Introduction:
In order to maintain the employee’s efficiency and his desire to properly serve his company, organizations opt the method of promotion. While promoting, it is checked that if his record can qualify for the promotion and it is expected from the employee to have an “unblemished record”.
Often there are circumstances when the conduct of an employee is subjected to investigation or servant of the Government is out under a cloud. In these circumstances, the idiom “not guilty until proven” is repeatedly followed. To maintain the purity and interest of the administration, employee’s case to be in favour or against by the Committee’s recommendation and Departmental Promotion Committee is kept undercover until the conclusion of the proceedings. Therefore this procedure is called “Sealed Cover Proceedings”.
Sealed Cover Procedure: Meaning and Procedure in its Entirety
According to the statistics in 2014, the Government of India had around 47 lakh employees.[1] It proves that the biggest employer in the country was the Central Government. A large amount of people in India yearns for a job that is offered by the Indian Government because of all the benefits that are offered with the job along with the promotion, job security, social status etc. In the government jobs, the course of employment is governed by the Sundry Executive Orders and the delegated legislation. They are also governed by Central Civil Services Rules 1965[2] (Classification, Control and Appeal) (hereinafter referred to as Rules) which is promulgated by Departmental of Personnel. The training of the employees is done under the guidance of Ministry of Personnel, Public Grievances and Pensions. On every Government Servant, these rules are applicable including the Civilian Government Servants which are in Defence Services. There are a few exceptions mentioned under Part I Clause 3.
Question of promotion is kept in abeyance through the sealed cover procedure until the result of the pending disciplinary inquiry or criminal prosecution going against the employee comes. This concept was first adopted on 3rd November 1958 vide Office Memorandum[3] by keeping in mind, the effect of non-promotion on the future prospects of an employee without any of his fault. The term was first used on 31st August 1960 in Office Memorandum.[4] It is a procedure where the findings by the Departmental Promotion Committee are kept in a cover which is regarding the suitability of the employee’s promotion. According to the Office Memorandum of 14th September 1992[5], Sealed Cover Procedure can be adopted when the servant of the government is failing in the zone of consideration for promotion but the employee is:
- Under Suspension.
- Facing criminal prosecution.
- Issued a charge sheet against him and he is facing disciplinary proceedings.
All the employees who are on other consideration without the pending disciplinary proceeding or criminal prosecution are considered by DPC and the observations are recorded in a sealed cover. This procedure is followed until the proceeding going on against an employee is concluded. It is important to notice that the pendency of a preliminary investigation is not enough and it is mandatory for charge issue to be issued for the appointment of the authorities to adopt this procedure i.e., Sealed Cover Procedure. It also shows that mere registration of FIR against an employee of the Government does not act as an obstacle in the consideration of the concerned employee’s promotion.
The vacancy of the position is filled on the temporary officiating basis until the findings are under the Sealed Cover. This cover is opened and action on recommendations are only done if the employee is barrel, stock and exonerated lock in the criminal or disciplinary proceeding going or pending against him. If the employee is imposed with the penalty which also includes censure as mentioned under Rule 11 of the Rules, then findings of the Cover are not acted upon. After this, the case of the employee might be taken by the next DPC concerning the penalty that is imposed on him during the criminal or disciplinary proceedings.
It is important to take a note here about the issuance of letters of caution, warnings, advisories or reprimands against the Government servant for lack of thoroughness, negligence, delay, carelessness for the improvement of the efficacy of the employees does not amount as a penalty and is not an obstacle for the consideration of promotion according to the Office Memorandum issued on 7th July 2008[6]. This was reiterated in Office Memorandum of 6th December 2016.[7]
These memorandums also explain that the warnings are given to an employee whenever blame is put on him after the closure of the proceedings and the concerned employee is awarded with a penalty or censure at least as mentioned under the Rule 11 of Rules. There s a significant difference between warning and censure which is that the latter is formally recorded in confidential roll of an officer and it has an adverse effect on the future prospects of employee’s promotion whereas former’s nature is informal and it does not have any grave consequences. It is pertinent to mention here that recording of a warning in confidential roll is not converted into a censure.
In those cases where the Sealed Cover is opened, the termination of officiating agreement takes place and the employee, who is being released from his duty, is provided with a benefit of seniority and is also given a pay fixation from the date on which he would be promoted if the “Sealed Cover Procedure” was not applied or adopted. In the case of Union of India v. K.V. Jankiraman[8], the Supreme Court held regarding the arrears of salary that:
“The normal rule of no work no pay is not applicable to cases such as the present one where the employee, although he is willing to work, is kept away from work by the authorities for no fault of his. The court in most unequivocal terms held that the employee has to be given the salary of the higher post along with all consequential benefits from the date his next junior was promoted unless the proceedings are delayed at the behest of employee or the non-availability of evidence is the result of acts attributable to him.”
Ad-Hoc Promotion
In order to counter the threat of long unduly disciplinary proceedings, a concept called Ad-Hoc Promotion was introduced. Ad-Hoc Promotion indicates that if even after two years of sitting of the first Departmental Promotion Committee for proceedings against an employee, no conclusion is derived and due to this the concerned employee’s suitability is kept under Sealed Cover then the employee can be promoted in ad-hoc basis that is subjected to the public interest and also the condition mentioned in Memorandum.[9] It is apposite to mention here that any right of regular promotion is conferred to an employee because of ad-hoc promotion. If in the proceedings, the employee is exonerated to hilt, the ad-hoc promotion granted to him s changed into a regular promotion from that date on which his junior was given a promotion on a temporary officiating basis.
Subsequent Clarifications
The Office Memorandum of 21st November 2002[10] clarified that if there is no criminal prosecution or disciplinary proceeding pending against the employee, then DPC cannot adopt Sealed Cover Procedure for review. After the Apex Court’s judgement in the case of Delhi Jal Board v Mohinder Singh[11], it was elaborated by the Office Memorandum of 24th February 2003[12], that the initiation of Second Departmental inquiry after the exoneration of the first inquiry would not restrain employee’s right to get the promotion and the findings under Sealed Cover to be acted upon. By the Office Memorandum of 19th January 2017[13], it was clearly explained that if the employee is charged for a criminal case and is acquitted by the order of the trial court and the higher court denies the of staying of the order, then the sealed cover can be opened. But the provisional promotion of the concerned employee is subjected to the outcome of the appeal and his promotion would be deemed “void ab initio” if the higher court held him as a convict.
Conclusion
It can be concluded that this procedure called “Sealed Cover Procedure” is a really good and effective procedure. Going by the definition, the findings, recommendations and questions of promotion are kept under the cover therefore the criminal prosecution or disciplinary proceeding does not affect the future prospects of the employee. Promotion is a very important step in an employee’s life and losing it without any wrongdoing will close the doors of any success in an employee’s life. This procedure helps the employee secure his promotion if it is proved in the trial that he is not the one at the fault.
References:
[1] https://www.prsindia.org/policy/vital-stats/overview-central-government-employee
[2] https://dopt.gov.in/ccs-cca-rules-1965
[3] http://documents.doptcirculars.nic.in/D2/D02est/39_4_56-Estt.A-031158.pdf
[4] http://documents.doptcirculars.nic.in/D2/D02est/39_3_59-Estt.A-310860.pdf
[5] http://documents.doptcirculars.nic.in/D2/D02est/22011_4_91-Estt.A-14091992.pdf
[6] http://documents.doptcirculars.nic.in/D2/D02est/11012_6_2008-Estt.(A)0001.pdf
[7] http://documents.doptcirculars.nic.in/D2/D02est/11012_12_2016-Estt.A-III-06122016.pdf
[8] AIR 1991 SC 2010
[9]http://documents.doptcirculars.nic.in/D2/D02est/22011_4_91-Estt.A-14091992.pdf
[10] http://documents.doptcirculars.nic.in/D2/D02est/22011_2_99-Estt.A-21112002.pdf
[11] SLP (Civil) 11826 of 2000.
[12] http://documents.doptcirculars.nic.in/D2/D02est/22011_2_2002-Estt-A.pdf
[13]http://documents.doptcirculars.nic.in/D2/D02est/11012_6_2016-Estt.A-III-19012017.pdf
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