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TMI Blog2024 (9) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax in December 1991, July 2001, and November 2001, respectively. On 31st December, 2001, an FIR was registered against the respondent for the offences punishable under Section 120B of the Indian Penal Code, 1860, and Sections 13(1) and 13(1)(d) of the Prevention of Corruption Act, 1988, alleging inter alia that the respondent, while working as the Special Secretary(Finance), Government of Arunachal Pradesh acted in conspiracy with other officers and committed criminal misconduct by abusing his position as a public servant. A sanction dated 2nd June, 2006, was accorded by the CBDT (Department of Revenue, Ministry of Finance, Government of India) for the prosecution of the respondent in respect of the aforesaid allegations before the concerned Court. 4. Thereafter, on 22nd February, 2007, the Departmental Promotion Committee (hereinafter being referred to as 'DPC') was convened to consider the promotion of Additional Commissioner of Income Tax to the post of Commissioner of Income Tax. Since the respondent had attained eligibility for promotion to the post of Commissioner of Income Tax, his case was also considered for promotion by the DPC. However, the vigilance certificate of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on behalf of the appellants drew the Court's attention towards the Office Memorandum (in short 'OM') dated 14th September, 1992 dealing with the 'Promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation-Procedure and guidelines to be followed'. The extract of the OM dated 14th September, 1992 relied upon by the learned counsel for the appellants is reproduced below:- "2. At the time of consideration of the cases of Government servant for promotion, details of Government servant in the consideration zone for promotion falling under the following category 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; and iii) Government servants in respect of whom prosecution for criminal charge is pending. 2.1 The Departmental Promotion Committee shall assess the suitability of Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made." 13. He further submitted that in a criminal prosecution, the sanction for prosecution whether under Section 197 of Code of Criminal Procedure, 1973 or Section 19 of the Prevention of Corruption Act, 1988 is an event of utmost importance relating to the criminal charge as the sanction is accorded by the concerned authority on the basis of contents of FIR and the entire material collected during the course of investigation. He thus urged that once the sanction is granted, the prosecution for criminal charge can be said to be pending. 14. He concluded his submissions by urging that the department was justified in invoking the sealed cover procedure while considering the case of the respondent for promotion, since, the FIR was lodged on 31st December, 2001 and sanction was granted on 2nd June, 2006, whereas, the DPC was convened in the month of February 2007, which is well after the lodging of FIR and grant of sanction, thus, the case of respondent falls under clause(iii) of Para No.2 i.e. 'Government servants in respect of whom prosecution for the criminal charge was pending' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iv) Government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by the CBI or any other agency, departmental or otherwise." ( emphasis supplied ) He thus urged that the Central Government, while framing the OM dated 14th September, 1992, specifically and consciously deleted the requirement of a sealed cover procedure in respect of Government servants against whom the sanction for prosecution is granted as was mentioned in the second part of clause(iii) of Para 2 of the earlier OM of 1988. He contended that by mere grant of sanction, the prosecution for a criminal charge could not be said to be pending against a government servant. 18. On these grounds, he urged that the impugned judgment doesn't suffer from any infirmity and implored the court to dismiss the appeal. 19. We have given our thoughtful consideration to the submissions advanced at bar and have perused the impugned judgments. With the assistance of learned counsel for the parties, we have thoroughly examined the material available on record. Discussion and Conclusion: - 20. The core issue for consideration before this Court is: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/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 far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/chargesheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy." ( emphasis supplied ) 23. At this stage, it is pertinent to note that the Minist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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