Central Administrative Tribunal - Delhi
Satish Singh Aswal vs Govt. Of Nct Of Delhi Through on 23 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No. 2540/2010 New Delhi, this the 23rd day of May, 2011 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. A.K. MISHRA, MEMBER (A) Satish Singh Aswal S/o Sh. Sukhdev Singh Aswal, R/o H.No.813, Sector 12, R.K.Puram, New Delhi. Applicant. (By Advocate: Shri Yogesh Sharma) versus 1. Govt. of NCT of Delhi through The Chief Secretary, New Sectt. New Delhi. 2. The Secretary (Services) Govt. of NCT of Delhi, Delhi Secretariat, 5th Level, I.P.Estate, New Delhi. 3. The Secretary, Land and Building Department, Govt. of NCT of Delhi, B-Block, Vikas Bhawan, I.P.Estate, New Delhi. Respondents. (By Advocate: Shri Vijay Pandita) ORDER (ORAL)
Mrs. Meera Chhibber, Member (J) Applicant has sought the following relief:-
The Honble Tribunal may graciously be pleased to pass an order declaring to the effect that the whole action of the respondents placing the name of the applicant in the sealed cover for his promotion to the post of UDC/Grade-III DASS is illegal, arbitrary, discriminatory and consequently, pass an order directing the respondents to open the sealed cover and to consider the case of the applicant for his promotion to the post of UDC/Grade-III DASS from the date of promotion of junior persons with all the consequential benefits including the arrears of difference of pay and allowances with interest.
2. It is submitted by the applicant that he has been working with the respondents as LDC since 10.6.1998. He was due for the post of UDC. DPC was convened on 19.6.2008 for promotion to the post of UDC. His name was kept in the sealed cover because prosecution sanction was given. However, neither any charge sheet has been framed against the applicant nor there is any impediment in the way of applicant, therefore, he gave a representation to the authorities for opening his sealed cover on 6.7.2010 but the same has not been replied to, therefore, he had no other option but to file the present OA.
3. Respondents on the other hand have stated that a criminal case is pending and three prosecutions for criminal conspiracy had been sanctioned against the applicant in different cases. Charge sheet has also been filed on 29.9.2006 against the applicant in the court of law. Thus his case was rightly kept in the sealed cover. Another charge sheet dated 25.6.2008 has also been filed in the court of law. They have thus prayed that the OA may be dismissed.
4. We have heard both the counsel and perused the pleadings as well.
5. The issue in this case is very short whether applicants name could have been kept in the sealed cover in the DPC convened on 19.6.2008 for the post of UDC when in none of the cases charge has been framed by the court of law against him. Perusal of letter written by the Superintendent of Police, CBI/SC-II/New Delhi to the Deputy Secretary (Vigilance) on 16.9.2010 (page 30) shows that the case is at the stage of argument in charge meaning thereby that charge still has not been framed against the applicant as late as on 16.10.2010. Respondents have not been able to point out that any charge has been framed against the applicant on 19.6.2008. The only defence taken by them is that prosecution sanction has been taken by the authorities against the applicant. Unfortunately, the case of sealed cover is governed by OM dated 14.9.1992 under which the name of the employee can be kept in sealed cover only in three eventualities, namely, (i) Government servants under suspension; (ii) Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending; and (iii) Government servants in respect of whom prosecution for a criminal charge is pending. Sanction of prosecution is not a ground on which the case can be kept in the sealed cover, therefore, even though it is a serious matter that the prosecution sanctions have been granted against the applicant but law is in his favour.
6. At this juncture it would be relevant to refer to the judgment of Co-ordinate Bench in the case of Shri R.P. Singh Vs. Government of NCT of Delhi & Others decided on 23.12.2009 in OA No. 1604/2009 wherein this issue was crystallized as follows:-
That apart, the criminal court has not framed any charge against the applicant as yet. We need not refer to the case law on the point as that would unnecessarily burden the judgment. However, it is by now a settled proposition of law that promotion of an employee cannot be stalled by putting his case in sealed cover unless, if the employee is facing a departmental enquiry, charge has been framed against him by the concerned authority, or if he is facing a criminal case, charge has been framed by the concerned criminal court.
Similarly in judgment dated 22.10.2010 in OA No. 711/2010 in the case of S.K. Sharma Vs. U.O.I. & Others it was observed as follows:-
6. This issue has already been decided by the Co-ordinate Bench in the case of Shri B.S. Bola, IPS Vs. U.O.I. & Others in OA No. 1919/2009 decided on 11.8.2009 and in OA No. 1185/2007 decided on 3.6.2008 in the matter of Om Prakash vs. UO.I. in favour of the applicants. In both these cases OM dated 14.9.1992 and its scope has been extensively dealt with. In Bolas case it was observed as follows:-
It remained admitted position during the course of arguments that by the time the DPC met, i.e., 22.12.2005, or even by the time the order promoting the batchmates of the applicant, some of whom were junior to the applicant as well, came to be passed, the concerned CBI court had not framed the charge against the applicant, nor even the disciplinary proceedings were initiated against him. At the most, sanction to prosecute the applicant had since already been accorded. We are of the firm view that the matter on the facts as mentioned above, is covered in favour of the applicant by a recent decision of this Tribunal in OA No.1185/2007 decided on 3.6.2008 in the matter of Om Prakash v Union of India. Not only the facts and law involved are similar, but incidentally, even the learned counsel representing the parties are the same. This judgment of the Tribunal has been affirmed in a writ filed by the respondents in the said case before the Honble High Court of Delhi [WP(C) No.7810/2008 decided on 27.11.2008 Union of India v Om Prakash]. We may only mention that whereas, the case of the applicant for adopting sealed cover procedure may be justified on the dint of DOP&T OM dated 12.1.1988, the same would not be so covered by the later OM dated 14.9.1992, vide which not only the OM dated 12.1.1988, but all other OMs covering the issue were superseded. This precise issue in reference to the difference in the two OMs referred to above has been threadbare dealt with by us in Om Prakash (supra). We may extract the relevant observations made in that behalf:
8. It could not be disputed during the course of arguments that the promotion/confirmation of employees against whom disciplinary/court proceedings are pending or whose conduct is under investigation, is now governed by instructions contained in OM dated 14.9.1992. That being so, in our considered view, sealed cover procedure can be adopted in case where a government servant may be under suspension, or in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending, or in respect of whom prosecution for a criminal charge is pending. Whereas clause (i) of para 2 of instructions of 1988 and 1992 is the same, there is a marked difference between clause (ii) of para 2 of instructions of 1988 and that of 1992. Whereas, as per clause (ii) of para 2 of the 1988 instructions, sealed cover procedure could be adopted in respect of government servant against whom disciplinary proceedings were pending or a decision had been taken to initiate disciplinary proceedings, such procedure can be adopted as per clause (ii) of para 2 of the 1992 instructions only in respect of government servant against whom charge-sheet has been issued and the disciplinary proceedings are pending. Reading of clause (ii) of para 2 of the 1992 instructions would make it absolutely clear that disciplinary proceedings would be considered to be pending only if the charge-sheet has been issued, as the words whom a charge-sheet has been issued precede the words and the disciplinary proceedings are pending. This meaning of clause (ii) of para 2 can be gathered from the fact that the word and has been used between the words Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending. If perhaps, instead of the word and, or was mentioned, it could mean that in either case, i.e., when disciplinary proceedings are pending, or a charge sheet was framed, the sealed cover procedure could be adopted. We need not further delve into clause (ii) of para 2 of instructions of 1988 or 1992 as it is not the case of the respondents that sealed cover procedure has been adopted in the case of the applicant because of circumstances obtainable in clause (ii) of para 2 of the instructions of 1988 or 1992. Once again, there is significant change in clause (iii) of para 2 of the 1988 instructions and the one contained in 1992 instructions. Whereas, as per clause (iii) of para 2 of the 1988 instructions sealed cover procedure could be adopted with regard to a government servant in respect of whom prosecution for a criminal charge was pending or sanction for prosecution had been issued or a decision had been taken to accord sanction for prosecution, as per clause (iii) of para 2 in the 1992 instructions such procedure can be adopted only if the prosecution for a criminal charge is pending against a government servant. Pendency of sanction for prosecution or even a decision that might have been taken to accord sanction for prosecution, have been consciously deleted from clause (ii) of para 2 of the later instructions. Insofar as clause (iv) of para 2 in the 1988 instructions is concerned, the same has been deleted from the 1992 instructions. Para 7 of the instructions, be it the instructions of 1988 or of 1992, would be applicable only with regard to circumstances enumerated in para 2, and no others. We are of the firm view that sealed cover procedure can be adopted only in circumstances enumerated in para 2 of instructions of 1992, and even if the circumstances as mentioned therein may surface after the DPC might have cleared a government servant for promotion, he may yet not be promoted, as in that event it has to be considered to be a case of deemed sealed cover procedure. In the present case, it is apparent that none of the circumstances enumerated in para 2 of the instructions of 1992 were in existence. The same did not come into existence by sanctioning prosecution of the applicant. The contention of Shri Bhardwaj, learned counsel representing the respondents, to incorporate the circumstance of sanction for prosecution enumerated in the instructions of 1988 justifying non-promotion of the applicant, in our view, has to be repelled.
7. It was held that if the 3 conditions mentioned in para 2 of OM dated 14.9.1992 were not available on the date DPC or when the juniors were given the selection grade, recommendations in respect of applicant could not have been kept in the sealed cover.
The case in hand is fully covered by the above judgments.
7. In the instant case perusal of page 9 shows that applicant was at Sl.No.7 of the list of officers who were considered by the DPC which met on 19.6.2008 for promotion to the post of UDC. Applicants case was kept in the sealed cover on the ground that prosecution has been sanctioned by the Head of the Department. Now that we are clear that his case could not have been kept in the sealed cover simply on the ground of sanction of prosecution, we allow this OA with a direction to the respondents to open the sealed cover of the applicant and to pass appropriate orders in accordance with law.
8. OA stands allowed with the above directions. No costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh