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TMI Blog2013 (7) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Civil Appeal No.2537 of 2013 - - - Dated:- 15-3-2013 - P Sathasivam And Jagdish Singh Khehar, JJ. For the Appellant : Mr. Mohan Jain, ASG Mr. D.K. Thakur, Adv. Ms. Sadhana Sandhu, Adv. Ms. Rashmi Malhotra, Adv. Ms. Manmeet Kaur, Adv. Mr. S.N. Terdal, Adv. Mr. Arvind Kumar Sharma, Adv For the Respondent : Mr. Rakesh Kumar Singh, Adv. Mr. Prem Prakash, Adv. JUDGEMENT: Per: P Sathasivam: 1) Delay condoned. 2) Leave granted. 3) This appeal is directed against the judgment and order dated 27.04.2010 passed by the Gauhati High Court at Gauhati in Writ Petition (C) No. 744 of 2010 whereby the Division Bench of the High Court allowed the writ petition filed by the respondent herein and set aside the order dated 21.08.2009 passed by the Central Administrative Tribunal, Gauhati Bench, Gauhati in O.A. No. 251 of 2007. 4) Brief facts a) Anil Kumar Sarkar, the respondent herein, joined the Northern Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... romotion which were duly rejected. Challenging the non-consideration of his case for promotion, the respondent filed O.A. No. 251 of 2007 before the Central Administrative Tribunal, Gauhati Bench for a direction to the appellants herein to promote him to Group A (Jr. Scale) of IRAS w.e.f. 05.03.2002 in terms of the recommendations of the DPC held on 26.02.2002 and 27.02.2002 wherein his name was figured in the extended panel list. Vide order dated 21.08.2009, the Tribunal dismissed his application. e) Challenging the order of the Tribunal, the respondent herein filed a petition being W.P.(C) No. 744 of 2010 before the Gauhati High Court. The High Court, by impugned order dated 27.04.2010, allowed the petition and set aside the order passed by the Tribunal and directed the appellants herein to issue appropriate order in favour of the respondent herein for promotion with all consequential benefits. f) Challenging the said order, the Union of India has filed this appeal by way of special leave. 5) Heard Mr. Mohan Jain, learned Additional Solicitor General for the Union of India and Mr. Rakesh Kumar Singh, learned counsel for the respondent. Contentions: 6) Mr. Mohan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cases of Govt. to whom sealed cover procedure will be applicable. 2. At the time of consideration of the cases of Govt. servants for empanelment details of Govt. servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:- (i) Government Servants under suspension; (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; (iii) Government servants in respect of whom prosecution for a criminal charge is pending. Sealed cover procedure applicable to officers coming under cloudholding of DPC but before promotion. .. . 7. A Govt. servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a Sealed Cover by the DPC. He shall not be promoted until the conclusion of disciplinary case/crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s facing prosecution for a criminal charge and the said proceedings are pending. As rightly observed by the High Court, if the above conditions are available, even one of them, then the DPC has to apply the sealed cover process . In the case on hand, it is not in dispute that the relevant date is 21.04.2003, when the respondent s batch mates were promoted, admittedly on that date the respondent was not under suspension, no charge sheet was served upon him nor he was facing any criminal prosecution. In such circumstances, in terms of paragraph 2 referred to above, the recommendation of the DPC has to be honored and there is no question of applying sealed cover process . 12) Mr. Mohan Jain, learned ASG submitted that paragraph 2 has to be read along with paragraph 7 of the office memorandum dated 14.09.1992. We have already extracted paragraph 7 of the memorandum which makes it clear that a government servant, who is recommended for promotion by the DPC if any of the circumstances mentioned in para 2 of the said memorandum arises after the recommendations of the DPC are received, but before he is actually promoted will be considered as if his case has been placed in a sealed cove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, 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 chargesheet 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 charge-memo/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 appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue chargememo/ 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposition that the disciplinary proceedings commence only when a charge-sheet is issued to the delinquent employee. (Vide Union of India v. K.V. Jankiraman, (1991) 4 SCC 109 and UCO Bank v. Rajinder Lal Capoor, (2007) 6 SCC 694) We also reiterate that the 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. 16) Learned ASG, by drawing our attention to the decision of this Court in Union of India and Another vs. R.S. Sharma, (2000) 4 SCC 394 submitted that in spite of decision of this Court in Jankiraman s case (supra) in view of para 7 of the office memorandum and in the light of the fact that proceedings were initiated both criminal and departmentally, the High Court committed an error by overlooking para 7 of sealed cover process and contended that the direction issued by it cannot be sustained. We have carefully gone through the factual position and the ultimate ratio laid down by this Court in R.S. Sharma s case (supra). Even though in the said decision, this Court has distinguished the decision in Jankiraman s case (supra) and held that the same is not applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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