Ashok Kumar Sarma vs The State Of Assam And 2 Ors
2021 Latest Caselaw 2610 Gua

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GAHC010101452021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : WP(C)/3305/2021

         ASHOK KUMAR SARMA
         S/O LATE UMA KANTA SARMA
         RESIDENT OF ADARSHAPUR LANE NO. 4, MAHENDRA BYE LANE,
         KAHILIPARA, PS DISPUR, GUWAHATI 781019, DIST KAMRUP M ASSAM



         VERSUS

         THE STATE OF ASSAM AND 2 ORS
         REP. BY THE ADDL. CHIEF SECRETARY TO THE GOVT. OF ASSAM CUM
         AGRICULTURE PRODUCTION COMMISSIONER (APC), AGRICULTURE
         DEPTT., DISPUR, GUWAHATI-06.

         2:THE SECRETRY
         TO THE GOVT. OF ASSAM
         AGRICULTURE DEPTT.
          DISPUR
          GUWAHATI-06.

         3:THE DIRECTOR OF AGRICULTURE

          GOVT. OF ASSAM
          KHANAPARA
          GUWAHATI-22
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                                        ::BEFORE::
                   HON'BLE MR. JUSTICE KALYAN RAI SURANA
Advocates for the petitioner     : Mr. U. K. Nair, Sr. counsel,

                                  Mr. R. Sarma, Ms. Purabi Barman

Advocate for the respondents     : Mr. V. Choudhury

Date of Hearing                  : 23.08.2021

Date of delivery of Judgment     : 29.10.2021




                               JUDGMENT & ORDER(CAV)

Heard Mr. U.K. Nair, learned senior counsel, assisted by Mr. R. Sarma, learned counsel for the petitioner and Mr. V. Choudhury, learned standing counsel for the respondents.

2) In brief, the case of the petitioner is that in the year 1984 he was appointed as Assistant Agriculture Engineer in the Agriculture Department and in the year 2006, he was promoted to the next higher post of Executive Engineer and presently, he is the senior-most Executive Engineer in the Agriculture Department. Accordingly, it is projected that the petitioner has become entitled to be considered for promotion to the next higher post Superintending Engineer. It is projected that 2 (two) posts of Superintending Engineer is lying vacant in the Agriculture Department. In course of his career, the petitioner was transferred as the Executive Engineer (Agriculture), North Cachar Hills Division, where he served between 04.01.2006 to 31.10.2008 and it is projected that during his tenure although he was the 'Head of Office', but the Page No.# 3/10

assigned duty of the petitioner was only to prepare schemes, presentation of Annual Operational Plan, supervision of execution of various schemes and it is categorically asserted that the petitioner was not empowered as "Drawing and Disbursing Officer (hereinafter referred to as 'DDO' for short).

3) It is projected that the Government had constitute a Commission under Justice (Retd.) R.K. Manisana Singh to make an enquiry in respect of alleged misappropriation of Government funds in North Cachar Hills District (hereinafter referred to as 'NC Hills District' for short). The said Commission had submitted its report on 18.12.2008 to the Government. Pursuant to the said report, on 18.07.2009, an Expert Committee was constituted by the Government. The said Expert Committee had submitted its report on 13.12.2010. It is projected that in so far as the Agriculture Department is concerned, the Expert Committee had found irregularity in respect of the District Agriculture and Horticulture Mission. As per the said report, the constitution of the said Mission was opined to be unauthorised and an unjustified decision. It is projected that as per the said Expert Committee's report submitted on 03.12.2010, expenditures and payments were made out of funds withdrawn from Bank account by the Mission Director, Agriculture and Horticulture, Haflong. It is specifically averred in the writ petition to the effect that the establishment of the Mission Director, Agriculture and Horticulture, Haflong is distinct and separate from the establishment of the Executive Engineer (Agriculture), Dima Hasao Division. It is also the pleaded case of the petitioner that there is no internal transaction between the said two separate establishments. It is also projected that no adverse comments were made either by the Justice (Retd.) R.K. Manisana Commissioner or by the Expert Committee Page No.# 4/10

in respect of any financial affairs of the establishment of the Executive Engineer (Agriculture), Dima Hasao Division, Haflong during the tenure of the petitioner. It is also projected that the Special Audit by the State had allegedly detected large scale financial irregularities in various departments in North Cachar Hills District period from 2007-2008 to 2009-2010. Bereft of unnecessary details, it would be sufficient to mention that by a letter dated 03.03.2011, the Commissioner & Secretary to the Government of Assam, Political (A) Department had directed, amongst others, the Principal Secretary to the Government of Assam, Agriculture Department to lodge FIR in respect of financial irregularities of their respective departments at the CID Head Quarters so that CID can commence investigation and in addition, direction was also issued to take departmental action against the departmental officers. Thereafter, vide letter dated 19.05.2011 by the respondent no. 3 to the Additional Director of Agriculture, Haflong to lodge an FIR, purportedly against one Md. S.A. Alim, retired District Agriculture Officer, Haflong and the then Mission Director, Agriculture and Horticulture, Haflong for involvement in financial irregularities in Agriculture and Horticulture Department to the tune of Rs.20.00 crore as pointed in the Special Audit Report conducted by the A.G. (Audit), Assam and as directed by the Government urgently, i.e. on or before 25.05.2011 and to report. Accordingly, on 26.05.2011, the then Director of Agriculture, Dima Hasao, Haflong had lodged an FIR with the Additional Director General of Police, CID, Assam against three defaulting officers during the period 2007-09 to 2009- 10, viz., (1) Md. S.A. Alim, the then DAO, & Mission Director, Agriculture, Haflong, (2) Deepak Hazarika, the then i/c Executive Engineer (Agri), Haflong, and (3) Ajit Chengung, the then DDA (Horticulture), Haflong. The said FIR dated 26.05.2011 was registered as CID PS Case No. 38/2011 under Sections Page No.# 5/10

13(1)(c)(d)/ 12 of Prevention of Corruption Act, 1988. Thereafter, vide notification dated 08.08.2012, the Principal Secretary to the Government of Assam, Home and Political Department accorded consent of the Government of Assam for extension of powers and jurisdiction of the members of Delhi Special Police Establishment (hereinafter referred to as 'DSPE' for short) in the whole of the State of Assam for investigation of the said CID PS Case No. 38/2011. By a subsequent notification dated 09.08.2012, the Principal Secretary to the Government of Assam, Home and Political Department forwarded the herein before referred notification dated 08.08.2012 to the Secretary to the Government of India, Ministry of Personnel, Pubic Grievances and Pension, Department of Personnel and Training regarding the consent given by the State for investigation of the case by the Central Bureau of Investigation (hereinafter referred to as 'CBI' for short). This was followed by a notification dated 17.09.2012, issued by the Secretary to the Government of India, Ministry of Personnel, Pubic Grievances and Pension, Department of Personnel and Training regarding extending of powers and jurisdiction of the DSPE in the whole of the State of Assam for investigation of the said CID PS Case No. 38/2011. The CBI took over the investigation of the said case on 19.09.2012.

4) However, by virtue of an office order dated 06.04.2013, the Government of Assam had accepted the report of the State Enquiry Officer, Assam and the departmental proceeding drawn up against the petitioner was closed. However, the said closure was qualified with a rider that the closure of the departmental proceeding was subject to renewal, or changes, or further disciplinary action as may be necessary after the final outcome of the CBI case is known. Thereafter, the CBI had filed a charge-sheet no. 8 dated 29.12.2014 Page No.# 6/10

before the Court of Special Judge, CBI, Assam in connection with Special Case no. 3/2015 and on 29.08.2016, the said learned Court framed charges against the petitioner. The aggrieved petitioner had moved this Court by filing a criminal petition under Section 482 Cr.P.C., which was registered as Crl. Petition No. 655/2016 and this Court by order dated 29.08.2016, disposed of the same with a direction to the learned trial Court to first decide the issue as to whether the said learned Court could proceed with Spl. Case No. 3/2015 in absence of any notifications under Section 6 and 5(1) of the Delhi Special Police Establishment Act, 1946 without having any State Government consent and approval extending the power and jurisdiction of the said DPSE Act to the establishment of the Executive Engineer (Agriculture), Haflong under Government of Assam. It was also ordered that till the final conclusion is arrived at, the further proceeding of Spl. Case No. 3/2015 was suspended. Subsequently, by order dated 12.10.2017, the learned Special Judge, CBI, Assam held that there was an absence of any such notification under Section 6 and 5(1) of the DSPE Act, 1946 granting State Government consent and approval to the establishment of the Executive Engineer (Agriculture), Haflong. Nonetheless, on the prayer made by the petitioner for his discharge, the learned trial Court was of the view that his predecessor had already framed charges, the Court could not review the order and as such, the next date of the said case was fixed on 28.11.2017 for evidence. The aggrieved petitioner moved this Court again under Section 482 Cr.P.C., and this Court by order dated 23.11.2017, passed in Crl. Pet. 937/2017, issued notice and the proceeding of Spl. Case No. 3/2015 was suspended in respect of the petitioner. It is submitted at the Bar that the said criminal petition is pending or disposal before this Court.

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5) On 25.01.2018, one post of Superintending Engineer in the Department of Agriculture had become vacant and the petitioner was allowed to hold charge of the said post. Thereafter, other posts of Superintending Engineer had become vacant and that in the month of October, 2018, the post of Chief Engineer in the Department of Agriculture had become vacant. The Director of Agriculture, by his letter dated 15.05.2020, had written to the Principal Secretary to the Government of Assam, Agriculture and APC to sort out legal issues and to fill up the post of Chief Engineer, Department of Agriculture. Thereafter, the petitioner had submitted his representation dated 22.05.2020 to the Principal Secretary to the Government of Assam, Agriculture and APC to consider him for promotion and agreed to accept reversion in the event any judgment is passed against him by Court in future. The learned senior counsel for the petitioner has submitted that the petitioner would be superannuating on 31.10.2021.

6) Per contra, the learned standing counsel for the respondents has opposed this writ petition and by referring to the stand taken in the affidavit-in-opposition filed by the respondents, it has been submitted that the present status of the petitioner is that of a charge-sheeted Government employee and therefore, the case of the petitioner can only be considered for promotion along with other persons having eligibility for being considered for promotion, but in so far as the case of the petitioner is concerned, it can only be done by adopting sealed cover procedure, and that the DPC recommendations will become effective once the petitioner is acquitted in the criminal proceeding. It is submitted that as and when DPC is constituted, the case of the petitioner is likely to be taken up. In this connection, the learned standing counsel for the Page No.# 8/10

Agriculture Department places reliance on the OM no. ABP.29/2006/38 dated 09.05.2006, which provides for the procedure to be followed for promotion of Government servants against whom departmental/ disciplinary/ Court proceedings are pending or whose conduct is under investigation.

7) It is seen that the learned senior counsel for the petitioner has been able to demonstrate that by order dated 12.10.2017, the learned Special Judge, CBI, Assam had held to the effect that there was absence of any notification by the Government of Assam under Section 6 and Section 5(1) of the DSPE Act, 1946 thereby granting consent and approval to the establishment of the Executive Engineer (Agriculture), Haflong. However, despite the said categorical finding, the learned trial Court deemed it appropriate not to discharge the petitioner on the ground that the order passed earlier for framing charge could not be reviewed and as such the trial of the case of the petitioner is still pending. Therefore, the aggrieved petitioner has approached this Court again under Section 482 Cr.P.C., which was registered and numbered as Crl. Pet. 937/2017 and that this Court by order dated 23.11.2017, had suspended the proceeding of Spl. Case No. 3/2015 in respect of the petitioner.

8) In this context, the submissions of the learned senior counsel for the petitioner is to the effect that if the DSPE Act, 1946 was not extended to the establishment of the Executive Engineer (Agriculture), Haflong, the trial of the petitioner in respect of investigation done by the Central Bureau of Investigation has to fail. However, no comment on the said submission is desirable by the Court in this regard in connection with the present proceeding Page No.# 9/10

as the petitioner has already approached this Court by way of an appropriate proceeding under Section 482 Cr.P.C., being Crl. Pet. 937/2017 and therefore, that aspect is left to be dealt with in the said proceeding.

9) In so far as the factual matrix in this case is concerned, notwithstanding that this Court by order dated 23.11.2017, had suspended the proceeding of Spl. Case No. 3/2015 in respect of the petitioner, yet for all practical purpose, the criminal proceeding against the petitioner is still pending. Under such circumstances, the submissions made by the learned standing counsel for the Agriculture Department has to be accepted in light of the OM no. ABP.29/2006/38 dated 09.05.2006 issued by the Personnel (B) Department, Government of Assam, inter alia, providing for adopting DPC recommendation to be kept under "sealed cover" procedure as directed by the Supreme Court of India in the case of Union of India vs. K.V. Janakiraman, AIR 1991 SC 2010.

10) In view of the discussions above, the writ petition stands partly allowed to the extent of directing the respondent authorities, jointly and severally, to place the case of the petitioner along with all relevant documents including ACRs to the Departmental Promotion Committee for being considered for promotion to the next higher post and/or posts of Superintending Engineer and Chief Engineer, as the case may be. In this regard, the respondent authorities shall follow the procedure as prescribed vide the OM no. ABP.29/2006/38 dated 09.05.2006 issued by the Personnel (B) Department, Government of Assam as produced by the learned standing counsel for the respondents and/or any other appropriate OMs in force. It is needless to Page No.# 10/10

mention that as the petitioner is stated to be superannuating on 31.10.2021, in the event the promotion of the petitioner is recommended by the DPC, the petitioner would become entitled to all notional benefits associated therewith from the date on and from which he becomes entitled for promotion in accordance with law. The respondent authorities of the Agriculture Department shall convene the DPC meeting within a period of 3(three) months from the date of service of a copy of this order to the respondent nos. 1 and 3 by the petitioners.

11) Before parting with the records, it is clarified that the proceeding of Crl. Pet. 937/2017 shall be independently decided without being influenced by any observations that has been made in this order.

JUDGE

Comparing Assistant