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IN THE HIGH COURT OF JHARKHAND AT RANCHI
SUJIT NARAYAN PRASAD, J.
Bipin Kumar Bihari, S/o. Late Bindeshwari Thakur – Appellant
Versus
The state of Jharkhand – Respondent
W.P.(C) No.3351 of 2023
Decided on : 08-12-2023
Article 226 - Promotion Dispute - Sealed Cover, Departmental Proceedings - [Union of India v. K.V. Jankiraman (1991) 4 SCC 109, Punjab National Bank and Others v. Kunj Behari Misra (1998) 7 SCC 84, Kunhayammed v. State of Kerala (2000) 6 SCC 359, Chandi Prasad v. Jagdish Prasad (2004) 8 SCC 724] - The court addressed the issue of promotion dispute arising from a departmental proceeding and the concept of keeping the matter in a sealed cover. It discussed the legal principles established in various cases and emphasized the importance of exoneration in departmental proceedings and its impact on promotion decisions. The court found that the failure to grant promotion from the due date was improper and contrary to the legal principles established by the Supreme Court.
Fact of the Case:
The petitioner, an Assistant Engineer, was subjected to a departmental proceeding while becoming eligible for promotion to the post of Executive Engineer. The Departmental Promotion Committee found the petitioner fit for promotion but kept the decision in a sealed cover due to the pending departmental proceeding. The petitioner challenged the subsequent punishment order, which was quashed by the High Court. The State granted the petitioner promotion to the post of Executive Engineer from the date of notification, i.e., 27.12.2022, instead of the due date of 25.09.2018. The petitioner filed a writ petition challenging the denial of promotion from the due date.
Finding of the Court:
The court found that the failure to grant promotion from the due date was improper and in violation of the legal principles established by the Supreme Court. It held that the petitioner should have been granted promotion from the due date of 25.09.2018 based on the exoneration in the departmental proceeding.
Issues: The court addressed the issue of whether the exoneration in the departmental proceeding should have led to the petitioner's promotion from the due date and whether the concept of keeping the matter in a sealed cover applied in this case.
Ratio Decidendi: The court emphasized the importance of exoneration in departmental proceedings and its impact on promotion decisions. It highlighted the legal principles established in various cases, including the concept of keeping the matter in a sealed cover and the doctrine of merger. The court concluded that the failure to grant promotion from the due date was improper and contrary to the legal principles established by the Supreme Court.
Final Decision: The court allowed the writ petition, directing the respondents to issue a fresh notification for the petitioner's promotion with effect from 25.09.2018 and ordered the release of arrears of salary difference within three months.
JUDGMENT :
1. The writ petition is under Article 226 of the Constitution of India questioning the decision of the State by granting him regular promotion on the post of Executive Engineer with effect from the date of issuance of notification, i.e.27.12.2022. With a further direction upon the respondents for consideration of his case for promotion with effect from 25.09.2018, the day when the DPC has recommended the writ petitioner fit for promotion but due to pending departmental proceeding, the same was kept in sealed cover which subsequently has culminated into the order of punishment but quashed by the High Court in exercise of power conferred under Article 226 of the Constitution of India.
2. The brief facts of the case as per the pleadings made in the writ petition which are required to be enumerated, read hereunder as :-
3. The petitioner joined in the office of Chief Engineer, WRD, Deoghar, Design Division No. 3, Deoghar on 19.01.1987 and worked as Junior Engineer till the petitioner was promoted to the post of Assistant Engineer on 17.09.2001. That it is further stated that after getting promotion petitioner posted in the office of Chief Engineer, WRD, Darbhanga, West Canal Division, Andharathadhi, Madhubani, Bihar.
4. After the bifurcation of the erstwhile State of Bihar, the services of the petitioner were allocated to the newly created State of Jharkhand.
5. The petitioner thereafter worked at different places and subsequently posted as Assistant Engineer in Rural Development Special Division, Gumla on 15.01.2009.
6. The Executive Engineer, Rural Development Special Division, Gumla floated a tender inviting contractors to submit their bids for construction of high-level bridges across South Koel River on 10th Km of Kamdara Bano Path. The total value of the work was Rs. 291.86 Lakhs and the period of completion was 18 months form the date of written order to commence the work.
7. The work of construction of High-Level Bridge was completed in the year, 2009 and the completion certificate was issued by the Executive Engineer, Rural Development Special Division, Gumla on 17.06.2010. It was duly certified by the Executive Engineer that the construction of four bridges in one package has been successfully completed by the contractor.
8. The contract was awarded by the Department on turnkey basis according to which the contractor was required to submit its own design and drawing. The contractor submitted his design, which was approved by the then Engineers of the Department. At the relevant time, the petitioner was not concerned with the present work and was not involved in the construction work of the present bridge as the petitioner was even not posted at Gumla.
9. It is the case of the petitioner that an F.I.R. has been lodged and the petitioner has also been made accused in the said FIR giving rise to Gumla P.S Case No. 267/2011. It has been alleged therein that the petitioner remained attached with the bridge work from 15.01.2009 onwards.
10. Thereafter, the respondents decided to proceed departmentally without awaiting the report of the Criminal Case. The petitioner was suspended vide order as contained in memo no. 4127 dated 30.06.2011 with immediate effect in contemplation of a departmental proceeding.
11. The charge memo was issued to the petitioner on 20.09.2011. The only charge levelled against the petitioner was the lack of supervision of the bridge work. It is mentioned in the memo of charge that the 10 spans out of 12 spans of the bridge in question have been badly damaged due to heavy rain during the period form 16.06.2011 to 19.06.2011.
12. The petitioner submitted his reply to the memo of charge on 30.01.2012. The petitioner stated that the petitioner joined as Assistant Engineer only on 15.01.2009 and by that time, the foundation work and sub-structure work of the bridge were completed, and the superstructure work was also about to be completed. The petitioner also stated that the 18th running account bill was prepar
The 'sealed cover procedure' and relevant Supreme Court judgments establish that an employee acquitted in a criminal case is entitled to promotion and benefits from the date of promotion as if no pro....
The right to consideration for promotion is a fundamental right, and after punishment for misconduct, the course available is to refer the matter before the Departmental Promotion Committee to determ....
Service Law - Non- implementation of order of promotion - Appointments of officers are subject to DAR/Vigilance/ Criminal case clearance by Railways - Officers should be advised that above officiatin....
Selection Committees must not use sealed cover procedures for promotion unless formal charges are framed against an employee, preserving rights to promotion.
The mere pendency of a criminal case does not justify withholding promotion without formal charges, violating principles of natural justice and discrimination.
Departmental proceedings must adhere to principles of natural justice, and acquittal in criminal cases does not preclude disciplinary action but requires proper evidence examination.
Point of Law : Employee may not be awarded any punishment which is not prescribed under the Rules
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