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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2537 OF 2013
(Arising out of S.L.P. (C) No.1933 of 2011)
The Union of India & Ors. .... Appellant(s)
Versus
Anil Kumar Sarkar ....
Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Delay condoned.
2) Leave granted.
3) This appeal is directed against the judgment and order
dated 27.04.2010 passed by the Gauhati High Court at
Gauhati in Writ Petition (C) No. 744 of 2010 whereby the
Division Bench of the High Court allowed the writ petition
filed by the respondent herein and set aside the order dated
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21.08.2009 passed by the Central Administrative Tribunal,
Gauhati Bench, Gauhati in O.A. No. 251 of 2007.
4) Brief facts
a) Anil Kumar Sarkar, the respondent herein, joined the
Northern Railways as a Junior Clerk on 04.11.1977.
He was
promoted to various posts and
while he was working as
senior AFA/T-1 in the office of the Financial Adviser and Chief
Accounts Officer of Northeast Frontier (N.F.) Railway at
Maligaon, a Departmental Promotion Committee (DPC) was
convened by the Union Public Service Commission (UPSC) on
26.02.2002 and 27.02.2002 to consider eligible Group ‘B’
officers of the Accounts Department for their substantive
promotion to Group ‘A’ (Jr. Scale) of Indian Railways Accounts
Service (IRAS) against the vacancies for various Zonal
Railways/Production Units.
In the said DPC, the respondent’s
name was also considered against the vacancies in N.F.
Railway for the year 2001-2002 and accordingly, his name
was placed in the extended select panel.
b) It was alleged by the appellants herein that during the
year 1994-95, while the respondent was working as Assistant
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Accounts Officer in the Central Stores Accounts (Bills) in the
office of the Financial Adviser and Chief Accounts Officer
(Open Line), N.F. Railway, Maligaon, he committed gross
misconduct in the matter of checking and passing the bills of
various firms involved in manufacturing and supplying of cast
iron sleeper plates to N.F. Railways.
For the said acts, four
memorandum of charges were issued to the respondent, out
of which two were issued on 13.08.2003 and others on
01.09.2003 and 05.11.2003. On the basis of the said
memorandums, four departmental proceedings were
initiated against the respondent at three different places,
i.e., Delhi, Kolkata and Gauhati, enquiries were completed
and show cause notices were served.
c) Based on the similar charges, in the year 2004, the CBI
lodged 11 FIRs against the respondent herein on different
dates under Section 120B/420 of the Indian Penal Code, 1860
and Section 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 and accordingly, cases
were registered against him.
Subsequently, 11 cases were
amalgamated into 3 cases being numbered as Special Case
Nos. 59/04, 60/04 and 62/04. According to the appellants, on
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the basis of these charges, the respondent was not promoted
to Group ‘A’ (Jr. Scale).
d) By office order dated 21.04.2003, the batch mates of
the respondent were promoted. Being aggrieved, the
respondent herein filed several representations to the
Department for consideration of his case for promotion which
were duly rejected. Challenging the non-consideration of his
case for promotion, the respondent filed O.A. No. 251 of 2007
before the Central Administrative Tribunal, Gauhati Bench for
a direction to the appellants herein to promote him to Group
‘A’ (Jr. Scale) of IRAS w.e.f. 05.03.2002 in terms of the
recommendations of the DPC held on 26.02.2002 and
27.02.2002 wherein his name was figured in the extended
panel list. Vide order dated 21.08.2009, the Tribunal
dismissed his application.
e) Challenging the order of the Tribunal, the respondent
herein filed a petition being W.P.(C) No. 744 of 2010 before
the Gauhati High Court. The High Court, by impugned order
dated 27.04.2010, allowed the petition and set aside the
order passed by the Tribunal and directed the appellants
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herein to issue appropriate order in favour of the respondent
herein for promotion with all consequential benefits.
f) Challenging the said order, the Union of India has filed
this appeal by way of special leave.
5) Heard Mr. Mohan Jain, learned Additional Solicitor
General for the Union of India and Mr. Rakesh Kumar Singh,
learned counsel for the respondent.
Contentions:
6) Mr. Mohan Jain, learned ASG, after taking us through the
Office Memorandum dated 14.09.1992 issued by the Ministry
of Personnel, Public Grievances and Pensions, Department of
Personnel and Training, submitted that paragraph 2 of the
said memorandum has to be considered along with
paragraph 7 of the same. According to him, the High Court is
not justified in considering paragraph 2 of the memorandum
alone. He further submitted that at the relevant time, 4
charge sheets were issued to the respondent and enquiries
were completed and notices to show cause had already been
served upon the respondent. On the other hand, Mr. Rakesh
Kumar Singh, learned counsel for the respondent submitted
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that as on the date i.e. 21.04.2003, when his juniors were
promoted, neither the respondent was under suspension nor
any charge sheet was served upon him and he was not
facing any criminal prosecution, hence, there was no
impediment in promoting him.
7) We have carefully considered the rival submissions and
all the relevant materials including the decision of the
Tribunal and the impugned order of the High Court.
Discussion:
8) There is no dispute as to the fact that the Office
Memorandum No. 22011/4/91-Estt(A), Government of India,
Ministry of Personnel, Public Grievances and Pensions,
Department of Personnel & Training, New Delhi dated
14.09.1992 is applicable to the case on hand. In fact,
learned ASG appearing for the appellants and learned
counsel for the respondent heavily relied on the said
memorandum. The relevant paragraphs for our present
purpose are 2 and 7 which are reproduced hereunder:
“No. 22011/4/91-Estt(A)
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel & Training
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North Block, New Delhi-110001
Dated: 14.09.1992
OFFICE MEMORANDUM
Subject : Promotion of Government servants against whom
disciplinary/court proceedings are pending or whose conduct is under
investigation. Procedure and guidelines to be allowed.
Board’s L/No. E(D&A)
88RG6-21 dt. 21.9.88 &
2.7.90
In supersession of all instructions
contained in Bd’s letters referred to in the
margin on the above subject, the
procedure and guidelines laid down below
shall be followed in the matter of
promotion from Group ‘B’ to Group ‘A’ and
within Group ‘A’ of Railway Officers
against whom disciplinary/Court
proceedings are pending.
Cases of Govt. to whom
sealed cover procedure
will be applicable.
2. At the time of consideration of the
cases of Govt. servants for empanelment
details of Govt. servants in the
consideration zone for promotion falling
under the following categories should be
specifically brought to the notice of the
Departmental Promotion Committee:-
(i) Government Servants under
suspension;
(ii) Government servants in respect of
whom a charge sheet has been issued and
the disciplinary proceedings are pending;
(iii) Government servants in respect of
whom prosecution for a criminal charge is
pending.
Sealed cover procedure
applicable to officers
coming under cloudholding of DPC but
before promotion.
………..………………………………………………
……………………………………………………….
………………………………………………………
7. A Govt. servant, who is recommended
for promotion by the Departmental
Promotion Committee but in whose case
any of the circumstances mentioned in
para 2 above arise after the
recommendations of the DPC are received
but before he is actually promoted, will be
considered as if his case had been placed
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in a Sealed Cover by the DPC. He shall
not be promoted until the conclusion of
disciplinary case/criminal proceedings and
the provisions contained in this letter will
be applicable in his case also.”
9) It is not in dispute that the respondent had joined the
Northern Railways as a Junior Clerk on 04.11.1977, and got
promoted time and again. While he was working as a Group
‘B’ Officer, his case was taken up for promotion to Group ‘A’
(Junior Scale) of the Indian Railways Accounts Service (IRAS).
It is also not in dispute that in the meetings of the DPC
conducted on 26.02.2002 and 27.02.2002, the respondent’s
name was considered and he was placed in the extended
select panel.
It is further seen that up to 21.04.2003, the
date on which the respondent’s batch mates were promoted
to IRAS, neither any criminal proceedings was initiated
against him nor any departmental enquiry was initiated, nor
any charge sheet was served upon him and nor he was
placed under suspension.
Aggrieved by the non consideration of his representations for promotion, the
respondent filed O.A. before the Central Administrative
Tribunal. Learned counsel for the Railways, by placing
reliance on the Office Memorandum dated 14.09.1992,
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contended before the Tribunal that a Government servant
who is recommended for promotion by the DPC and in whose
case the circumstances mentioned in paragraph 2 are in
existence, he shall not be promoted. Accepting the above
stand of the Railways, the Tribunal rejected the petition filed
by the respondent herein.
10) Aggrieved by the said decision of the Tribunal, the
respondent herein filed a petition before the High Court,
wherein, the said memorandum, particularly paragraph 2,
was pressed into service. The High Court, taking note of the
conditions prescribed in paragraph 2 and in the absence of
any such condition as on the relevant date, i.e., 21.04.2003,
set aside the order of the Tribunal and directed the Railways
to consider the case of the respondent for promotion.
11) As per paragraph 2 of the said memorandum, at the
time of consideration of the Government servants for
promotion, the following details of Government servants in
the consideration zone for promotion falling in the categories
mentioned should be specifically brought to the notice of the
DPC, viz., (i) Government servant is under suspension; (ii)
Government servant has been served with a charge sheet
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and the disciplinary proceedings are pending; and (iii)
Government servant is facing prosecution for a criminal
charge and the said proceedings are pending. As rightly
observed by the High Court, if the above conditions are
available, even one of them, then the DPC has to apply the
‘sealed cover process’. In the case on hand, it is not in
dispute that the relevant date is 21.04.2003, when the
respondent’s batch mates were promoted, admittedly on
that date the respondent was not under suspension, no
charge sheet was served upon him nor he was facing any
criminal prosecution. In such circumstances, in terms of
paragraph 2 referred to above, the recommendation of the
DPC has to be honored and there is no question of applying
‘sealed cover process’.
12) Mr. Mohan Jain, learned ASG submitted that paragraph
2 has to be read along with paragraph 7 of the office
memorandum dated 14.09.1992. We have already extracted
paragraph 7 of the memorandum which makes it clear that a
government servant, who is recommended for promotion by
the DPC if any of the circumstances mentioned in para 2 of
the said memorandum arises after the recommendations of
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the DPC are received, but before he is actually promoted will
be considered as if his case has been placed in a sealed
cover by the DPC. After extracting para 2, we also
highlighted the three conditions prescribed therein. Though,
learned ASG has mentioned that four charge sheets were
issued to the respondent, enquires were completed and show
cause notices had already been served on the respondent,
on the relevant date, namely, 21.04.2003, when his batch
mates were promoted, none of the conditions was in
existence in the case of the respondent. Admittedly, the
respondent was not placed under suspension, charge sheet
had been issued only on 13.08.2003 i.e. nearly after 4
months, no disciplinary proceedings were initiated or
pending as on 21.04.2003. In such circumstances, we are of
the view that the High Court is fully justified in issuing
direction based on para 2 of the memorandum. No doubt, the
learned ASG heavily relied on later part of para 7 of the
memorandum which reads as under:
“He shall not be promoted until the conclusion of
disciplinary case/criminal proceedings and the provisions
contained in this letter will be applicable in his case also.”
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Inasmuch as none of the circumstances was in existence as
on 21.04.2003, reliance placed on the later part of para 7
cannot be accepted or even not applicable.
13) It is not in dispute that an identical issue was
considered by this Court in Union of India and Others vs.
K.V.Jankiraman and Others, (1991) 4 SCC 109. The
common questions involved in all those matters were:
(1) What is the date from which it can be said that
disciplinary/criminal proceedings are pending against an
employee? (2) What is the course to be adopted when the
employee is held guilty in such proceedings if the guilt merits
punishment other than that of dismissal? and (3) To what
benefits an employee who is completely or partially
exonerated is entitled to and from which date?. Among the
three questions, we are concerned about question No.1. As
per the rules applicable, the “sealed cover procedure” is
adopted when an employee is due for promotion, increment
etc. but disciplinary/criminal proceedings are pending
against him at the relevant time and hence, the findings of
his entitlement to the benefit are kept in a sealed cover to be
opened after the proceedings in question are over.
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Inasmuch as we are concerned about the first question, the
dictum laid down by this Court relating to the said issue is as
follows:-
“16. On the first question, viz., as to when for the purposes
of the sealed cover procedure the disciplinary/criminal
proceedings can be said to have commenced, the Full
Bench of the Tribunal has held that 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 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/charge-sheet. If the allegations 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 thus
are not without a remedy.
In para 17, this Court further held:
17. … The conclusion No. 1 should be read to mean that
the promotion etc. cannot be withheld merely because
some disciplinary/criminal proceedings are pending
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against the employee. To deny the said benefit, they must
be at the relevant time pending at the stage when chargememo/charge-sheet has already been issued to the
employee….”
After finding so, in the light of the fact that no charge sheet
was served on the respondent-employee when the DPC met
to consider his promotion, yet the sealed cover procedure
was adopted. In such circumstances, this Court held that
“the Tribunal has rightly directed the authorities to open the
sealed cover and if the respondent was found fit for
promotion by the DPC, to give him the promotion from the
date of his immediate junior Shri M. Raja Rao was promoted
pursuant to the order dated April 30, 1986. The Tribunal has
also directed the authorities to grant to the respondent all
the consequential benefits…..We see no reason to interfere
with this order. The appeal, therefore, stands dismissed.”
The principles laid down with reference to similar office
memorandum are applicable to the case on hand and the
contrary argument raised by the appellant-Union of India is
liable to be rejected.
14) In Coal India Limited & Ors. vs. Saroj Kumar
Mishra, AIR 2007 SC 1706, this Court, in para 22, has held
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that a departmental proceeding is ordinarily said to be
initiated only when a charge-sheet is issued.
15) In Chairman-cum-Managing Director, Coal India
Limited and Others vs. Ananta Saha and Others, (2011)
5 SCC 142, this Court held as under:
“27. There can be no quarrel with the settled legal
proposition that the disciplinary proceedings commence
only when a charge-sheet is issued to the delinquent
employee. (Vide Union of India v. K.V. Jankiraman, (1991)
4 SCC 109 and UCO Bank v. Rajinder Lal Capoor, (2007) 6
SCC 694)”
We also reiterate that the disciplinary proceedings
commence only when a charge sheet is issued.
Departmental proceeding is normally said to be initiated only
when a charge sheet is issued.
16) Learned ASG, by drawing our attention to the decision
of this Court in Union of India and Another vs. R.S.
Sharma, (2000) 4 SCC 394 submitted that in spite of
decision of this Court in Jankiraman’s case (supra) in view
of para 7 of the office memorandum and in the light of the
fact that proceedings were initiated both criminal and
departmentally, the High Court committed an error by
overlooking para 7 of sealed cover process and contended
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that the direction issued by it cannot be sustained.
We have
carefully gone through the factual position and the ultimate
ratio laid down by this Court in R.S. Sharma’s case
(surpa). Even though in the said decision, this Court has
distinguished the decision in Jankiraman’s case (supra)
and held that the same is not applicable to its case, in the
light of the conditions mentioned in para 2 as well as para 7
of the office memorandum dated 14.09.1992 and of the
categorical finding that none of the conditions mentioned
therein has been fulfilled, we are of the view that the
decision in R.S. Sharma’s case (supra) is not helpful to the
case of the appellant.
17) In the light of the above discussion and in view of
factual position as highlighted in the earlier paras, we hold
that the ratio laid down in Jankiraman’s case (supra) are
fully applicable to the case on hand, hence we are in
agreement with the ultimate decision of the High Court.
Consequently, the appeal filed by the Union of India fails and
the same is dismissed. However, there will be no order as to
costs.
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...…………………………………J.
(P. SATHASIVAM)
...…………………………………J.
(JAGDISH SINGH KHEHAR)
NEW DELHI;
MARCH 15, 2013.
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