Sanjeev Kaushik, Member (Judicial):— The present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 is directed against an order dated 16.01.2015 whereby the recommendation of the Departmental Promotion Committee, qua the applicant, for promotion to the post DGM was kept in a sealed cover and persons junior to him were promoted. He further seeks issuance of direction to the authorities to open the sealed cover and give effect to the recommendation of the DPC and if found fit, promote him from the date when immediate juniors were promoted as such with all the consequential benefit.
2. The facts, which led to filing of the present Original Application, are that the applicant joined the respondent department as a Manager Grade I (Central Civil Services Group ‘A’ post) on 25.01.1993. It is the case of the applicant that his work and conduct has always been appreciated and is above board. He was graded “outstanding” for the years 2008 to 2012 and for the year 2012-2013 as “very good”. He also earned appreciations/recommendations on various counts and also is in receipt of GOC-in-C recommendation from Army Commander, HQ, in the year 2008. The applicant was promoted as Assistant General Manager vide office order dated 31.12.2002 which become effective from 01.01.2003. He remained posted in Mumbai during 2008-2009. From May, 2009 to April, 2012, he worked as AGM (Secretary). Thereafter, he was transferred to Ambala. The CBI carried out raid/searches at office and residence of certain officers, including that of the applicant, on 30.06.2012. Nothing was recovered from the possession of applicant and no FIR was registered against him at first instance, though it was registered against two other officers. The applicant joined the investigation carried out by the CBI. On 03.12.2012 an FIR was registered against applicant by the CBI in which challan under Section 11 of the Prevention of Corruption Act, 1988, was submitted in the month of July, 2014 before the special court CBI Mumbai. The respondent issued the seniority list of Assistant General Mangers as on 01.01.2013 wherein name of the applicant stood at S. No. 5. Pending challan, the applicant was placed under suspension on 15.03.2013 against which representation was submitted by him. When same was not decided by the authorities, the applicant approached this Tribunal by filing O.A. NO. 338/HR/2013 in which at the first instance the suspension order was stayed. Afterwards, the said O.A. was allowed on 27.05.2014 with a direction to the respondents to decide his pending representation, which the respondents did by passing an order dated 06.08.2014 whereby they had decided to keep the applicant under suspension. The same again became subject matter in O.A. No. 060/00715/2014. In the meantime respondents convened a DPC on 08.11.2013 against the vacancy for the year 2013-2014 whereby they had considered the case of the applicant along with others and promoted one Dr. A.K. Verma. Aggrieved against this action, the applicant submitted a representation. The second O.A. was allowed vide order dated 25.11.2014. His suspension order dated 06.08.2014 was quashed and set aside. Thereafter, he submitted another representation on 05.12.2014 requesting the respondents to issue revised vigilance clearance before the next review DPC which was scheduled to be held on 11.12.2014. The case of the applicant with other eligible persons was considered against four vacancies for year 2013-2014 and two for year 2014-2015 but the recommendation qua him were kept in a sealed cover vide order dated 16.01.2015 whereas other candidates, were promoted. Hence, the present O.A.
3. The respondent-Union of India as well as Chairman & GM, Canteen Stores Department and U.P.S.C. have filed their separate written statements.
4. In the written filed by the U.P.S.C, it is submitted that in the first meeting held on 08.11.2013, the case of the applicant was deferred as he was under suspension and could not be considered in view of the O.M. issued by the Government of India in this regard. One Dr. A.K. Verma against whom nothing was pending, senior to the applicant, was promoted. Subsequently, review DPC was held on 11.12.2014, in which the case of the applicant was considered and the committee decided to place the recommendation in respect of the applicant in sealed cover. The relevant para 9 of the written statement reads as under:-
“Since Sh. K.K. Srivastava was under suspension on the date of meeting of DPC to the grade of Deputy General Manager/Regional Manager in Canteen Stores Department for the year 2013-2014 and 2014-2015 held on 11.12.2014, the committee decided to place the recommendation in respect of the applicant.”
5. Respondent no. 1 & 3 have jointly filed a written statement wherein they have taken a preliminary objection that the applicant has not availed of alternate remedy of filing a representation against promotion order dated 16.01.2015, thus, the present O.A. may be dismissed. Secondly, when DPC was convened on 08.11.2013, the applicant was placed under suspension and there was an FIR registered against him by the CBI, ACB, Mumbai and for that reason, his case was deferred. It is also submitted that subsequently, review DPC was held on 11.12.2014 and committee considered his case but recommended to keep his case in sealed cover due to registration of an FIR against him before the CBI special court. In para 4(8) of reply to O.A, it is pleaded that the case of the applicant was considered and put in a sealed cover. Reason behind this was that CBI had lodged an FIR on 03.12.2012 against the applicant and the respondents had already sought sanction for prosecution under the Prevention of Corruption Act, 1988 was issued to CBI by Director(Vig) vide letter dated 24.06.2014. They had already got approval of CVC for initiation of action against the applicant. It is also admitted by the respondents vide communication dated 20.07.2015 that charge sheet has been filed before the special court, Mumbai which is presently pending with the Trial Court for framing of charges.
6. The applicant has filed a rejoinder wherein, apart from contradicting the averment made in the written statement, he has placed reliance upon the various O.Ms issued by the Government of India regarding adoption of sealed cover procedure in the circumstances it is warranted. He placed reliance upon the order dated 26.09.2013 passed by this Tribunal in O.A. No. 436/PB/2012 and judgment by the Kerala High Court in OP (CAT) No. 4305/2011 titled ‘Union of India v. Radhamoni S. Menon’ & Judgment in case of P.S. Narang v. Govt. Of NCT Delhi decided on 20.10.2010 to claim that the O.A. merits acceptance and the authorities had no occasion to place his case in a sealed cover procedure.
7. We have heard Sh. Seth, learned counsel for the applicant, Sh. Gupta, Sr. CGSC for respondent no. 1 & 3 and Sh. Sharma, counsel for respondent no. 2.
8. Sh. Seth, learned counsel for the applicant vehemently argued that action of the respondents in keeping the recommendation qua applicant for promotion to the post of DGM in seal cover vide order dated 16.01.2015 is totally illegal, arbitrary and against the O.M. dated 02.11.2012. To elaborate, he argued that though the criminal case is pending before the special court of CBI, Mumbai but in that case, the Magistrate has not yet taken cognizance of challan submitted by the CBI, thus, the case of the applicant cannot be kept in a sealed cover. He also submitted that mere pendency of a criminal case does not take away the right of the applicant for promotion to the higher post when the court of criminal jurisdiction has not yet taken cognizance of Challan and charges have not been framed. He further stated that even prosecution sanction has not been accorded by the concerned ministry, as admitted by the respondents. It is also admitted by the respondents in their communication dated 20.07.2015 that the charges have not yet been framed against the applicant. Thus, the case of the applicant does not fall within the three circumstances as laid down in O.M. dated 02.11.2012 under which the case of a person can be kept in a sealed cover and, thus, action of the respondents in keeping the case of the applicant in a sealed cover be set aside. To buttress his submission he placed reliance upon the various judgments indicating the law point involved therein, which are as follows:-
Sr. No. Law Point Judgments I Events subsequent to date of DPC cannot be taken into account to deprive an officer of promotion. 1. Union of India v. Anil Kumar Sarkar,2013 (2) SCT 753. 2. Mohan Lal v. BSNL, OA No. 060/00879/2014. 3. CBDT v. Dr. D.N. Tripathi, 1991 (1) SCT 637 SC. 4. Union of India v. Sr. (Smt.) Sudha Salhan 1998 (1) SCT 804. 5. Balbir Singh v. State of Punjab 192 (3) SCT 661. II Till Charges are framed by Criminal Court Trial/prosecution cannot be said to be pending 1. Rati Lal v. State of Maharashtra (1979) 2 SCC 179. 2. In CWP No. 4305 of 2011 Union of India v. Radhamani S. Menon. 3. Union of India v. Sukhmohinder Singh 2005 (4) SCT 219. 4. Sukhmohinder Singh v. Union of India, OA No. 617/PB/2004. 5. State of Punjab v. Chaman Lal JT 1995 (2) SC 18. 6. R.P. Singh v. Govt. of NCT, New Delhi, OA No. 1604/2009 by Principal Bench. 7. Ashok Kumar Saini v. Union of India, OA No. 293/HR/2013. III Prosecution Sanction is not a bar for making promotion. 1. R.S. Narang v. Govt. of NCT, New Delhi, OA No. 2682/2010 Principal Bench. 2. Maninder Pal v. Union of India, OA No. 436/PB/2012. IV Disciplinary Proceedings will commence only on issuance of chargesheet 1. Ramesh Chand v. Union of India, in OA No. 645/HR/2013 upheld by Hon'ble High Court in CWP NO. 12418 of 2015. 2. Bank of India v. Degala Suryanarayana, 1999 (3) SCT 609 SC. 3. Union of India v. K.V. Jankiraman 1991 (3) SCT 317 SC.
9. Per contra, Sh. Gupta, Sr. CGSC for respondent's no. 1 & 3 has reiterated what has been stated in the written statement. Apart from that, he argued that since an FIR is pending against the applicant, therefore, rightly, in terms of O.M. dated 14.09.1992, which was clarified vide another O.M. dated 02.11.2012, his case was kept under sealed cover. There is nothing wrong in keeping the recommendation in a sealed cover, as the conduct of the applicant is under cloud. To buttress his submission, he placed reliance upon the judgement passed by the Hon'ble Supreme court in case of Union of India v. K.V. Jankiraman (1991 (3) SCT), judgment passed by the Hon'ble jurisdictional High Court in case of ‘State of Punjab v. Harsh Kumar decided on 05.05.2014 & Subash Chand Singla v. The Punjab State Cooperative Supply and Marketing Federation Ltd. decided on 08.05.2007
10. Sh. B.B. Sharma, learned counsel for respondent no. 2 adopted the arguments as advanced by Sh. Gupta, learned counsel for respondent no. 1 & 3.
11. We have given our thoughtful consideration to the entire matter and perused the pleadings of the parties available on record and judgements cited by the parties, with the able assistance of the counsel for the parties
12. A conjunctive perusal of the pleadings, as available on record, makes it abundantly clear that the applicant is aggrieved against the action of the respondents whereby the DPC has considered his case for promotion to the post of DGM but chose to keept it in the sealed cover procedure, without any basis. The solitary contention at the hands of the respondents, which is to be adjudicated/answered by us is as to when a criminal prosecution is said to be pending against an employee in terms of the O.M. dated 14.09.1992, as subsequently clarified vide O.M. dated 02.11.2012 which empowers the respondents to adopt the seal cover procedure in certain circumstances?
13. Adoption of a sealed cover procedure in promotion cases is now a well established concept in service jurisprudence. The procedure is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him and hence the findings as to his entitlement to the service benefit of promotion, increment etc. are kept in a sealed cover to be opened after the proceedings in question are over. The issue regarding ‘keeping the proceeding in seal cover when an employee is under cloud’ came up for consideration before the Hon'ble Supreme Court in case of K.V. Janikiraman (supra) where their lordships had considered and decided the issue indicated in para 16 & 17 of the said judgment. Based upon the observation made by their lordships in above case, the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training issued O.M. dated 14.09.1992 on the subject ‘Promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation-Procedure and guidelines to be followed’. Para 2 and para 7 of the said O.M. are relevant and on the circumstances as narrated in para 2, promotion can be deferred. Subsequent to this, a clarification was issued by the DoPT vide O.M. dated 02.11.2012 where they have reiterated what has been said earlier in the circular but apart from that they have clarified as to what stage prosecution is said to be pending.
14. For better appreciation, the relevant paras of the above two O.Ms are reproduced below:-
O.M. dated 14.09.1992
Subject: Promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation - Procedure and guidelines to be followed.
Xxxx xxxx xxxx
2. At the time of consideration of the cases of Government servant for promotion details of Government servant in the consideration zone for promotion falling under the following category 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 criminal charge is pending.
Xxx xxxx xxxxx
7. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this O.M. will be applicable in his case also.
O.M. dated 02.11.2012
8. As regards the stage when prosecution for a criminal charge can be stated to be pending, the said O.M. dated 14.9.92 does not specify the same and hence the definition of pendency of judicial proceedings in criminal cases given in Rule 9(6)(b)(i) of CCS (Pension) Rules, 1972 is adopted for the purpose. The Rule 9(6)(b)(i) of CCS (Pension) Rules, 1972 provides as under:- “(b) judicial proceedings shall be deemed to be instituted - (i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made”.
15. There are two situations where the respondents can withhold promotion/upgradation on the ground that they have decided to initiate departmental proceeding against an employee and secondly a criminal prosecution is pending. Though in the present case, issue with regard to pendency of departmental proceeding is not in question but we may record herein that this issue has already been settled by the Hon'ble Supreme Court way back in year 1991 in case of K.V. Jankiraman (supra), which has recently been considered in case of Union of India v. Anil Kumar Sarkar, (2013) 4 SCC 161 by the Hon'ble Supreme Court where their lordships have considered Para 2 and 7 of the OM dated 14.9.1992 and have held that promotion can be denied if the case of an employee falls under the circumstances enumerated in Para 2(ii) of the OM. Their Lordships have further held that if a charge sheet has not been issued to an employee, then it cannot be said that departmental proceedings are pending against him which may give right to an employer to take away right of the employee for promotion during the pendency of the case.
16. Coming back to the main question which is to be adjudicated in the present case is as to when a ‘criminal prosecution/proceeding is said to be pending’. The O.M. dated 14.09.1992 is silent on this issue, that's why, O.M. dated 02.11.2012 was issued to bring the definition of criminal prosecution pending, available in Rule 9(6)(b)(i) of CCS (Pension) Rules 1972 to deal with a situation where prosecution of a criminal charge is pending which we have reproduced above. We can safely record here that language in para 8 of the O.M. dated 02.11.2012 is unequivocal. The reading of the above extract makes it clear that criminal prosecution is said to be pending when the Magistrate takes cognizance of the complaint/report of the police officer only. Section 190 of the Criminal Procedure Code lays down that that on a complaint or challan submitted by the police officer, the concerned magistrate takes cognizance by framing charges. It is only when the magistrate takes cognizance of it, the criminal prosecution is said to be pending against an accused. On date of cognizance, the Magistrate takes a view as to whether a preliminary investigation in shape of challan/complaint is to be approved against accused or not? The word ‘cognizance’ stands clarified by the Hon'ble Supreme Court in case of General Office Commanding v. C.B.I. & Amp (Criminal Appeal No. 257/2011) decided on 01.05.2012. The relevant paras 39 & 40 of the said judgment are reproduced below:-
“39. In broad and literal sense ‘cognizance’ means taking notice of an offence as required under Section 190 Cr.P.C. Cognizance' indicates the point when the court first takes judicial notice of an offence. The court not only applies its mind to the contents of the complaint/police report, but also proceeds in the manner as indicated in the subsequent provisions of Chapter XIV of the Cr.P.C. (Vide:R.R. Chari v. The State of Uttar Pradesh, AIR 1951 SC 207; and State of W.B. v. Mohd. Khalid, (1995) 1 SCC 684).
40. In Dr. Subramanian Swamy v. Dr. Manmohan Singh, AIR 2012 SC 1185, this Court dealt with the issue elaborately and explained the meaning of the word ‘cognizance’ as under:
‘In legal parlance cognizance is ‘taking judicial notice by the court of law’, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially”
17. The Hon'ble Delhi High Court in Writ Petition (C) No. 7810/2008 (Union of India v. Sh. Om Prakash) decided on 27.11.2008, followed the same. In aforesaid case, Hon'ble High Court has held as follows:-
“13. Under these circumstances, it appears to us quite clear that since there is no rule of Office Memorandum which entitles the Petitioner to withhold the physical promotion of the Respondent only because sanction for his prosecution has been granted, the Tribunal took the correct decision in allowing the OA filed by the Respondent. Thus, he stated that prosecution for criminal charge can be said to be pending against a Government servant only when complete police report has been filed against him, of which the Magistrate has taken cognizance.”
18. From the above notices judicial pronouncements and discussion, it can safely be recorded that a criminal prosecution is said to be pending in terms of clause 8 of the O.M. dated 02.11.2012, only when the Magistrate takes cognizance upon a complaint/report by the police officer and not before that i.e. merely upon filing of an FIR which may empower the department to keep the proceedings in a sealed cover. This issue has already been considered by the Hon'ble jurisdictional High Court in case of ‘State of Punjab v. Harsh Kumar, decided on 05.05.2014 (which is heavily relied upon by the respondents) where the Hon'ble High Court has recorded its finding in para 12 of the said judgment that pendency of criminal case is to be taken when cognizance of the matter in terms of Section 190 of the code is taken by the Magistrate. The findings recoded in para 12 reads as under:-
“12. Such instructions are after the relevant date of consideration, but we find that in material particulars, even the earlier instructions which were being examined in K.V. Jankiraman's case (supra) are not very different. The proceedings of the Departmental Promotion Committee in respect of applicant have been kept in sealed cover not for the reason that an FIR stands lodged, Kumar Vimal 2014.05.06 13:52 I attest to the accuracy and integrity of this document Chandigarh CWP No. 1681 of 2014 but for the reason that investigations have been completed and report under Section 173 of the Code has been submitted to the CBI Court, who has taken cognizance of the matter in terms of Section 190 of the Code. Thus, the prosecution for criminal charge was pending against the applicant on the day of the meeting of the Selection Committee. In respect of the argument that there is stay granted by the Hon'ble Supreme Court, it is submitted that stay is of further proceedings pending before the CBI Court. Such order does not give rise to cessation of criminal proceedings pending against the applicant. Criminal proceedings would remain pending till such time, the same are quashed by the competent Court of law or decided on merits.”
19. Even the second judgment as relied upon by the respondents, in case of Subash Chand Singla (supra) does not help them as in that case, Rule 2.2(b)(i) of the Punjab Civil Services Rules, Volume II talks of a criminal proceeding is pending, on the date of compliant or report of the police officer on which Magistrate takes cognizance. Thus, if compliant is there then the case cannot be considered for promotion, does not help them to take a stand whereas in case in hand, Rule 9(6)(b)(i) of CCS (Pension) Rules, 1972 talks of ‘cognizance’ to be taken by the Magistrate on compliant/challan submitted under Section 173 of the Criminal Procedure Code.
20. In view of the above, the poser is answered in affirmative by holding that sealed cover procedure, as envisaged in clause 8 of O.M. dated 02.11.2012, is to be adopted only when cognizance has been taken by the Magistrate in terms of Rule 9(6)(b)(i) of CCS (Pension) Rules, 1972 on the date when DPC considered the case of the applicant. Our view also finds support from the judgment passed by Hon'ble High Court of Kerala in CWP No. 4305 of 2011-Union of India v. Radhamani S. Menon & judgment passed by Hon'ble jurisdictional High Court in case of Union of India v. Sukhmohinder Singh 2005 (4) SCT 219.
21. In the light of the above observation, now we proceed to examine the facts of the present case. The applicant was placed under suspension on 15.03.2013. When first DPC held its meeting on 08.11.2013, admittedly, the applicant was under suspension, though his suspension was stayed by this court in O.A. No. 338/HR/2013 but his case came within the three exceptions, as mentioned in para 2 of the O.M. dated 14.09.1992. The said O.A. was disposed of with direction to the authorities to decide his representation. In a subsequent O.A, his suspension order was quashed vide order dated 25.11.2014. Subsequently, review DPC was held on 11.12.2014 and on that day the three conditions as mentioned in para 2 of the O.M. dated 14.09.1992, were not there. Neither the applicant was under suspension nor he was charge sheeted in departmental proceeding and even, the magistrate has not taken cognizance of an FIR filed by the CBI in the Special Court which fact is admitted by the respondents in their letter dated 20.07.2015 written by the Supdt. Of Police, CBI, ACB, Mumbai “that no charges have been framed against in the pending case against the applicant”. Being relevant, the same reads as under:-
“In this connection it is to inform that the charge sheet has been filed before the Special Court, Mumbai (C.R. No. 56) on 21.07.2014 vide Special Case no. 55/2014 and the same is presently pending with the Trial Court for framing of charges.”
22. In view of the above sequence of events and the judicial pronouncements, there is no hesitation in our mind in holding that it cannot be said that criminal case was pending on the date of meeting of Review DPC, when Magistrate had not taken cognizance of FIR by framing the charges in terms of Section 190 of the Cr. P.C. The minutes of DPC for promotion to the post of DGM qua applicant could not be placed under sealed cover, therefore there action is declared as bad in law and cannot sustain.
23. Our views also find support from the order dated 26.09.2013 passed by this Tribunal in O.A. No. 436/PB/2013 titled Mohinder Pal Singh v. Union of India. The relevant para of the said order reads as under:-
“17. The observation made by a co-ordinate Bench of this Tribunal clinches the issue in favour of the applicant. In this case apparently on the crucial date i.e. 25.1.2011 when the DPC met, there was nothing against the applicant and as such a consideration for promotion could not be denied to him. The Kerala High Court in OP (CAT) No. 4305 of 2011 - Union of India v. Thottathil B. Radhakrishnan, while considering the O.M. dated 14.9.1992 has held that the question of a Government servant being treated as one against whom prosecution for criminal charge is pending would arise only depending on the question whether the Court had framed charge against the employee at any time before the DPC in question. The Honble High Court held that Tribunal had rightly held that on relevant date when the DPC considered them for promotion there was no criminal case pending against them. This finding cannot be found fault with on ground that there is an erroneous interpretation of the applicable laws concerned or on any ground of jurisdiction. Qua point of prosecution sanction a co-ordinate Bench of this Tribunal in O.A. No. 2682/2010 P.S. Narang v. Govt. of NCT of Delhi decided on 20.10.2010 has held that only because of prosecution sanction, promotion to an employee cannot be denied. It was held that prosecution sanction is not an impediment for denying promotion to an employee, which is his fundamental right guaranteed under the Constitution of India.
18. The other ground or non consideration of the case of the applicant is that his ACRs for 2008-09 were not available. It is not the stand of the respondents that the applicant was instrumental in non-availability of the relevant ACRs and such non-availability of ACR cannot be used as a ground to deny consideration for promotion to an employee. Thus, we are left with no alternative except to hold that the impugned order, deserves invalidation.
19. In view of the above discussion, this Original Application is allowed. The impugned order, Annexure A-1 is quashed and set aside. The respondents are directed the consider the case of the applicant for promotion to the post of Appraiser by conducting a review DPC as per rules and law and observations made here-in-above, within a period of two months from the date of receipt of a certified copy of this order. If the applicant is found entitled to the benefit, he shall be extended promotional benefit from the date his juniors have been so promoted, within period aforesaid. No costs.”
24. A similar issue has also been decided by the Principal Bench of this Tribunal vide its judgment dated 15.07.2014 in O.A. No. 107/2013 titled Appala Raju v. Secretary. The relevant para 5 & 6 reads as under:-
“5. Learned counsel for the applicant further argued that even after prosecution sanction, it cannot be said that prosecution for criminal charge is pending against an officer. In this regard, he relied on the judgment of Hon'ble High Court of Delhi in Writ Petition (C) No. 7810/2008 (UOI v. Shri Om Prakash) delivered on 27.11.2008. In the aforesaid case, Hon'ble High Court has held as follows:-
“13. Under these circumstances, it appears to us quite clear that since there is no rule of Office Memorandum which entitles the Petitioner to withhold the physical promotion of the Respondent only because sanction for his prosecution has been granted, the Tribunal took the correct decision in allowing the OA filed by the Respondent. Thus, he stated that prosecution for criminal charge can be said to be pending against a Government servant only when complete police report has been filed against him, of which the Magistrate has taken cognizance. Regarding what constitutes cognizance, learned counsel for the applicant relied on the judgment of Hon'ble Supreme Court in the case of General Office Commanding v. CBI, (Criminal Appeal No. 257/2011) delivered on 01.05.2012. Quoting the aforesaid judgment, learned counsel for the applicant stated that in paras-39 & 40, Hon'ble Supreme Court has held as follows:-
“39. In broad and literal sense ‘cognizance’ means taking notice of an offence as required under Section 190 Cr.P.C. ‘Cognizance’ indicates the point when the court first takes judicial notice of an offence. The court not only applies its mind to the contents of the complaint/police report, but also proceeds in the manner as indicated in the subsequent provisions of Chapter XIV of the Cr.P.C. (Vide:R.R. Chari v. The State of Uttar Pradesh, AIR 1951 SC 207; and State of W.B. v. Mohd. Khalid, (1995) 1 SCC 684).
40. In Dr. Subramanian Swamy v. Dr. Manmohan Singh, AIR 2012 SC 1185, this Court dealt with the issue elaborately and explained the meaning of the word ‘cognizance’ as under:
‘In legal parlance cognizance is ‘taking judicial notice by the court of law’, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially. (Emphasis added)
6. We have considered the submissions of learned counsel for both sides. Considering the various citations relied upon by the applicant's counsel, we are convinced that prosecution for criminal charge can be said to be pending against a Government servant only when a police report worthy of being proceeded upon for further action as per provisions of law is filed and the Magistrate/Judge applies his judicial mind and comes to the conclusion that the report is complete in all respects and can be acted upon. In the instant case, the CBI first filed the report on 30.05.2008. The respondents have not disputed the applicant's contention that this report was found to be unworthy of proceeding with further and was, therefore, returned by the Special Judge on three different dates, namely, 12.03.2009, 07.07.2009 and 25.03.2010. Thereafter, CBI finally submitted their report on 22.04.2010, which was taken cognizance by the Special Judge on 22.04.2010. This was much after the date of promotion of the juniors of the applicant i.e. 11.07.2009. Consequently, on the relevant date no prosecution for criminal charge was pending against the applicant. Hence, provisions of O.M. dated 14.09.1992 are not attracted in the case of the applicant. He, therefore, deserves to be promoted from the date of promotion of his juniors i.e. 11.07.2009.”
25. In the earlier O.A. No. 060/00715/2014 decided on 25.11.2014 in favour of the applicant qua placing the applicant under Suspension, we had recorded that a trial starts on the date when the Magistrate takes cognizance and charges are framed under Section 228 of the Cr.PC, 1973 and thus the suspension was bad in law. This decision was accepted by the respondents and was implemented also.
26. Learned counsel for the respondents fails to point out any law contrary to the law as relied upon by the applicant as noticed above.
27. In view of above discussion, we are left with no other option but to accept the present O.A. and quash the decision of the respondents contained in order dated 16.01.2015 in keeping the case of the applicant in a sealed cover. The matter is remitted back to the concerned quarter to reconsider the case of the applicant in the light of the above observations on the ground that as per stand of the UPSC, the applicant was under suspension whereas he was not under suspension as the same was quashed and set aside prior to the review DPC. Secondly, Magistrate has not taken the cognizance of FIR in terms of Section 190 of the Cr.P.C on the date of review DPC dated 11.12.2014. It is further directed to open the seal cover and thereafter give effect to the recommendation made by the promotional committee. Thereafter, consider the case of the applicant for promotion to the said post from the date when his junior who was considered in the said review DPC and was promoted, as such, with all the service related benefits, if the applicant is found to be fit for promotion.
28. No other arguments have been advanced. No costs.
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