TaxTMI 
TaxTMI 
2024 (9) TMI 1803
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....dering his case for promotion to the post of DIG, and if found fit for promotion, to promote him with all consequential benefits. 2. Before dealing with the rival submissions of the parties, we may note the brief factual matrix as emerging from the record. 3. The petitioner having joined the CRPF as an Assistant Commandant on 01.12.1994, was promoted to the post of Deputy Commandant on 28.04.2001. This was followed by his promotion to the post of Second-in-Commandant on 25.05.2007, whereafter he was promoted as a Commandant on 27.07.2010, which post he is presently holding. In 2023, upon accrual of 18 anticipated vacancies for the post of DIG, the respondents, vide their signal dated 14.02.2023, called up for drawal of a panel for promotion of Commandants to the rank of DIG, wherein the petitioner, who was placed at serial no. 13 in the gradation list of Commandants issued on 01.01.2023, found his name in this panel for promotion. However, before he could be considered by the DPC for promotion, an FIR under the Prevention of Corruption Act, 1988 was lodged against the petitioner on 16.03.2023, pursuant thereto a search and raid was conducted at the house of the petitioner, bu....
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.... could not have been kept in a sealed cover by the DPC. 6. Mr. Chhibber further relies on a decision of this Court in Union of India & Anr. Vs. Suresh Chandra 2013 SCC OnLine Del 3395, wherein this Court while dealing with an identical situation, had, after considering the decision of the Apex Court in K.V. Jankiraman, (supra) as also the DoPT's O.M.s dated 14.09.1992 and 02.11.2012, categorically held that the clause "prosecution in respect of criminal charge is pending" will be applicable only when a chargesheet has been filed by the investigating agency in the Court dealing with the case registered against the Government servant. He, therefore, prays that the impugned order be set aside and the respondents be directed to open the sealed cover containing the recommendations of the DPC held in April, 2023 and in case, the petitioner is found fit for promotion, he be promoted as DIG with all consequential benefits. 7. On the other hand, Mr. Bhardwaj seeks dismissal of the writ petition and submits that the DPC had adopted the sealed cover procedure in respect of recommendations qua the petitioner as once an FIR has been registered against him; his conduct would remain under a....
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....be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted only after the chargememo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the appellant-authorities that when there are serious allegations and it takes time to collect evidence to prepare and issue chargememo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/chargesheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should n....
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.... investigation has revealed that the evidence collected during investigation pertaining to the financial irregularities justified a trial. xxx 20. As evident from the aforesaid conspectus of facts, the controversy which has arisen in the present case relates to the expression „prosecution in respect of criminal charge is pending‟ occurring in paragraph 2.3 of the Office Memorandum dated September 14, 1992. Whereas learned counsel for the department contended that a „prosecution in respect of criminal charge is pending‟ would mean when a charge sheet (challan) is filed by the investigating agency in the criminal court dealing with a case registered against the Government servant; learned counsel for the respondent contended that a „prosecution in respect of criminal charge is pending‟ only after the charge is framed by the criminal court. Learned counsel for the department in support of his contention relied upon a decision rendered by a Division Bench of this Court in W.P. (C) Nos. 3793/2011 and 1470/2011 titled as Union of India v. Inspector Jawahar Lal and Union of India & Binod Shahi respectively decided on December 02, 2011.....
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....s, 1972 provides as under : - "(b) judicial proceedings shall be deemed to be instituted - (i) in case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made." (Emphasis Supplied) xxx 32. In view of the above discussion, we hold that the department was completely justified in not promoting the respondent to the post of Director (Sugar Technical) for the reason 'prosecution for a criminal charge was pending‟ when the respondent became eligible to be promoted to said post in the year 2007 inasmuch as the police had filed a charge sheet in the criminal court dealing with the FIR registered against the respondent in the year 2003. There was no need to hold any DPC because there was no eligible candidate to be considered and thus it would be useless for a DPC to meet and keep the recommendation in a sealed cover. A question may be put: What would happen if the respondent would be ultimately acquitted? The answer then would be that in said situation a DPC akin to a review DPC would be required to be held to consider respondent's candid....