Judgment:
ORDER
Elipe Dharma Rao, J.
1. The above two writ petitions are at the instance of the State, challenging the common order dated 15-4-2009, passed by the Central Administrative Tribunal (in short 'CAT'), allowing the applications, O.A. Nos. 854 and 869 of 2008, filed by the first respondent herein.
2. The factual matrix involved in the present writ petitions is common and further common arguments were advanced by the learned Counsel appearing on either side, the writ petitions were, therefore, heard together and disposed of by this common order.
3. The first respondent joined as Deputy Superintendent of Police (direct recruit) in the Tamil Nadu Police Service in the year 1983. In the year 1994, he was promoted and appointed in the service of the Indian Police Service and while he was serving as Superintendent of Police, Karur District, he was placed under suspension vide order in G.O. Ms. No. 239 dated 20-3-2002 passed by the first petitioner. The suspension was on the ground that an enquiry into certain grave allegations against him was contemplated. The suspension was, however, revoked on 5-6-2004 in view of the recommendation made by the Review Committee. He was, therefore, reinstated in service, pending decision on the report of the inquiring authority recommending departmental action against him.
Departmental disciplinary proceedings were initiated against the first respondent by serving him a charge memo dated 29-9-2006, imputing certain corrupt activities, misconduct and irregularities in the matter of transfers and postings of police personnel. All the seven charges framed against him relate to the period when he was working as Superintendent of Police between 2000-02 in the Karur District. Not satisfied with the written statement of defence with reference to the above said charge-memo submitted by the first respondent, the first petitioner appointed an Inquiring Authority to inquire into the veracity of the charges framed against the first respondent. There was a change of Inquiry Officer at the request of the first respondent. During the pendency of the inquiry, the Government chose to drop Charge Nos. 6 and 7 as contained in the charge-memo and accordingly the inquiry was confined to Charge Nos. 1 to 5 only. The Inquiry Officer, in her detailed inquiry report, recorded a finding that while Charges 1 and 4 were held proved and Charge No. 5 was partly proved, Charge Nos. 2 and 3 were held not proved. The inquiry report was communicated to the first respondent and on receipt thereof, he made a further representation dated 7-4-2008, requesting the Government to drop further action on the charges held to have been proved against him in the inquiry. No order, however, has been passed by the Government pursuant to the inquiry report.
When the matter stood at this stage, the first applicant approached the CAT by filing an application in O.A. No. 854 of 2008, challenging the proceedings in Charge Memo dated 29-9-2006 and to quash the same. In the said original application, the CAT passed an interim order, directing the Government not to pass final order in the disciplinary proceedings till the disposal of the application.
While initiation of departmental disciplinary proceedings is one episode of this litigation, the other episode is first respondent's claim of promotion to the post of Deputy Inspector General of Police (DIG). The sum and substance of the first respondent's claim is that he was eligible and entitled for the conferment of Selection Grade in the cadre of Superintendent of Police much earlier and as well as promotion to the post DIG, he was overlooked and deprived of the same in view of the disciplinary proceedings pending against him. Aggrieved by the denial of promotional prospects, the first respondent also filed another application in O.A. No. 869 of 2008 before the CAT seeking the relief of promotion to the post of DIG with effect from 8-8-2005 onwards without prejudice to his claim for promotion on par with his batchmates/juniors with effect from 3-3-2003.
As stated earlier, both these applications were jointly dealt with by the CAT and by the common order dated 15-4-2009, the CAT quashed the charge-memo dated 29-9-2006 issued against the first respondent and further directed the opening of the 'sealed cover' for promoting the first respondent to the post of DIG. The CAT also observed that the first respondent is entitled for the consequential benefits arising out of quashing of the charge-memo.
Aggrieved by the order passed by the CAT, the Government is before us with these two writ petitions. In the light of the materials placed on record and the arguments advanced on either side before us, we will test the correctness of the order passed by the CAT. As already noted, the sum and substance of this litigation is the validity of the disciplinary proceedings initiated against the first respondent and its' consequential effect thereof on his promotional prospects.
4. Mr. S. Ramasamy, learned Additional Advocate General, who was assisted by Mr. G. Sankaran, learned Special Government Pleader, appearing for the petitioners assailed the impugned order passed by the CAT in so far as it relates to the quashing of the charge-memo by contending that the CAT has failed to take into account the gravity of the charges and the detailed report submitted by the Inquiry Authority. In this context, the learned Additional Advocate General recapitulated the factual-matrix of the case by submitting that the first respondent, when he was functioning as Superintendent of Police in Karur District, was a hand-in-glove of the persons running gambling dens and illegal casionos under the pretext of Recreation Club and in this connection, the first respondent was placed under suspension by order dated 20-3-2002. Further, an enquiry was ordered to be conducted by the Directorate of Vigilance and Anti-Corruption (DVAC), which recommended departmental action against the first respondent on certain allegations. The said recommendation was forwarded to the Vigilance Commission for further action. In the meantime, the suspension order passed against the first respondent was revoked and he was reinstated in service on 5-6-2004. A re-enquiry was, however, order to be conducted for confirming certain aspects of the report and, accordingly, DVAC conducted a re-enquiry and submitted a report on 12-5-2006. Based on the said report, departmental disciplinary proceedings were initiated against the first respondent and a charge-memo, containing seven charges, dated 29-9-2006 was served on him. After considering the written statement of defence submitted by the first respondent, Charge Nos. 6 and 7 were dropped and further action was directed to be proceeded in so far as Charge Nos. 1 to 5 were concerned. An inquiry was conducted into the charges and the Inquiry Authority, in her detailed report, found that Charge Nos. 1 and 4 were proved, that Charge No. 5 was partly proved and that Charge Nos. 2 and 3 were not proved against the first respondent. Learned Additional Advocate General pointed out that though there is no provision in the relevant rules for hearing in person the delinquent officer, since a request was made for a personal hearing, that was also extended to the first respondent and he was personally heard by the disciplinary authority. Rejecting the further explanation submitted by the first respondent, further action was directed to be taken in so far as Charge Nos. 1 and 4. Learned Additional Advoate General submitted that it was at this stage on the first respondent approaching the Tribunal, the Government was restrained from passing any final order in the disciplinary proceedings initiated against him.
5. Learned Additional Advocate General argued that CAT has failed to take into consideration the detailed report made by the Inquiry Authority wherein the Inquiry Authority dealt with the charges in the light of the evidence placed on record and gave a categorical finding that Charge Nos. 1 and 4 were proved against the first respondent. When the conclusion of the Inquiry Authority is a finding of facts based on the material and evidence available on record, it is well-settled rule in service-law that a Tribunal shall not interfere with the same unless it is shown that the procedure followed in the inquiry is fair and proper and that there was violation of principles of natural justice. In the present case, no ground was raised complaining about the procedure followed in the conduct of the inquiry and that there was breach of principles of natural justice. All opportunity was given to the first respondent delinquent, including the change of inquiry authority and an opportunity of a personal hearing. That being so, the charge-memo came to be quashed by the CAT on the slender ground that that inordinate delay in finalisation of the disciplinary proceedings has caused considerable hardship and prejudice to the first respondent. It was argued that the conclusion of the CAT that there was inordinate delay in finalisation of the disciplinary proceedings is unsustainable. Learned Additional Advocate General vehemently argued that the delay, if any, is due to the dilatory tactics adopted by the first respondent in his attempts to scuttle the outcome of the disciplinary proceedings. In any event, if there is delay, it is not eight years as projected by the first respondent inasmuch as the irregularities committed came to surface only after the detailed inquiry done by the DVAC and that it was only on 29-9-2006 the disciplinary proceedings were initiated by serving a charge-memo on the first respondent. It was further contended that right from 20-3-2002, the date on which the first respondent was placed under suspension, the entire process passed through several phases from time to time to comply with the requirement of fair procedure in the initiation, conduct and conclusion of a disciplinary proceeding. It was pointed out to us that the first respondent, during the pendency of the proceedings, had sought for change of inquiry officer and at the later stage of the proceedings, had requested for a personal hearing. It was also contended that even assuming that there was any delay in initiation of proceedings, the first respondent having taken part in the inquiry, should not be permitted at this stage to raise the issue of delay in initiation of the proceedings. Learned Additional Additional General contended that the Tribunal erred in coming to the conclusion that the delay in finalization of the disciplinary action had caused prejudice to the first respondent and had also caused considerable hardship to him in the matter of getting promotion. In support of his contention, learned Additional Advocate General relied on the judgment of the Supreme Court in P.D. Agarwal v. State Bank of India and Ors. (2006) 8 SCC 776. Learned Additional Advocate General, therefore, prayed that the impugned order of CAT, quashing the Charge-Memo dated 29-9-2006 may be set aside.
6. Secondly, on the question of first respondent's claim for promotion, learned Additional Advocate General submitted that in view of the prima facie material against the first respondent and on the recommendation made by DVAC, departmental disciplinary proceedings were initiated against. The suspension order passed against the first respondent was revoked on the recommendation made by the Review Committee, but the reinstatement was subject to the decision to be taken on the report of DVAC. In such circumstances, the Screening Committees, which met in the years 2004, 2005 and 2006, considered the case of the first respondent for promotion to the posts of Selection Grade Superintendent of Police and DIG, but since the disciplinary proceedings were pending against him, placed their recommendation in sealed covers. Further, the report submitted by the Inquiry Authority was sent to the Union Public Service Commission on 1-12-2008 for its views on the final orders to be passed in the disciplinary proceedings. The case of the first respondent was also considered by the Screening Committees which met subsequently and their recommentions were also put in a sealed cover. The 'sealed cover' procedure followed in the case of the first respondent is in accordance with the guidelines dated 15-1-1999 issued by the Government of India. Learned Additional Advocate General argued that when once the 'Sealed Cover' procedure is followed, the guidelines governing the said procedure prescribes that such 'sealed covers' could be opened only on the conclusion of the disciplinary/criminal proceedings. The CAT committed an error in not properly considering the guidelines relating to the 'sealed cover' procedure and giving a direction to open the same more particularly when the CAT was informed of the fact that views of UPSC have been received in the matter. It was further contended that the CAT failed to appreciate the point that 'Selection Grade' is non-functional since there is no additional responsibility in terms of duties or jurisdiction is given to a Selection Grade officer except some monetary benefits. The 'selection grade' in strict sence is not a promotion but only conferment of a service status considering the length of service put in a particular cadre. The so-called promotion of 'Selection Grade' given to the first respondent during the pendency of the disciplinary proceedings was based on the independent decision taken by the Screening Committee and not based on opening of the earlier sealed covers. Learned Additional Advocate General also pointed out that promotion to other similarly placed officers was given only in cases where such officers were exonerated in the disciplinary proceedings and that too after the passing of the final orders. Learned Additional Advocate General submitted that the directions given by the CAT to open the sealed cover for giving promotion to the first respondent and the further direction that the first application is entitled for consequential benefit arising out of quashing of the charge-memo are unsustainable in law and, therefore, the impugned order passed by the CAT may be set aside and the first petitioner may be permitted to pass final order in the disciplinary proceedings initiated against the first respondent.
7. On the other hand, Mr. Vijay Narayan, learned senior Counsel, appearing for the first respondent submitted that there was inordinate delay in initiation and conclusion of the disciplinary action against the first respondent. Learned senior Counsel invited our attention to the list of dates. He pointed out that the suspension order against the first respondent was passed as early as on 20-3-2002, but the charge-memo was served only on 29-9-2006, that is after a long period of six and a half years. It was argued that there was no proper and convincing explanation from the authorities concerned why the matter took six long years for framing the charges against the first respondent. Learned senior Counsel further contended that even though inquiry report was submitted on 12-12-2007, no final order was passed till 1-12-2009, when the first respondent approached the CAT and obtained interim relief.
8. Learned senior Counsel further submitted that right from 2002 the first respondent was subjected to the harassment of repeated inquiry. Even though inquiry and re-inquiry were ordered from time to time, nothing was established against him. Even the crux of the charges framed against the first respondent relate to the alleged irregularities in effecting transfer of some Sub Inspectors of Police and other police personnel. The allegation was that such transfers were decided by the first respondent exclusively and arbitrarily by himself without referring to the transfer committee for deciding the said transfers. It was submitted that the transfers so made were first referred to the Transfer Committee and it was only on the basis of the recommendations made by the Transfer Committee, they were effected. When the transfer is recognised in law as an incident of service, unless it is established that the transfer was made out of corrupt motive or mala fide intention or for some extraneous consideration, the authority who effected the transfer cannot be found fault and hauled up with the disciplinary proceedings. It was submitted that the disciplinary action against the first respondent is tainted with political vindictiveness.
9. Learned senior Counsel further aruged that on the pretext of pending disciplinary proceedings, the first respondent was deprived and denied of the promotional avenues to the posts of DIG and Inspector General of Police (IG). He was under suspension for more than 27 months and was under compulsory wait for a period of six months. The police officers, who are junior to him and belonging to his batch, were now holding the status of IG. Learned senior Counsel pointed out that charge-memo was served only on 29-9-2006 and when there was no charge framed against the first respondent in the years 2004, 2005 and till 28-9-2006, the 'sealed cover' procedure should not have been followed and therefore placing the recommendations of the Screening Committees of the respective years in respect of his promotions in sealed covers is illegal.
10. Learned senior Counsel further submitted that the first respondent is due to retire on 30-6-2009 and, as rightly observed by the CAT, the inordinate delay in initiating the disciplinary action and conlcuding the same has caused the first respondent much hardship and mental agony. Considering the gravamen of the charges levelled against the first respondent and the time taken by the Government in concluding the disciplinary proceedings, the CAT has passed the well-considered and reasoned order of quashing the charge-memo dated 29-9-2006, which requires no interference by this Hon'ble Bench.
11. Heard the learned Counsel for the parties. Perused the entire material placed on record. The only point for determination in these writ petitions is whether, in the facts and circumstances of the case, the CAT was right in quashing the charge-memo dated 29-9-2006 and further issuing a direction to open the 'sealed cover' for granting promotion to the first respondent.
12. As narrated earlier, the first respondent was placed under suspension on 20-3-2002 on the ground that an enquiry into certain grave allegations against him was contemplated. The spark of disciplinary action which was ignited against the first respondent in the year 2002, allowed to remain in fume till this day, i.e. for a period of over seven years. The mainstay of attack to the disciplinary proceedings initiated against the first respondent is inordinate delay in initation of the proceedings as well as conclusion thereof and the delay has resulted in casuing hardship and prejudice to the first respndent. It is on this ground that the CAT has quashed the charge-memo. When the first respondent was serving as Superintendent of Police in Karur District during 2000-02, he was placed under suspension on 20-3-2002 on the allegation that he failed to take effective and stern action to wipe out the illegal gambling dens and casionoes run under the garb of recreation clubs. The criminal case filed pursuant to the inquiry made by the CB-CID also ended in acquittal and nothing incriminating and adverse against the first respondent was brought out in the said CB-CID inquiry. A charge-memo, however, was served on the first respondent on 26-9-2006. According to the petitioners, the delay in framing the charges was due to the fact that the disciplinary proceedings has to pass through several phases before the charges could be finalised. It was submitted that immediately after suspension of the first respondent, an enquiry was ordered to be conducted by the DVAC in the year 2004 on the allegation of accummultion of disproportionate wealth and again a re-enquiry was ordered to be conducted by the DVAC on the same issue in the year 2005. The report of the DVAC was obtained on 12-5-2006. The charge-memo containing sevel charges was served on 29-9-2006. Even in the inquiries conducted by the DVAC nothing was found against the first respondent. It was further justified that the alleged irregularities came to surface only after a detailed enquiry and re-enquiry by the DVAC, which took considerable time. We are not convinced with the justification given for the delay.
13. It is to be noted that the first respondent took charge as Superintendent of Police of Karur District in June, 2000 and he was suspended on 20-3-2002. The reason for initiating the disciplinary action against the first respondent was that he was abetting and aiding the running of illegal gambling dens and casinos under the pretext of running recreation clubs and that he had received illegal gratification to allow such illegal activities. It is not known as to why the investigation of allegation of such a nature, which relate to a period of less than two years, has consumed the enormous period of more than four years, i.e. till 12-5-2006 when DVAC had submitted their report after re-inquiry. Except the bald and vague justification of administrative process and re-inquiry, no other acceptable and convincing reason was putforth by the Government to justify this delay. We are, therefore, of the considered view that there is inordinate delay in finalising the charge against the first respondent, which remained unexplained by the Government.
14. Secondly, it is to be noted that the basis for initiating the disciplinary proceedings against the first respondent was that he abetted and aided the running of illegal gambling-dens and casinos by receiving illegal gratification. It is on this ground that he was suspended and later on the suspension was revoked and he was reinstated. It is, however, surprising to note from the charge-memo dated 29-9-2006, all the seven charges framed against the first respondent relate to transfer of some police personnel effected by the first respondent. A bare reading of the charges would go to show that the transfer of some Sub Inspector of Police and some other policemen effected by the first respondent was in breach of the procedures prescribed and the guidelines framed by the Government. In brief, the transfers effected by the first respondent were irregular transfers. It is on these charges, the first respondent had gone through the ordeal of departmental inquiry for more than two years.
15. In this connection, we may hasten to point out that initially as many as seven charges were framed but, later on two charges were dropped and the first respondent was proceeded departmentally in respect of the other four charges. All these charges, as stated earlier, relate to transfer of some police personnel. Even assuming that such transfers were in breach of procedures prescribed and in violation of the guidelines framed therefor, at the most such transfers may be termed as irregular transfers. Further, there is no complaint whatsoever from the concerned transferred police officer alleging any any ulterior motive or mala fides or extraneous consideration in the matter of their transfers. When 'transfer' is interpreted and recognised to be an incident of service, no serious view could be taken against the authority who effected the transfers unless it is established that he acted with mala fide intention and ulterior motive and for some extraneous consideration. This is not the case of the Government that such transfers were of such a nature to warrant a serious view of the matter. We are, therefore, of the considered view that in the light of the gravamen of the charges framed against the first respondent, the disciplinary proceedings should not have been allowed to prolong for such a long time and that a quietus should have been given to it in one way or the other.
16. We will now deal with the issue whether the delay, which, in our view, is inordinate and not properly justified, has resulted in hardship and prejudice to the first respondent. The CAT had also considered this aspect and relying on various caselaws cited in this context, held that the delay had caused hardship and prejudice. It is seen from the factual matrix of the case that in view of the pendency of the departmental proceedings, the first respondent was not considered for the conferment of the Selection Grade status. Again, his name was not taken up for consideration for promotion to the post of DIG and IG. The Screening Committees, which periodically met for considering the names for promotion, had kept their recommendations in 'sealed covers' and this 'sealed cover' procedure, in the case of the first respondent, was followed from the year 2002 till the current period, i.e. for nearly eight long years. It is the case of the first respondent that the prolonged disciplinary proceedings has deprived him the promotional prospects to the posts of DIG and IG in the years 2007, 2008 and 2009 and that he is going to retire at the end June, 2009 and that such prolonged disciplinary proceedings caused him hardship and mental agony. According to the first respondent, when no charge was framed against him during the period 2004-06, the 'sealed cover' procedure adopted in the matter of his promotion was illegal. We find considerable substance and force in the said submission. In the facts and circumstances of the case, especially when the crux of the charges levelled against the first respondent relate to certain transfers effected by him, allowing the disciplinary proceedings to continue for more than seven years, in our considered view and rightly so held by the CAT, had caused hardship and prejudice to the first respondent.
17. In this connection, we may refer to the judgment of the Supreme Court in State of M.P. v. Bani Singh : 1990CriLJ1315 wherein it has been held that normally a mere pendency or contemplated disciplinary proceedings absolutely have no impact upon the right of the government servant to be considered for promotion. In Union of India v. K.V. Janakiraman : (1991)IILLJ570SC , it was that 'sealed cover' procedure is to be adopted in cases where the charge-memo was issued and the pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to follow the 'sealed cover' process. Rejecting the plea that when there are serious allegations it takes time to collect necessary evidence to prepare and issue charge-memo, the Supreme Court observed as follows:
The plea that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment, etc. would not be tenable. The preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges.... The promotion, etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against employee. To deny the said benefit, they must be at the relevanttime pending at the stage when charge-memo/charge-sheet has already been issued to the employee.
(emphasis supplied)
In the present case, the charge-memo was served on the first respondent on 29-9-2006. The 'sealed cover' procedured followed in the matter of considering the name of the first respondent for conferment of a status/to a higher post for the periods 2004, 2005 and till 28-9-2006, in our considered view, is illegal.
18. The judgment in P.D. Agarwal's case, cited supra, relied on by the learned Additional Advocate General in support of his argument that since the first respondent having taken part in the departmental proceedings should not now allowed to plead that the delay in initiation of the proceedings vitiated the enquiry proceedings. There is no quarrel over the said proposition. It was a case where no departmental proceedings was initiated since criminal proceedings were pending against the delinquent employee and that the delinquent employee had not raised the plea of prejudice either before the appellate authority or before the High Court. The facts before us are entirely different. The plea of prejudice was very much taken before the CAT and even before us also. This ruling, therefore, lends no support to the argument raised by the learned Additional Advocate General.
19. On a careful consideration of the facts and circumstances of the case, when initially an inquiry by the CB-CID to probe into the alleged involvement of the first respondent in running of illegal gambling dens and casinos in Karur District was ordered, which did not bring out any adverse findings against the first respondent and thereafter, even in the inquiry and re-inquiry ordred to be conducted by the DVAC on the allegation of accumulation of disproportionate wealth nothing incriminating was found against the first respondent, thirdly the delay in initiation of disciplinary proceedings in respect of the events which took place in the year 2000-02, i.e. the alleged irregular transfers effected and finally prolonging the disciplinary proceedings for a considerable length of time, we have no hestitation to conclude that the very object of initiating the departmental proceedings and allowing it to prolong for a considerable length of time is nothing but to harass the first respondent and to deprive him the promotion and other benefits. Under the guise of pendency of disciplinary proceedings, the first respondent was denied and deprived the promotion to higher posts, to which he is otherwise eligible for.
20. During the course of hearing of the writ petitions, we have directed the production before us the 'sealed covers' containing the recommendations made by the Screening Committee in respect of the first respondent's promotion. Accordingly, the 'sealed covers' were produced before us. We opened the 'sealed covers'. On going through the contents of the 'sealed cover', we noted the findings of the Screening Committee consisting of the Chief Secretary to Government, the Secretary to Government, Home, Prohibition & Excise Department and the Director General of Police, Tamil Nadu, regarding the suitability of the first respondent for promotion to the cader of Deputy Inspector General of Police. We quote the findings hereunder:
The Committee was informed that the disciplinary proceedings is pending against him. The earlier committees have placed their recommendations in respect of his promotion to the rank of Deputy Inspector General of Police in sealed covers. After deliberations, the Committee assigned him the grading 'FIT for promotion' to the rank of Deputy Inspector General of Police, subject to the outcome in the departmental disciplinary proceedings against him.
Thus, even according to the recommendation made by the Screening Committee, the first respondent is fit for promotion to the rank of DIG, of course, subject to the outcome in the departmental disciplinary proceedings against him. By the impugned order in these writ petitions, the CAT had quashed the very charge-memo dated 29-9-2006 issued against the first respondent, which, for the reasons stated herein above, has been confirmed by us. The resultant position is that no disciplinary proceedings is pending against the first respondent.
For the above said reasons, we see no reason to interfere in any manner with the order passed by the CAT. Accordingly, the order passed by the CAT quashing the very charge-memo dated 29-9-2006 issued against the first respondent is confirmed. That being the position, in the light of the recommendation made by the Screening Committee, which we quoted above, the first respondent being fit for for promotion to the rank of DIG, in the peculiar facts and circumstances of the case and since it is reported that the first respondent is due to retire on 30-6-2009, we deem it appropriate to direct the Government to forthwith promote the first respondent to the post of DIG and to extend him all other service benefits to which the first respondent is entitled for as a result of quashing of charge-memo.
In the result, the writ petitions, which are devoid of merits, are dismissed. No costs.