DR. K.B.S. RAJAN, JUDICIAL MEMBER
1. The law point involved in the two OAs being the same, this common order is passed in respect of the said O.A.s As regards the facts of the case, which also synchronize with each other in the two cases, the following are the minimum required facts in the form of dates and events:-
(a) 02-11-2005: Implication of the applicant by the CBI under Section 13 (1), Section 13(1)(d) of the Prevention of Corruption Act r/w Section 120 B of the IPC.
(b) 17-07-2007: Applicant named as co accused in CC No. 7/07 as per final report of the CBI of date.
(c) 31-05-2011: DPC meeting for promotion to the post of Superintendent. Respondents have adopted the sealed cover procedure in the case of the applicant in view of the above said criminal case.
(d) 30-06-2011: Junior to the applicant promoted to the post of Superintendent.
2. The claim of the applicants in the two cases is that as on the date of DPC i.e. 31-05-2011, the conditions prescribed in the Office Memorandum dated 14-09-1992 having not been fulfilled, the respondents ought to have acted upon the recommendations of the DPC instead of adopting the sealed cover procedure. The contention of the applicants is that for the case to be brought within the purview of the adopting of Sealed Cover Procedure, it would not suffice if there be any case lodged with the Court, but the Court should have framed charges against the applicant. It is only from that stage till the completion of the proceedings, that it could be said that "criminal proceedings are pending". In the instant case, charges not having been framed by the Court after hearing the case of the applicants on the charge sheet filed by the Criminal Court even till today, the respondents are not right in adopting the sealed cover procedure. The applicants rely upon a decision in the case of Radhamani S. Menon and others vs Union of India and others (OA No. 557 of 2011 decided on 20-10-2011) of this Bench wherein an identical question has been raised and it has been held that sealed cover procedure is applicable only when prosecution for criminal charge is pending. and prosecution for criminal charge can be said to be pending only after the Court has framed charges against the applicants therein. The applicants have, therefore, prayed for the following reliefs:-
(i) Declare that in terms of Office Memorandum dated 14.09.1992, the promotion of the applicant to the post of Superintendent of Central Excise is not to be governed by the Sealed Cover Procedure and that he 4th respondent is bound to include the applicant in the Select List prepared pursuant to the DPC which convened in the first week of June, 2011 based on the evaluation by the DPC.
(ii)Declare that respondents 1 and 2 are bound to effect promotion of the applicant to he post of superintendent of Central Excise and include his name in Annexure A2.
(iii)Direct the 4th respondent Departmental Promotion Committee to include the name of the applicant in the select list subject to the evaluation made by the DPC in the matter of promotion to the post of Superintendent of Central Excise without report to Sealed Cover Procedure
(iv)Direct respondents one and two to promote the applicant as Superintendent of Central Excise based on his inclusion if any in the said list by the DPC.
3. Respondents have contested the O.A. They have stated that non promotion of the applicants is due to the fact that no vigilance clearance has been issued to the applicants and hence the findings are to be kept in sealed cover.
4. Counsel for the applicants argued that the contingencies in the happening of which sealed cover procedure has to be adopted has been duly explained in the Office Memorandum dated 14-09-1992 and this has been fully dealt with in the order dated 20-10-2011 in OA No. 557 of 2011. The case of the applicants in these cases and that in the other case in OA No. 557 of 2011 are identical in all respects. As such, the Tribunal may pass an identical order as in the other case.
5. Counsel for the respondents submitted that Charge Sheet has been filed in the Court thought no charges have been framed so far.
6. Counsel for the applicants submitted that mere filing of charge sheet would not mean that charges would certainly be framed against the applicant for, there is an intermediate stage of arguments on framing of charges and it is only thereafter that on application of mind, the Court would decide whether charges should be framed or not. As such, in the instant case, the contingency in the happening of which sealed cover procedure has to adopted having not arisen, the respondents are not right in adopting sealed cover procedure in the case of the applicants.
7. Arguments were heard and documents perused. First, Joint Application No. MA 1206 of 11 is allowed in respect of OA No. 1131 of 2011.
8. The Tribunal in the case of OA No. 557 of 2011 has held as under:-
"4. As per O.M. No.22011/4/91-Estt-A dated 14.09.1992 only the Government servants who are under suspension or the Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending or the Government servants in respect of whom prosecution for criminal charge is pending, the sealed cover procedure can be resorted to. DOPandT O.M. No. 22012/1/99-Estt(D) dated 25.10.2004 further clarified the matter as under:
"2. Considerable doubts also persist about the furnishing of the vigilance clearance and integrity certificate to the DPC. It is clarified that the DPC is required to consider the cases of all persons who are otherwise eligible in terms of the Recruitment Rules as on the relevant crucial date and are in the zone of consideration. If, however, case of an employee in the zone of consideration is covered by any of the three situations, only this fact is to be furnished to the DPC so that the recommendations could be placed in sealed cover. Where none of the three situations has arisen, a simple vigilance clearance would need to be furnished. Vigilance clearance/status would have no other significance and would not be a factor in deciding the fitness of the officer for promotion on merit.
3. It is also clarified that there is no requirement of furnishing a separate integrity certificate to the DPC. In terms of the judgement of the Hon'ble Supreme Court in the case of Union of India vs. K.V.Janakiraman etc. (AIR 1991 SC 2010), no promotion can be withheld merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of issue of charge sheet etc. If in the matter of corruption/dereliction of duty etc., there is a serious complaint and the matter is still under investigation of CBI or otherwise, the Government is within its right to suspend the official. In that case, the officer's case for promotion would automatically be required to be placed in the sealed cover.
4. If the conditions indicated in para-2 of DoPT Office Memorandum dated 14th September, 1992, arise only after the DPC has made its recommendations and therefore, the recommendations could not be placed in the sealed cover, para 7 of the said Office Memorandum provides that the recommendations of the DPC shall be deemed to have been placed in the sealed cover and he shall not be promoted until he is exonerated of the charges. Therefore, after the recommendations of DPC have been approved by the competent authority, it is necessary to again seek the status position from the concerned vigilance division before issuing promotion order in respect of any officer included in the approved panel of names to ensure that there is no hindrance in issuing the promotion order in respect of the concerned officer." (emphasis supplied)
5. In the light of the O.Ms cited above, in the instant case, sealed cover procedure is applicable only when prosecution for criminal charge is pending. As stated by the respondents, vigilance clearance was not granted to the applicants as a charge sheet has been filed against the applicants in the Court. As per O.M. dated 25.10.2004, a simple vigilance clearance would need to be furnished where none of the three conditions in O.M. dated 14.09.1992 has arisen. Therefore, the issue to be decided is whether a criminal case is pending against the applicants. A criminal case can be said to be pending only after issuance of a charge sheet by the competent Court to the accused. The relevant extract from the judgement of the Apex Court in Union of India vs. K.V. Janakiraman, AIR 1991 SC 2010, is reproduced as under:
"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 been commenced, the Full Bench of the Tribunal has held that it is only when a charge memo in a disciplinary proceeding 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 filed. 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 charges memo/charge sheet, it would not be in the interest of purity of administration to reward the employee with promotions, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases." (emphasis supplied)
6. In the instant case, the CBI has filed the charge sheet in the Court. The respondents have not stated that the Court has framed charges against the applicants. As per settled law as cited above, prosecution for criminal charge can be said to be pending against the applicants only after the Court has framed charges against them. On 31.05.2011 when the DPC considered them for promotion, there was no criminal case pending against them. The respondents should have strictly followed the judgement of the Hon'ble Supreme Court as well as the instructions of the Government of India in regard to adoption of sealed cover procedure. As they have not done so, resorting to sealed cover procedure in respect of the applicants cannot be sustained in law. Accordingly, it is ordered that the sealed cover in respect of the applicants shall be opened forthwith. Appropriate orders as per law in respect of promotion of the applicants, if they are found fit, should be issued within a period of 2 months from the date of receipt of a copy of this order, if no charge sheet is issued by the Court to the applicants, in the meanwhile.
7. The O.A is allowed to the extent indicated above. No order as to costs."
9. The Tribunal has thus held that prosecution of criminal charge can be said to be pending against the applicants only after the Court has framed the charges and thus allowed the OA directing the respondents to open the sealed cover forthwith.
10. We respectfully agree with the decision in the above case. It is settled law as held in the case of Sub-lnspector Rooplal vs Lt. Governor (2000) 1 SCC 644 as under:-
"Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every presiding officer of a judicial forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again that precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bound by the enunciation of law made by the superior courts. A Coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement."
We would like to supplement the following to strengthen the decision that we have arrived at.
11. If we trace the history of the sealed cover procedure, the same dates back to 1982 onwards, as could be seen in the case of Union of India vs K.V. Jankiraman (1991) 4 SCC 109 wherein the Court has observed as under:-
"10. The Government of India (Deptt. of Personnel and Training) issued an Office Memorandum No. 22011/1/79. Estt.(A) dated January 30, 1982 on the subject of promotion of officers in whose cases "the sealed cover procedure" had been followed but against whom disciplinary/court proceedings were pending for a long time. The Memorandum stated that according to the existing instructions, cases of officers (a) who are under suspension or (b) against whom disciplinary proceedings are pending or a decision has been taken by the competent disciplinary authority to initiate disciplinary proceedings or, (c) against whom prosecution has been launched in a court of law or sanction for prosecution has been issued, are considered for promotion by the Departmental Promotion Committee (hereinafter referred to as the `DPC') at the appropriate time but the findings of the Committee are kept in a sealed cover to be opened after the conclusion of the disciplinary/court proceedings. While the findings are kept in the sealed cover, the vacancy which might have gone to the officer concerned is filled only on an officiating basis. If on the conclusion of the departmental/court proceedings, the officer concerned is completely exonerated, and where he is under suspension it is also held that the suspension was wholly unjustified, the sealed cover is opened and the recommendations of the DPC are acted upon. If the officer could have been promoted earlier, he is promoted to the post which is filled on an officiating basis, the officiating arrangement being terminated. On his promotion, the officer gets the benefit of seniority and fixation of pay on a notional basis with reference to the date on which he would have been promoted in the normal course, but for the pending disciplinary/court proceedings. However, no arrears of salary are paid in respect of the period prior to the date of actual promotion."
In 1988, the OM had undergone some amendments and as per the same, vide para 2 of the OM dated January 12, 1988. The same states as under:
"Cases of government servants to whom Sealed Cover Procedure will be applicable,
2. At the time of consideration of the cases of government servants for promotion, details of government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:
(i) Government servants under suspension;
(ii) Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;
(iii) Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution;
(iv) 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."
12. The above OM underwent further change as could be seen in the judgment of the Apex Court in the case of Union of India vs R.S. Sharma, (2000) 4 SCC 394 wherein, the Apex court had stated -
"On 31-7-1991 a new development took place. As per Office Memo No. 22011/1/91-Estt.(A) the restriction imposed as per clause (iv) was deleted from the second para of the "Sealed Cover Procedure". (Emphasis supplied)
13. After the above it is the OM dated 14-09-1992 that held the field and as per the said OM dated 14-09-1992, the circumstances under which sealed cover procedure has to be adopted thus are restricted to the following:-
(i) Government servant 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 criminal charge is pending.
14. The restriction vide para 2(iv) of OM dated January 12, 1988 (i.e. 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.) which stood removed by 1991 O.M. apparently, pertains to the stage of investigation.
15. Now, the question is when is the stage of investigation over in criminal cases. It is to be seen from the above clause 2(iv), relates to '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'. Investigation could be (a) either by the CBI or other Agencies (eg. CVC etc), or departmental or otherwise. The term 'otherwise' obviously includes the investigation stage in the court. Now, the question is as to what is the stage upto which, the stage of investigation continues in the Court. Answer to this question is available in the judgment of the Apex Court in the case of State of W.B. Vs Mohd. Khalid (1995) 1 SCC 684 wherein the Apex Court has stated as under:-
"31. ...........
The High Court can interfere during investigation
(i) not under the inherent powers but under the Constitution of India;
(ii) after cognizance before charges are framed." (Emphasis original)
16. Cognizance is taken by the court of the offence (not the offender) when after filing of the Charge Sheet, the Court applies its mind. In Fakhruddin Ahmad Vs State of Uttaranchal (2008) 17 SCC 157, the Apex Court has held as under:-
"It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender."
17. The stage at which the prosecution files a charge sheet in the court, could well be the initiation of proceedings and it is thereafter that there shall be commencement of criminal proceedings (may be by way of issue of summons on taking cognizance of offence by the Court) and only on the charges having been framed by the Court, which stage is only after the stage of arguments on charge, that the proceedings on 'criminal charge' could be stated to be pending. In this regard, reference is invited to the decision of the Apex Court in the case of S.K. Sinha, Chief Enforcement Officer vs Videocon International Ltd (2008) 2 SCC 492, wherein, the Apex Court has held as under:-
"24. From the above scheme of the Code, in our judgment, it is clear that "Initiation of proceedings", dealt with in Chapter XIV, is different from "Commencement of proceedings" covered by Chapter XVI. For commencement of proceedings, there must be initiation of proceedings. In other words, initiation of proceedings must precede commencement of proceedings. Without initiation of proceedings under Chapter XIV, there cannot be commencement of proceedings before a Magistrate under Chapter XVI. The High Court, in our considered view, was not right in equating initiation of proceedings under Chapter XIV with commencement of proceedings under Chapter XVI."
18. It is pertinent to note here that during the course of investigation, the alleged offender is not termed as 'accused'. It is only when the charges are framed that the offender is termed, "accused." The Apex Court has in the case of Esher Singh vs State of A.P. (2004) 11 SCC 585 has stated as under:-
"The person becomes an accused for the purpose of trial after the charges are framed."
19. In disciplinary proceedings, it is after issue of charge sheet that the delinquent officer is termed as the 'charged officer' and similarly it is after charges are framed that the alleged offender is termed as 'the accused'. Sealed Cover Procedure is adopted when the stage of issue of charge sheet is reached See Delhi Development Authority vs H.C. Khurana [(1993) 3 SCC 196].
20. Thus, apart from the reasons given in the earlier order in OA No. 557 of 2011, the above reasons also concretize the decision of this Bench that it is only after the charges are framed by the Court that the criminal proceedings would be said to be pending.
21. Now in so far as the relief claimed in this case, the applicants have claimed that the sealed cover shall be got opened and acted upon. In fact, the respondents ought to have considered the case of the applicants for promotion without resorting to the sealed cover procedure. In fact, some of the juniors have already been promoted as the sealed cover procedure had been followed in the case of the applicants. Thus, on the date when DPC was held and also when the juniors were promoted, the contingency the happening of which sealed cover procedure could be adopted, had not occurred in the case of the applicants. Thus, the clock has to be set back and action taken. For the Apex Court has held in the case of Union of India vs Sangram Keshari Nayak (2007) 6 SCC 704 that for adopting the sealed cover procedure, conditions for adopting the sealed cover procedure must have existed at the material point of time. Thus, even if the charges are framed in the near future, the same shall not affect the process of opening the sealed cover and acting on the same. In respect of this part of the order, though the earlier order is slightly different, the same may not be taken to mean that the other order is overruled as this part of the order is only with reference to awarding of relief, which is certainly the discretion (judicious) of the Bench.
22. The OAs are thus, allowed. Respondents are directed to open the sealed cover forthwith and act on the basis of the recommendations contained therein. This order shall be complied with, within a period of four weeks from the date of receipt of copy of this order.
23. No costs.