Ram Lal Bairwa vs Union Of India & Another
1999 Latest Caselaw 680 Del

ORDER

N.G. Nandi, J.

1. In this writ petition under Article 226 of the Constitution of India, the petitioner has been challenging the resort to sealed cover procedure inasmuch as according to the petitioner since there was no initiation of departmental proceedings on the date of Departmental Promotion Committee (for the short D.P.C) meeting, the sealed cover could not have been placed before the said Committee.

2. The petitioner joined the Border Security Force in 1998; that was posted as Sub Inspector in 100 Battalion then deployed on the Cooch Bihar border of West Bengal; that on 26.9.90, petitioner was traveling by train on duty from New Cooch Bihar to Gwalior; that he was carrying in his brief case, a compass, property of the Government; that the brief case of the petitioner was stolen from his compartment; that the report to the local police did not yield any result; that the said compass could not be recovered; that after two years of incident, some time in 1992, Court of Inquiry/Fact Finding probe was ordered by the Commandant and that in 1994, cost of the compass was recovered form the petitioner,under orders of the Commandant the matter was closed and no chargesheet was preferred against the petitioner on this score.

3. That in June,1995, D.P.C was held to select SubInspectors, including the petitioner for promotion as inspectors; that according to the information available to the petitioner, the case of the petitioner was placed before the D.P.C. in "Sealed Cover" against law; that "Sealed Cover" procedure can be resorted to only in this case of a person against whom formal disciplinary proceedings have been initiated i.e. chargesheet has been served upon him; that no chargesheet whatsoever had been preferred against the petitioner at the time D.P.C. met; that it was only in 18.9.1995, a chargesheet was served upon him under Section 40 B.S.F. Act for loss of compass alleging negligence against the petitioner.

4. The respondents filed counteraffidavit, inter alia, contending that none of the reliefs prayed in the petition now survives for consideration inasmuch as the punishment of the reprimand awarded to the petitioner has been set aside and the "Sealed Cover", in respect of the D.P.C. test was opened and upon opening of the "Sealed Cover" ,petitioner was found to have failed in the D.P.C. test and the same has been conveyed to the petitioner vide letter dated 23.7.98.

5. It is not disputed that the punishment of reprimand awarded to the petitioner has been set aside and the Sealed Cover in respect of the D.P.C. test was also opened and upon opening the "Sealed Cover", the petitioner was found failed in the D.P.C. test and the same having been conveyed to the petitioner.

6. It is submitted by Mr. R.P. Sharma, learned counsel for the petitioner that the "Sealed Cover" procedure could not have been adopted by the respondents in as much as there was no departmental inquiry initiated before the D.P.C. meeting and the said "Sealed Cover" could not have been placed before the D.P.C. and placing of the Sealed Cover misled the D.P.C.

7. The respondent has produced "LIST 'E' BOARD PROCEEDINGS HELD AT AMM & N FTR HQRS W.E.F. 24TH JULY". The note therein reads:- "Opened by me on 22.7.98 and found 'failed'. sd/- 22.7.98"

8. The petitioner has relied on the decision in the case of Union of India etc. Vs. K.V. Jankiraman etc. to substantiate his contentions that the sealed cover procedure can be resorted to only after the charge sheet is issued to him and the pendency of preliminary investigation prior to tat stage cannot be regarded sufficient to enable the authorities to adopt sealed cover procedure. In the later decision in the case of Delhi Development Authority Vs. H.C. Khurana , considering the decision in the case of Union of India etc. Vs. K.V. Jankiraman (supra), Supreme Court held that "the decision to initiate disciplinary proceedings precedes service of chargesheet ; that in the case of Government servant, recording the decision taken to initiate disciplinary proceedings is not essential.

9. Learned counsel for the petitioner has also placed reliance on the decision in the cases of State of Madhya Pradesh and Another Vs. Syed Naseem Zahir and Others 1993 Supp (2) Supreme Court cases page 225 wherein it is held that sealed cover procedure would be applicable when decision to initiate disciplinary proceedings had already been taken on the date of D.P.C. but chargesheet not yet issued as the appellants were not required to act mechanically by ignoring glaring facts.

10. In the instant case, reliefs claimed are :-

   "(a) Issue a writ, order or direction in the nature  of"    MANDAMUS directing the respondents to open the sealed cover of    1995 and release the promotion of the petitioner as Inspector    w.e.f. the date his next junior was so promoted, if approved by    DPC , with all consequential benefits ; 
 

   (b) Issue a writ , order or direction in the nature of "CERTIORARI" quashing the proceedings of the second summary trial of the    petitioner held on 9.11.96. by Sh. S.K. Seth, Commandant, wherein    punishment of "Reprimand " was awarded to him."    

As pointed out above, prayer (b) does not survive for consideration as "Reprimand" awarded to the petitioner has been subsequently set aside. As far as prayer (a) is concerned, the "Sealed Cover" in question has been opened as pointed out above Probably prayer (a) is on presumption that "Sealed Cover" contained the result in favour of the petitioner and that it was because of the "Sealed Cover" procedure that the petitioner was denied promotion as Inspector. It may be seen from the above that LIST 'E' BOARD PROCEEDINGS HELD AT AMM & FTR HQRS W.E.F. 24TH JULY, 1995 suggests the remarks "FAILED" and List "E" Board Proceedings result which was in sealed cover was opened on 22.7.98 with the remarks as above. Thus, List "E" Board Proceedings either kept in the "Sealed Cover" and placed before the D.P.C. in the "Sealed Cover" would not have made any difference in as much as the promotion of the petitioner to the post of Subedar Inspector would always be subject to the petitioner successfully clearing List "E" Board test/examination. Had the sealed cover contained positive result, then it could be argued that it was because of this "Sealed Cover" procedure, adopted by the respondent, the petitioner was denied the promotion by the D.P.C. But thing being otherwise, keeping List "E" proceedings in "Sealed Cover" pales into insignificance because in the List 'E' board test the petitioner has been declared failed and even in the meeting of the D.P.C. held on 24.7.95, no decision promoting the petitioner to the post of Subedar/Inspector could have been taken in view of the result of List "E" Board proceedings, as pointed out above. As far as the principal enunciated in the case of Union of India Etc. Vs. K.V. JANKIRAMAN etc. (supra), followed in two subsequent decisions referred to above, would not be of any assistance to the petitioner as regards adopting "Sealed Cover" procedure, looking to the facts of the present case.

In view of the above, no judicial review is called for under Article 226 of the Constitution of India. The petition is liable to be dismissed.

Order accordingly.