Satyam vs HPSEBL And Others

Tarlok Singh Chauhan, J

The instant petition has been filed for grant of the following reliefs:

“i. That the respondent may be directed to open the sealed cover and act on the recommendation of the Disciplinary Committee that has been done

in the D.P.C.

ii. That in case the name of the petitioner has been considered for promotion same may be ordered to be promoted with all consequently benefits.â€​

On being put to notice, the respondents have placed on record the necessary instructions which reveal that the petitioner had been working as Clerk

in the Accounts Branch of Operation Circle, HPSEB Ltd., Solan, where he was assigned the duties of Bill Assistant. A complaint was received from

Shri Rajesh Gupta,Senior Assistant wherein he pointed out the involvement of the petitioner in causing wrongful loss to the Board and wrongful gain in

his own favour.

A fact finding Committee was constituted by the Superintending Engineer, Operation Circle, HPSEB Ltd., Solan vide order dated 06.07.2020

pursuant to which the Inquiry Committee submitted its report wherein it was concluded that the petitioner had drawn excess payment of Rs.70,666/-

by manipulating/tampering system generating data deliberately and tried to conceal and hide the actual facts and figures.

On receipt of the report of the fact finding Committee, the concerned Superintending Engineer served the petitioner with show cause notice on

23.07.2020 thereby affording him an opportunity to explain his conduct and state why disciplinary proceedings should not be initiated against him for

his acts and conduct amounting to misconduct and negligence in the performance of his duties.

on receipt of the reply to the show cause notice from the petitioner, it was noted by the competent authority that the fact finding Inquiry Committee

had reported financial embezzlement to the tune of Rs. 70,666/-, while, the petitioner had deposited Rs.72,000/-in HPSEB Ltd. Account on 10.07.2020

through RTGS/NEFT.

Since, the matter was also having criminal overtones, therefore, the Superintending Engineer vide letter dated 03.08.2020 also requested the

Incharge, Police Post, Saproon, for registering a case for criminal breach of trust, cheating, causing wrongful gain to himself and wrongful loss to

HPSEB Ltd.

However, the fact of the matter is that the charge-memo in this case was framed only on 01.01.2021 whereas the instant petition has been filed on

10.12.2020. Therefore, it is but obvious that on the date of convening of D.P.C. i.e. 10.09.2020 to the post of Senior Assistant pursuant to which

promotions were made by the respondents on 14.09.2020, no charge-memo in a disciplinary proceedings or a charge sheet in the criminal prosecution

had been issued to the petitioner, yet the respondents illegally adopted the sealed cover procedure.

It is trite law that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in the criminal prosecution is issued to the

employee 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. If the allegations are serious and the authorities are keen in investigating them then

ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further if the charges 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. But in no event can the promotion be withheld merely because some disciplinary/criminal

proceedings are pending against the employee to deny the said benefit, they must be at the relevant time pending at the stage when charge-

memo/charge-sheet has been issued to the employee.

This, however, is not the fact situation obtaining in the instant case as only a complaint has been made to the Incharge, Police Post, Saproon,

District Solan, by the Superintending Engineer, (OP) Circle, HPSEB Ltd., Solan, vide Annexure P-6 and no charges had been framed on the date the

sealed cover procedure was resorted to by the respondents.

The law with regard to resorting to sealed cover procedure is more than settled and reference can conveniently be made to the celebrated decision

of Hon’ble three Judges’ Bench of Hon’ble Supreme Court inU nion of India, etc. etc. vs. Jankiraman, etc. etc. AIR 1991 SC 2010,

wherein it was held as follows:-

“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/ charge-sheet, 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 would 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:

(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;

There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has

intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be

withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit they must be at the

relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in

the two conclusions.

We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal.â€​

Apart from the above, even Clause 16.32 (2) (i) of the Handbook on Personnel Matters, Volume I, which has been relied upon by both the parties

clearly envisages that the sealed cover procedure is to be adopted only when a government servant in respect of whom prosecution for a criminal

case is pending. Here, it shall be apposite to reproduce Clause 16.32 of the Handbook on Personnel Matters, Volume I, which reads as under:

 “16.32 Consideration of cases where disciplinary/court proceedings etc. are pending.

(1) Procedure applicable upto 2-12-1992

Instructions existed as to how the cases of the Govt. servants under suspension or against whom vigilance cases/departmental proceedings

or criminal proceedings are pending should be considered by the Departmental Promotion Committee and these instructions also provided

for preparing “sealed cover†in respect of such Government servants. Instructions were also there as to what action is to be taken with

regard to the sealed cover, after the conclusion of the vigilance case/departmental or criminal proceedings or reinstatement in case of

suspension. After the H.P. became a State, the Govt. issued instructions, covering the above aspects as also the consideration of adhoc

appointments of such Govt. servants who continue to be under suspension or against whom disciplinary/criminal proceedings remain

pending for a long period. The communications of the H.P. Govt. Deptt. of Personnel issued in this behalf after 25-1-1971 are as under:-

(i) O.M. No. PER(AP-II) A(3)-9/76 dated 27-7-1978 (para 4)- Annexure -16.7

(ii)O.M. No. Per (AP-II) A(3)-1/79-III dated 1-9-1983-Annexure 16.19

(iii) O.M. No. Per (AP-II) A(3)-1/79-III dated 26-11-1991-Annexure 16.31.

The instructions contained in the above communications are self contained and need be kept in view while considering review of old cases

etc. These instructions are given in the Annexures as indicated above.

(2) Procedure applicable from 3-12-1992 and in vogue now

The procedure and guidelines to be followed in the matter of promotion of Govt. servants against whom disciplinary proceedings/court

proceedings are pending or whose conduct is under investigation have been reviewed carefully by the Govt. of India, Ministry of

Personnel, PG and Pensions, Deptt. of Personnel and Training. The Govt. of India also took note of the judgment dated 27-8-1991 of the

Supreme Court in Union of India Vs. K.V. Jankiraman etc. (A.I.R. 1991 S.C. 2010). As a result of the review and in supersession of all

earlier instructions, the Govt. of India issued revised instructions in this behalf on 14-9-1992, which have been adopted in H.P. for

application to employees/officers of H.P. on 3-12-1992. These instructions are as under:-

(i) Cases of Government servants to whom Sealed Cover Procedure will be applicable.

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 for whom sealed cover procedure is to be adopted should be specifically brought to the

notice of the Departmental Promotion Committee:-

(a)Government servants under suspension

(b) Government servants in respect of whom a charge-sheet has been issued and disciplinary proceedings are pending; and

(c) Government servants in respect of whom prosecution for a criminal charge is pending.â€​

For the reasons stated above, we find merit in this writ petition and accordingly the same is allowed and respondents are directed to promote the

petitioner from the date when his juniors were promoted vide order dated 14.09.2020, in case he is found fit and eligible, with all consequential benefits

including monetary and non-monetary like seniority etc. within a period of two months from today failing which the respondents shall be liable to pay

arrears at the rate of 9% per annum. All pending applications stand disposed of.