Denial of promotional benefits due to pending criminal cases applies only when a charge sheet is submitted, not merely on the lodging of an FIR.

JUDGMENT :

Jay Sengupta, J.

1. This is an application under Article 226 of the Constitution of India praying for a direction upon the respondent authorities, especially the Port Blair Municipal Council to grant 2nd MACP benefits to the petitioner with effect from 11.05.2021 along with arrears and interest.

2. Learned counsel appearing on behalf of the petitioner submits as follows. The petitioner was appointed as Junior Engineer on 01.01.1994. He was promoted to the post of Assistant Engineer on 11.05.2001. He became entitled to 2nd MACP on 11.05.2021. But he was not granted the 2nd MACP on the ground that a criminal case was pending against him. Although, the criminal cases were of 2015/2016, the sanctions for prosecution were accorded only on 16.07.2021 and 14.03.2022, respectively, dates by which time the petitioner had already entitled to the benefits of 2nd MACP. For the same offences of irregularities in purchase of bleaching powder, the authorities conducted departmental enquiry against Abdul Wahab, Antony Patrick and Viren and all these three persons were held responsible for the said act. In Union of India vs. K. V. Jankiraman, (1991) 4 SCC 109, the Hon’ble Supreme Court held that when charge-sheet in a criminal case was issued and a charge memo in a disciplinary proceeding was issued, it could be said that the criminal/departmental proceeding was pending against an employee. In Union of India and others vs. Sangram Keshari Nayak, (2007) 6 SCC 704, although charge-sheet was issued on 24.09.1999, the incumbent had become eligible for promotion during the period 14.01.1999 to 27.08.1999. The Hon’ble Apex Court held that there was no bar in promoting the incumbent for such period. In Purushottam Kumar Singh vs The State of Jharkhand and others, 2020 4 JLJR 347, the Hon’ble High Court of Jharkahand held that the petitioner was entitled to MACP as at the time when he became eligible for the same, there was no sanction for criminal proceeding. Reliance was also placed on Bank of India and anr vs Degala Suryanarayana, (1999) 5 SCC 762 where the Hon’ble Apex Court held that the petitioner was entitled to promotion because as on the date when the petitioner was eligible for promotion, no departmental proceeding was pending against him.

3. Learned counsel appearing on behalf of the respondent submits as follows. The issue involved was whether the benefit of MACP (Modified Assured Career Progression) scheme could be denied to the writ petitioner on the ground of charge-sheet being filed in criminal proceedings subsequent to the date when he became eligible for MACP benefits. The petitioner was charge-sheeted in two separate proceedings vide charge-sheet dated 04.07.2022 in Crime No. 1 dated 26.07.2016 and charge-sheet dated 07.01.2022 in connection with the Crime No. 8 dated 29.09.2015. The allegations in those cases were serious involving offences under the Prevention of Corruption Act and the Indian Penal Code. While the first related to the irregularity in purchasing of an Ashok Leyland truck, the latter dealt with irregularities in purchasing of bleaching powder. By orders dated 14.03.2022 and 22.03.2022 passed by the Lieutenant Governor, sanction was accorded for prosecution of the accused. In view of the same on 07.06.2023 MACP benefits was denied to the petitioner. The case of Degala Suryanarayana (supra) was distinguishable as no charge-sheet was filed subsequent to the date of promotion. The case of K. V. Jankiraman (supra) was also distinguishable for the reason that no charge-sheet had been issued on the date when MACP was refused. Similarly, the other two decisions relied upon by the petitioner were also distinguishable. On the contrary, a decision based on similar facts concerning MACP benefits of the Bombay High Court in Union of India vs. K.S. Guliani and others, (1999) 3 LLN 482 was applicable here. Therefore, the case of promotion of the petitioner could be considered only or until the petitioner was exonerated o