A.K. SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) The short issue involved in the present Original Application is as to whether when the case of an employee may be kept in sealed cover for his facing departmental action, when the charge has also been framed, but when the said charge is set at naught by a court or tribunal, whether the sealed cover has to be opened to give effect to the recommendations of the Departmental Promotion Committee (DPC) as regards promotion of the employee concerned.

(2.) When the matter came up before us for motion hearing on 25.11.2011, we issued notice to the limited extent to gather information as to whether pursuant to orders passed by this Tribunal on 26.08.2011, the department had sought approval of the concerned authority as regards the charge against the applicant. On the adjourned date, neither any reply was filed nor information asked for by us was supplied. The OA came up for hearing on 30.01.2012, when we recorded the following order: Controversy involved in this matter is in a very narrow compass. The case of the applicant for promotion to the post of Regional Provident Fund Commissioner (RPFC), Grade -I was put in a sealed cover when the DPC in that regard was held on 23rd May, 2011. It is the case of the applicant that the chargesheet, which was pending against him at that time, has since been quashed by the Tribunal, vide orders dated 26.08.2011. The short point for consideration is as to whether, in these circumstances, the sealed cover has to be opened and given effect to. For this small issue, the respondents have availed two opportunities for filing their reply but the same has not been filed as yet. However, by showing some indulgence, we adjourn this matter to 06.02.2012 by which date learned counsel defending the respondents would either have instructions to make statement or else file reply on behalf of the respondents. It is made clear that no further adjournment shall be given. On 06.02.2012, the respondents sought adjournment which was granted. On the adjourned day, i.e., 07.02.212, arguments were heard and judgment reserved. The facts relatable to the only controversy, as mentioned above, would need necessary mention. Having been appointed in 1994 as Assistant Provident Fund Commissioner, the applicant was promoted as Regional Provident Fund Commissioner (RPFC) Grade -II in June, 2003. On 18.12.2008, the respondents issued chargesheet for proceedings against the applicant for major penalty, on the basis of allegations pertaining to the years 1998 -2000. The applicant challenged the charge memo in this Tribunal in OA No.3486/2010 on variety of grounds, including that the chargesheet had been issued after delay of more than a decade, as also that the same was not approved by the competent authority. On 23.05.2011, the respondents convened Departmental Promotion Committee (DPC) for promotion to the post of RPFC Grade -I, wherein the applicant was overlooked by his juniors. His case was kept in sealed cover due to pendency of the chargesheet dated 18.12.2008. The OA filed by the applicant was allowed vide order dated 26.08.2011. On 08.09.2011, the applicant submitted a representation for opening the sealed cover as the chargesheet dated 18.12.2008 had since been set aside by the Tribunal. He submitted yet another representation on 20.10.2011, but when the same as well brought no tangible results, present Original Application under Section 19 of the Administrative Tribunals Act, 1985 came to be filed seeking declaration that the action of the respondents in not opening the sealed cover resorted to in respect of the DPC held on 23.05.2011 for the year 2010 -11 and 2011 -12, would be illegal and arbitrary, and in consequence of such declaration, to direct the respondents to open the sealed cover in his case and give effect to the recommendation of the DPC.

(3.) The respondents have contested the cause of the applicant by filing their reply. The facts are not in dispute. However, it is pleaded that the Ministry of Labour vide letter dated 06.10.2008 conveyed the approval dated 24.09.2008 of the competent authority, viz., Honble MOS (IC) (L&E) in his capacity as the Chairman, CBT, EPF for initiating major penalty proceedings against the applicant, and further that the CBT in its 142nd meeting held at New Delhi on 28.11.1995 had approved that the orders of Chairman, CBT, EPF in disciplinary matters including other matters be authenticated by an officer equivalent to the rank of Addl. CPFC or above, dealing with such matters, and, therefore, there would be no infirmity in issuance of the charge memorandum to the applicant by order in the name of Chairman, CBT under the signatures of CPFC. It is then pleaded that the orders of this Tribunal in OA No.3486/2010 and other connected OAs are to be challenged before the Honble High Court. Since the common order passed by us in the OA of the applicant and others also refers to the decision taken by this Tribunal in OA No.800/2008 the matter of B. V. Gopinath against which a writ also came to be dismissed by the High Court, it is pleaded that an SLP has been filed in the Honble Supreme Court against the order passed by the High Court.