Union of India Vs. Kewai, Kumar [1993] INSC 211 (12 April 1993)
Verma,
Jagdish Saran (J) Verma, Jagdish Saran (J) Agrawal, S.C. (J)
CITATION:
1993 AIR 1585 1993 SCR (3) 45 1993 SCC (3) 204 JT 1993 (2) 705 1993 SCALE
(2)551
ACT:
Civil
Service: Promotion-Sealed cover- procedure D.P.C- Legality-
HEAD NOTE:
The
D.P.C. met on 23.11.1989 for considering the respondent and some others for
promotion to the Senior Administrative Grade.
In
view of the fact that the decision to initiate disciplinary proceedings against
the respondent for imposition of major penalty was taken by the competent
authority on 20.11. 1989, the D.P. C followed the sealed cover procedure.On the
basis of a F.I.R. registered by the C.B.1. on 30.9.1988, the decision to
initiate disciplinary proceeding was taken by the competent authority on
20.11.1989 though the F.I.R. was received by it on 31.5.1989.The charge sheet
was issued to the respondent on 1.8.1990.
The
respondent challenged before the Central Administrative Tribunal. the-action of
the D.P.C. to follow the sealed cover procedure in his case.
The
Tribunal allowed respondent's application holding that the sealed cover
procedure could not be followed in view of the decision in Union of India and
Others; v. K. V. Jankiraman and Others. [1991] 4 SCC 109.
In
this appeal by special leave the Union of India questioned the decision of the
Tribunal..
Allowing
the appeal, this Court,
HELD:
1.1.
The sealed cover procedure is attracted even when a 'decision has been taken to
initiate disciplinary proceedings' or 46 'decision to accord sanction for
prosecution is taken' or 'criminal prosecution is launched or..........
decision to accord sanction for prosecution is taken'. (48-G)
1.2.
When the competent authority takes the decision to initiate a disciplinary,
proceeding or steps are taken for launching a criminal prosecution against the
government servant, he cannot be given the promotion, unless exonerated, even
it' the government servant is recommended for promotion hi, the D.P.C.. being
found suitable otherwise. (48-H, 49-A)
1.3.
In a case like the present. where the First Information Report was registered
by the Central Bureau of Investigation, and (on that basis the decision had
been taken by the competent authority to initiate disciplinary proceedings for
imposition of major penalty on the respondent prior to the meeting of the
D.P.C., the applicability of the sealed cover procedure cannot he doubted.
(49-B)
1.4
The formulation of the charges required for implementing the decision of the
competent authority to initiate the disciplinary proceedings. is satisfied in
such a case by the recording of the First Information Report by the Central
Bureau of Investigation which records the allegations against the respondent,
and provides the basis for disciplinary proceedings.
The
requisite formulation of the charges, in such a case. is no longer nebulous. being
crystalised in the F.I.R. itself and, therefore. even if the chargesheet was
issued by its despatch to the respondent subsequent to the meeting (if the
D.P.C. this fact alone cannot benefit the respondent. (49-C-1))
1.5.
The question to examine in each case, is: whether, the decision to initiate the
disciplinary proceedings had been taken or steps for criminal prosecution
initiated before the date on which the D.P.C. made the selection? The decision
would depend on the facts of the case. keeping in view the object sought to be
achieved by adopting the sealed cover procedure. (49-E)
1.6.
It would be incongruous to hold that, in a case like the present, where the
C.B.I. had recorded the F.I.R.; sent the same to the superior authorities of
the respondent for taking necessary action 47 and the competent authority had
taken the decision, on the basis of the F.I.R., to initiate disciplinary proceedings
against the respondent for imposition of major penalty, there can be any doubt
that the sealed cover procedure is attracted to avoid promoting the respondent,
unless exonerated of those charges. (49-F)
Union of India and Other v. K. V. Jankiraman and Ors. [1991] 4 SCC 109; Delhi Development Authority v. H. C Khurana.
C.A. No. 1240 of 1993-D/-7.4.1993, referred to. (51-B)
1.7.
Clause (iv) of the office Memorandum No.22011/2/86-Esst (A) dated 12.1.1988
relates to 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. The fact that
the F.I.R. was registered by the C.B.I., and on communication of the same to
the departmental superiors a decision had been taken to initiate disciplinary
proceedings for imposition of a major penalty, against the respondent in the
present case, bring--. this case squarely within the ambit of clause (iv) of
the guidelines, in addition to clause (II), there of. (50C-D)
CIVIL
APPELLATE JURISDICTION Civil Appeal No. 1584 of 1993.
From
the Judgment and Order dated 14.8.1992 of the Central Administrative Tribunal,
Principal Bench, New
Delhi in O.A. No.
2737 of 1991.
V.R.
Reddy, Addl. Solicitor General, R. Sasiprabhu and V.K. Verma (NP) for the
Appellant.
S.K.
Gupta. R.K. Kamal and B.S. Gupta for the Respondent.
The
judgment of the Court was delivered by VERMA, J. : The respondent, kewal Kumar,
was Deputy Chief Electrical Engineer, Northern Railway at New Delhi when the Departmental Promotion
Committee(D.P.C.)met on 23.11.1989 for consid- 48 ering the respondent and some
others for promotion to tile Senior Administrative Grade. The D.P.C. followed
the scaled cover procedure in the case of the respondent, in view of the fact
that the decision to initiate disciplinary proceedings against him for
imposition of major penalty had been taken by the competent authority earlier
on 20.11.1989 The decision to initiate disciplinary proceedings was taken on
the basis of' a First Information Report(F.I.R) registered on 30.9.1988 by tile
Central Bureau of Investigation (C.B.I.) which was received by tile concerned
departmental authorities oil 31.5.1989. Even though tile decision was so taken
oil 20.1 1.1989 on tile basis of 'the F.I.R. made much earlier, the
charge-sheet was actually issued to the respondent on 1.8.1990. The respondent
challenged before the Central Administrative Tribunal.
Principal
Bench. New Delhi the action of the D.P.C. to follow
the sealed cover procedure in his case. The Tribunal has accepted the
respondent's claim and allowed his application holding that the sealed cover
procedure could not he followed in view of the decision in Union of India and
Others v. K.V. Janakiraman and others [1991] 4 SCC 109 The Union of India has
challenged that decision by special leave, in this appeal.
The
question in the present case is whether the decision in Jankiraman was
correctly applied in the present situation" fit Jankiraman itself, it his
been pointed out halt the sealed cover procedure is to he followed where a
government servant is recommended for promotion by the D.P.C. but before lie is
actually promoted if he is either placed under suspension or disciplinary
proceedings are taken against him or a decision has been taken to initiate
proceedings or criminal prosecution is launched or sanction for Such
prosecution has been issued or decision to accord such sanction is taken'. Thus
the sealed cover procedure is attracted even when a decision has been taken to
initiate disciplinary proceedings, or decision to accord sanction for
prosecution is taken or criminal prosecution is launched or......... decision
to accord sanction for prosecution is taken. The object of following the sealed
cover procedure has been indicated recently in the decision in Civil Appeal No.
1240 of 1993Delhi Development Authority, v.. H.C. Khurana-pronounced on April
7. 1993. and need not be reiterated It is obvious that when the competent
authority takes the decision 49 to initiate a disciplinary proceeding or steps
are taken for launching a criminal prosecution against the government servant,
he cannot be given the promotion, unless exonerated, even if the government
servant is recommended for promotion by the D.P.C., being found suitable
otherwise In a case like the present, where the First information Report was
registered by the Central Bureau of Investigation,and on that basis the
decision had been taken by the competent authority to initiate deciplinary
proceedings for imposition of major penalty on the respondent prior to the
meeting of the D.P.C., the applicability of the sealed cover procedure cannot
be doubted. The formulation of the charges required for implementing the
decision of the competent authority to initiate the disciplinary proceedings. is
satisfied in such a case by the recording of the First Information Report by
the Central Bureau of Investigation which records the allegations against the
respondent, and provides the basis for disciplinary proceedings. The requisite
formulation of the charges, in such a case, is no longer nebulous, being crystallised
in the F.I.R. itself and , therefore, even if the charge-sheet was issued by
its despatch to the respondent subsequent to the meeting of the D.P.C., this
fact alone cannot benefit tile respondent.
The
question to examine in each case, is : Whether, the decision to initiate the
disciplinary proceedings had been taken or steps for criminal prosecution
initiated before the date on which the D.P.C. made the selection? The decision
would depend on the facts of the case, keeping in view the object sought to be
achieved by adopting the sealed cover procedure. It would be incongruous to
hold that, in a case like the present, where the B.I. had recorded the F.I.R.;
sent
the same to the superior authorities of the respondent for taking necessary
action; and the competent authority had taken the decision, on the basis of the
F.I.R., to initiate disciplinary proceedings against the respondent for
imposition of major penalty, there can be any doubt that the sealed cover
procedure is attracted to avoid promoting the respondent, unless exonerated of
those charges. These facts, which led to the adoption of the sealed cover
procedure, are undoubtedly very material to adjudge the suitability of a person
for promotion to a higher post. A decision to follow the sealed cover procedure
in these circumstances cannot, therefore, be faulted.
50 It
is unnecessary in the present case to discuss at length the decision in Jankiraman
to indicate its in applicability to the respondent, since it has been done in
the recent decision in Civil Appeal No. 1240 of 1993-Delhi Development
Authority v.. H. C. Khurana-pronounced on April 7, 1993.
We may
also advert to another aspect of this case. In Para 2 of the office Memorandum No. 22011/2/86-Estt. (A) dated 12.1.1988
issued by the Department of Personnel & training, Ministry of Personnel,
Public Grievances and Pensions, Government of India, on the subject of
procedure and guidelines to be followed in such cases, indicating the
situations in which the scaled cover procedure is to be followed, clause (iv)
specifies another category. Clause (iv) relates to '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.'The fact that the F.I.R. was registered by the
C.B.I., and on communication of the same to the departmental superiors a
decision had been taken to initiate disciplinary proceedings for imposition of
a major penalty, against the respondent in the present case, brings this case
squarely within the ambit of clause (iv) of the guidelines, in addition to
clause (ii), thereof.
Following
of the sealed cover procedure in the present case was, therefore, fully
justified and the Tribunal committed an error in interfering with that action
of the Government.
Consequently,
the appeal is allowed, the impugned order of the Tribunal is set aside,
resulting in dismissal of the respondent's application made to the Tribunal. No
costs.
V.P.R.
Appeal allowed.
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