2017 (10) TMI 864 - HC - Customs

Smuggling - opening of the Sealed cover - During this period, the Department of Revenue Intelligence (DRI) found some undeclared material, concealed behind cartons of papers in a consignment - whether, there was any obligation cast on the Petitioners to open the sealed cover immediately after 24th June, 2015, in view of the admitted position that no clean chit had been given to the Respondent on the said date, meaning thereby that he had not been exonerated? - Held that - The undisputed position which emerges from the record is that the Respondent was initially placed under suspension on 4th October, 2013. His suspension was extended from time to time as per provisions of Rule 10 of the CCS (CCA) Rules. A DPC was convened on 17th June, 2015 on which date the case of the Respondent was kept in a sealed cover. It is also an undisputed fact that the Respondent s suspension was revoked on 24th June, 2015 i.e. prior to the date when his juniors were promoted, vide order dated 30th June, 2015. The petitioner was neither under suspension, nor any kind of chargesheet had been issued to the Respondent on the date of promotion of his juniors. It is an undisputed fact that, till date, the respondent has actually not been promoted. Another undisputed fact is that one of the circumstances mentioned in para 2 of the OM dated 14th September, 1992, has arisen on 24th October, 2016 by way of issuance of a chargesheet to him. Consequently, disciplinary proceedings against the respondent are underway. We find that there is a specific bar in the OM, which envisages that in such circumstances, where any of the situations mentioned in para 2 arises before the actual promotion of the government servant, he will not be promoted until he is completely exonerated of the charges against him. We are, thus, of the considered view that the claim of the respondent for opening the sealed cover or giving effect to the recommendations of the DPC is not at all sustainable. The respondent, who was under the cloud even when his suspension was revoked, as the matter was pending consideration with the CVC, would stand rewarded, notwithstanding the fact that a chargesheet has been issued to him some time thereafter, for which he is admittedly facing a departmental inquiry. Neither the OMs dated 14th September, 1992 and 2nd November, 2012 nor the decisions of the Supreme Court, relied upon by the Respondent, supports his claim for opening of sealed cover at this stage. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Legitimacy of the Tribunal’s directive to open the sealed cover containing the DPC recommendations.
2. Justification for the Respondent’s promotion despite ongoing or pending disciplinary proceedings.
3. Applicability of DOPT’s Office Memoranda and Supreme Court precedents to the case.

Detailed Analysis:

1. Legitimacy of the Tribunal’s Directive to Open the Sealed Cover:
The Petitioner-Union of India challenged the Tribunal’s order directing the opening of the “sealed cover” containing the recommendations of the Departmental Promotion Committee (DPC) held on 17th June 2015. The Tribunal had directed that if the Respondent was found fit, he should be promoted with all consequential benefits. The Tribunal relied on the Supreme Court’s decision in Union of India & Anr. Vs. Anil Kumar Sarkar, emphasizing that on the date of his juniors’ promotion, the Respondent was neither under suspension nor facing any charges.

2. Justification for the Respondent’s Promotion:
The Respondent, a Deputy Commissioner of Customs, was under suspension due to suspected involvement in the clearance of undeclared material. His suspension was revoked on 24th June 2015, as no charge-sheet had been issued within the stipulated time. The Respondent argued that since no disciplinary or criminal proceedings were pending against him, his promotion should not be withheld. The Petitioner, however, contended that serious charges were still under consideration by the CVC, and a charge-sheet was eventually issued on 24th October 2016. The Petitioner argued that promoting the Respondent during an ongoing departmental inquiry would be inappropriate.

3. Applicability of DOPT’s Office Memoranda and Supreme Court Precedents:
The Tribunal’s decision was based on the DOPT’s OM dated 14th September 1992, which outlines the conditions under which a sealed cover procedure is adopted. The Petitioner argued that the OM stipulates that the sealed cover can only be opened upon exoneration or dropping of charges. The Petitioner also cited the Supreme Court’s decision in Union of India Vs. R.S. Sharma, which supports the non-promotion of a government servant until complete exoneration. Conversely, the Respondent relied on the OM dated 2nd November 2012, which states that no promotion can be withheld merely on suspicion or preliminary investigation.

Judgment Analysis:
The Court noted that the Respondent’s suspension was rightly placed under sealed cover during the DPC meeting on 17th June 2015. However, the critical issue was whether the sealed cover should be opened immediately after the suspension was revoked. The Court held that the OM dated 14th September 1992 clearly states that if any of the conditions (suspension, charge-sheet, or criminal prosecution) arise before the actual promotion, the sealed cover should not be opened until complete exoneration. Since a charge-sheet was issued on 24th October 2016, the Respondent’s case fell under this category.

The Court found that the Tribunal had erred in its reliance on the Supreme Court’s decision in Union of India Vs. Anil Kumar Sarkar, as the facts of the present case were different. In Sarkar’s case, no disciplinary proceedings were pending on the relevant dates, whereas, in the present case, the Respondent was under a cloud of suspicion, and a charge-sheet was eventually issued.

The Court emphasized that a decision is only an authority for what it actually decides and should not be applied without considering the factual context. The Court also noted that rewarding the Respondent with a promotion despite serious charges and an ongoing inquiry would be inappropriate.

Conclusion:
The Court set aside the Tribunal’s order dated 5th April 2016, deeming it unsustainable. The writ petition was allowed, and the Respondent’s claim for opening the sealed cover was rejected, reaffirming the principles outlined in the DOPT’s Office Memoranda and relevant Supreme Court decisions.