This article is written by Kushang, a student from Himachal Pradesh National Law University (HPNLU). This article talks about the sealed cover procedure in promotions and also discusses a few case laws related to the concept.
What happens to a government employee promotion if he is charged with a criminal prosecution? Does he lose the chance of promotion? What if the employee is discharged from all allegations, will he still be considered for promotion? Answers to all such questions bring us to a concept called sealed cover promotion. The Central Government has about 33 lakh employees. They have to take care of the promotion of its employees but when a special situation like any disciplinary action or criminal prosecution against the government employees arises then the promotion process of the employee is affected. In such a situation, laying off the staff is not the correct step or denying promotion to such employees merely on allegation may seem like an injustice to employees. As our justice system follows “Innocent until proven guilty” the same should be applied to these situations as well.
Promotion is a very important aspect for an employee. It keeps them motivated. Thus, proper analysis needs to be done while dealing with such aspects. Keeping all the above-said factors in mind, the government authority introduced the concept of ‘sealed cover promotion’ for its employees facing any disciplinary case or criminal prosecution.
What is sealed cover procedure on promotion
Sealed cover promotion means the delay/abeyance in promotion of a government employee until the result of any pending disciplinary enquiry or criminal prosecution against the employee is out. In simple words, it means that when a government employee faces any disciplinary or criminal action then his promotion is delayed until the result of such enquiry.
The Office Memorandum dated 3 November 1958 introduced this concept of sealed cover promotion. Office memorandum is basically a communication issued by an appropriate authority stating the policy or decision of the government. This was made in order to prevent any adverse effect on an employee promotion in future without any fault on part of him. Though the concept was introduced in 1958, the term ‘Sealed Cover’ was used for the first time in the Office memorandum dated 31st August 1960.
When does sealed cover procedure take place
The Departmental Promotion Committee (DPC) carries out the function to check if the concerned government employee is suitable for promotion. The findings of DPC are then not disclosed and are put under a sealed cover. Now, it is important to know which are the situations when this procedure is followed by DPC. This information has been provided in the para 2 of Office memorandum dated 14 September 1992. In the below mentioned situations, the Departmental Promotion Committee has to be notified about the promotion bound employee-
- If the employee of the government is under suspension,
- If a charge sheet has been issued and the disciplinary proceeding are pending on the government employee, and
- If any prosecution for criminal charge is pending on the government employee.
In the above stated situations, the DPC has to assess the suitability of the government employee for promotion without taking into account the disciplinary case or criminal charge against the employee. This helps to prevent any bias while assessing the suitability of the employee. The finding or assessment of the Departmental Promotion Committee are then to be kept in a sealed cover. This sealed cover is superscribed stating that the sealed cover should not be opened till the termination of disciplinary case or criminal prosecution against the government employee. It is also mentioned in the Office memorandum that the same process needs to be followed by subsequent DPC till the result of disciplinary or criminal prosecution against the government employee is concluded. Till the findings are kept in sealed cover, the vacancy is filled on a temporary basis.
What happens if the allegations are dropped against the employee
On the conclusion of the disciplinary case or criminal prosecution of the government employee which result in dropping the allegation against him, then only the sealed cover or covers consisting of findings of DPC should be opened. If the employee is completely exonerated, then the employee gets the benefit of seniority and fixation of pay from the date he otherwise would have been promoted if the sealed cover procedure was not adopted.
Arrears of salary to exonerated employee
There were concerns regarding the arrears of salary. This was solved in the case Union of India v. K.V. Jankiraman where SC held that the employee cannot be given the salary of the higher post along with all consequential benefits from the date of his next junior was promoted unless the proceedings are delayed at the wish of the employee or the non-availability of evidence is the result of an act related to him. This decision was against the tribunal decision based on the notion that the principle of no work no pay does not apply to situations where an employee wants to work but is not allowed by authorities without any fault on his part. SC held that salary should be paid only after regular promotion, that is when the employee is discharged of all charges.
What happens if the employee is found guilty
If the employee is found guilty in the criminal proceedings against him or penalty is imposed on the government employee as a result of disciplinary proceedings, then the findings of DPC should not be acted upon. The case of promotion of such employee is considered by the next DPC with regard to the penalty imposed. This was not the case when only allegations were made against the employee.
The memorandum also states that if disciplinary issues are found then the employee should not be left by giving only a ‘warning’. At Least the penalty of ‘censure’ should be imposed on the employee. The difference between a warning and censure is that a warning is informal in nature and does not have any adverse effect on the future promotion prospect of the employee. However, a censure is more formal and is recorded. Censure has adverse effects on employee promotion in future.
Review by the DPC of the situation
To ensure that the disciplinary action or criminal prosecution against the employee is not unduly prolonged for a long time,the appointing authority should review comprehensively the cases of such employee, whose suitability for promotion has been kept in sealed cover on expiry of 6 months from the date of convening the first DPC which had assessed the employee suitability for promotion. The review covers the progress in the case of the employee and further measures to be taken for completing the case.
What is an ad-hoc promotion
In some cases, the disciplinary case or criminal prosecution against the government employee does not conclude even after expiry of 2 years from the date of meeting of the first DPC. In such situation, the appointing authority may allow ad-hoc promotion keeping in view certain aspects-
- If the promotion of the officer is against the public interest;
- If the charges against the employee are grave enough to deny promotion;
- If the case is likely to be concluded in the near future;
- If the delay in the case has been directly or indirectly caused by the concerned government employee by his act; and
- If the government employee may misuse the official position occupied after ad-hoc promotion for affecting the course of disciplinary case or criminal prosecution against him.
If the appointing authority is satisfied that the ad-hoc promotion to the employee would not be against any public interest, then his case is placed before the DPC to decide whether the employee is suitable for ad-hoc promotion. DPC assesses the suitability without taking into consideration the pending case against the employee.
However, while allowing the ad-hoc promotion of the employee, the employee is made aware of the fact that ad-hoc promotion will not confer any regular promotion and promotion should be till “until further orders”. The government reserves the right to cancel the ad-hoc promotion.
Implication of the result of the case on Ad-hoc promotion
If the person after receiving the ad- hoc promotion is acquitted in the criminal prosecutions or exonerated from departmental proceedings, the ad-hoc promotion made will be confirmed and the promotion will be treated as regular promotion from the date of ad-hoc promotion with all benefits.
However, if the government employee is not acquitted and the government either proposes to take up the matter to high court or if the employee is not exonerated in the departmental proceedings, the ad-hoc promotion granted to the employee should be taken back.
What if charges are alleged after the recommendation of DPC to promote
Sealed procedure cannot be adopted by reviewing DPC if there was no charge (Disciplinary/criminal prosecution) pending against the government employee when the original DPC met. This was notified in an Office memorandum dated 21 November 2002.
In the Delhi Jal Board v. Mahinder Singh, it was held that second departmental enquiry after the exoneration in first enquiry would not affect the promotion of the employee and thus findings of the sealed cover should be followed.
Further as per memorandum dated 19th January 2017, it was stated that the sealed cover may be opened if the employee is acquitted by the trial court in a criminal case and the order is not stayed by high court.
There are few cases which have led to interpretation of the sealed cover promotion over the years. Some of those case have been mentioned below-
Union of India v. K.V. Jankiraman
This case was related to the issue of arrears of salary that has to be paid to the government employee if he has been completely exonerated. The tribunal on this issue had agreed that salary arrear should be given from the date of promotion of the employee if there was no sealed cover promotion for the employee. However this decision was reversed in the case by the Supreme Court which held that no salary arrear has to be paid and the employee would get all benefit from the date after getting completely discharged from the charges against him.
Delhi Jal Board v. Mohinder Singh
In the above case, it was held that the sealed cover prepared by DPC should be opened and the employee should be given the benefit of promotion as per the recommendation of DPC notwithstanding the pendency of a later disciplinary case. Thus, if an employee is discharged from the charges in the first enquiry and if his promotion has been acted upon then the benefits cannot be taken back.
G.S. Siddaraju v. KSRTC
In the case, the petitioner claimed to be the senior most officer in his cadre. He wanted the order of promoting his junior to the post of divisional mechanical engineer to be quashed by the court and to promote him for the said post. However it was found that the petitioner promotion was being assessed under sealed cover promotion due to several instances of misconduct by the employee. It was held that once the petitioner is exonerated of charges then only he can be promoted based on the findings of the DPC.
Sundaran M v. State of Kerala
In the case, the petitioner was an assistant sub-inspector of police. As per him he was denied consideration for promotion for the post of sub-inspector on account of pendency of a vigilance case against him. The court held that the sealed cover promotion should be adopted for assessing the suitability of the officer for the post. The court also stated that the petitioner should not be disqualified for consideration on grounds of pendency of a vigilance case.
The sealed cover promotion has helped many innocent employees in regaining what they deserve. Earlier when such provisions were not present, employees were laid off or not given promotion merely on the allegation of indiscipline or criminal prosecution. It was immaterial if such allegations were correct or not. This led to injustice to those employees who were acquitted of the charges after the case was over. The concept of sealed cover is still developing with time. It has gone through various changes and interpretation from 1958 to 2017. Concepts like these provide more assurance to the government employee and thus motivate them to work to the best of their capabilities.
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