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JYOTSNA REWAL DUA, J. –

The petitioner was appointed as Junior Engineer (Civil) in H.P. Public Works Department on 01.02.1996 on contract basis. He was regularized as such on 28.02.2004. His name amongst others was considered by the respondents for promotion to the post of Assistant Engineer (Civil) by the Departmental Promotion Committee (DPC) in its meeting held on 28.04.2022. On account of a criminal case pending against him in the Court of learned Special Judge, Kullu in FIR No.2/2013, dated 15.11.2013, registered under Sections 420, 467, 468, 471, 120B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act at Police Station State Vigilance & Anti-Corruption Bureau Keylong, District Lahaul & Spiti, the recommendations of the DPC vis-à-vis the petitioner were kept in a sealed cover. This action has compelled the petitioner to institute the present writ petition, seeking direction to the respondents to promote him as Assistant Engineer (Civil) from the due date, i.e. the date when juniors of the petitioner were promoted as such.

2. Heard learned counsel on both sides.

3. The only issue to be deliberated is whether the action of the respondents in adopting the sealed cover procedure in the case of the petitioner was justified or not.

4. Admittedly, no departmental action was ever taken against the petitioner. The DPC in its meeting held on 28.04.2022 considered the case of the petitioner for promotion to the post of Assistant Engineer (Civil), but kept its recommendations in a sealed cover on account of pendency of criminal case arising out of FIR No.2/2013. Learned Deputy Advocate General on facts submitted that no charge-sheet has yet been filed against the petitioner in the aforesaid criminal case. In fact, the petitioner has placed on record an office letter dated 01.09.2022 (Annexure P-1), issued from the office of Deputy Superintendent of Police, State Vigilance & Anti-Corruption Bureau, Police Station Keylong, District Lahaul & Spiti, to the effect that during investigations carried out by the Vigilance Department in the case, the Investigating Officer did not find any involvement of the petitioner and closure report dated 07.08.2022 has been submitted before the learned Special Judge for passing appropriate orders. Learned Deputy Advocate General submitted that the closure report is still pending consideration before the learned Special Judge.

In (1991) 4 SCC 109 (Union of India and others Versus K.V. Jankiraman and others), one of the question that arose for consideration was as to when for the purposes of the sealed cover procedure, the disciplinary/ criminal proceedings can be said to have commenced. The Hon’ble Apex Court concurred with the view of the Full Bench of the Tribunal that sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. The contention advanced by learned counsel for the authorities that when there are serious allegations requiring time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, then it would not be in the interest of the purity of administration to reward the employee with promotion/increment etc., was negated. Hon’ble Apex Court observed that acceptance of this contention would result in injustice to the employees in many cases. Relevant para from the judgment reads as under:-

“6. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/chargesheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many-cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos.1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: (ATC p. 196, para 39)

"(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;

(2) * * *

(3) * * *

(4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;”

In the instant case, as noticed above, not only the charge-sheet has not been issued to the petitioner in the criminal case, but the Investigating Agency has itself filed a closure report on 07.08.2022 on the ground that involvement of the petitioner was not found in the FIR in question. Under these circumstances, the sealed cover procedure was wrongly adopted by the respondents.

5. For all the aforesaid reasons, I find merit in the instant petition. The same is accordingly allowed. The respondents are directed to open the sealed cover. In case the petitioner is found eligible for promotion to the post in question, all consequential benefits shall be given to him from the due date. All consequential actions shall follow. This exercise be completed within four weeks from today. The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.

Petition allowed.

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