Denial Of Promotion/Service Benefits For Prolonged Pendency Of Criminal Trial Amounts To ‘Double Jeopardy’: Orissa High Court

In an important decision, the Orissa High Court has opined that denial of promotion and other statutory rights and service benefits, merely because of long pendency of criminal trial, amounts to ‘double jeopardy’ and violates constitutional rights of the delinquent employee.

While directing the authorities to give promotion to the petitioner, making it subject to result of the criminal case pending against him, the Single Bench of Justice Sibo Sankar Mishra held:

“Unexplained prolongation of criminal trial violates the constitutional rights of an accused and denial of statutory or any other rights, for that matter, for a delinquent officer/government servant impending such delayed trial is indeed a case of double jeopardy.”

The petitioner is facing criminal prosecution in a vigilance case of the year 2001 as a result of which although the Departmental Promotion Committee (DPC) recommended his name for promotion, but sealed cover procedure was adopted owing to the pendency of criminal trial against him.

The petitioner filed a writ petition inter alia seeking a direction to the respondent authorities to give him promotion to the post of Deputy Executive Engineer, Executive Engineer and Superintendent Engineer from the date his immediate juniors got such promotions. He also prayed for grant of all consequential service benefits accruing in his favour due to such promotions.

After hearing the writ petition, a coordinate (Single) Bench of the Court had allowed the prayers made by the petitioner and directed the respondent authorities to grant him promotion from the date on which his immediate juniors got promotion to the upper ranks. The Single Bench had made it clear that his promotion shall be subject to the outcome of the criminal case pending against him.

Later on, an intra-court writ appeal was filed against the order of the Single Judge on the ground that the Judge disposed of the matter on the very first day of hearing without giving opportunity to the opposite parties to file counter affidavit.

The Division Bench, thus, allowed the writ appeal remanding the matter back to the Single Bench and fixing definite timelines for the filing of counter affidavit by the opposite parties and rejoinder affidavit by the petitioner. Despite of timelines, the opposite parties repeatedly prayed for adjournment and despite of four adjournments, they did not file any counter affidavit.

It was submitted on behalf of the State that in view of the judgment of the Division Bench of the Court in State of Odisha & Anr. v. Joseph Barik, the petitioner cannot be granted promotion making it subject to the outcome of the criminal case pending against him.

However, countering the above submission, it was submitted on behalf of the petitioner that in view of another Division Bench order of the Court in State of Odisha & Ors v. Ashok Kumar Hota & Anr. [W.P.(C) No. 18500 of 2015, order dated 06.05.2022], the petitioner can be granted promotion making it subject to the outcome of the criminal case pending against him.

Court’s Observations

The Court opined that Joseph Barik (supra) is factually distinguishable from the instant case and therefore, no reliance can be placed on that case.

“In those cases the Petitioners appears to have contended that in the guise of pendency of the criminal proceeding in the vigilance court, no promotion is being granted to them. Therefore, the Petitioners in those cases urged that at least they should have been granted adhoc promotion awaiting the outcome of the criminal prosecution. The Division Bench thus held that there is no legal basis to support the claim of ad-hoc promotion and accordingly disallowed the prayer of the Petitioners in those batch of cases,” it observed.

But in the present case, the Court noted, the petitioner is claiming promotion which has already been recommended by the DPC; however, it is not given effect to and sealed cover procedure has been adopted owing to the pendency of the criminal proceedings.

“Although charge-sheet was filed, but the trial of the proceeding is moving in the snail’s pace since last about 25 years. The prayer of the Petitioner regarding the consideration for promotion is his time bound right and delay at the instance of the State would cause serious deprival from his rightful claim.”

The Court placed reliance on the judgment of the Supreme Court in Union of India & Ors. v. K.V. Jankiraman & Ors. wherein it was held that mere pendency of criminal case cannot be

taken as a ground to delay the promotion to the petitioner nor the competent authority can withhold the recommendation of the petitioner indefinitely by adopting the sealed cover procedure during the pendency of criminal proceedings.

Accordingly, the Court allowed the petition directing the respondent authorities to grant promotion to the petitioner to the respective posts from the date on which his immediate juniors got promotion. However, the Court clarified that if the petitioner is found guilty after the conclusion of the pending criminal trial, he shall be downgraded in the service hierarchy.

Case Title: Nihar Ranjan Choudhury v. State of Odisha & Anr.

Case No.: W.P.(C) No. 21793 of 2021

Date of Judgment: November 06, 2023

Counsel for the Petitioner: Mr. S.K. Das, Mr. P.K. Behera & Mr. N. Jena, Advocates

Counsel for the State: Mr. A.K. Nanda, Addl. Government Advocate

Citation: 2023 LiveLaw (Ori) 113

Click Here To Read/Download Order