DELHI DEVELOPMENT AUTHORITY Vs. H C KHURANA

JUDGEMENT

(1.) The respondent, H. C. Khurana, was employed as Executive Engineer in the Delhi Development Authority (D.D.A.). A preliminary memo was served on the respondent on 6-11-1985, alleging some irregularities by him in the construction works, and they were being investigated. A charge-sheet was framed on 11-7-1990 against the respondent on the basis of irregularities in the constructions made in a housing colony. On 13-7-1990, the charge-sheet was despatched for being served on the respondent. However, the respondent proceeded on two months' medical leave and, therefore, on 17-7-1990 another Executive Engineer R. K. Sood, working in the same wing as the respondent, received it and gave the intimation that the respondent was on leave, adding that the same would be handed over to the respondent on his return from leave. On 28-11-1990, the Departmental Promotion Committee (D.P.C.) met, and in view of the earlier decision to initiate disciplinary proceedings against the respondent, it followed the 'sealed cover procedure' in the case of respondent. It appears, that the effort to effect personal service of the charge-sheet on the respondent on account of his non-availability continued, and the same could be served personally on the respondent only on 25-1-1991. As a result of the selection made by the D.P.C., certain persons were promoted to the post of Superintending Engineer, while the respondent's matter was kept in abeyance to await the outcome of the disciplinary proceedings.

(2.) In these circumstances, the respondent filed Writ Petition No. 877 of 1991 in the Delhi High Court claiming a mandamus directing the D.D.A. to promote him as Superintending Engineer with effect from the date on which his juniors had been promoted to the post of Superintending Engineer, on the basis of selection made by the D..P. C. The High Court has allowed that writ petition taking the view, that 'the framing of charge would carry with it the duty to issue and serve the same on the employee, there was no justification for the respondent to follow the sealed cover procedure in this case on 28-11-1991 when the Departmental Promotion Committee met, since actual service of the charge-sheet on the respondent was made only after the date on which the D.P.C. met. According to the High Court, issuance of the charge-sheet to the employee means its actual service on him, and this should be complete before following the sealed cover procedure. The High Court has read Union of India v. K. V. Jankiraman, (1991) 4 SCC 109, to this effect, for taking the view, that on these facts, the disciplinary proceedings cannot be said to have been initiated prior to 29-11-1990, when the D.P.C. followed the sealed cover procedure. Accordingly, the High Court has directed the D.D.A. to open the sealed cover; to promote the respondent as Superintending Engineer, if he has been otherwise found suitable by the D.P.C.; and, in that event, to give him seniority with all consequential benefits from the date on which his juniors were so promoted. The judgment of the High Court is challenged by special leave, in this appeal.

(3.) The short question for consideration, is:Whether, in the present case, the High Court has correctly applied the decision in Jankiraman Learned Counsel for the appellant contended that Jankiraman cannot be read to hold, in a case like the present, where the disciplinary proceedings had been initiated by framing the charge-sheet and despatching the same, that the charge-sheet had not been issued; and, therefore, the 'sealed cover procedure' could not be followed by the D. P.C. on 28-11-1990. On the other hand, learned Counsel for the respondent strenuously urged that Jankiraman holds that without effective service of the charge-sheet on the employee, the disciplinary proceedings cannot be said to have been initiated against him. Learned Counsel for the respondent referred to the Office Memorandum No. 22011/4/91-Estt. (A) dated 14-9-1992 of the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India, issued in supersession of the earlier Office Memorandum No. 22011/2/ 86-Estt. (A) dated 12-1-1988, consequent upon the judgment in Jankiraman (supra), to support his submission that even though mere issuance or despatch of a charge-sheet without the further requirement of its actual service on the employee would now be sufficient according to the O.M. dated 14-9-1992 for following the sealed cover procedure, yet the same was not sufficient earlier according to the O.M. dated 12-1-1988, which required actual service and not mere issuance of the charge-sheet for initiating the disciplinary proceedings. Admittedly, the guidelines in the O.M. dated 12-1-1988 were in force, in the present case. The subject of the two memoranda, containing the guidelines, is the same, as under: