Himachal Pradesh High Court
Batala vs Ram And Another on 25 May, 2022
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 25th DAY OF MAY, 2022
BEFORE
.
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
CIVIL WRIT PETITION ORIGINAL APPLICATION NO.194/2019
BETWEEN:
SH. BALRAM KUMAR, S/O SH. SANSAR CHAND
R/O BERIAN MOHALLA, H.NO.C761, P.O
BATALA, DISTRICT GURDASPUR (PB.),
PRESENTLY WORKING AS DEPUTY
CONTROLLER (FINANCE AND ACCOUNTS)
IN THE RESPONDENT DEPARTMENT
....PETITIONER
(BY MR. ONKAR JAIRATH AND
MR. SHUBHAM SOOD, ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH THROUGH
ITS ADDITIONAL CHIEF SECRETARY
(FINANCE) TO THE GOVERNMENT
OF H.P.
2. THE SPECIAL SECRETARY (FINANCE)
CUMDIRECTOR, TREASURIES,
ACCOUNTS AND LOTTERIES,
HIMACHAL PRADESH.
....RESPONDENTS
(BY SH. RAJINDER DOGRA, SR. ADDL, A.G
WITH VINOD THAKUR, ADDL.A.G
WITH MR. RAJAT CHAUHAN, LAW OFFICER
FOR THE RESPONDENTSSTATE)
Reserved on: 19.5.2022
__________________________________________________________________
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2
This petition coming on for Part Heard this day,
the Court passed the following:
.
ORDER
The instant petition was filed before the erstwhile
Tribunal for grant of following reliefs:
"(i) That impugned order dated 31.3.2015
Censure and
passed by the Disciplinary Authority whereby
the applicant has been imposed the penalty of
r the communication dated
23.11.2015 passed by the appellate authority
whereby the appeal has been rejected may
kindly be quashed and set aside.
ii) That the respondents may be directed to
open the recommendations of the
Departmental Promotion Committee, with
respect to the Applicant, convened on
21.6.2011 and they may be directed to
promote the applicant as Deputy Controller
(F&A) from the date his juniors have been
promoted in pursuance to the
recommendations of Departmental
Promotional Committee convened on
21.6.2011 with all consequential benefits and
he may be further promoted to the post of
Joint Controller from the day his immediate
junior has been promoted i.e. 2013 that too
with all consequential benefits.
iii) That the respondents may further be
directed to grant the benefit of increment
.
under Assured Career Progression Scheme on
completion of 4 years service w.e.f. 2010, i.e.
when the applicant became eligible for the
same with all consequential benefits along
with arrear @ 9% interest p.a."
2.
The petitioner was initially appointed as a Clerk
in the Police Department, where he joined his duties on
10.1.1985. Thereafter, the petitioner qualified the
Subordinate Accounts Service (in short 'SAS') Examination
PartI and PartII and was appointed as Section Officer in
the office of District Education Officer, Lahaul & Spiti at
Keylong. Subsequently, vide office order dated 28.2.2006,
the petitioner came to be promoted to the post of Assistant
Controller (F&A) and was transferred to DRDA, Chamba.
3. The petitioner was again transferred to the office
of Deputy Commissioner, Chamba, where he joined on
4.8.2007. While working as such, FIR No.165/2009 dated
7.7.2009 came to be registered at Police Station, Sadar,
Chamba under Sections 7, 13(2) of the Prevention of
Corruption Act, in which the petitioner was also arraigned as
one of the accused. The case was put up for trial and vide
judgment dated 30.12.2011, the petitioner alongwith other
coaccused found guilty and convicted by the learned Trial
.
Court.
4. Aggrieved by the judgment of conviction and
sentence, the petitioner approached this Court by filing
Criminal Appeal No.16 of 2012, which was allowed and the
petitioner was acquitted of all the charges levelled against
him vide judgment dated 22.11.2013.
5. However, prior to the order of acquittal, the
petitioner came to be chargesheeted and as many as three
charges were initially framed against him. However, later
on, first two charges were dropped and only Article No.III of
the chargesheet was directed to be enquired into vide office
order dated 18.10.2014. ArticleIII of the chargesheet
reads as under:
"ARTICLEIII
Shri Balram Kumar, Assistant
Controller (F&A) has not performed his duties
honestly by concealing the fact regarding his
sentence by the Special Judge, Chamba, Due
to this Act on the part of delinquent officer, the
image of the department has been hurt and the
officer has failed to live up to the faith, the
Government has bestowed upon him.
Therefore, this act on the part of Shri Balram
Kumar, is unbecoming of a Government
servant and is in violation of provisions of Rule
.
3(I)(i)(ii)(ii) of CCS Conduct Rules, 1964."
6. The Inquiry Officer enquired into the charge and
vide report dated 16.2.2015 held ArticleIII to have been
proved.
7. For completion of facts, it needs to be noticed that
proceedings of DPC for the post of Deputy Controller (F&A)
was convened by the respondents on 21.6.2011 and since
the petitioner was eligible but was facing criminal trial, his
case was kept in a sealed cover. According to the petitioner,
his name was reflected at Sr. No.43, when the DPC was
convened and his junior Shri Ashok Kumar Chauhan, who
stood at Sr. No.44 was promoted to the post of Deputy
Controller in pursuance to the recommendations of the DPC
held on 21.6.2011. However, despite order of acquittal, the
petitioner was not granted the benefit of promotion from the
date his junior had been promoted. Hence this petition.
8. The respondents have contested the petition by
filing reply, wherein factual aspects have not been denied.
However, the only defense taken by the respondents is that
in terms of para 16.32 (iv) (b) of Hand Book on Personnel
Matters, Vol.I (Second Edition), it has been provided that "if
any penalty is imposed on the Government servant as a result
.
of the disciplinary proceedings or if he is found guilty in
criminal prosecution against him, the findings of sealed
cover/covers shall not be acted upon. His case for promotion
may be considered by the next DPC in the normal course and
9. to
having regard to penalty imposed on him."
It is further submitted that since the petitioner
was served with a charge sheet vide memorandum dated
31.8.2012, the inquiry report on the charge sheet was
received on 11.2.2015 and disciplinary authority imposed
penalty of 'Censure' vide order dated 31.3.2015, therefore,
the case of the petitioner in terms of the aforesaid paragraph
was rightly considered for promotion by the respondents in
the immediate next DPC meeting held on 23.4.2015.
10. I have heard learned counsel for the parties and
gone through the material placed on record.
11. At the outset, it needs to be noticed that the
petitioner as regards the criminal case was honorably
acquitted by this Court, as would be evident from a perusal
of paragraphs No.30 and 31 of the judgment, which reads as
under:
"30. It is also intriguing that earlier on
.
30.6.2009 during meeting between appellant
and complainant, a bearer cheque of Rs.
58,000/- dated 1.7.2009 Ex.PW-5/A in the
name of appellant was handed over by the
complainant to the appellant as bribe money
but after six days the appellant refused to
encash the cheque and demanded bribe
money Rs.58,000/- in cash in two instalments
of Rs.45,000/- before inspection and
Rs.13,000/- after inspection. The attempt to
pay bribe money through cheque is highly
suspicious inasmuch as normally no officer
would accept bribe money through cheque.
The prosecution has miserably failed to prove
demand, acceptance and recovery of bribe
money worth Rs.45,000/- from appellant. The
prosecution has miserably failed to prove the
charge against appellant beyond reasonable
doubt. In view of above discussion, the
learned Special Judge has misconstrued,
misinterpreted the evidence in convicting and
sentencing the appellant. The view taken by
the learned Special Judge is perverse, the
impugned judgment of conviction and
sentence is not sustainable.
31. The result of above discussion is that the
appeal is allowed, the conviction and sentence
recorded by learned Special Judge, Chamba of
the appellant is set-aside. The appellant is
acquitted of the charge and his bail bonds are
discharged."
12. Now, as regards the contention of the respondents
.
regarding the applicability of para 16.32 (iv)(b) to deprive the
petitioner for promotion, I find the same to be totally
misplaced and inapplicable to the facts of the present case,
as it is Clause 16.32(iv)(a), which is clearly applicable in the
"(iv) Action
r to
present case and the same reads as under:
after completion
disciplinary case/criminal prosecution
of
(a) On the conclusion of disciplinary
case/criminal prosecution which results in
dropping of allegations against the Govt.
servant, the sealed cover or covers shall be
opened. In case the Government servant is
completely exonerated, the due date of his
promotion will be determined with
reference to the position and with reference
to the date of promotion of next junior on
the basis of such position. The
Government servant may be promoted, if
necessary, by reverting the juniormost
officiating person. 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 facts and
.
circumstances of the disciplinary
proceeding/criminal prosecution. Where
the authority denies arrears of salary or
part of it, it will record its reasons for doing
so. It is not possible to anticipate and
enumerate exhaustively all the
circumstances under which such denials of
arrears of salary or part of it may become
necessary. However, there may be cases
where the proceedings, whether
disciplinary or criminal, are, for example
delayed at the instance of the employee or
the clearance in the disciplinary
proceedings or acquittal in the criminal
proceedings is with benefit of doubt or on
account of nonavailability of evidence due
to the acts attributable to the employee etc.
These are only some of the circumstances
where such denial can be justified."
13. The petitioner had been completely exonerated
and, therefore, due date of his promotion was required to be
determined with reference to the position assigned to him in
the findings kept in the sealed cover and with reference to
the date of promotion of next junior on the basis of such
position.
14. As regards the denial of promotion to the
.
petitioner only on the ground that he has been censured, the
same is not tenable for the simple reason that instruction
16.13 contained in Chapter 16 of the Hand Book on
Personal Matters VolumeI Second Edition clearly provides
that the imposition of minor penalty of Censure does not by
itself stand against the consideration of the case of such
person for promotion.
15. This provision, i.e., 16.13 has already been
considered by a Division Bench of this Court, of which I was
one of the Member, in LPA No.715 of 2011 titled Board of
Directors of H.P Milkfed, Shimla and another Vs. Chet
Ram and another, decided on 9.9.2014. In that case, the
petitioner was facing departmental inquiry and his case had
been kept in sealed cover and eventually led to penalty of
censure, which was made as a ground for nonpromotion of
the petitioner. The learned Single Judge allowed the petition
by directing the respondents to consider the case of the
petitioner for promotion to the higher post after opening the
sealed cover. Aggrieved thereby, the employer filed the
Letters Patent Appeal (supra), wherein the main ground of
attack was again that the departmental inquiry was drawn
against the writ petitioner, wherein he had been found guilty
.
and penalty of censure was imposed upon him. Rejecting
the stand of the employer, this Court held as under:
"6. The main ground of attack of the appellants
is that the departmental inquiry was drawn
against the writ petitioner,was found guilty and
penalty of censure was imposed upon him.
Thus, the writ petitioner was not entitled to
promotion.
7. Therefore, the only question, which remains
for consideration is whether the Writ Court has
rightly directed the writ respondents to open
the sealed cover and consider the case of the
petitioner for promotion to the higher post. It is
clear from a perusal of the impugned judgment
that the learned Single Judge has considered
instruction 16.13 contained in Chapter 16 of
the Hand Book on Personnel Matters Volume-I
(Second Edn.), which provides that imposition
of minor penalty of censure does not stand
against consideration of the case of such
person for promotion. It is apt to reproduce
relevant portion of instruction 16.13
hereunder:
"16.13 Minor penalties do not
constitute a bar to eligibility and
consideration for promotion. The
imposition of minor penalty of censure
does not by itself stand against the
consideration of such person for
promotion."
8. During the course of hearing, the learned
.
counsel for the appellants has also argued that
in view of the judgments of the Apex Court, in
Union of India and others vs. A.N. Mohanan,
(2007) 5 SCC 425 and Union of India and
others vs. Mihir Kumar Bandopadhyay and
others, (2009) 16 SCC 329, the direction given
by the learned Single Judge to consider the
case of the petitioner by opening the sealed
cover is not legally correct and at the best, the
case of the writ petitioner could be considered
for promotion in the next DPC.
9. The judgments relied upon by the learned
counsel for the appellants are distinguishable
for the simple reason that instruction 16.13
(supra) was not part of the rules/instructions
which were considered in those judgments.
Instruction 16.13 (supra), at the cost of
repetition, specifically provides that imposition
of minor penalty of censure does not stand
against considering the case of such person for
promotion, but is to be considered after
opening the sealed cover read with entire
service record. Therefore, no fault can be
found with the findings recorded by the Writ
Court."
16. Question the decision of the respondent to
censure the petitioner, it is vehemently argued by Shri
Onkar Jairth, learned counsel for the petitioner that
respondents after dropping two serious charges could not
have imposed penalty of censure upon the petitioner that too
.
for a minor charge as quoted above.
17. However, I find no merit in this contention for the
simple reason that the petitioner stood convicted by the
learned Sessions Court vide judgment dated 30.12.2011 and
even as per the case of the petitioner himself, information
regarding the conviction was imparted after more than eight
months on 15.9.2012.
18. No doubt. there is no time limit or frame within
which an employee is required to inform his
department/departmental superior of such conviction,
whether the offence is of a serious nature or is purely
technical, yet the Government servant is required to inform
his official superiors of the fact of his conviction and the
circumstances connected therewith as soon as it is possible
for him to do so. Failure on the part of the Government
servant to inform his official superiors has to be regarded as
suppression of material information and will render him
liable to disciplinary action on this ground alone.
19. In taking this view, I am duly supported by MHA
OM No.25/70/49Ests., dated 20.12.1949, Rule 19(1),
Central Civil Services (Conduct) Rules, 1964.
.
20. Even in the absence of any instructions, it is
otherwise reasonable to expect from a Government servant,
who is convicted in a criminal court to inform his official
superiors of the fact of his conviction and the circumstances
connected therewith, as soon as possible for him to do so.
21. The Court can well appreciate the fact that as
soon as the Government servant is convicted, he would
normally not be in his state of mind and would take time to
reconcile with the situation apart from making arrangements
for assailing the conviction and obtaining the order from the
competent court for such suspension of the sentence. Even
then this would at best take some days or lets take to be
even one month but in no event it could have been more
than 8 months like the instant case. Therefore, the
petitioner has rightly been imposed with the penalty of
"censure".
22. In view of the aforesaid discussion, this Court had
not inclined to interfere with the penalty of censure as
imposed by the respondents. However, as observed above,
instructions 16.13 (supra) does not constitute a bar of
eligibility and consideration for promotion. Accordingly the
present petition is partly allowed by directing the
.
respondents to open the sealed cover and in case the
petitioner is found eligible then to promote him as Deputy
Controller on and w.e.f. the date Shri Ashok Kumar
Chauhan, his junior came to be promoted, pursuant to the
recommendations of DPC convened on 21.6.2011, with all
consequential benefits. The petitioner be considered for
promotion to the post of Joint Controller from the date his
immediate juniors have promoted, i..e, in the year 2013 that
too with all consequential benefits, if found to be qualified
and eligible.
23. As regards the claim of the petitioner for grant of
benefit of increment under Assured Career Progression
Scheme on completion of four years w.e.f. 2010, the
respondents shall consider the same and in case the
petitioner is found eligible then the same be paid to him
promptly alongwith arrears within a period of three months,
failing which they shall be liable to pay this amount
alongwith interest @ 9% p.a.
24. The petition is allowed in the aforesaid terms,
leaving the parties to bear their own costs. Pending
application(s), if any, shall stand disposed of.
.
For compliance, to come up on 31.8.2022.
(Tarlok Singh Chauhan)
Judge
25.5.2022
(mamta)
