UNION OF INDIA Vs. KEWAL KUMAR

JUDGEMENT

(1.) The respondent, Kewal Kumar, was Deputy Chief Electrical Engineer, Northern Railway at New Delhi when the Departmental Promotion Committee (D.P.C.) met on 23-11-1989 for considering the respondent and some others for promotion to the Senior Administrative Grade. The D.P.C. followed the sealed cover procedure 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 of a First Information Report (F. I. R.) registered on 30-9-1988 by the Central Bureau of Investigation (C.B.I.) which was received by the concerned departmental authorities on 31-5-1989. Even though the decision was so taken on 20-11-1989 on the basis of the F.I.R. made much earlier, the charge-sheet was actually issued to the respondent on 1-8-1990. The respondent challenged before the Central Administrative Tribunal, Principal Bench, New Delhi, the action of the D.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 could not be followed in view of the decision in Union of India v. K. V. Jankiraman, (1991) 4 SCC 109. The Union of India has challenged that decision by special leave, in this appeal.

(2.) The question in the present case, is:Whether the decision in Jankiraman was correctly applied in the present situation In Jankiraman itself, it has been pointed out that the sealed cover procedure is to be followed where a government servant is recommended for promotion by the D.P.C., but before he is actually promoted if the is either placed under suspension or disciplinary proceedings are taken against him or a decision has been taken to 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 sealed cover procedure is attracted even when a decision has been taken to initiate disciplinary proceedings, or 'decision to accord sanction for prosecution is taken' or 'criminal prosecution is launched or decision to accord sanction for prosecution is taken'. The object of following the sealed cover procedure has been indicated recently in the decision in Civil Appeal No. 1240 of 1993 --- Delhi Development Authority v. H. C. Khurana - pronounced on April 7, 1993, and need not be reiterated.

(3.) It is obvious that when the competent authority takes the decision to initiate a disciplinary proceeding or steps are taken for launching a criminal prosecution against the government servant, he cannot be given the promotion, unless exonerated, even if the government servant is recommended for promotion by the D.P.C., being found suitable otherwise. In a case like the present, where the First Information Report was registered by the Central Bureau of Investigation, and on that basis the decision had been taken by the competent authority to initiate disciplinary proceedings for imposition of major penalty on the respondent prior to the meeting of the D.P. C., the applicability of the sealed cover procedure cannot be doubted. The formulation of the charges required for implementing the decision of the competent authority to initiate the disciplinary proceedings, is satisfied in such a 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 requisite formulation of the charges, in such a case, is no longer nebulous, being crystallised in the F.I.R. itself and, therefore, even if the charge-sheet was issued by its despatch to the respondent subsequent to the meeting of the D.P.C., this fact alone cannot benefit the respondent.