2024 (9) TMI 1405 - SC - Indian Laws

Sealed cover procedure in DPC invalid without charge memo or charge-sheet filing despite prosecution sanction

UNION OF INDIA AND ORS. Versus DOLY LOYI

SC held that sealed cover procedure in DPC cannot be adopted merely upon grant of prosecution sanction. Disciplinary/criminal proceedings are initiated ... Denial of promotional benefits - Adoption of sealed cover procedure - Whether by the mere grant of prosecution sanction, it could be said that the prosecution for a criminal charge is pending against the respondent Government Servant and whether grant of sanction for prosecution could be a valid ground for putting the DPC recommendations in a sealed cover? HELD THAT:- The disciplinary/criminal proceedings can be said to be initiated against the employee only when a charge memo is issued to the employee in a disciplinary proceeding or a charge-sheet for a criminal prosecution is filed in the competent Court. The sealed cover procedure is to be resorted to only after issuance of the charge-memo/charge-sheet is issued. The pendency of investigation and grant of prosecution sanction will not be sufficient to enable the authorities to adopt the sealed cover procedure. It is not in dispute that the sanction to prosecute the respondent was granted on 2nd June, 2006 and the charge sheet was filed by CBI, after completion of investigation on 25th October, 2008, whereas the DPC to consider the promotion of Additional Commissioners of Income Tax was convened on 22nd February, 2007, wherein the sealed cover procedure was adopted qua the respondent. It is thus clear that the charge sheet against the respondent was filed well after the meeting of the DPC was convened. Hence, it could not be said that the prosecution for a criminal charge was pending against the respondent when the DPC was convened. Therefore, the move on the part of DPC to resort to the sealed cover procedure was unjustified and unsustainable on facts and in law. There are no hesitation in holding that the impugned judgment of the High Court dated 26th April, 2013 is based on apropos consideration of facts and law and hence the same does not warrant interference. The ‘Sealed Cover’ wherein the assessment of the respondent was considered by the DPC was presented to the Court by learned counsel for the appellant and was opened. The letter shows that the DPC assessed the respondent to be ‘FIT’ for promotion. Consequential steps in light of the above recommendations shall follow - appeal dismissed. Issues Involved:1. Denial of promotional benefits.2. Adoption of sealed cover procedure.3. Interpretation of 'prosecution for criminal charge pending.'4. Validity of the Central Administrative Tribunal's decision.5. Applicability of Office Memorandum (OM) dated 14th September 1992.6. Timing and relevance of prosecution sanction.Detailed Analysis:1. Denial of Promotional Benefits:The respondent, appointed as Assistant Commissioner of Income Tax on 16th December 1987, was denied promotion to the post of Commissioner of Income Tax despite being eligible. This denial was based on the pending criminal charges and the adoption of the sealed cover procedure by the Departmental Promotion Committee (DPC).2. Adoption of Sealed Cover Procedure:The DPC, convened on 22nd February 2007, withheld the vigilance certificate of the respondent and kept the recommendations in a sealed cover due to the pending prosecution for a criminal charge. The respondent challenged this decision, leading to a series of legal proceedings, including Original Application No. 3716 of 2011 before the Central Administrative Tribunal, Principal Bench, New Delhi.3. Interpretation of 'Prosecution for Criminal Charge Pending':The core issue was whether the mere grant of prosecution sanction could be considered as 'prosecution for criminal charge pending' under the OM dated 14th September 1992. The appellants argued that the OM should be interpreted broadly to include cases where investigation is pending. However, the court referred to the precedent set in Union of India v. K.V. Jankiraman (1991) 4 SCC 109, which held that the sealed cover procedure is to be resorted to only after a charge memo/charge sheet is issued.4. Validity of the Central Administrative Tribunal's Decision:The Tribunal had quashed the communication dated 15th September 2011, which rejected the respondent's promotion, and directed the opening of the sealed cover. The High Court of Delhi upheld this decision, leading to the appeal by special leave to the Supreme Court.5. Applicability of Office Memorandum (OM) dated 14th September 1992:The OM specifies three categories of government servants for whom the sealed cover procedure can be adopted: those under suspension, those with pending disciplinary proceedings, and those with pending criminal prosecution. The court clarified that mere grant of prosecution sanction does not equate to pending prosecution. The OM dated 2nd November 2012 further clarified that sealed cover procedure should be adopted only after a charge memo/charge sheet is issued.6. Timing and Relevance of Prosecution Sanction:The court examined whether the prosecution for a criminal charge was pending when the DPC was convened. The charge sheet was filed on 25th October 2008, well after the DPC meeting on 22nd February 2007. Therefore, the prosecution was not pending at the time of the DPC meeting, making the adoption of the sealed cover procedure unjustified.Conclusion:The Supreme Court held that the prosecution for a criminal charge was not pending against the respondent when the DPC was convened. The adoption of the sealed cover procedure was unjustified. The High Court's judgment was upheld, and the sealed cover was opened, revealing that the respondent was assessed as 'FIT' for promotion. The appeal was dismissed, and consequential steps for the respondent's promotion were directed to follow.