TaxTMI 
TaxTMI 
TaxTMI 
2013 (9) TMI 1324
X X X X Extracts X X X X
X X X X Extracts X X X X
....nder suspension or (ii) against whom disciplinary proceedings are pending or a decision has been taken by the competent authority to initiate disciplinary proceedings or (iii) against whom prosecution has been launched in a court of law or sanction for prosecution has been granted, are to be considered for purposes promotion by the DPC at the appropriate time but the recommendations of the DPC are to be kept in a sealed cover; to be opened after the conclusion of the disciplinary/court proceedings. 4. On January 12, 1988, the Department of Personnel and Training, Government of India, issued another Office Memorandum on the subject. As per the said Memorandum, cases of officers (i) who are under suspension or (ii) in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings or (iii) in respect of whom prosecution for criminal charge is pending or sanction for prosecution has been granted or a decision has been taken to accord sanction for prosecution or (iv) 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, depart....
X X X X Extracts X X X X
X X X X Extracts X X X X
....legations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities are thus not without a remedy. It was then contended on behalf of the authorities that conclusions Nos.1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. These conclusions are as follows: "(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official (2) .... (3) .... (4) the sealed cover procedure can be resorted to only after a charge memo is serviced on the concerned official or the charge-sheet is filed before the criminal court and not before. 17. There is no doubt that there is seeming contradiction between the two conclusions. But read harmoniously, and that is what ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....over Procedure will be applicable. Procedure to be followed by the DPC in respect of Government servants under cloud. Procedure by subsequent DPCs. Action after completion of disciplinary case/criminal prosecution. Six Monthly review of 'Sealed Cover' cases. Procedure for ad-hoc promotion. Sealed cover procedure for confirmation. Sealed cover procedure applicable to officers coming under cloud after holding of DPC but before promotion. The undersigned is directed to refer to Department of Personnel & Training OM No.22011/2/86-Estt.(A) dated 12th January, 1988 and subsequent instructions issued from time to time on the above subject and to say that the procedure and guidelines followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court of India in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of review and in supersession of all the earlier instructions on the subject (.....), the procedure to be followed in this regard by the authorities is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the year 2008 the respondent filed an application under Section 19 of the Administrative Tribunals Act, 1985 pleading therein that the department had committed an illegality in not promoting him to the post of Director (Sugar Technical) despite the fact that he is fully eligible to be promoted to the said post and that a vacancy had arisen to the post of Director (Sugar Technical) with effect from December 31, 2007. 15. Per contra, the stand taken by the department before the Tribunal was that:- (i) the sole post of Director (Sugar Technical) in the Directorate of Education stood abolished in the year 2001 and (ii) prosecution in respect of criminal charge is pending against the respondent inasmuch as the police had filed a charge sheet in respect of FIR registered against him and thus the respondent could not be granted promotion in view of the paragraph 2(iii) of the Office Memorandum dated September 14, 1992. 16. Vide impugned judgment and order dated August 30, 2011 the Tribunal has allowed the application filed by the respondent on the ground that: (i) the department is not correct in contending that the post of Director (Sugar Technical) stands abolished inasmuch as the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te of Maharashtra & Ors. 21. What is meant by the expression 'prosecution in respect of criminal charge is pending' occurring in paragraph No.2(iii) of the Office Memorandum dated September 14, 1992? When can it be said that 'prosecution in respect of criminal charge is pending' against a Government servant? 22. A careful reading of paragraph Nos.16 and 17 of the decision of the Supreme Court in Jankiraman's case (supra) noted by us in the foregoing paragraphs reveals that the answers to the aforesaid question(s) are contained in said paragraphs. In Jankiraman's case (supra), one of the questions which had arisen for consideration before the Supreme Court was: 'what is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee'? After examining the Office Memorandums dated January 30, 1982 and January 12, 1988 the Supreme Court approved the ratio of law laid down by the Full Bench of the Tribunal that departmental proceedings/criminal prosecution is initiated against the employee only when a charge-memo in disciplinary proceedings and chargesheet in criminal prosecution is filed. The Court further stated in categorical terms that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n to initiate the departmental action or sanction has been accorded to launch a (criminal) prosecution against the employee. In Jankiraman's case (supra), the Supreme Court frowned upon the aforesaid practice as it was causing injustice to the employees who were being denied promotion for years together because of pendency of investigation or in contemplation of initiation of departmental proceedings/criminal prosecution. However, at the same time, the Supreme Court emphasized that an employee has no right to promotion and public interest requires that promotion should be granted to the employees having 'unblemished record'. (See paragraph 29 of Jankiraman' case (supra) noted by us in the foregoing paras). Balancing interests of the employees on one hand and public interest on the other, the Supreme Court concluded that sealed cover procedure should be resorted to only when a charge memo is served on the concerned official (in case of a departmental proceeding) or the charge-sheet is filed before the criminal court (in case of a criminal prosecution) and not before. Now, the moment a charge-memo is issued to an employee in a departmental proceeding or charge-sheet is filed by the i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....grant of sanction before a prosecution is initiated, some others postulate grant of sanction before a cognizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence. The term 'prosecution has been instituted' would not mean when charge-sheet has been filed and cognizance has been taken. It must be given its ordinary meaning." (Emphasis Supplied) 28. The above-noted observations made by the Supreme Court in Sashi's case (supra) are to the effect that prosecution would begin when a person is accused of having committed an offence i.e. before the filing of charge sheet by the investigating agency. Be that as it may. One thing is clear from the above observations that the prosecution would definitely be pending when the charge sheet is filed by an investigating agency in the criminal court. 29. Lastly, we note the following observations made by the Supreme Court in Mithani's case (supra) relied upon by the counsel for the respondent:- "28. ....The trial in a warrant case starts with the ....