UNION OF INDIA v. KEWAL KUMAR

The judgment of the Court was delivered by

VERMA; J. : The respondent, kewal Kumar, was Deputy Chief Electrical Engineer, Northern Railway at New Delhi when the Depart- mental Promotion Committee (D.P.C.) met on 23.11.1989 for consid- H

48 SlJPRE:vtE COURT REPORTS I 199313 S.C.R.

A ering the respondent and some others for promotion to the Senior Administrative Grade. The D.P.C. followed the scaled cover proce-· dure in the case of the respondent, in view of the fact that the decision to initiate disciplinary proceedings against him for imposition of major penalty had been taken by the competent authority earlier.on 20.11.1989. The decision to initiate disciplinary proceedings was taken on the basis B of a First Information Report (F.l.R.) registred on 30.9.1988 by the Central Bureau of Investigation (C.8.1.) which was received by the concerned departmental authorities on 31.5.1989. Even though the . decision was so taken on 20. l l. l <)89 on the basis of the f.I.R. made much earli..:r, the chargesheet was actually issued to the respondent on c 1.8.1990. The respondent challenged before the Central Adrninistra- ..... ti vc Tribunal. Principal Bench, New Delhi. the action of the IJ.P.C. to follow the sealed cover procedure in his case. The Tribunal has accepted the respondent's claim and allowed his application holding that the sealed cover procedure ('.OUld not be followed in view of the decision in U11io11 of/11dia and Otliers v .. K. V. .lankiraman and 01/ters. D 11 '>9 l] 4 SCC I 09. The Union of India has challenged that decision by special leave, in this appeal.

The question in the present case, is : whether the decision in Ja11kirama11 was correctly applied in the present situation? In E .la11kirama11 itself. it has been pointed out that the sealed cover ·procedure is to be followed where a government servant is recom- mended for promotion by the D.P.C. .. but before he is ac.tually promoted if 'he is either placed umkr suspension or disciplinary proceedings are taken against him or a decision has been taken to -- F initiate proceedings or criminal prosecution is launched or sanction for such prosecution has been issued or decision to accord such sanction · is taken·. Thus. the seakd cov..:r procedure is attracted even when a decision has been taken to initiate disciplinary proceedings, or 'deci- sion !9. ~~cord sanction for Prosecution is taken' or 'criminal prosecu- tion is laun~hed or ......... decision to accord sanction for prosecution is G taken'. The object of following the sealed cover procedure has been indicated recently in the decision in Civil Appeal No. 1240 of J 993- Dclhi De1·efapme111 Aut/1oriry v .. H.C. K/wrana-pronounced on April

7. I 993. and need not be reiterated

H It is obvious that \vhen the competent authority takes the decision •

'.'\ •. ~. ', _,__ . ,' /·,:. - ' .-r l!NIO:-; OF INDIA ,:;KEWAL KUMAR (VERMA. I .• ( 49 --.. '- . - - . , ~ . '. . I . -' , . '\ ·.' \ .- ~ . . ._ . . -

to initiate a disciplinary proceeding or steps are taken. foclaunching a . A 0

criminal prosecution ' - against ' the government --. . servant, he cannot\ . be given .the promotion, ·un1ess ·exonerated, ·even if the government servant. is recommended. for I promotion . by the D.P.C - .• being found suitable otherwise. In a case like the present, where the First lnforma- tion ltcport was registered by the.Central Bureau of Investigation."and · . on that basis the decision had been taken by the competent authority to B i11i1iate disciplinary proceedings for imposition of major penalty on the respondent priorio the meeting of the D.P.C.. the applicability of the sealed coverp~ocedure cannot be .doubted. The formulation ·of the ,·harges required for implementing· the decision of the competent authority to initiate the disciplinary proceedings. is satisfied in such a c. case by the recording of the First Information Report by the Central Bureau of Investigation which records the allegations against the. · respondent, and provides the basis for disciplinary proceedings. The ·. 0

requisite formulation of tlic charges, in °SUCh a case, is no longer . nebulous,. being·.crystallised . . in. the F.l.R. itself and", . therefore, ...everi if ·D the chargesheet was issued by its despatch to the respondent subse- quent to the meeting of the D.P.C .• this fact alone cannot benefit the· respondent. _.-,--

The question to examine in each case, is : Whethe.r, the decision · to initiate the disciplinary proceedings had been taken or steps for criminal prosecution initiated before the date on which the D.P.C: made the selection? TI1e decision would depend on the facts of the · case, keeping in view the object sought to be. achieved by adopting the scaled cover procedure. It would be incongruous to hold that, in a case like the present, where the C.B.I. had recorded the F.l.R.; sentthesame to the superior. authorities of the respondent for taking necessary . r ; F .......... - action; and the competent authority had taken the decision, on the basis · of the F.l.R., to initiate disciplinary proceedings against the respondent forhnposition of major penalty, there can be any doubt that the sealed cover procedure is attracted to avoid prom9ting the respondent, unless exonerated of those charges. These facts, which led to the adoption of· G I the sealed cover procedure, are undoubtedly very material to adjudge the suitability of a person for promotion to a higher post. A decision to follm~ "the. sealed cover procedure in these circumstances cannot, iherefore, be faulted ..

50 SLTPREME COURT REPORTS (1993) 3 S.C.R.

A lt is unnecessary in the present case to discuss at length the decision inJankiraman to indicate its inapplicability to the respondent, since it has been done in the recent decision in Civil Appeal No.1240 of l 993-DelhiDevelopment Authority v.. H. C. Khurana-pronounced on April 7, 1993.

B We may also advert to another aspect of this case. In Para 2 of the office Memorandum No. 22011/2/86-Estt. (A) dated 12. l. l988issued by the Department of Personnel & training, Ministry of Personnel, Public Grievances and Pensions, Government oflndia, on the subject of procedure and guidelines to be followed in such cases, indicating the C situations in which the sealed cover procedure is to be followed, clause (iv) specifies another category. Clause (iv) relates to 'Government servants 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, departmental or otherwise.' The fact that the F.l.R. was registered by the C.B.I., and on communication of the 0 same to the departmental superiors a decision had been taken to initiate disciplinary proceedings for imposition of a major penalty, against the respondent in the present case, brings this case squarely within the ambit of clause (iv) of the guidelines, in addition to clause (ii), thereof.

E • the sealed cover procedure in the present case was, Following of therefore, fully justified and the Tribunal commi~ed an error in interfering with that action of the Government.

Consequently, the appeal is allowed, the impugned order of the F Tribunal is set aside, resulting in dismissal of the respondent's application made to the Tribunal. No costs.

V.P.R. Appeal allowed.