2015 (8) TMI 1579 - HC - Indian Laws

Eligibility of the 1st respondent, for 1st and 2nd time bound upgradation under EPP of BSNL - direction to place the case of the 1st respondent for consideration by the Screening Committee - HELD THAT - The 1st respondent was acquitted on merits and that the Court, after considering all the facts, held that there is no cogent and reliable evidence and that the complainant himself was not clear. The Court has further held that averments made by the prosecution cannot be accepted and resultantly, when there was no evidence, the 1st respondent herein is entitled to be acquitted. While that be the clear finding recorded in the judgment, acquitting the respondent, under the premise of appeal, being filed and pending, against the order of acquittal, the 1st respondent cannot be deprived of the time bound IDS scale upgradation, endlessly. Disposal of the appeal may take a long time. The 1st respondent is stated to have retired from service. There is no certainty that the State would be satisfied, even if the appeal in the High Court fails. If the State chooses to prefer a further appeal to the Hon'ble Supreme Court, the Department may again contend that the appeal is pending before the Apex Court - if the arguments of the petitioner have to be accepted, then there is no finality to the judgment of acquittal. In the light of the discussion and decisions considered, the further contention of the learned counsel that Vigilance has not given a clearance, cannot be countenanced. Though by placing reliance on a decision of the Hon'ble Apex Court in Garikapti Veeraya v. N. Subbiah Choudhry 1957 (2) TMI 54 - SUPREME COURT , learned counsel for the petitioner contended that appeal is a continuation of the proceedings and that Vigilance has not given a clearance to the case of the 1st respondent to the Screening Committee, this Court is not inclined to accept the same. The Writ Petition is dismissed.

Summary

Issues Involved:
1. Eligibility for time-bound promotion under the Executive Promotion Policy (EPP) of BSNL.
2. Impact of pending criminal appeal on promotion eligibility.
3. Consideration of vigilance clearance for promotion.
4. Effect of acquittal on promotion and other consequential benefits.
5. Legal precedents regarding the continuation of judicial proceedings.

Detailed Analysis:

1. Eligibility for Time-Bound Promotion under EPP:
The 1st respondent was entitled to the first time-bound promotion effective from 01.10.2004 and the second time-bound promotion from 01.10.2009 under the BSNL's Executive Promotion Policy (EPP). The policy stipulated that promotions were based on performance and completion of five years of service from the date of the first promotion. However, due to the pending criminal case, the Screening Committee did not recommend the 1st respondent's case for the first time-bound promotion.

2. Impact of Pending Criminal Appeal on Promotion Eligibility:
The court held that the pendency of a criminal appeal cannot be termed as an extension of judicial proceedings. The judgment cited several precedents, including the Himachal Pradesh High Court in Chandu Ram v. State of H.P. and the Andhra Pradesh High Court in Chief Commissioner of Land Administration, A.P., Hyderabad v. R.S. Ramakrishna Rao, which concluded that the filing of an appeal and its pendency do not continue the trial. Thus, the initial presumption of innocence is reinforced by the acquittal, and the respondent is eligible for consideration for both 1st and 2nd time-bound upgradations.

3. Consideration of Vigilance Clearance for Promotion:
The petitioner argued that vigilance clearance had not been given for the 1st respondent's case to be placed before the Screening Committee. However, the court did not accept this contention, noting that the 1st respondent had already been granted ad-hoc and regular promotions despite the pending appeal. The court emphasized that the respondent's acquittal should have led to the consideration of his promotion without the need for further vigilance clearance.

4. Effect of Acquittal on Promotion and Other Consequential Benefits:
The court noted that the 1st respondent had been acquitted on merit by the Special Judge and Presiding Officer of Fast Track Court, Vadodara, on 31.03.2008. The court directed that the 1st respondent's case be placed before the Screening Committee to decide his eligibility for the 1st and 2nd time-bound upgradations under the EPP. The court highlighted that the respondent should not be deprived of the time-bound IDA scale upgradation due to the pending appeal, as it could lead to endless delays.

5. Legal Precedents Regarding Continuation of Judicial Proceedings:
The judgment referenced multiple legal precedents to support its conclusions. In Surinder Kumar v. State of Himachal Pradesh, it was held that the preferment of acquittal appeals does not continue the trial. Similarly, in State of West Bengal v. Hari Ramalu, the Calcutta High Court ruled that the continuation of proceedings must relate to investigation, enquiry, or trial, which ends with the judgment of acquittal. These precedents reinforced the court's decision that the 1st respondent's acquittal should be considered final for the purpose of promotion eligibility.

Conclusion:
The court dismissed the writ petition and directed the petitioner to comply with the Central Administrative Tribunal's order within two months, emphasizing that the 1st respondent's acquittal entitled him to the time-bound promotions and other consequential benefits as per the EPP of BSNL. The court also rejected the argument that the pending appeal and lack of vigilance clearance could justify withholding the promotions.