TaxTMI 
TaxTMI 
2017 (10) TMI 864
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....DRI) found some undeclared material, concealed behind cartons of papers in a consignment. Suspecting the Respondent's involvement in the clearance of the offending goods, the DRI summoned him and thereafter vide its order dated 4th October, 2013, placed him under suspension. Respondent's suspension was extended from time to time in accordance with Rule 10 of the CCS (CCA) Rules. 3. While the Respondent was under suspension, a Departmental Promotion Committee was convened on 17th June, 2015 for recommending eligible Deputy Commissioners, for promotion to the next higher grade of Joint Commissioner. As the Respondent was under suspension when the DPC met, recommendations qua him were placed in a sealed cover by the DPC. Soon thereafter on 30th June, 2015, Respondent's juniors were promoted to the post of Joint Commissioner. 4. However, in the interregnum, as no charge-sheet had been issued to the Respondent, his suspension was revoked on 24th June, 2015 in view of the decision of Supreme Court in the case of Ajay Kumar Chaudhary Vs. Union of India (2015) 7 SCC 291. Immediately upon revocation of his suspension, the Respondent made representations seeking promotion to the post of Jo....
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.... that, on the date when his juniors were promoted, he was neither under suspension nor any charge-sheet had been served upon him and he was also not facing any criminal prosecution. The Tribunal was of the view that since no charge-sheet had been issued to the Respondent, there was no justification to continue to keep his case in a sealed cover. 8. Aggrieved with the order of the Tribunal, the Union of India has approached this Court by way of the present petition. Arguing for the Petitioner, Mr.Arun Bhardwaj, Advocate, has contended that the Tribunal has, while issuing the impugned directions, failed to consider the basic facts of the present case. He submits that the Tribunal simply relied on the decision of the Supreme Court in the case of Union of India Vs. Anil Kumar Sarkar (Supra) without examining the peculiar facts of the case. Mr. Bhardwaj contends that the Tribunal has failed to consider the basic fact, that the order revoking the Respondent's suspension was not a result of his being given a clean chit. The suspension was revoked as per the decision of the Supreme Court in the case of Ajay Kumar Chaudhary (supra), as the charge-sheet could not be issued to him within nin....
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....randum dated 14th September, 1992 and submitted that as per the instructions in the OM, stipulations relating to adoption of sealed cover procedure-in case where disciplinary proceedings are pending consideration, have been specifically prescribed in para 2 of the OM. He, therefore, contends that since none of the said conditions-warranting adoption of sealed cover procedure existed after 24th June, 2015, it was not open for the Petitioner to continue to keep the case of the Respondent in a sealed cover and deny him promotion on 30th June, 2015, when his Juniors were promoted. Mr.Das has also relied upon OM dated 2nd November, 2012 in support of his plea that, no promotion can be withheld merely on the basis of suspicion or doubt, or where the matter is under preliminary investigation and has not reached the stage of issue of chargesheet. In support of his plea that the sealed cover ought to be opened, he has also relied upon the decisions of the Supreme Court in the case Union of India Vs. K.V. Jankiraman AIR 1991 SC 2010. He has also placed reliance on the decision in case Sohan Lal Vs. Union of India & Ors. MANU/PH/1616/2015 & order dated 22nd July, 2015 passed by the Central Ad....
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....he circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC including `unfit for promotion" and the grading awarded by it will be kept in a sealed cover. The cover will be superscribed "Finding regarding suitability for promotion to the grade/post of ........in respect of Shri......(name of the Government servant). Not to be opened till the terminator of the disciplinary case/criminal prosecution against Shri.........". The proceeding of the DPC need only contain the note "The findings are contained in the attached sealed cover". The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover. 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committee convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded. xxx xxx xxx 7. A Government servant,....
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....e of the circumstances mentioned in para 2 of the OM dated 14th September, 1992, has arisen on 24th October, 2016 by way of issuance of a chargesheet to him. Consequently, disciplinary proceedings against the respondent are underway. We find that there is a specific bar in the OM, which envisages that in such circumstances, where any of the situations mentioned in para 2 arises before the actual promotion of the government servant, he will not be promoted until he is completely exonerated of the charges against him. We are, thus, of the considered view that the claim of the respondent for opening the sealed cover or giving effect to the recommendations of the DPC is not at all sustainable and, in fact, the Tribunal in our view, has acted in a mechanical manner by simply relying on the decision of the Supreme Court in the case of Union of India Vs. Anil Kumar Sarkar (Supra), without considering the peculiar facts of that case. 15. Upon a careful consideration of the decision of the Supreme Court in the case of Union of India Vs. Anil Kumar Sarkar (Supra), we also find that the same is not at all applicable to the facts of the present case. The said case related to a Government serv....
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....e OM by relying on the decision of Union of India Vs. Anil Kumar Sarkar (Supra) without appreciating that the issue involved in both cases, was slightly different. In doing so, the Tribunal has ignored the well settled principle that a decision is only an authority for what it actually decides. The Supreme Court has repeatedly emphasized that a decision cannot be relied on without disclosing the factual situation. In Bhavnagar University Vs. Palltana Sugar Mill (P) Ltd. & Ors. (2003) 2 SCC 111, the Supreme Court observed as under:- "59. ...... It is also well settled that a little difference in facts or additional facts may make a lot of difference, in the precedential value of a decision." 17. We have also considered the decision of the Supreme Court in the case of Union of India Vs. K.V. Jankiraman (supra) on which reliance has been placed by the learned counsel for the Respondent. We find that even this decision does not deal with the peculiar facts of the present case. The present case relates to an employee whose consideration was rightly placed under sealed cover when the DPC met on 17th June, 2015. The issue is, as to when the sealed cover should have been opened. Is it to....