2013 (7) TMI 587 - SC - Indian Laws

Sealed cover process eligibility for promotion - Whether the respondent was eligible for promotion gross misconduct in the matter of checking and passing the bills of various firms involved in manufacturing and supplying of cast iron sleeper plates was alleged - tribunal dismissed the application High court decided in favour of respondent - On the relevant date the respondent s batch mates were promoted - on that date the respondent was not under suspension - no charge sheet was served upon him nor he was facing any criminal prosecution Held that - Disciplinary proceedings commence only when a charge-sheet is issued to the delinquent employee the recommendation of the DPC has to be honored and there is no question of applying sealed cover process as decided in Union of India and Others vs. K.V. Jankiraman and Others(1991 (8) TMI 292 - SUPREME COURT) - the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over - disciplinary proceedings commence only when a charge sheet is issued - Departmental proceeding is normally said to be initiated only when a charge sheet is issued court agreed with the decision of the High Court decided against the appellant.

Issues Involved:
1. Delay in promotion due to pending disciplinary and criminal proceedings.
2. Applicability and interpretation of the Office Memorandum dated 14.09.1992.
3. Validity of the 'sealed cover procedure' in the context of pending proceedings.
4. Legal precedents relevant to the initiation of disciplinary proceedings.

Detailed Analysis:

1. Delay in Promotion Due to Pending Disciplinary and Criminal Proceedings:
The respondent, Anil Kumar Sarkar, joined Northern Railways as a Junior Clerk and was subsequently promoted to various posts. While working as Senior AFA/T-1, his name was considered for promotion to Group 'A' (Jr. Scale) of IRAS. However, allegations of gross misconduct led to the issuance of four memoranda of charges and the initiation of departmental proceedings. Additionally, the CBI lodged 11 FIRs against him under IPC and the Prevention of Corruption Act, which were later amalgamated into three cases. These proceedings were cited as reasons for not promoting him, despite his inclusion in the extended select panel by the DPC.

2. Applicability and Interpretation of the Office Memorandum Dated 14.09.1992:
The Office Memorandum No. 22011/4/91-Estt(A) outlines the procedure for promoting government servants under disciplinary or court proceedings. Paragraphs 2 and 7 are particularly relevant. Paragraph 2 specifies that the DPC must consider if a government servant is under suspension, has been served a charge sheet with pending disciplinary proceedings, or is facing prosecution for a criminal charge. Paragraph 7 states that if any of these conditions arise after the DPC's recommendation but before actual promotion, the 'sealed cover procedure' applies, delaying the promotion until the conclusion of the proceedings.

3. Validity of the 'Sealed Cover Procedure' in the Context of Pending Proceedings:
The High Court found that as of 21.04.2003, when the respondent's batch mates were promoted, none of the conditions in Paragraph 2 were met: the respondent was not under suspension, no charge sheet had been served, and no criminal prosecution was pending. Therefore, the 'sealed cover procedure' was not applicable. The Supreme Court upheld this view, emphasizing that the relevant date for considering these conditions was 21.04.2003, and since none were met, the respondent should have been promoted.

4. Legal Precedents Relevant to the Initiation of Disciplinary Proceedings:
The Supreme Court referenced the case of Union of India vs. K.V. Jankiraman, which clarified that disciplinary or criminal proceedings are considered pending only when a charge memo or charge sheet is issued. Preliminary investigations do not justify the 'sealed cover procedure.' This principle was applied to the respondent's case, as no charge sheet was issued by 21.04.2003. The Court also cited Coal India Limited vs. Saroj Kumar Mishra and Chairman-cum-Managing Director, Coal India Limited vs. Ananta Saha, reinforcing that disciplinary proceedings commence only upon issuing a charge sheet.

Conclusion:
The Supreme Court dismissed the appeal by the Union of India, affirming the High Court's decision. The Court held that the respondent was entitled to promotion as the conditions for the 'sealed cover procedure' were not met by the relevant date. The principles from the Jankiraman case were deemed fully applicable, and the appeal was dismissed with no order as to costs.

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