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2025 DIGILAW 1028 (HP)

Jyoti Swarup Sharma v. State of Himachal Pradesh

2025-05-15

JYOTSNA REWAL DUA

body2025
JUDGMENT : Jyotsna Rewal Dua, J. 1. Petitioner retired on 31.03.2023 on attaining the age of superannuation during the pendency of this writ petition. While in service, the respondent on 23.02.2015, kept his case for further promotion/regularization etc. in sealed cover contemplating holding disciplinary proceedings and awaiting the outcome of criminal proceedings launched against him. The charge-sheet was issued to the petitioner on 30.08.2017. The Inquiry Officer in his report dated 28.01.2019, held the charges leveled against him as ‘not proved’. It was on 09.07.2021 that the disciplinary authority expressed disagreement with the inquiry report. Whereas, even before that, fresh and revised memorandum of charges had been issued to the petitioner on 11.06.2019. A new Inquiry Officer was appointed to inquire into the second charge-sheet issued to the petitioner. Petitioner participated in the second inquiry proceedings. While the same were going on, he instituted this writ petition seeking direction to the respondent to consider him for promotion. The second Inquiry Officer submitted inquiry report on 09.11.2023. More than 17 months have gone by, the disciplinary authority is yet to take a decision on the inquiry report. 2. Background facts may be noticed first:- (i) Petitioner joined the respondent-State Taxes and Excise Department as Excise & Taxation Inspector on 10.06.1987. On 28.07.2011, on the recommendations of the Departmental Screening Committee, he was promoted as Excise & Taxation Officer (Class-I Gazetted) on ad hoc basis as a stop gap arrangement. (ii)While the petitioner was posted as Excise & Taxation Officer (ETO) at Baddi, FIR No.9/2014 was registered against him on 24.12.2014 at Police Station, State Vigilance & Anti Corruption Bureau, Solan under Sections 7 and 13 (2) of the Prevention of Corruption Act . Petitioner was alleged to have demanded illegal gratification to the tune of Rs.12,000/- for releasing F.D.R. and for blocking the TIN of M/s Bansal Crane Service, Baddi. On this account, the petitioner was suspended on 13.01.2015. (iii) A meeting of the Departmental Promotion Committee (DPC) for regularization of ad hoc ETOs and promotion as Assistant Commissioner, State Taxes and Excise (ACSTE), was convened on 23.02.2015, but due to FIR No.9/2014 having been registered against the petitioner, the DPC kept his case for promotion from ETO/ACSTE on ‘ad hoc basis’ to ETO/ACSTE on ‘regular basis’ in a sealed cover. On the basis of recommendations of the DPC, 51 ad hoc ETOs/ACSTEs including the seniors and juniors of the petitioner were regularized. (iv) Petitioner’s suspension was revoked on 18.09.2015 and he was posted as Excise & Taxation Officer on ad hoc basis. (v) Another FIR, bearing No.9/2016, was registered against the petitioner on 03.04.2016 under Sections 420 , 468, 471, 406, 409, 411, 201, 217 , 218 & 120-B of the Indian Penal Code and Sections 13 (1)(c) & 13(1)(d) of the Prevention of Corruption Act , 1988 at Police Station, State CID, Shimla, however, no departmental proceedings were initiated by the respondent in relation to this FIR. (vi) On 30.08.2017, the respondent issued memorandum of charges to the petitioner under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules , 1965, containing following article of charge:- “That Shri Jyoti Swaroop, Excise & Taxation Officer while being posted in Baddi Circle-IV, BBN-Baddi, District Solan, H.P. was arrested at Baddi by the Dy. Superintendent of Police, State Vigilance & Anti Corruption Bureau, (SIU-II) on 24-12-2014 at 06:30 P.M. in the case FIR No.9/2014 dated 24-12-2014 under Section 7 of the PC Act, 1988 registered at Police Station, SV&ACB Solan and remained in Police Custody till 25-12-2014 and thereafter remained in Judicial Custody till 21-01-2015. The said FIR was registered against Shri Jyoti Swaroop, Excise & Taxation Officer, Baddi Circle-IV, H.P. in connection with accepting bribe/illegal gratification to the tune of Rs.12,000/- from one Smt. Depika Sharma W/o Shri Goldy Sharma R/o Ram Leela Ground Ward No.9, Nalagarh, District Shimla, posted as Accountant in Bansal Crane Service Baddi for releasing of F.D.R. of Bansal Crane Service Baddi, Distt. Solan and TIN Blocking. This act on the part of said Shri Jyoti Swarup, Excise & Taxation Officer is highly objectionable, un-becoming of a Govt. servant and is in violation of the provision of Rule-3(1)(i) to (iii) of the Central Civil Services (conduct) Rules, 1964.” (vii) One Dr. Sunil Kumar was appointed as Inquiry Officer on 17.02.2018. The Inquiry Officer furnished his report on 28.01.2019, holding that the charges against the petitioner were not proved. The conclusion drawn by the Inquiry Officer is as under:- “On the basis of the above discussion and facts, the following conclusion is reached: The Article of Charge stated that Sh. Sunil Kumar was appointed as Inquiry Officer on 17.02.2018. The Inquiry Officer furnished his report on 28.01.2019, holding that the charges against the petitioner were not proved. The conclusion drawn by the Inquiry Officer is as under:- “On the basis of the above discussion and facts, the following conclusion is reached: The Article of Charge stated that Sh. Jyoti Swaroop accepted Rs.12,000/- from Smt. Deepika Sharma for releasing the FDR of Bansal Crane Service and TIN Blocking. While the charged officer himself did not deny the receiving of the said money though for different reason, the first intent shown behind it, i.e., releasing of the FDR of M/s Bansal Crane Service could not be established since the FDR itself pertained to M/s Enn Kay Enterprises and not to M/s Bansal Crane Service. The second intent, i.e. TIN Blocking or RC Cancellation also could not be proved as the cancellation of RC of M/s Bansal Crane Service was never demanded by the dealer while the RC of M/s Enn Kay Enterprises was cancelled by the CO around two months back on29.10.2014.” (viii) At this stage, without even considering the inquiry report, the respondent issued second memorandum of charges to the petitioner on 11.06.2019 relating to same allegation and imputation against the petitioner. The Article of Charge now framed with slight modification reads as under:- “That Shri Jyoti Swaroop, Excise & Taxation Officer while being posted in Baddi Circle-IV, BBN-Baddi, District Solan, H.P. was arrested at Baddi by the Dy. Superintendent of Police, State Vigilance & Anti Corruption Bureau, (SIU-II) on 24-12-2014 at 06:30 P.M. in the case FIR No.9/2014 dated 24-12-2014 under Section 7 of the PC Act, 1988 registered at Police Station, SV&ACB Solan and remained in Police Custody till 25-12-2014 and thereafter remained in Judicial Custody till 21-01-2015. The said FIR was registered against Shri Jyoti Swaroop, Excise & Taxation Officer, Baddi Circle-IV, H.P. in connection with accepting bribe/illegal gratification to the tune of Rs.12,000/- from one Smt. Depika Sharma W/o Shri Goldy Sharma R/o Ram Leela Ground Ward No.9, Nalagarh, District Shimla, posted as Accountant in Bansal Crane Service Baddi for releasing of F.D.R. of M/s Enn Kay Enterprises, Service Baddi, Distt. Solan and TIN Blocking. This act on the part of said Shri Jyoti Swarup, Excise & Taxation Officer is highly objectionable, un- becoming of a Govt. Solan and TIN Blocking. This act on the part of said Shri Jyoti Swarup, Excise & Taxation Officer is highly objectionable, un- becoming of a Govt. servant and is in violation of the provision of Rule-3(1)(i) to (iii) of the Central Civil Services (conduct) Rules, 1964.” The second memorandum of charges issued to the petitioner on 11.06.2019 under Rule 14 of the CCS (CCA) Rules, 1965 remained pending for more than three years without there being any action on it by the respondent. (ix) More than three years after the receipt of inquiry report, the disciplinary authority on 09.07.2021 issued a memorandum, disclosing its reasons for disagreement with the inquiry report submitted on 28.01.2019 and appointing one Sh. G.D. Thakur as new Inquiry Officer for conducting fresh inquiry into the charges framed against the petitioner with further direction to submit the inquiry report within one month. The said memorandum takes note of the charge-sheet issued to the petitioner on 11.06.2019. It does not refer to the charge-sheet issued to the petitioner on30.08.2017. (x) The second Inquiry Officer on 27.01.2021, sent an office communication to the respondent with the request that inquiry report dated 28.01.2019 already submitted by the first Inquiry Officer be treated as final inquiry report as it had already been concluded. The aforesaid office communication was followed by another letter on 13.07.2021 by the second Inquiry Officer, calling for the relevant records to enable him to proceed further in the matter. It is at this stage that the petitioner instituted this writ petition on 09.09.2022, praying for following substantive reliefs:- “(i) The impugned action of the Respondent for not considering the case of the petitioner for the promotional post of Deputy Commissioner (State Taxes and Excise) and the action of respondents whereby the claim of the petitioner has been placed in Sealed cover be declared wrong, illegal, Unconstitutional and unwarranted with the further prayer that the impugned action may be quashed and set aside. (ii) That keeping in view the enquiry report submitted by Dr. Sunil Kumar dated 28/01/2019 (Annexure-2) the enquiry proceedings now intended to be initiated by Shri G D Thakur vide (Annexure-4) may also be declared Un-constitutional contrary to the principles of service jurisprudence and well known dictas of Hon’ble Apex court in this regard. (iii) Record pertaining to enquiry conducted by Dr. Sunil Kumar dated 28/01/2019 (Annexure-2) the enquiry proceedings now intended to be initiated by Shri G D Thakur vide (Annexure-4) may also be declared Un-constitutional contrary to the principles of service jurisprudence and well known dictas of Hon’ble Apex court in this regard. (iii) Record pertaining to enquiry conducted by Dr. Sunil Kumar-Enquiry Officer may also be called for satisfying the judicial conscious of this Hon’ble court and to show as to how the best, honest and sincere officer is harassed by the government machinery by abusing the process of law.” 3. Vide order dated 15.10.2022 passed in this writ petition, the respondent was directed not to take any decision in respect of promotions to the post of Deputy Commissioner (State Taxes and Excise). On 19.07.2024, noticing petitioner’s superannuation in the interregnum, the interim order passed on 15.10.2022 was vacated. Pursuant thereto, the respondent has made further promotions to the post of Deputy Commissioner (State Taxes and Excise). Relevant part of order dated 19.07.2024 is reproduced hereinafter:- “In view of the aforesaid change in circumstance, interim order dated 15.10.2022 is vacated. The respondents are free to make further promotions to the post of Deputy Commissioner (State Tax and Excise). Insofar as the petitioner is concerned, if in case, his petition is allowed, then benefits to the petitioner on account of illegal stoppage and promotion, shall be accorded to him from the due and admissible date.” Pursuant to the above order, the respondent has made promotions to the post of Deputy Commissioner (State Taxes and Excise) on 19.09.2022 by promoting one Sh. Som Dutt Sharma, who was at Sr. No.1 of the final seniority list of Assistant Commissioners (State Taxes and Excise). Further, on 28.09.2022, two more promotions were made to the post of Deputy Commissioner (State Taxes and Excise) from the feeder cadre/post of Assistant Commissioner (State Taxes and Excise) (ACSTE) on the basis of merit-cum-seniority. Petitioner was working as ACSTE on ad hoc basis and not on regular basis, as his case had been kept in sealed cover by the DPC on 23.02.2015. For this reason, petitioner’s name did not appear in the seniority list of ACSTE and was not considered by the DPC while making recommendations for promotion to the post of DCSTE. Petitioner retired on attaining the age of superannuation on 31.03.2023. 4. For this reason, petitioner’s name did not appear in the seniority list of ACSTE and was not considered by the DPC while making recommendations for promotion to the post of DCSTE. Petitioner retired on attaining the age of superannuation on 31.03.2023. 4. I have heard learned counsel on both sides and considered the case file as well as the record produced by the respondent during hearing of the case. The submissions made by learned counsel on both sides and discussion thereupon is as under:- (i) The first charge-sheet, sealed cover procedure and first inquiry report Against the above factual background, legal position may first be adverted to. (i)(a) It would be profitable to refer to Union of India & Ors. Vs. Anil Kumar Sarkar, (2013) 4 SCC 161 . In this decision, the Hon’ble Apex Court reiterated the law laid down in Union of India & Anr. Vs. K.V. Jankiraman, 1991 (4) SCC 109 that the promotion cannot be withheld merely because some disciplinary/ criminal proceeding was pending against an employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet had already been issued to the employee. In that scenario,sealed cover procedure is required to be adopted by the DPC while considering the case of the deliquent employee for promotion to the higher post. Relevant portion of the judgment reads as under:- “16. It is not in dispute that an identical issue was considered by this Court in Union of India and Others vs. K.V. Jankiraman and Others. The common questions involved in all those matters were: “8……(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?. Among the three questions, we are concerned about question No.1. As per the rules applicable, 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. 17. As per the rules applicable, 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. 17. Inasmuch as we are concerned about the first question, the dictum laid down by this Court relating to the said issue is as follows:- “16. 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 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. In para 17, this Court further held: 17. 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. In para 17, this Court further held: 17. … 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….” After finding so, in the light of the fact that no charge sheet was served on the respondent-employee when the DPC met to consider his promotion, yet the sealed cover procedure was adopted. In such circumstances, this Court held that “32 …. The Tribunal has rightly directed the authorities to open the sealed cover and if the respondent was found fit for promotion by the DPC, to give him the promotion from the date of his immediate junior Shri M. Raja Rao was promoted pursuant to the order dated April 30, 1986. The Tribunal has also directed the authorities to grant to the respondent all the consequential benefits…..We see no reason to interfere with this order. The appeal, therefore, stands dismissed.” 18. The principles laid down with reference to similar office memorandum are applicable to the case on hand and the contrary argument raised by the appellantUnion of India is liable to be rejected. 19. In Coal India Limited & Ors. vs. Saroj Kumar Mishra, this Court, in para 22, has held that:- “18… A departmental proceeding is ordinarily said to be initiated only when a chargesheet is issued.” 20. In Coal India Limited and Others vs. Ananta Saha and Others, this Court held as under: “27. There can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a chargesheet is issued to the delinquent employee. (Vide Union of India v. K.V. Jankiraman, (1991) 4 SCC 109 and UCO Bank v. Rajinder Lal Capoor.” 21. We also reiterate that the disciplinary proceedings commence only when a charge sheet is issued. Departmental proceeding is normally said to be initiated only when a charge sheet is issued. 22. (Vide Union of India v. K.V. Jankiraman, (1991) 4 SCC 109 and UCO Bank v. Rajinder Lal Capoor.” 21. We also reiterate that the disciplinary proceedings commence only when a charge sheet is issued. Departmental proceeding is normally said to be initiated only when a charge sheet is issued. 22. Learned ASG, by drawing our attention to the decision of this Court in Union of India and Another vs. R.S. Sharma, submitted that in spite of decision of this Court in Jankiraman’s case (supra) in view of para 7 of the office memorandum and in the light of the fact that proceedings were initiated both criminal and departmentally, the High Court committed an error by overlooking para 7 of sealed cover process and contended that the direction issued by it cannot be sustained. We have carefully gone through the factual position and the ultimate ratio laid down by this Court in R.S. Sharma’s case (surpa). Even though in the said decision, this Court has distinguished the decision in Jankiraman’s case (supra) and held that the same is not applicable to its case, in the light of the conditions mentioned in para 2 as well as para 7 of the office memorandum dated 14.09.1992 and of the categorical finding that none of the conditions mentioned therein has been fulfilled, we are of the view that the decision in R.S. Sharma’s case (supra) is not helpful to the case of the appellant.” It is, thus, well settled that departmental proceedings can be said to have been initiated only upon issuance of the charge-memo/charge-sheet and not prior thereto. In case of initiation of departmental proceedings against an employee as on date of consideration of his case for promotion by the DPC, the sealed covered procedure is required to be adopted. The said sealed cover is to be opened after culmination of the departmental proceedings. (i)(b) Reliance placed by the respondent upon para 16.32 of Chapter 16 of H.P. Handbook on Personnel Matters Vol-I will not advance its stand. The contents of the para pressed into service read as under:- “(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. 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, AIR 1991 SC 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. xxx xxx xxx (v) Six monthly review of ‘sealed cover’ cases It is necessary to ensure that the disciplinary case/criminal prosecution instituted against any Government servant is not unduly prolonged and all efforts to finalize expeditiously the proceedings should be taken so that the need for keeping the case of a Government servant in a sealed cover is limited to the barest minimum. It has, therefore, been decided that the appointing authorities concerned should review comprehensively the cases of Government Servants whose suitability for promotion to a higher grade has been kept in a sealed cover on the expiry of 5 months from the date of convening the first Departmental Promotion Committee which had adjudged his suitability and kept its findings in the sealed cover. Such a review should be done subsequently also every six months. The review should, inter-alia, cover the progress made in the disciplinary proceedings/criminal prosecution and the further measures to be taken to expedite their completion.” The above para is based upon office memorandum issued by the Government of India on 14.09.1992 and adopted by the respondent-State on 03.12.1992. Such a review should be done subsequently also every six months. The review should, inter-alia, cover the progress made in the disciplinary proceedings/criminal prosecution and the further measures to be taken to expedite their completion.” The above para is based upon office memorandum issued by the Government of India on 14.09.1992 and adopted by the respondent-State on 03.12.1992. The contents thereof relevant to the context are as follow:- “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 a charge sheet has been issued and the disciplinary proceedings are pending; and (iii) Government servants in respect of whom prosecution for a criminal charge is pending. 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above alongwith other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including ‘Unfit for Promotion’, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed ‘Findings regarding suitability for promotion to the grade/post of …………… in respect of Shri …………………….. (name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri ……………………….’ The proceedings of the DPC need only contain the note ‘The findings are contained in the attached sealed cover’. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover. 2.2. The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded. 3. xxx xxx xxx 4. 2.2. The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded. 3. xxx xxx xxx 4. It is necessary to ensure that the disciplinary case/criminal prosecution instituted against any Government servant is not unduly prolonged and all efforts to finalise expeditiously the proceedings should be taken so that the need for keeping the case of a Government servant in a sealed cover is limited to the barest minimum. It has, therefore, been decided that the appointing authorities concerned should review comprehensively the case of Government servants, whose suitability for promotion to a higher grade has been kept in a sealed cover on the expiry of 6 months from the date of convening the first Departmental Promotion Committee which had adjudged his suitability and kept its findings in the sealed cover. Such a review should be done subsequently also every six months. The review should, inter alia, cover the progress made in the disciplinary proceedings/criminal prosecution and the further measures to be taken to expedite their completion. 5. In spite of the six monthly review referred to in para 4 above, there may be some cases, where the disciplinary case/criminal prosecution against the Government servant is not concluded even after the expiry of two years from the date of the meeting of the first DPC, which kept its findings in respect of the Government servant in a sealed cover. In such a situation the appointing authority may review the case of the Government servant, provided he is not under suspension, to consider the desirability of giving him ad-hoc promotion keeping in view the following aspects:- (a) Whether the promotion of the officer will be against public interest; (b) Whether the charges are grave enough to warrant continued denial of promotion; (c) Whether there is any likelihood of the case coming to a conclusion in the near future; (d) Whether the delay in the finalisation of proceeding, departmental or in a court of law, is not directly or indirectly attributable to the Government servant concerned; (e) Whether there is any likelihood of misuse of official position which the Government servant may occupy after ad-hoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution. The appointing authority should also consult the Central Bureau of Investigation and take their views into account where the departmental proceedings or criminal prosecution arose out of the investigations conducted by the Bureau. ………………………………………….” The procedure laid down in para 2 of office memorandum dated 14.09.1992 would be applicable, in case, situations mentioned in para 2 are met, i.e. a Government servant has been suspended or in respect of whom a charge-sheet has been issued and disciplinary proceedings are pending or in respect of whom prosecution for a criminal charge is pending. In order to keep DPC’s assessment of the employee in a sealed cover, the above circumstances have to be met on the date of convening the DPC. (i)(c) The above office memorandum dated 14.09.1992 came up for consideration in Union of India & Ors. Vs. Doly Loyi, Civil Appeal No. 8387/2013 decided on 24.09.2024. In the said case, sanction of prosecution was granted on 02.06.2006. The DPC was convened on 22.02.2007, which adopted the sealed cover procedure. The charge-sheet was filed subsequently on 25.10.2008. Based upon the aforesaid OM, a contention was raised that the expression in the OM “Government servants in respect of whom prosecution for a criminal charge is pending” has to be read in light of the object sought to be achieved i.e. a tainted officer should not been allowed to be promoted till the cloud is clear and during this period, the sealed cover procedure is to be adopted. A point was urged that OM did not specifically indicate as to before which forum or at what stage, the prosecution for criminal charge is required to be pending in order to attract the sealed cover procedure and thus, this expression should be interpreted in a wider sense to even cover a case in which investigation for a criminal charge is pending with the investigating agency. ? Hon’ble Apex Court held that OM dated 14.09.1992, described the conditions under which the assessment done by the DPC is to be kept in the sealed cover. That sealed cover procedure can be resorted to in respect of three categories of Government servants i.e. Government servants under suspension, Government servants in respect of whom a charge-sheet had been issued and the disciplinary proceedings were pending and Government servants in respect of whom prosecution for criminal charge was pending. That sealed cover procedure can be resorted to in respect of three categories of Government servants i.e. Government servants under suspension, Government servants in respect of whom a charge-sheet had been issued and the disciplinary proceedings were pending and Government servants in respect of whom prosecution for criminal charge was pending. In the given facts of the case, it was held that charge-sheet was filed after the meeting of the DPC. Therefore, the move on part of the DPC to resort to sealed cover procedure was held unjustified. ? Reiterating the law laid down in K.V. Jankiraman, it was held as under:- “21. On a bare perusal of OM dated 14th September, 1992, which covers the issue, it is clear that it prescribes the conditions under which the assessment done by the DPC is to be kept in the sealed cover. According to this OM, the sealed cover procedure can be resorted to in respect of three categories of Government servants i.e. Government servants under suspension, Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending, and Government servants in respect of whom prosecution for criminal charge is pending. 22. Learned counsel for appellant made a pertinent submission that the case of the respondent falls under the third clause of the above OM, i.e. Government servants in respect of whom prosecution for criminal charges is pending. Thus, the question requiring consideration is as to whether a mere grant of prosecution sanction would be sufficient to infer that the prosecution for a criminal charge was pending against the respondent. Similar issue came up for consideration before this Court in the case of Union of India v. K.V. Jankiraman, wherein it was held that sealed cover procedure is to be resorted to only after the charge memo/charge sheet is issued. The relevant extract is reproduced hereinbelow: “16. 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/chargesheet. 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.” (Emphasis supplied) “24. Considering the above position, the disciplinary/criminal proceedings can be said to be initiated against the employee only when a charge memo is issued to the employee in a disciplinary proceeding or a charge-sheet for a criminal prosecution is filed in the competent Court. The sealed cover procedure is to be resorted to only after issuance of the charge-memo/charge-sheet is issued. The pendency of investigation and grant of prosecution sanction will not be sufficient to enable the authorities to adopt the sealed cover procedure. 25. In view of the aforesaid legal position, the crucial aspect requiring examination is as to whether the prosecution for criminal charge was pending against the respondent when the DPC meeting was held. 26. The pendency of investigation and grant of prosecution sanction will not be sufficient to enable the authorities to adopt the sealed cover procedure. 25. In view of the aforesaid legal position, the crucial aspect requiring examination is as to whether the prosecution for criminal charge was pending against the respondent when the DPC meeting was held. 26. It is not in dispute that the sanction to prosecute the respondent was granted on 2nd June, 2006 and the charge sheet was filed by CBI, after completion of investigation on 25th October, 2008, whereas the DPC to consider the promotion of Additional Commissioners of Income Tax was convened on 22nd February, 2007, wherein the sealed cover procedure was adopted qua the respondent. It is thus clear that the charge sheet against the respondent was filed well after the meeting of the DPC was convened. Hence, it could not be said that the prosecution for a criminal charge was pending against the respondent when the DPC was convened. Therefore, the move on the part of DPC to resort to the sealed cover procedure was unjustified and unsustainable on facts and in law. 27. Resultantly, we have no hesitation in holding that the impugned judgment of the High Court dated 26th April, 2013 is based on apropos consideration of facts and law and hence the same does not warrant interference.” (i)(d) Reverting to the facts of the instant case, the respondent on the basis of recommendations of the DPC, had promoted the petitioner as ETO (Class-I Gazetted)/ ACSTE vide notification 28.07.2011 on ad hoc basis as a stop gap arrangement. It is the pleaded case of the respondent that meeting of the DPC was convened on 23.02.2015 for regularization/promotion of ad hoc ETOs/ACSTE. On the recommendations of this DPC, the seniors and juniors of the petitioner were promoted as regular Assistant Commissioner (State Taxes and Excise), but on account of registration of FIR No.9/2014 against the petitioner as well as his suspension ordered on 13.01.2015, his case had been kept in a sealed cover. Admittedly, petitioner’s suspension was revoked on 18.09.2015. No charge-sheet had been issued to the petitioner by the respondent at that stage. First prosecution sanction was granted on 29.11.2017 and second on 05.05.2020. Departmental proceedings had not been initiated against the petitioner in terms of K.V. Jankiraman. Charges had not been framed against him in the criminal case at that stage. Admittedly, petitioner’s suspension was revoked on 18.09.2015. No charge-sheet had been issued to the petitioner by the respondent at that stage. First prosecution sanction was granted on 29.11.2017 and second on 05.05.2020. Departmental proceedings had not been initiated against the petitioner in terms of K.V. Jankiraman. Charges had not been framed against him in the criminal case at that stage. Therefore, the respondent was required to open the sealed cover and to give effect to the recommendations of the DPC. The action of the respondent in not opening the sealed cover cannot be countenanced. It is not in conformity with the settled legal position. The charge-sheet was issued to the petitioner only on 30.08.2017. Inquiry report was furnished by the first Inquiry Officer on 28.01.2019, holding that the charge against the petitioner was ‘not proved’. Without taking any action on the inquiry report, the disciplinary authority issued fresh charge-sheet to the petitioner on 11.06.2019. In fact, till date, there is no concrete order passed by the disciplinary authority determining the fate of first charge-sheet. Two years after the issuance of second memorandum of charges on 11.06.2019, the disciplinary authority came up with another office memorandum on 09.07.2021, disagreeing with the inquiry report dated 28.01.2019 and appointing second Inquiry Officer to conduct inquiry on the second charge-sheet that was issued on 11.06.2019. Under these circumstances, keeping in view the facts and the legal position, the respondent was duty bound to open the sealed cover of the recommendations made by the DPC qua the petitioner on 23.02.2015. (ii) The second inquiry:- The record produced by the respondent reveals that the second Inquiry Officer had furnished the inquiry report on 09.11.2023. It was sent to the Commissioner, State Taxes and Excise, Himachal Pradesh on 30.11.2023, who in turn, forwarded it for appropriate action to the Principal Secretary (State Taxes and Excise) to the Government of Himachal Pradesh on 18.12.2023. Copy of the second inquiry report, which was made available to the respondent in December, 2023, has till date not been supplied to the petitioner by the respondent. During hearing of this case, copy of the inquiry report has now been handed over to learned counsel for the petitioner. The conclusion drawn by the second Inquiry Officer is as under:- “3. During hearing of this case, copy of the inquiry report has now been handed over to learned counsel for the petitioner. The conclusion drawn by the second Inquiry Officer is as under:- “3. From the above two reasons in Para No. K (1 & 2 above) it can be concluded: a. That Rs.12000/- were recovered from the Pocket of the CO. b. Whether above Recovery of Rs.12000/- is associated with the charge of Release of FDR & TIN Blocking or otherwise. To ascertain this the Final Outcome in the Criminal Trial of Case FIR No.9/2014 dated 24.12.2014 under Section 7 of the PC Act, 1988 registered at Police Station, SV&ACB Solan, being pending before the Ld. Special Court Solan dtd 22.12.2007 as intimated by the Dy SP-PS, SV & ACB Solan, Distt Solan HP vide letter No-1263 dated 18th August-2021, needs to be waited for evaluation. c. Accordingly the Rule-3 (I to iii) of the Central Civil Services (Conduct) Rules , 1964, as per the Memorandum served upon the AO; dated 11th June 2019 may be assessed by the Competent Authority.” The record also shows that for more than one year and five months now, the aforesaid inquiry report is pending consideration of the disciplinary authority. No decision till date has been taken for either accepting or rejecting the inquiry report submitted by the second Inquiry Officer. Learned counsel for the petitioner has fairly admitted that the petitioner has participated in the second inquiry conducted by the respondent under memorandum of charges dated 11.06.2019. In view of petitioner’s participation in the second inquiry and the inquiry report having now been furnished by the respondent, the legality of second inquiry conducted by the respondent is not being examined. The record produced by the respondent shows that this inquiry, which was directed to be completed within one month from 09.07.2021, was actually completed on 09.11.2023. The conclusions drawn by the Inquiry Officer have already been extracted above. More than a year and half have gone by. The disciplinary authority has still not taken any call on the second inquiry report. The office memorandum dated 14.09.1992 mandates expeditiously finalizing the disciplinary/criminal proceedings against the government servant and to ensure that the same are not unduly prolonged so that need for keeping the case of a government servant in a sealed cover is limited to the barest minimum. 5. The office memorandum dated 14.09.1992 mandates expeditiously finalizing the disciplinary/criminal proceedings against the government servant and to ensure that the same are not unduly prolonged so that need for keeping the case of a government servant in a sealed cover is limited to the barest minimum. 5. In view of above discussion, taking note of the facts of the case and settled legal position, this writ petition is disposed of with following directions:- (i) Respondent is directed to open the sealed cover of the recommendations of the DPC dated 23.02.2015 in relation to petitioner’s assessment and take further action accordingly within three weeks. All consequential actions based upon the recommendations of the DPC be also taken within the aforesaid period. Petitioner shall be entitled to all consequential benefits. (ii) Inquiry report furnished by the second Inquiry Officer on 09.11.2023 be taken to its logical conclusion by passing appropriate orders thereupon in accordance with law within the aforesaid period. All consequential actions be also taken within this period. 6. The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.