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TMI Blog2013 (7) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... He was promoted to various posts and while he was working as senior AFA/T-1 in the office of the Financial Adviser and Chief Accounts Officer of Northeast Frontier (N.F.) Railway at Maligaon, a Departmental Promotion Committee (DPC) was convened by the Union Public Service Commission (UPSC) on 26.02.2002 and 27.02.2002 to consider eligible Group 'B' officers of the Accounts Department for their substantive promotion to Group 'A' (Jr. Scale) of Indian Railways Accounts Service (IRAS) against the vacancies for various Zonal Railways/Production Units. In the said DPC, the respondent's name was also considered against the vacancies in N.F. Railway for the year 2001-2002 and accordingly, his name was placed in the extended select panel. b) It was alleged by the appellants herein that during the year 1994-95, while the respondent was working as Assistant Accounts Officer in the Central Stores Accounts (Bills) in the office of the Financial Adviser and Chief Accounts Officer (Open Line), N.F. Railway, Maligaon, he committed gross misconduct in the matter of checking and passing the bills of various firms involved in manufacturing and supplying of cast iron sleeper plates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Jain, learned ASG, after taking us through the Office Memorandum dated 14.09.1992 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, submitted that paragraph 2 of the said memorandum has to be considered along with paragraph 7 of the same. According to him, the High Court is not justified in considering paragraph 2 of the memorandum alone. He further submitted that at the relevant time, 4 charge sheets were issued to the respondent and enquiries were completed and notices to show cause had already been served upon the respondent. On the other hand, Mr. Rakesh Kumar Singh, learned counsel for the respondent submitted that as on the date i.e. 21.04.2003, when his juniors were promoted, neither the respondent was under suspension nor any charge sheet was served upon him and he was not facing any criminal prosecution, hence, there was no impediment in promoting him. 7) We have carefully considered the rival submissions and all the relevant materials including the decision of the Tribunal and the impugned order of the High Court. Discussion: 8) There is no dispute as to the fact that the Office Memorandum No. 22011/4/91-Estt( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll not be promoted until the conclusion of disciplinary case/criminal proceedings and the provisions contained in this letter will be applicable in his case also." 9) It is not in dispute that the respondent had joined the Northern Railways as a Junior Clerk on 04.11.1977, and got promoted time and again. While he was working as a Group 'B' Officer, his case was taken up for promotion to Group 'A' (Junior Scale) of the Indian Railways Accounts Service (IRAS). It is also not in dispute that in the meetings of the DPC conducted on 26.02.2002 and 27.02.2002, the respondent's name was considered and he was placed in the extended select panel. It is further seen that up to 21.04.2003, the date on which the respondent's batch mates were promoted to IRAS, neither any criminal proceedings was initiated against him nor any departmental enquiry was initiated, nor any charge sheet was served upon him and nor he was placed under suspension. Aggrieved by the nonconsideration of his representations for promotion, the respondent filed O.A. before the Central Administrative Tribunal. Learned counsel for the Railways, by placing reliance on the Office Memorandum dated 14.09.1992, contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered as if his case has been placed in a sealed cover by the DPC. After extracting para 2, we also highlighted the three conditions prescribed therein. Though, learned ASG has mentioned that four charge sheets were issued to the respondent, enquires were completed and show cause notices had already been served on the respondent, on the relevant date, namely, 21.04.2003, when his batch mates were promoted, none of the conditions was in existence in the case of the respondent. Admittedly, the respondent was not placed under suspension, charge sheet had been issued only on 13.08.2003 i.e. nearly after 4 months, no disciplinary proceedings were initiated or pending as on 21.04.2003. In such circumstances, we are of the view that the High Court is fully justified in issuing direction based on para 2 of the memorandum. No doubt, the learned ASG heavily relied on later part of para 7 of the memorandum which reads as under: "He shall not be promoted until the conclusion of disciplinary case/criminal proceedings and the provisions contained in this letter will be applicable in his case also." Inasmuch as none of the circumstances was in existence as on 21.04.2003, relian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ... 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 chargememo/ charge-sheet has already been i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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