Delhi Development Authority Vs. H.C. Khurana
[1993] INSC 197 (7
April 1993)
Verma,
Jagdish Saran (J) Verma, Jagdish Saran (J) Singh N.P. (J)
CITATION:
1993 AIR 1488 1993 SCR (2)1033 1993 SCC (3) 196 JT 1993 (2) 695 1993 SCALE
(2)464
ACT:
Civil
Services.
Civil
servant--Promotion--O.M. Nos.--Dated January 12, 1988 and September 14,
1992--Rationale behind OMs explained--'Sealed cover procedure'--Applicability
to government servants--Whether actual service of charge sheet necessary.
Words
and phrases--'Issue of Charge sheet '--Meaning of.
HEAD NOTE:
The
respondent who was employed as an Executive Engineer in the DDA-appellant was
served on 6.11.85 a preliminary memo alleging irregularities committed by him
in the construction works, and that they were being investigated. On 11.7.90 a charge
sheet was framed on the basis of these irregularities, and on 13.7.90 the charge
sheet was despatched for being served on him. The respondent, however,
proceeded on two months medical leave and, therefore, on 17.7.90 another
Executive Engineer workIng in the same Wing as the respondent, received It and
gave intimation that the respondent was on leave and adding the same would be
handed over to the respondent on his return from leave.
A
Departmental Promotion Committee met on 28.11.90, and in view of the earlier
decision to Initiate disciplinary proceedings against the respondent, It
followed the 'sealed cover procedure' in the case of the respondent.
Efforts
to effect personal service of the charge sheet on the respondent on account of
his non-availability continued and the same could be served personally on him
only on 25.1.91.
As a
result of the selection made by the D.P.C. certain persons were promoted to the
post of Superintending Engineer, while the respondent's matter was kept In
abeyance to await the result of the disciplinary proceedings.
The
respondent riled a writ petition In the High Court for a writ of 1034 mandamus
directing the. DDA to promote him as Superintending Engineer with effect from
the date on which his juniors had been promoted to the said post on the basis
of the selection by the D.P.C.
The
High Court allowed the writ petition relying on Union of India and Others v. K
V. Jankiraman and Others, [1991] 4 SCC 109, and taking the view that the framing
of charge would carry with it the duty to issue and serve the same on the
employee, that there was no justification for the DDA to follow the sealed
cover procedure in this case on 28.11.91 when the Departmental Promotion
Committee met since actual service of the charge sheet was made only after the
date on which the D.P.C. met. Accordingly, the High Court directed the DDA to
open the sealed cover, and to promote the respondent as Superintending Engineer
if otherwise found suitable by the D.P.C., and to give him seniority and all
consequential benefits from the date on which his juniors were so promoted.
The
DDA-appellant challenged the aforesaid, decision by special leave in this
Court, and contended that fankiraman cannot be read to hold, in a case like the
present one where the disciplinary proceedings have been initiated by framing
the charge sheet and despatching the same that the charge sheet had not been
issued and, therefore, the sealed cover procedure could not be followed by the
D.P.C. on 28.11.90. On behalf of the respondent official it was urged that Jankiraman
holds that without effective service of the charge sheet on the employee the
disciplinary proceedings cannot be said to have been initiated, and reliance
was also placed on the Office Memorandum dated 12.1.88 which required actual
service and not mere issuance of the charge sheet for initiating the
disciplinary proceedings.
Allowing
the appeal, and setting aside the judgment of the High Court, this Court,
HELD :
1. The 'sealed cover' procedure is applicable, in cases where the 'disciplinary
proceedings are pending' in respect of the government servant; or 'a decision
has been taken to initiate disciplinary proceedings'. Thug, on a decision being
taken to initiate disciplinary proceedings, the guidelines contained in OMs
dated 14.9.92 and 12.1.88 attract the sealed cover procedure. [1040-D]
2. The
decision to initiate disciplinary proceedings cannot be sub- 1035 sequent to
the issuance of the charge sheet , since issue of the charge sheet is a
consequence of the decision to initiate disciplinary proceedings. The service
of the charge sheet on the government servant follows the decision to initiate
disciplinary proceedings, and it does not precede or coincide with that
decision. The delay, if any, if service of the charge sheet to the government
servant, after it has been framed and despatched, does not have the effect of
delaying initiation of the disciplinary proceedings, inas- much as information
to the government servant of the charges framed against him, by service of the charge
sheet , is not a part of the decision making process of the authorities for
initiating the disciplinary proceedings. [1041 B-D] 3.The plain meaning of the
expression 'a decision has been taken to initiate disciplinary proceedings'
used in clause (ii) of para 2 of O.M. dated 12.1.88, also promotes the object
of the provision. The expression refers merely to the decision of the
authority, and knowledge of the government servant, thereof, does not form a part
of that decision. The change made in clause (ii) of para 2 in O.M.
dated
14.9.92, merely clarifies this position by using the expression 'charge sheet has
been issued' to indicate that service of charge sheet is not necessary; and
issue of the charge sheet by its despatch indicates beyond doubt that the
decision to initiate disciplinary proceedings was taken.
Jankiraman
takes the same view, and it is not possible to read that decision otherwise.
[1041 E-F] 4. The decision in Janiraman is based, interalia, on O.M. dated 12/1/88. The facts of the cases dealt with in the decision
in Jankiraman do not indicate that the court took the view, that even though
the charge sheet against the government servant was framed and direction given
to despatch the same to the government servant as a result of the decision to
initiate disciplinary proceedings taken prior to the meeting of the D.P.C.,
that was not sufficient to attract the sealed cover procedure merely because
service of the charge sheet was effected subsequent to the meeting of the
D.P.C. [1041-H, 1042-A]
5.
'Issue' of the charge sheet in the context of a decision taken to initiate the
disciplinary proceedings must mean, as it does, the framing of the charge sheet
and taking of the necessary action to despatch the charge sheet to the
employee to inform him of the charges framed against him requiring his
explanation; and not also the further fact of service of the 1036 charge sheet on
the employee. It is so, because knowledge to the employee of the charges framed
against him, on the basis of the decision taken to initiate disciplinary
proceedings, does not form a part of the decision making process of the
authorities to initiate the disciplinary proceedings, even if framing the
charges forms a part of that process in certain situations. [1043 E-F]
6. The
meaning of the word 'issued' has to be gathered from the context in which it is
used. The issue of a charge sheet , therefore, means its despatch to the
government servant, and this act is complete the moment steps are taken for the
purpose, by framing the charge sheet and despatching it to the government
servant, the further fact of its actual service on the government 'servant not
being a necessary part of its requirement. This is the sense in which the word
'issue' was used in the expression 'charge sheet has already been issued to
the employees', in para 17 of the decision in Janakiraman. [1044 B-C]
7. The
decision to initiate the disciplinary proceedings against the respondent had
been taken and charge sheet had also been issued to the respondent prior to
28.11.90 when the D.P.C. adopted the sealed cover procedure. It cannot be held
otherwise merely because service of the charge sheet framed and issued earlier
could be effected on the respondent after 28.11.90, on account of the absence
of the respondent. [1044-D] Union of India and Others v. K.V Jankiraman and
Others, [1991] 4 SCC 109, referred to and relied on. [1037-G]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1240 of 1993.
From
the Judgment and Order dated 27.2.1992 of the Delhi High Court in C.W.P. No.
877 of 1991.
Arun Jaitley,
Ms. Ayesha Khatri and Ms. Indu Malhotra (NP) for the Appellant.
P.P. Khurana
and Arun K. Sinha for the Respondent.
The
Judgment of the Court was delivered by VERMA, J. The respondent, H.C. Khurana,
was employed as Execu 1037 tive Engineer in the Delhi Development Authority
(D.D.A.). A preliminary memo was served on the respondent on 6.11.1985,
alleging some irregularities by him in the construction works, and they were
being investigated. A charge sheet was framed on 11.7.1990 against the
respondent on the basis of irregularities in the constructions made in a
housing colony. On 13.7.1990, the charge sheet was despatched for being served
on the respondent. However, the respondent proceeded on two months' medical
leave and, therefore, on 17.7.1990 another Executive Engineer R.K. Sood,
working in the same Wing as the respondent, received it and gave the intimation
that the respondent was on leave, adding that the same would be handed over to
the respondent on his return from leave. On 28.11.1990, the Departmental
Promotion Committee (D.P.C.) met, and in view of the earlier-decision to
initiate disciplinary proceedings against the respondent, it followed the 'sealed
cover procedure' in the case of respondent. It appears, that the effort to
effect personal service of the charge sheet on the respondent on account of
his non-availability continued, and the same could be served personally on the
respondent only on 25.1.1991. As a result of the selection made by the D.P.C.,
certain persons were promoted to the post of Superintending Engineer, while the
respondent's matter was kept in obeyance to await the outcome of the
disciplinary proceedings.
In
these circumstances, the respondent filed Writ Petition No. 877 of 1991 in the
Delhi High Court claiming a mandamus directing the D.D.A. to promote him as
Superintending Engineer with effect from the date on which his juniors had been
promoted to the post of Superintending Engineer, on the basis of selection made
by the D.P.C. The High Court has allowed that writ petition taking the view,
that 'the framing of charge would carry with it the duty to issue and serve the
same on the employee, there was no justification for the respondent to follow
the sealed cover procedure in this case on 28.11.1991 when the Departmental
Promotion Committee met', since actual service of the charge sheet on the
respondent was made only after the date on which the D.P.C. met. According to
the High Court, issuance of the charge sheet to the employee means its actual
service on him, and this should be complete before following the sealed cover
procedure. The High Court has read Union of India and Others v.K.V Jankiraman
and Others, [1991] 4 SCC 109, to this effect, for taking the view, that on
these facts, the disciplinary proceedings cannot be said to have been initiated
prior to 29.11.1990, when the D.P.C. followed the sealed cover procedure.
Accordingly, the High Court has directed the D.D.A. to 1038 open the sealed
cover; to promote the respondent as Superintending Engineer, if he has been
otherwise found suitable by the D.P.C.; and, in that event, lo give him
seniority with all consequential benefits from the date on which his juniors
were so promoted. The judgment of the High Court is challenged by special
leave, in this appeal.
The
short question for consideration, is: Whether, in the present case, the High
Court has correctly applied the decision in Jankiraman? Learned counsel for the
appellant contended that Jankiraman cannot be read to hold, in a case like the
present, where the disciplinary proceedings had been initiated by framing the charge
sheet and despatching the same, that the charge sheet had not been issued;
and, therefore, the 'sealed cover procedure' could not be followed by the
D.P.C. on 28.11.1990. On the other hand, learned counsel for the respondent
strenuously urged that Jankiraman holds that without effective service of the charge
sheet on the employee, the disciplinary proceedings cannot be said to have
been initiated against him. Learned counsel for the respondent referred to the
Office Memorandum No. 22O `11/4/91-Estt. (A) dated 14.9.1992 of the Department
of Personnel & Training, Ministry of Personnel, Public Grievances and
Pensions, Government of India, issued in supersession of the earlier. Office
Memorandum No. 220 11/2/86- Estt. (A) dated 12.1.1988,
consequent upon the judgment in Jankiraman, to support his submission that even
though mere issuance or despatch of a charge sheet without the further
requirement of its actual service on the employee would now be sufficient
according to the O.M. dated 14.9.1992 for following the sealed cover procedure,
yet the same was not sufficient earlier according to the O.M. dated 12.1.1988,
which required actual service and not mere issuance of the charge sheet for
initiating the disciplinary proceedings. Admittedly, the guidelines in the O.M.
dated 12.1.1988 were in force, in the present case. The subject of the two
memoranda, containing the guidelines, is the same, as under:
"Promotion
of Government servants against whom disciplinary/court proceedings are pending
or whose Conduct is under investigation Procedure and guidelines to be
followed" (emphasis supplied) 1039 Para 2 is the relevant portion in these
memoranda. In 0.M. dated 12.1.1988, para 2 is as under :- "Cases of
Government Servants,-to whom Sealed Cover Procedure will be applicable.
2.At
the time of consideration of the cases of Government servants for promotion,
details of Government 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 disciplinary proceedings are pending or a decision
has been taken to initiate disciplinary proceedings;
(iii)Government
servants in respect of whom prosecution for a criminal charge is pending or
sanction for prosecution has been issued or a decision has been taken to accord
sanction for prosecution.
(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) The
substituted clause (ii) in para 2, in O.M. dated 149.1992, is as under :-
"(ii) Government servants in respect of whom a Charge sheet has been
issued and the disciplinary proceedings are pending; and" (emphasis
supplied) It is the change made in clause (ii) of para 2 in the O.M. dated
14.9.1992, from which learned counsel for the respondent tried to find 1040
support for his submission.
Before
we refer to Jankiraman, we may advert to clause (ii) of para 2 of O.M. dated
12.1.1988 which was the guideline applicable at the material time, in the
present case, and is as under :- "(a) Government servants in respect of
whom disciplinary proceedings are pending or a decision has been taken to
initiate disciplinary proceedings," (emphasis supplied) These words
clearly indicate that the sealed cover procedure was applicable, in cases where
the 'disciplinary proceedings are pending' in respect of the government
servant; or a decision has been taken to initiate disciplinary proceedings'.
Thus, on a decision being taken to initiate disciplinary proceedings, the
guidelines attract the sealed cover procedure. The reason is obvious. Where a
decision has been taken to initiate the disciplinary proceedings against a
government servant, his promotion, even if he is found otherwise suitable,
would be incongruous, because a government servant under such a cloud should
not be promoted till he is cleared of the allegations against him, into which
an inquiry has to be made according to the decision taken. In such a situation,
the correctness of the allegation being dependent on the final outcome of the
disciplinary proceedings, it would not be fair to exclude him from
consideration for promotion till conclusion of the disciplinary proceedings,
even though it would be improper to promote him, if found otherwise suitable,
unless exonerated. To reconcile these conflicting interests, of the government
servant and public administration, the only fair and just course is, to
consider his case for promotion and to determine if he is otherwise suitable
for promotion, and keep the result in abeyance in sealed cover to be
implemented on conclusion of the disciplinary proceedings; and in case he is
exonerated therein, to promote him with all consequential benefits, if found
otherwise suitable by the Selection Committee. On the other hand, giving him
promotion after taking the decision to initiate disciplinary proceedings, would
be incongruous and against public policy and principles of good administration.
This is the rationale behind the guideline to follow the sealed cover procedure
in such cases, to prevent the possibility of any injustice or arbitrariness.
1041
The question now, is: What is the stage, when it can be said, that 'a decision
has been taken to initiate disciplinary proceedings'? We have no doubt that the
decision to initiate disciplinary proceedings cannot be subsequent to the
issuance of the charge sheet , since issue of the charge sheet is a
consequence of the decision to initiate disciplinary proceedings. Framing the charge
sheet , is the first step taken for holding the enquiry into the allegations,
on the decision taken to initiate disciplinary proceedings. The charge sheet is
framed on the basis of the allegations made against the government servant; the
charge sheet is then served on him to enable him to give his explanation; if
the explanation is satisfactory, the proceedings are closed, otherwise, an
enquiry is held into the charges-, if the charges are not proved, the proceedings
are closed and the government servant exonerated; but if the charges are
proved, the penalty follows. Thus, the service of the charge sheet on the
government servant follows the decision to initiate disciplinary proceedings,
and it does not precede or coincide with that decision. The delay, if any, in
service of the charge sheet to the government servant, after it has been framed
and despatched, does not have the effect of delaying initiation of the
disciplinary proceedings, inasmuch as information to the government servant of
the charges framed against him, by service of the charge sheet , is not a part
of the decision making process of the authorities for initiating the
disciplinary proceedings.
This
plain meaning of the expression used in clause (ii) of para 2 of O.M. dated
12.1.1988, also promotes the object of the provision. The expression refers
merely to the decision of the authority, and knowledge of the government
servant, thereof, does not form a part of that decision. The change made in clause
(ii) of para 2 in O.M. dated 14.9.1992, merely clarifies this position by using
the expression 'charge sheet has been issued' to indicate that service of charge
sheet is not necessary; and issue of the charge sheet by its despatch
indicates beyond doubt that the decision to initiate disciplinary proceedings
was taken. In our opinion, Jankiraman takes the same view, and it is not
possible to read that decision otherwise, in the manner suggested by learned
counsel for the respondent.
The
decision in Jankiraman is based, inter alia, on O.M. dated 12.1.1988. The facts
of the cases dealt with in the decision in Jankiraman do not indicate that the
Court took the view, that even though the charge sheet against the government
servant was framed and direction given to despatch the same to the government
servant as a result of the decision to 1042 initiate disciplinary proceedings
taken prior to the meeting of the D.P.C., that was not sufficient to attract
the sealed cover procedure merely because service of the charge sheet was
effected subsequent to the meeting of the D.P.C.
Moreover,
in Jankiraman itself, it was stated thus :
"14.
To bring the record up to date, it may be pointed out that in view of the
decision of this Court in Union of India v. Tejinder Singh, [1991] 4 SCC 129,
decided on September 26, 1986, the Government of India in the Deptt. of
Personnel and Training issued another Office Memorandum No.22011/2/86. Estt.
(A) dated
January 12, 1988 in supersession of all the earlier
instructions on the subject including the Office Memorandum dated January 30,1982..... A further guideline contained
in this Memorandum is that the same sealed cover procedure is to be applied
where a government servant is recommended for promotion by the DPC, but before
he is actually promoted, he is either placed under suspension or disciplinary
proceedings are taken against him or a decision has been taken to initiate the
proceedings or criminal prosecution is launched or sanction for such
prosecution has been issued or decision to accord such sanction is taken.
10.These
differences in the two Memoranda have no bearing on the questions to be
answered." (emphasis supplied) (PP. 117-118) Thereafter, in Jankiraman,
the conclusions of the Full Bench of the Tribunal, under consideration, were
quoted, and then while restating that the conclusions of the Tribunal could be
reconciled, it was further stated, thus:
'17.
There is no doubt that there is a seeming contradiction between the two
conclusions. But read harmoniously, and that is what the Full Bench has
intended, the two conclusions can be reconciled with each other. The conclusion
No.1 should be read to mean that the promotion etc. cannot be withheld merely
because some disciplinary/criminal proceedings are pending against the
employee. To, deny the said benefit, they must be at the relevant time pending
at the stage when charge-memolcharge- sheet has 1043 already been issued to the
employee. Thus read, there is no inconsistency in the two conclusions.' (emphasis
supplied) PP. 119) It will be seen that in Jankiraman also, emphasis is on the
stage when a decision has been taken to initiate the disciplinary proceedings'
and it was further said that 'to deny the said benefit (of promotion), they
must be at the relevant time pending at the stage when charge-memo/charge-
sheet has already been issued to the employee'. The word 'issued' used in this
context in Jankiraman it is urged by learned counsel for the respondent, means
service on the employee. We are unable to read Jankiraman in 'this manner.
The
context in which the word 'issued' has been used, merely means that the
decision to initiate disciplinary proceedings is taken and translated into
action by despatch of the charge sheet leaving no doubt that the decision had
been taken. The contrary view would defeat the object by enabling the
government servant, if so inclined, to evade service and thereby frustrate the
decision and get promotion in spite of that decision. Obviously, the contrary
view cannot be taken.
'Issue'
of the charge sheet in the context of a decision taken to initiate the
disciplinary proceedings must mean, as it does, the framing of the charge sheet
and taking of the necessary action to despatch the charge sheet to the
employee to inform him of the charges framed against him requiring his
explanation; and not also the further fact of service of the charge sheet on
the employee. It is so, because knowledge to the employee of the charges framed
against him, on the basis of the decision taken to initiate disciplinary
proceedings, does not form a part of the decision making process of the
authorities to initiate the disciplinary proceedings, even if framing the
charges forms a part of that process in certain situations. The conclusions of
the Tribunal quoted at the end of para 16 of the decision in Jankiraman which
have been accepted thereafter in para 17 in the manner indicated above, do use
the word 'served' in conclusion No.(4), but the fact of 'issue' of the charge
sheet to the employee is emphasised in para 17 of the decision. Conclusion No.(4)
of the Tribunal has to be deemed to be accepted in Jankiraman only in this
manner.
The
meaning of the word 'issued', on which considerable stress was laid by learned
counsel for the respondent, has to be gathered from the 1044 context in which
it is used. Meanings of the 'word issue' given in the Shorter Oxford English
Dictionary include 'to give exit to; to send forth, or allow to pass out; to
let out; .... to give or send out authoritatively or officially; to send forth
or deal out formally or publicly-, to emit, put into circulation'. The issue of
a charge sheet , therefore, means its despatch to the government servant, and
this act is complete the moment steps are taken for the purpose, by framing the
charge sheet and despatching it to the government servant, the further fact of
its actual service on the government servant not being a necessary part of its
requirement. This is the sense in which the word 'issue' was used in the
expression 'charge sheet has already been issued to the employee', in para 17
of the decision in Jankiraman.
In
view of the above, we are unable to accept the respondent's contention, which
found favour with the High Court, that the decision in Jankiramnan, on the
facts in the present case, supports the view that the decision to initate the
disciplinary proceedings had not been taken or the charge sheet had not been
issued to the respondent prior to 28.11.1990, when the D.P.C. adopted the
sealed cover procedure, merely because service of the charge sheet framed and
issued earlier could be effected on the respondent after 28.11.1990, on account
of his absence.
Consequently,
the appeal is allowed and the judgment of the High Court is set aside, with the
result that the writ petition of the respondent stands dismissed. No costs.
N.V.K.
Appeal allowed.
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