Delhi High Court
Yuvraj Gupta vs The Union Of India And Anr. on 11 July, 2016
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Dated: 11th July, 2016
+ W.P.(C) 3155/2014
YUVRAJ GUPTA
..... Petitioner
Through: Mr.Sachin Chauhan, Advocate.
versus
THE UNION OF INDIA AND ANR ..... Respondents
Through: Mr.Akshay Makhija, CGSC with
Ms.Sanjugeeta, Mr.Siddharth Thakur
and Mr.Sumant Bhushan, Advocates.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S.MEHTA
G.S.SISTANI, J (ORAL)
1. Rule D.B.
2. With the consent of the parties, the writ petition is set down for final
hearing and disposal.
3. Challenge in this writ petition is to the order dated 17 th September,
2013 passed by the Central Administrative Tribunal in O.A. No.1039/2012.
It may be noted that the petitioner herein had approached the Central
Administrative Tribunal against the inaction on the part of the respondents in
not declaring the result of the DPC, which was kept in a sealed cover for
promotion to the rank of Chief Commissioner (Customs and Excise) despite
the fact that in the departmental inquiry no penalty has been imposed on the
petitioner.
4. The facts which are required to be noticed for disposal of this writ
petition are that the petitioner was initially appointed as a Probationer in the
Customs and Excise Department of the respondents on 11th December, 1972.
He was promoted from time to time and in the year 1996 he was promoted as
W.P.(C) 3155/2014 Page 1 of 7
a Commissioner. The petitioner claims to have an unblemished service
record to his credit. In the year 2003, when the petitioner was posted as
Commissioner (Investigation) in the Settlement Commission (Customs and
Central Excise), Mumbai, a departmental inquiry was initiated against him
vide a memorandum dated 6th September, 2003 which culminated into an
order dated 30th July, 2009 whereby the Government communicated a
displeasure to the petitioner. The petitioner claims that no penalty or
punishment as prescribed under the CCS(CCA) Rules was awarded to the
petitioner. It is also the case of the petitioner that in the year 2003 itself the
petitioner was due for consideration for promotion to the rank of Chief
Commissioner but on account of the departmental inquiry initiated against
the petitioner on 6th September, 2003 the name of the petitioner was kept in a
sealed cover. The petitioner superannuated on 31st December, 2008 and till
the date of his retirement the departmental inquiry continued and thus he
could not be promoted to the rank of Chief Commissioner by the DPC which
was conducted in the year 2003. It is the case of the petitioner that a
displeasure is not a punishment either as per the rules or guidelines of the
respondent and, even otherwise, once the inquiry had been concluded the
respondents were bound to open the sealed cover and take a decision in the
matter.
5. In the present case, it is the contention of learned counsel for the
petitioner that since the inquiry culminated only into a displeasure and a
displeasure is not a punishment, the consequence that would follow would be
the opening of the sealed cover and promotion of the petitioner to the post of
Chief Commissioner. He submits that the learned Tribunal has completely
misdirected itself and failed to address the grievance of the petitioner and has
also failed to pass appropriate orders in accordance with law. Counsel
submits that since the year 2009, the petitioner has been running from pillar
W.P.(C) 3155/2014 Page 2 of 7
to post as repeated representations filed on his behalf have fallen on the deaf
ears of the respondents. It is further submitted by the counsel that the
petitioner has repeatedly requested the respondents to open the sealed cover
and communicate the findings of the DPC and has also sought
implementation thereof. Counsel contends that the order passed by the
Tribunal including paragraph 6.1 are perverse and liable to be set aside.
6. Mr.Makhija, learned Standing Counsel appearing for the respondents,
on the other hand, submits that serious Articles of Charge were levelled
against the petitioner herein, which are apparent from the order of 30 th July,
2009, but a lenient view was taken in view of the fact that the petitioner has
superannuated by the time the order was passed. Mr.Makhija also submits
that criminal proceedings were initiated against the petitioner and
additionally another charge sheet was filed against the petitioner. However,
there is no quarrel to the proposition that after the inquiry had been
concluded the sealed cover is required to be opened.
7. We have heard the learned counsel for the parties and also considered
their rival submissions.
8. It is not in dispute that a departmental inquiry was initiated against the
petitioner on 6th September, 2003 on the following allegations:
"Article of Charge No.1
That Shri Yuvraj Gupta while functioning as Commissioner of
Customs, C.S. International Airport, Mumbai during the period June-
July, 2000 committed gross misconduct in as much as he manipulated
his entry into the MVHA (Mumbai Veteran Hockey Assotiation0 team
as Chief-de-mission to visit USA and UK by exercising official
influence on his subordinate, namely, Shri M.R.Negi, Superintendent
of Customs, Mumbai, though the said Shri Yuvraj Gupta had no
association with the game of hockey and more so, he was never a
member of MVHA.
W.P.(C) 3155/2014 Page 3 of 7
Article of Charge No.2
That Shri Yuvraj Gupta was sanctioned special casual leave from
7.7.2000 to 21.7.2000 by Chief Commissioner of Customs, Mumbai
to accompany the MVHA team to take part in hockey tournament in
Los Angeles between 15.7.2000 to 16.7.2000 in the capacity of Chief-
de-mission. He however, did not take part in any of the activities of
MVHA except attending the prize distribution ceremony in Los
Angeles and though he was aware about the cancellation of hockey
matches scheduled to be played in London during his stay in USA, he
visited London for private purposes misutilising the special casual
leave granted to him and thus used MVHA as a front to facilitate his
visit to USA and UK. Thus, Shri Yuvraj Gupta committed gross
misconduct and thereby contravened Rule 3(1) of Central Civil
Services (Conduct), Rules, 1964".
9. It is also not in dispute that during the pendency of the inquiry in the
year 2008 the petitioner superannuated. Further, the order on the inquiry was
passed on 30th July, 2009. The concluding part of the order reads as under:
"Whereas the Disciplinary Authority after considering the facts
and circumstances of the case, the findings of the I.O. and the advice
of the UPSC has decided not the impose the penalty of cut in pension
upon Shri Yuvraj Gupta. However, as the charges against Shri Yuvraj
Gupta have been partly proved, it would be fair, just and equitable if
"Government‟s Displeasure" is conveyed to him and the proceedings
initiated with the issuance of charged memorandum are closed.
AND, THEREFORE, the Government‟s Displeasure is
hereby conveyed to Shri Yuvraj Gupta, Commissioner (now
retired)
(By order and in the name of the President)
sd/-
(Akhatarul Hanif)
Under Secretary to the Government of India
Tel No.26173372"
10. Learned counsel for the petitioner has placed reliance on an office
memorandum dated 7th July, 2008 in support of his submission that a
W.P.(C) 3155/2014 Page 4 of 7
warning letter of caution, reprimand or advisory which are administered to
Government servants do not amount to a penalty and would, therefore, not
constitute a bar for consideration of a Government servant for promotion.
The relevant portion relied upon by learned counsel for the parties reads as
under:
"No. 11012/6/2008-Estt. (A)
Government of India
Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training)
.....
North Block,
New Delhi
Dated the 7th July, 2008
OFFICE MEMORANDUM
Subject : CCS (CCA) Rules, 1965 - Promotion to a higher
Grade or post - Clarifications regarding effect of
warnings etc. on promotion.
The undersigned is directed to refer to the DOPT‟s O.M.
No. 22011/2/78- Estt. (A) dated 16th February, 1979 on the
above mentioned subject and to say that at present,
administrative devices like warning, letter of caution,
reprimand etc. are being used by the various administrative
Ministries/Departments for cautioning the Government
servants against such minor lapses as negligence,
carelessness, lack of thoroughness and delay in disposal of
official work with a view to toning up efficiency or
maintaining discipline. These administrative actions do
not, however, constitute any of the penalties specified in
rule 11 of the CCS (CCA) Rules, 1965. Doubts have often
been raised about the actual effect of such informal
administrative actions as warning, letter of caution and
reprimand on the promotion of a Government servant.
2. In this connection, the existing provisions regarding the
effect of warning etc. as distinguished from Censure on promotion
are reiterated and clarified as follows:
(i) There is no objection to the continuance of the practice of
issuing oral or written warnings. However, were a copy of
the warning is also kept on the Confidential Report dossier,
it will be taken to constitute an adverse entry and the officer
so warned will have the right to represent against the same
in accordance with the existing instructions relating to
communication of adverse remarks and consideration of
representations against them.
(ii) Warnings, letters or caution, reprimands or adversaries
administered to Government servants do not amount to a
penalty and, therefore, will not constitute a bar for
consideration of such Government servants for promotion.
(iii) xxx
(iv) xxx
3. xxx
sd/-
(P. Prabhakaran)
Deputy Secretary to the Government of India.
11. It is also not in dispute that after the order of 30 th July, 2009 was
passed, the retirement benefits stand released to the petitioner which would
show that even as per the understanding of the respondent, after the
displeasure was communicated, no action was contemplated. It is however
clarified by Mr.Chauhan, learned counsel for the petitioner, that while
another inquiry was pending, the order was set aside by the Tribunal and the
order passed has attained finality as the writ petition filed by the respondent-
UOI stands dismissed by the High Court. After which the retiral benefits
were released.
12. The learned Tribunal in our view has misdirected itself inasmuch as
the Tribunal has failed to record any reason or finding as to why the OA filed
by the petitioner seeking a limited prayer for opening of the sealed cover has
been rejected, as after the inquiry stands concluded the only option available
with the department was to open the sealed cover. Furthermore, as no
punishment was awarded to the petitioner and only a displeasure has been
recorded. The office memorandum which has been relied upon by the
petitioner makes it abundantly clear that any warning or letter of caution,
reprimand or advisory administered to a Government servant does not
amount to a penalty.
13. Consequently, the present writ petition is allowed. We direct the
respondents to open the sealed cover within a period of three weeks and pass
appropriate orders forthwith thereafter. Mr. Chauhan, counsel for the
petitioner, points out that for each year the DPC was held, the name of the
petitioner was kept in a sealed cover. Hence, it is directed that all the sealed
covers would be opened by the respondents.
14. Writ petition stands disposed of in the above terms.
G.S.SISTANI
(JUDGE)
I.S.MEHTA
(JUDGE)
JULY 11, 2016
„dc‟
