Full Judgment Text
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PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
KEWAI, KUMAR
DATE OF JUDGMENT12/04/1993
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
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-
HEADNOTE:
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
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’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
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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
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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)
JUDGMENT:
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.
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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
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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
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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.
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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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