TaxTMI 
TaxTMI 
2012 (11) TMI 1352
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....tion for prosecution under the Prevention of Corruption Act, 1988 was given in July, 2005 and the disciplinary proceeding had been instituted on 12.06.2006? The Tribunal has answered this question in favour of the respondent and has directed that the sealed cover be opened and to act on the recommendations of the DPC convened on 15.10.2009. It was also directed that if the DPC had found the respondent to be fit for promotion, he would be promoted to the Junior Administrative Grade-I w.e.f. 01.01.1996, that is, from the date the persons junior to him were promoted. The Tribunal has also directed that the respondent would then be eligible for all consequential benefits, which would accrue to him under the rules as a result of such promotion. 3. The learned counsel for the petitioner submitted before us that the conclusions arrived at by the Tribunal are contrary to the DoPT's O.M. dated 14.09.1992 and in particular to paragraph 2(ii) and paragraph 7 thereof. On the other hand the learned counsel for the respondent supported the decision of the Tribunal and also placed reliance on the Supreme Court's decisions in the case of Union of India vs. K.V.Jankiraman, JT 1991 (3) SC 527 and....
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....looked, he made a representation to the competent authority on 11.12.2009 which was rejected by the order dated 22.02.2010. The reasons for rejection as communicated to the respondent were as under:- "i. By order dated 29th July, 2005, the Central Government had accorded sanction for prosecution under Section 19(1)(a) of the Prevention of Corruption Act, 1988 against you; and ii. By order dated 12th June, 2006, the Central Government had issued a chargesheet to you under Rule 8 of All India Services (Discipline & Appeal) Rules, 1969." 8. The contentions of the parties are to be seen in this factual backdrop. First of all, let us examine the contents of the O.M. dated 14.09.1992. The subject of the said O.M. is:-"Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed." The relevant paragraphs of the said O.M. being paragraphs 2 and 7 read as under:- "2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories s....
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....t it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/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 learned Counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/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 deliberate....
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....aragraph 8 and 17 thereof (which have been extracted above) that the disciplinary/criminal proceedings must be pending at the "relevant time" for the sealed cover procedure to be adopted. According to the learned counsel for the respondent the relevant time had reference not to the date on which the DPC was convened but to the period of time prior to the date from which promotion was to be effected. This is also the sense in which the Tribunal has understood the said decision in K.V. Jankiraman (supra). A similar analogy has been sought to be drawn from the observations of the decision of the Supreme Court in Delhi Jal Board (supra) which indicates that a subsequent departmental proceedings would not come in the way of the recommendations made in a prior DPC. The analogy sought to be drawn by the learned counsel for the respondent is that only events prior to the effective date of promotion can be looked into by the DPC whenever it is convened for the purposes of considering persons for promotions. 12. The learned counsel for the petitioner, as pointed out above, has placed reliance on O.M. dated 14.09.1992. He submitted that paragraph 7 of the said O.M., which we have extracted....