SINGH               ..... Petitioner
                      Through: Mr. I.V. Raghav and Mr. S.B.
                               Raghav, Advocates
                      versus


        MINISTRY OF HOME AFFAIRS & ORS.    ..... Respondents
                      Through: Mr. Ashwani Bhardwaj,
                               Advocate

         CORAM:
         HON'BLE MS. JUSTICE GITA MITTAL
         HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?                     Yes
     2. To be referred to Reporter or not?         Yes
     3. Whether the judgment should be reported in the Digest? Yes

GITA MITTAL, J. (Oral)

1. Rule. D.B. Counsel for respondent waives notice in the

rule. The record which was directed to be produced on the last

date of hearing is also made available. Counsels have been

heard.

2. The writ petition lays a challenge to an order dated 16 th

of April, 2008 passed by the respondents cancelling the

promotion of the petitioner to the post of Sub-

Inspector/Machine Technician. The undisputed facts giving

rise to this petition are noticed hereafter.

3. The petitioner was appointed to the post of Constable

(General Duties) ('CT/GD' for short hereinafter) w.e.f.

27.07.1971 in the Central Reserve Police Force and was posted

with the 82nd Battalion, CRPF since November 1989. The

petitioner successfully undertook the promotional course for

promotion from the post of Head Constable/Driver ('HC/DVR')

to Sub-Inspector/Machine Technician ('SI/MT') at the CTC-I

CRPF, Neemuch and qualified with 'C' grading. The petitioner

was consequently promoted along with two other candidates

to the post of SI/MT by order dated 27.09.2007 issued by the

Director General of CRPF.

4. It appears that during this period, FIR No. 97/06 was

registered on 25.02.1996 by the police station Kalyan Puri,

Delhi against the petitioner under Section 279/304-A of IPC in

connection with an accident by the Water Tanker No. DL IGC-

0731. A civilian Om Prakash R/o Khichripur, Delhi was alleged

to have been killed in that accident. The respondent has

contended that prosecution of the petitioner in this behalf is

pending at the district courts at Karkardooma, Delhi.

5. The petitioner however pleads innocence in this case and

contends that the accident did not result on account of any

fault attributable to him. According to the petitioner, a cyclist

hit a civilian who was walking in an inebriated condition.

Because of this collision with the cyclist and his drunken

condition, this civilian was unable to control himself and fell

down between the left front and rear wheels of the passing

water tanker which the petitioner unfortunately happened to

be driving at that time. The petitioner claims to have rendered

immediate assistance to the deceased who unfortunately

could not survive.

6. Our attention is drawn to the court of inquiry which was

ordered in the incident and conducted by the respondent into

the alleged accident. The court of inquiry has recorded

statements of relevant witnesses. After a detailed

consideration of the material brought out in the inquiry, a

report stands submitted completely absolving the petitioner of

any culpability or blame in the incident. The findings of this

court of inquiry deserve to be noticed and the relevant extract

thereof reads as under :-

" Having gone through the document/statement of witnesses and findings thereto the Court is of the opinion that No. 710040841 HC/Dvr Shiv Kumar on water truck duty was on way to Bn. Hqr. on 24.02.2006 after getting water from the water point. At Khichripur road a cyclist while crossing dashed a civilian namely Om Prakash from behind and Sh. Om Prakash being under influence of liquor could not control himself and fell between left front and rear wheel of the water truck. On a call from CT/GD Ashok Kumar who was sitting on the left side of the window keeping eye on left side because of rush, the driver managed to stop the vehicle before it could cross over the body of the civilian. He was taken to the LBS Hospital with the help of public and the attending doctor found him stable, conscious and there was no injury except injury on toe. He subsequently expired on way to Holy Family Hospital. The postmortem report confirmed his death due to Haemorrahagic shock consequent of blunt force impact.

On going through the profile of HC/Dvr Shiv Kumar it indicates that he is a seasoned driver having earned many rewards for driving in the last 27 years of service. Having examined the circumstances of accident the civilian namely Om Prakash sustained internal injury due to impact of fall on road leading to his death and has the driver not intervened in time the vehicle would have over-run his body. The contention of the complainant in FIR that the water truck hit the civilian namely Om Prakash and the water truck was in high speed seems to be after thought. Had the civilian been hit by the water truck he would have fallen in front of the left wheel where as he fell in between left front and rear wheel. Secondly had the water truck been in high speed then it would have been impossible to save a person fallen in between left front and rear wheel. Thirdly, during evening hours that too between 1830 to 1930 hrs it is very rushy and it is highly impossible to drive a vehicle that too heavy at a high speed. Hence it is found that the driver is not at fault. There is no loss to vehicle No. DL-I-GA-0731 water truck. Further considering the road conditions and rush, Khichripur route should be avoided and alternate route preferably through main road may be adopted"

7. The grievance of the petitioner is that the said FIR was

registered by the police on account of a complaint made by

relatives of the deceased. A charge sheet was filed in this

case which is still pending against the petitioner when he was

sent up for attending the promotional course and he was

promoted with several other candidates by order dated

27.09.2007.

8. The respondents contend that the promotion was subject

to the condition that the persons who were promoted are free

from vigilance and departmental inquiries and there is no

pending prosecution for the criminal charges. In view of the

above stipulation, a response was required from the petitioner

with regard to the status of the aforesaid criminal case. A

stand was taken on behalf of the petitioner to the effect that

offence with which he was charged did not fall within the

purview of either moral turpitude and that the same was not

an intentional, culpable, deliberate or wilful offence and

therefore implication in such case would not disqualify him for

recruitment/promotion etc.

9. This stand on behalf of the petitioner was examined by

the respondents in the context of the legal position. After

careful consideration, the respondents were of the opinion that

for the reason the criminal case was still pending against the

petitioner, he could not be promoted to the post of SI/MT as

per provision contained in para 11.3 of Chapter 54 Swami's

Manual of Establishment and Administration Rules till such

time he was exonerated from the charges levelled against him.

For this reason, by a signal dated 16th of April, 2008, the

petitioner was removed from the approved list of promotion

and his promotion to the said post was also cancelled.

10. The petitioner has assailed this action of the respondents

before us. From the above narration we find that there is no

dispute that the petitioner stood implicated and is still facing

prosecution for a criminal charge.

11. Our attention has been drawn to the provisions relied

upon by the respondent with regard to the procedures which

are to be followed by the Departmental Promotional

Committee.

Apart from a criminal prosecution, a government servant

slated for promotion may be facing a vigilance inquiry or

disciplinary proceedings. The procedure which is to be

followed by the departmental promotion committee in respect

of Government servants under a cloud has been laid down in

the GI, Dept. of Pers. & Trg., OM No. 22011/4/91 - Estt.(A)

dated the 14th of September, 1992 and extracted in para 11.1

and 11.2 of Swamy's Complete Manual on Establishment and

Administration. While assessing the suitability of a

government servant coming within the purview of

consideration for promotion, one of the relevant circumstances

is whether the government servants facing of a prosecution in

a criminal case. It is provided that the Departmental

Promotional Committee shall assess the suitability of such

Government servant alongwith other eligible candidates taking

into consideration the pending prosecution. However, its

assessment with regard to the fitness and the grading

awarded by it is required to be kept in a sealed cover which

would be superscribed with the noting to this effect. So far as

proceedings of the DPC are concerned, it is prescribed that it

would be noted therein that findings are contained in the

attached sealed cover. The authority competent to fill the

vacancy is required to fill the vacancy in the higher grade only

in an officiating capacity when the findings of the

Departmental Promotional Committee in respect of suitability

of a government servant for his promotion are kept in a sealed

cover. Para 11.3 notes the Government Instruction that this

procedure would be required to be followed by subsequent

Departmental Promotional Committee convened till the

criminal prosecution against the government servant

concerned is concluded.

12. In this behalf reference can also be usefully made to the

pronouncement of Supreme Court reported at AIR 1991 SC

2010 titled as UOI Vs. K.V. Jankiraman etc. wherein on this

issue, the Supreme Court observed that the sealed cover

procedure is to be resorted to only after charge sheet is

issued. Any proceedings prior to this stage is insufficient

ground for the authority to adopt sealed cover procedure. The

Supreme Court uppheld the findings of the Full Bench of the

Tribunal in this regard and held promotion cannot be withheld

merely because some proceedings are pending. However, it

can be so done only at the stage when charge sheet has

already been issued. On the question of arrears of pay for the

period of notional promotion prior to actual promotion will

depend on the authority, who shall also take into account the

facts and circumstances of the criminal proceedings.

13. The Apex Court in AIR 1993 SC 1488 titled as Delhi

Development Authority vs. H.C. Khurana, had held that a

'Sealed Cover Procedure' is applicable in two situations. First,

where disciplinary proceedings are pending in respect of a

government servant. Second, a decision has been taken to

initiate disciplinary proceedings. The legal principle was well-

reasoned stating that promotion while proceedings are

pending would be incongruous and against public policy and

also against principles of good administration. On the other

hand, not considering the employee at all would be unfair and

arbitrary.

Therefore, to reconcile these conflicting interests, the

result be kept in abeyance in a sealed cover and be

implemented on conclusion of disciplinary proceedings.

14. In the present writ petition, the fact that criminal

prosecution is pending and a charge sheet has been filed is

undisputed. Therefore, in the light of the afore-noticed legal

principle laid down by the Supreme Court, the `sealed cover

procedure' should have been adopted in the case of petitioner.

15. The above narration of facts would show that the sealed

cover procedure has admittedly not been followed so far as

the petitioner is concerned. The petitioner has placed reliance

on the cases of one Sanjay Kumar and Krishan Kumar, also

serving with the respondents, contending that they were

implicated in cases and standing criminal prosecution at the

time of consideration for promotion. Hence they were similarly

placed as the petitioner. The submission is that, therefore, the

petitioner is entitled to promotion as well.

16. So far as Sanjay Kumar is concerned, the respondent has

pointed out he was not involved in a criminal case involving

death of a person. It has further been submitted that though

the police has registered the case involving Sanjay Kumar on

24th June, 2004, the parties had settled the matter on 13 th

September, 2005 and the case was dismissed as withdrawn.

Even the petition for compensation before the Motor Accident

Claim Tribunal was settled in January, 2006. For these reasons

no case was pending against the Sanjay Kumar in August,

2007 when he was considered for promotion. With regard to

Kishan Kumar, it is contended that there is no record of

pendency of prosecution available with the respondent. In

this background, the reliance of the petitioner on these

instances is misplaced. The respondents do not appear to

have overlooked pendency of a criminal prosecution against a

person being considered for promotion.

17. In any case, having regard to the procedure which the

Departmental Promotion Committee considering the

petitioner's cases was required to follow, we are not required

to dwell any further on the question as to whether the

respondents have deviated in the cited instances. There can

be no dispute that the Departmental Promotion Committee

was required to consider the petitioner for promotion who was

in the zone of consideration. The grading and

recommendations of the Departmental Promotional Committee

so far as his promotion are concerned, were required to be

kept in sealed cover till such time the criminal proceedings

against him came to an end. This has not been followed. On

the contrary, the petitioner was actually promoted and

thereafter his promotion has been cancelled by the impugned

order dated 16th April, 2008 without any notice or hearing to

the petitioner.

18. In view of the above discussion, the order dated 16 th of

April, 2008 cannot stand and is hereby set aside and quashed.

As a consequence, the respondents would be required to

maintain the grading awarded to the petitioner as well as the

recommendation qua him by the departmental promotion

committee in a sealed cover till adjudication and decision

in the criminal prosecution. Thereafter, the prescripted

procedure would require to be followed.

19. At this stage, learned counsel for the petitioner submits

that the petitioner has since retired from service on

30.11.2009. In this background even if the petitioner is as to

be ultimately exonerated from criminal charges it is obvious

that, as a result, he would become entitled only to the financial

benefits which may flow from promotion, if any, in terms of the

above.

20. Accordingly, it is further directed that the respondent

shall maintain the recommendations of the Departmental

Promotional Committee in a sealed cover till the result of the

pending criminal case is received. In case the petitioner is

acquitted there from, he shall be entitled to all financial and

other benefits of service in the higher post in accordance with

the applicable rules.

21. Needless to say pending finalization of the promotion

aspect, the respondents are bound to release all other dues

and pensionary benefits accruing to the petitioner upon his

superannuation in accordance with rules in respect of the post

held by him at the time of his superannuation. Action in this

behalf shall be positively taken and completed within a period

of three months.

22. This writ petition is allowed in the above terms.

Order be given dasti to parties.

GITA MITTAL, J

SURESH KAIT, J JANUARY 25, 2010 'mr'