Holding

The sealed‑cover procedure is attracted when a decision to initiate disciplinary proceedings is taken before the promotion selection, irrespective of when the charge‑sheet is served.

Summary

The respondent, Kewal Kumar, a Deputy Chief Electrical Engineer, was considered for promotion to Senior Administrative Grade by the Departmental Promotion Committee (DPC) on 23‑Nov‑1989. A decision to initiate disciplinary proceedings against him for a major penalty had been taken on 20‑Nov‑1989, based on a CBI‑registered FIR dated 30‑Sep‑1988, although the charge‑sheet was served only on 18‑Aug‑1990. The DPC applied the sealed‑cover procedure, which the respondent challenged before the Central Administrative Tribunal (CAT). The CAT set aside the sealed‑cover procedure, relying on Union of India v. K.V. Jankiraman, but the Union appealed. The Supreme Court held that the sealed‑cover procedure is triggered as soon as a decision to initiate disciplinary action is taken, even if the charge‑sheet is issued later, and that the FIR suffices to crystallise the charges. Consequently, the Tribunal’s order was reversed and the appeal was allowed, dismissing the respondent’s application.

Issues considered

The applicability of the sealed‑cover procedure when a decision to initiate disciplinary proceedings is taken before the DPC meeting, despite later issuance of the charge‑sheet.
Whether the Central Administrative Tribunal erred in holding that the sealed‑cover procedure was inapplicable in view of Union of India v. K.V. Jankiraman.
Whether an FIR recorded by the CBI, leading to a decision to initiate disciplinary action, satisfies the requirement for invoking the sealed‑cover procedure.

Subjects

sealed cover procedurepromotiondisciplinary proceedingsCBI FIRdepartmental promotion committeegovernment servantexonerationCentral Administrative Tribunalspecial leave petition

Judgment

UNION OF INDIA A
v.

KEWAL KUMAR

APRIL 12. 1993

- [,J.S. VERMA AND S.C. AGRA WAL, JJ.]

Ciri! Service: Promotion-Sealed corer procedure by D.P.C-
B

Legality of.

The D.P.C. met on 23.1L1989 fur considering the respondent c
and some others for promotion to the Senior Administratil·e Grade.

In l'iew of the fact that the decision to initiate disciplinarj·
proceedings against the respondent for imposition of major penalty
was taken b_\' the competent authorit)· on 20.11. 1989, the D.P. C
followed the sealed co\·er procedure. On the basis of a F.l.R. registered D
b)· the C.B.I. on 30.9.1988, the decision to initiate disciplinar_\' pro-
ceeding was taken b_\' the compdent authorit_\· on 20.11.1989 though
the F.I.R. was receiwd b_\' it on 31.5.1989. The charge sheet was issued
to the respondent on l.8.1990.
E
The respondent challenged before the Central Administrati\'e
Tribunal. the-action of the D.P.C. to follow the sealed co\'er procedure
in his case.

The Trihunal allowed respondent's application holding that the F
sealed co,·er procedure could not be followed in \'iew of the decision
in U11fo11 of India and Others v. K. V. Ja11kirama11 and Others. [l 99IJ
4 sec 109.

In this appeal hy special lea\'e the Union of India <JUestioned the
<_;
decision of the Tribunal ..

Allowing the appeal, this Court,

HELD: 1.1. The- sealed co\'er procedure is attracted eYen when
a. 'decision has heen taken to initiate disciplinar_\' proceedings', or H
45
Sl1PRB1E COL'RT REPORTS [199313 S.C.R.

A 'decision to accord sanction for prosecution is taken' or 'criminal
prosecution is launched or .........•decision to accord sanction for pros-
ecution is taken'. (48-G)

t.2. When the competent authorit)· takes the decision to initiate
a disciplinarJ proceeding or steps are taken for launching a criminal
u prosecution against the go\'ernment sen·ant, he cannot be gh·en the
promotion, unless exonerated, ~,·en if the government sen·ant is
recommended for promotion h)· the D.P.C., being found suitable
otherwise. (48-H, 49-A)
-
C 1.3. In a case like the present. where the First Information Report
was registered hJ the Central Bureau of ln\'estigation, an.d on that
hasis the decision had been taken h)' the competent authorit)· to
initiate disciplinarJ proceedings for imposition of major penalt)' on
the respondent prior to the meeting of the D.P.C., the applicahilit)· of
D the sealed co\·er procedure cannot he doubted. (49-B)

J.4 The formulation of the charges required for implementing
the decision of the competent authorit)· to initiate the disciplimtr)'
proceedings, is satisfied in SU('h a case h)' the recording of the First
Information Report h)' the Central Bureau of Investigation which
E records the allegations against the respondent, and provides the basis
fordisciplinar)' proc~edings. The requisite formulation of the charges,
in such a case. is no longer nebulous, being c·rystalised in the F.l.R.
itself and, therefore, e\·en if the chargesheet was issued b)' its despatch
to the respondent suhsequent to the meeting of the D.P.C. this fact
F alone cannot benefit the respondent: (49-C-D)

1.5. The question to examine in each case, is: whether, th~
decision to initiate the discipl,inary proceedings had been taken or
steps for criminal prosecution initiated before the date on which the
D.P.C. made the selection? The decision would depend on the. facts of
G
the case. keeping in \'iew the object sought to he achie\'ed by adopting
the sealed co\'er procedure. (49-E)

1.6. It would he incongruous to hold that, in a case like the
present, where the C.B.I. had recorded the F.I.R.; sent the same to the
H superior authorities of the respondent for taking necessary action;
' i
UNIO:-< OF INDIA"· KEWAL KUMAR [VERMA. J.. ) 47

and the competent authority had taken the decision, on the basis of the A
F.l.R., to initiate disciplinary proceedings against the respondent for
imposition of major penalty, there can be any doubt that the sealed
cover procedure is attracted to avoid promoting the respondent,
unless exonerated of those charges. (49-F)

B
Union of India and Other v. K. V. Jankiraman and Ors .. [1991] 4
SCC I 09; Del lzi Development Authority v. H. C Khurana. C.A. No. 1240
of 1993-D/-7.4.1993, referred to. (5.1-B)

l·.7. Clause (iv) of the office Memorandum No.22011/2/.86-ESst
... (A) dated 12.1.1988 relates to 'Government servants against whom an
investigation on serious allegations of corruption, bribery or similar
C

grave misconduct is in progress either by the CBI or any other agency'
departmental or otherwise.' The fact that the F.I.R. was registered by
the C.B.I., and on communication of the same to the departmental
superiors a decision had been taken to initiate disciplinary proceed- D
ings for imposition of a major penalty, against the respondent in the
present case, brings this case squarely within the ambit of clause (iv)
of the guidelines, in addition to clause (ii), there of. (50-
C-D)

CIVILAPPELLATEJURISDICTIONCivilAppealNo.1584of E
1993.

From the Judgment and Order dated 14.8.1992 of the Central
Administrative Tribunal, Principal Bench, New Delhi in 0.A. No.
2737 of 1991.
F
V.R. Reddy, Addi. Solicitor General, R. Sasiprabhu and V.K.
Vernia (NP) for the Appellant.

S.K. Gupta. R.K. Kamal and B.S. Gupta for the Respondent.
G
The judgment of the Court was delivered by

VERMA; J. : The respondent, kewal Kumar, was Deputy Chief
Electrical Engineer, Northern Railway at New Delhi when the Depart-
mental Promotion Committee (D.P.C.) met on 23.11.1989 for consid- H
48 SlJPRE:vtE COURT REPORTS I 199313 S.C.R.

A ering the respondent and some others for promotion to the Senior
Administrative Grade. The D.P.C. followed the scaled cover proce-·
dure 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
B of a First Information Report (F.l.R.) registred on 30.9.1988 by the
Central Bureau of Investigation (C.8.1.) which was received by the
concerned departmental authorities on 31.5.1989. Even though the .
decision was so taken on 20. l l. l <)89 on the basis of the f.I.R. made
much earli..:r, the chargesheet was actually issued to the respondent on
c 1.8.1990. The respondent challenged before the Central Adrninistra- .....
ti vc Tribunal. Principal Bench, New Delhi. the action of the IJ.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 ('.OUld not be followed in view of the
decision in U11io11 of/11dia and Otliers v .. K. V. .lankiraman and 01/ters.
D 11 '>9 l] 4 SCC I 09. The Union of India has challenged that decision by
special leave, in this appeal.

The question in the present case, is : whether the decision in
Ja11kirama11 was correctly applied in the present situation? In
E .la11kirama11 itself. it has been pointed out that the sealed cover
·procedure is to be followed where a government servant is recom-
mended for promotion by the D.P.C. .. but before he is ac.tually
promoted if 'he is either placed umkr suspension or disciplinary
proceedings are taken against him or a decision has been taken to
--
F 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 seakd cov..:r procedure is attracted even when a
decision has been taken to initiate disciplinary proceedings, or 'deci-
sion !9. ~~cord sanction for Prosecution is taken' or 'criminal prosecu-
tion is laun~hed or ......... decision to accord sanction for prosecution is
G taken'. The object of following the sealed cover procedure has been
indicated recently in the decision in Civil Appeal No. 1240 of J 993-
Dclhi De1·efapme111 Aut/1oriry v .. H.C. K/wrana-pronounced on April
7. I 993. and need not be reiterated

H It is obvious that \vhen the competent authority takes the decision
•
.
-.,..:,,-.-,.. . - - - - - - - - - - - - - - - - - - - - - ------

'.'\
•. ~. ', _,__
. ,'
/·,:. - ' .-r
l!NIO:-; OF INDIA ,:;KEWAL KUMAR (VERMA. I .• ( 49
--.. '- . - - . , ~ . '. . I
. -' , . '\ ·.' \ .- ~ . . ._. . -

to initiate a disciplinary proceeding or steps are taken. foclaunching a . A
0

criminal prosecution
' -
against
'
the government
--. .
servant, he cannot\ . be
given .the promotion, ·un1ess ·exonerated, ·even if the government
servant. is recommended. for I
promotion
.
by the D.P.C -
.• being found
suitable otherwise. In a case like the present, where the First lnforma-
tion ltcport was registered by the.Central Bureau of Investigation."and ·
. on that basis the decision had been taken by the competent authority to B
i11i1iate disciplinary proceedings for imposition of major penalty on the
respondent priorio the meeting of the D.P.C.. the applicability of the
sealed coverp~ocedure cannot be .doubted. The formulation ·of the
,·harges required for implementing· the decision of the competent
authority to initiate the disciplinary proceedings. is satisfied in such a c.
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 ·.
0

requisite formulation of tlic charges, in °SUCh a case, is no longer
. nebulous,. being·.crystallised
. .
in. the F.l.R. itself and",
.
therefore, ...everi if ·D
the chargesheet was issued by its despatch to the respondent subse-
quent to the meeting of the D.P.C .• this fact alone cannot benefit the·
respondent.
_.-,--

The question to examine in each case, is : Whethe.r, the decision ·
to initiate the disciplinary proceedings had been taken or steps for E
criminal prosecution initiated before the date on which the D.P.C:
made the selection? TI1e decision would depend on the facts of the ·
case, keeping in view the object sought to be. achieved by adopting the
scaled cover procedure. It would be incongruous to hold that, in a case
like the present, where the C.B.I. had recorded the F.l.R.; sentthesame F
to the superior. authorities of the respondent for taking necessary
. r
; F .......... -
action; and the competent authority had taken the decision, on the basis ·
of the F.l.R., to initiate disciplinary proceedings against the respondent
forhnposition of major penalty, there can be any doubt that the sealed
cover procedure is attracted to avoid prom9ting the respondent, unless
exonerated of those charges. These facts, which led to the adoption of· G
I the sealed cover procedure, are undoubtedly very material to adjudge
the suitability of a person for promotion to a higher post. A decision to
follm~ "the. sealed cover procedure in these circumstances cannot,
iherefore, be faulted ..
50 SLTPREME COURT REPORTS (1993) 3 S.C.R.

A lt is unnecessary in the present case to discuss at length the
decision inJankiraman to indicate its inapplicability to the respondent,
since it has been done in the recent decision in Civil Appeal No.1240
of l 993-DelhiDevelopment Authority v.. H. C. Khurana-pronounced
on April 7, 1993.

B
We may also advert to another aspect of this case. In Para 2 of the
office Memorandum No. 22011/2/86-Estt. (A) dated 12. l. l988issued
by the Department of Personnel & training, Ministry of Personnel,
Public Grievances and Pensions, Government oflndia, on the subject
of procedure and guidelines to be followed in such cases, indicating the
C situations in which the sealed cover procedure is to be followed, clause
(iv) specifies another category. Clause (iv) relates to 'Government
servants against whom an investigation on serious allegations of
-
corruption, bribery or similar grave misconduct is in progress either by
the CBI or any other agency, departmental or otherwise.' The fact that
the F.l.R. was registered by the C.B.I., and on communication of the
0
same to the departmental superiors a decision had been taken to initiate
disciplinary proceedings for imposition of a major penalty, against the
respondent in the present case, brings this case squarely within the
ambit of clause (iv) of the guidelines, in addition to clause (ii), thereof.

E • the sealed cover procedure in the present case was,
Following of
therefore, fully justified and the Tribunal commi~ed an error in
interfering with that action of the Government.

Consequently, the appeal is allowed, the impugned order of the
F Tribunal is set aside, resulting in dismissal of the respondent's
application made to the Tribunal. No costs.

V.P.R. Appeal allowed.

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