A Deputy Superintendent of Police was promoted. However, he was not relieved from his earlier posting. Rather, he got served by a memo. He went to Court, and the Court directed the concerned authorities to relieve him from his earlier posting.
The respondents, however, sought an intra-Court appeal against this order. The matter was heard and decided upon by a two-judge bench comprising of Chief Justice of Madras High Court Hon’ble Mr. A. P. Sahi & Hon’ble Justice Senthilkumar Ramamoorthy.
Facts of the Case
K.Pitchai, the respondent in this intra-court appeal, was directly recruited as a Sub-Inspector in 1987. Over the course of years, he was promoted to Inspector, followed by Deputy Superintendent of Police (DSP). In 2015-16, his name was exempted from a list of approved temporary promotion and posting orders of DSPs, where his immediate junior’s name was included.
The respondent herein, submitted a representation to the effect that he be promoted to the post of Additional Deputy Commissioner of Police (ADCP) with retrospective effect. This representation received orders through Additional Chief Secretary to Government to the effect that he be promoted as ADCP (Category- I). He was thus, ordered to be posted as an Additional DSP, Prohibition Enforcement Wing, Tirunelveli (ADCP Tirunelveli).
However, the respondent, Mr. K. Pitchai, was not relieved from his incumbent post of DSP Ramanathapuram. He made a representation to this effect. Contrarily, the respondent was served with a charge memo under Rule 17(b) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules 1955 (the TNCS D&A Rules) on 22.06.2017. This memo was served to the respondent on 07.07.2017.
As the respondent was unable to join in at his promoted post, he filed a Writ Petition which was allowed primarily because the charge memo dated 22.06.17 was served on him on 07.07.17. It was argued that the crucial date for consideration of promotion was 01.04.2017.
The learned Single Judge allowed his petition and directed the Appellants herein, to relieve the respondent Mr. K. Pitchai within 2 weeks of the order. It is this order that the appellants seek an intra-court appeal, meaning, the case would be heard in the same court, with a bench comprising of two or more judges.
Arguments Before the Court
The counsel for the Appellants submitted that there were three charges in the memo issued to the respondent on 22.06.2017. The first charge being that the respondent committed was gross misconduct by staying with another person named Jothika, at the office-cum-residence at Pattukottai. The second charge was that he had given asylum to a person called Jesus and two other rowdies, who were involved in the murder of a person called Vijayakumar.
The third charge was that he had utilized the services of a driver of the department vehicle for private work. All the said charges were proved by the concerned authority on 29.09.2020 while the writ appeal was sub-judice. The said order imposed a punishment of reduction in pay to a lower stage by two stages for a period of six months without cumulative effect, with effect from 01.10.2020.
The counsel also maintained that the said charge memo under Rule 17(b) of the TNCS D&A Rules was received in the office of DGIP, Ramanathapuram. However, it was served to the respondent on 07.07.2017.
The counsel for the Appellants further submitted that if charges under Rule 17(b) of the TNCS D&A Rules are pending, the respondent’s name cannot be included in the approved list of the Tamil Nadu Government Servants(Conditions of Service) Act 2016 (the Conditions of Service Act). The counsel argued that the respondent should be exempted from promotion, notwithstanding the mere technicality that there was a delay in serving the charge memo dated 22.06.2017 on the Respondent.
The counsel for the Respondent, Mr. K. Pitchai, submitted that the respondent was duly promoted as ADCP Tirunelveli by communication dated 30.06.17 which preceded the service of the charge memo on 07.07.2017. As such, the respondent should not have been exempted from the promotion list dated 30.10.17.
The counsel for the Respondent referred to various case laws, notable among them being Union of India and others v. K.V.Jankiraman and others (1991) 4 SCC 109 (Jankiraman).
Court’s Observations
The Court observed that a pending enquiry at a pre-charge memo/charge sheet stage is not a bar for the consideration of an employee for promotion. The Court referred to the relevant provisions of the Conditions of Service Act for the same. The Court noted that the critical activity for triggering the disability to be considered for promotion is the framing of charges or filing of the charge sheet in a criminal case.
The Court considered the Jankiraman case, wherein the Supreme Court held that the sealed cover procedure should be followed only if the charge memo was finalized and served on the employee, whereas if the employee had been considered for promotion prior to the service of the charge memo, the sealed cover procedure would not apply.
However, the Court considered another case which is contrary to the Jankiraman case. In Union of India v. R.S.Sharma (2000) 4 SCC 394 (R.S.Sharma), the subsequent Government of India, the Memorandum of Procedure dated 1988 was applied contrary to 1982 in Jankiraman case. This 1988 Memorandum provided for adoption of the sealed cover procedure once a decision is taken to initiate disciplinary proceedings.
The Court noted that in the present statutory context, the commencement of disciplinary proceedings is distinct from the deferment of promotion, which gets triggered once charges are framed. The Court held that the framing of charges is the determinative event as regards deferment of promotion.
Court’s Order
The Court set aside the impugned order of the learned Single Judge. However, the Court upheld the decision of the single judge regarding deferment of promotion. The Court also allowed the Appellants to apply relevant provisions of Conditions of Service Act for the respondent’s promotion.
The Writ Appeal was thus allowed.
Read the original judgment here.
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