Executive Engineer denied 2nd MACP due to alleged pending departmental and criminal proceedings. Court held proceedings are initiated only upon issuance of charge-memo or submission of charge-sheet; neither existed at screening date. Rejected the denial order and remitted matter for fresh screening.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2265 of 2019
======================================================
Shailesh Mishra, S/o- Surya Narayn Mishra, R/o- Ruchira Apartment, Flat no3/B, Anugrah Narayan Path, North Sri Krishnapuri, P.S.- Sri Krishnapuri, Patna. At Present Posted as Executive Engineer (Monitoring) Road Construction Department, Road Circle, Purnea, Bihar.
... ... Petitioner/s
Versus
... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Uday Bhan Singh, Advocate For the Resp- State : Mr. Mahtab Alam, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT Date : 11-11-2024
Heard Mr. Uday Bhan Singh, learned counsel for the petitioner and Mr. Mahtab Alam, learned counsel for the State.
Patna High Court CWJC No.2265 of 2019 dt.11-11-2024 2/8
eligible, the petitioner was extended the benefit of 1st ACP w.e.f. 09.08.1999. While the Screening Committee convened meeting on 08.11.2012 to consider the claim of the Assistant Engineers (Civil), Road Construction Department for grant of 2nd MACP; nonetheless, the name of the petitioner finds place at SI. No. 218, it has not been found favour on account of the alleged pendency of departmental proceeding as well as criminal proceeding.
Patna High Court CWJC No.2265 of 2019 dt.11-11-2024 3/8
memo of charge has been issued. So far the criminal proceeding is concerned, it is said to be pending with effect from the date when the charge-sheet is submitted, is the contention of learned counsel.
Patna High Court CWJC No.2265 of 2019 dt.11-11-2024 4/8
departmental proceeding. Learned counsel for the State supported the impugned order by making the submissions as afore-mentioned.
4 SCC 109] has in no uncertain terms clarified the position as to on which date the departmental/judicial proceeding shall be deemed to have been initiated. The Hon’ble Supreme Court unequivocally held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal
Patna High Court CWJC No.2265 of 2019 dt.11-11-2024 5/8
prosecution is issued to the employee that it can be said that the departmental proceedings/criminal proceeding is initiated against the employee. To deny promotion, the disciplinary/criminal proceeding must be at the relevant time pending at the stage when the charge-memo/charge-sheet has already been issued to the employee.
“ 16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the chargememo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellantauthorities that when there are serious allegations and it takes time to collect necessary evidence to
Patna High Court CWJC No.2265 of 2019 dt.11-11-2024
6/8
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. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, 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 in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy.
17. There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit,
Patna High Court CWJC No.2265 of 2019 dt.11-11-2024 7/8
they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions.”
Patna High Court CWJC No.2265 of 2019 dt.11-11-2024 8/8
department authorities, who shall place the case of the petitioner in the forthcoming Screening Committee for grant of 2nd MACP, in accordance with law.
(Harish Kumar, J)
rohit/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 14-11-2024 Transmission Date
1 issue framed by the court
Whether denial of 2nd MACP on grounds of pending disciplinary/criminal proceedings was valid when no charge-memo or charge-sheet had been issued at the relevant time.
Colour shows how this judgement treated each authority
Union of India and Others v. K.V. Jankiraman and OthersRelied on¶10
(1991) 4 SCC 109 · Who else cites this
Shailesh Mishra
The State of Bihar
The Principal Secretary Road Construction Department Bihar, Patna
The Deputy Secretary (Management Cell) Road Construction Department Bihar, Patna
Harish Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
