IMPORTANT POINT
Criminal proceedings can be said to be pending against an employee only after charges have been framed.

JUDGMENT

Ajay Mohan Goel, J.—

CMP-T No. 1064 of 2023

For the reasons assigned, this application is allowed.

CWPOA No. 5331 of 2019

2. With the consent of learned Counsel for the parties, the case was taken up for consideration today itself.

3. Brief facts necessary for the adjudication of the present petition are as under:—

The petitioner was appointed as a Junior Engineer in the I&PH Department in February 1981. FIR No. 1/2001 was registered on 10.04.2001, under Sections 420 467, 468, 471 and 120-B of the Indian penal code against one Sh. S.K. Vats and others including the petitioner. On account of the lodging of this FIR, when the Departmental Promotion Committee met for considering eligible candidates for promotion to the post of Assistant Engineer from the post of Junior Engineer on 28 September 2013, the case of the petitioner was kept in sealed cover.

4. Learned Counsel for the petitioner submitted that as on the date when the Departmental Promotion Committee met, neither there was any departmental enquiry pending against the petitioner, nor charges stood framed against him in the criminal case, therefore, the act of the respondent- department of following the sealed cover procedure in his case is bad in law as the same was contrary to the law laid down by Hon’ble Supreme Court of India in Union of India and Others Versus K.V. Jankiraman and Others, (1991) 4 Supreme Court Cases 109, as has been subsequently followed by this court in various judgments.

5. Learned Law Officer argued that there is no illegality in the act of the respondent-department in following the sealed cover procedure, as on the date when the DPC met to consider the name of the petitioner alongwith other eligible candidates for promotion to the post of Assistant Engineer, an FIR stood lodged against the petitioner and the challan filed after completion of investigation was pending consideration before the learned Judicial Magistrate concerned. Accordingly, he submitted that the present petition being devoid of merit be dismissed.

6. I have heard learned Counsel for the parties and also gone through the pleadings as also the documents that have been appended alongwith the pleadings.

7. Herein, the DPC met to consider the case of eligible incumbents/Junior Engineers for promotion to the post of Assistant Engineer on 28.09.2013. Admittedly, as on the day when DPC met, neither any departmental enquiry was pending against the petitioner nor charges stood framed against him by the learned Trial court in the FIR lodged against him.

8. This Court while dealing with an identical issue raised in CWP No. 3466 of 2021, titled as Rajeshwar Dayal Janartha versus State of Himachal Pradesh and others held as under:-

“At this stage itself, it is relevant to refer to the judgment of Hon’ble Supreme Court in Union of India and others vs. K.V. Jankiraman, (1991) 4 Supreme Court Cases 109. In the said case, the question involved which stood decided by Hon’ble Supreme Court stands culled out in para-8 of the judgment, which para is reproduced herein below:-

“8. The common questions involved in all these matters relate to what in service jurisprudence has come to be known as “sealed cover procedure”. Concisely stated, the questions are:(1) what is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) What is the course to be, adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?’ The ,’sealed cover procedure” is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over’. Hence, the relevance and importance of the questions.”

10.