Deconfirmation due to pending investigation in criminal case

[Vishwa Ranjan]

An FIR was registered against a central govt.officer P and others under CrPc 420 etc for tempering the remarks in APAR of one subordinate.During investigation ,names of Q, R & S have come in picture. A chargesheet has been already filed against mr.P(Reporting officer for Apar) with a mention that investigation against three suspects namely Q,R & S is on. Against Q,R & S the chargesheet to be submitted in the court was prepared & put up before SSP for approval but being not satisfied with the investigation the SSP ordered reinvestigation & finally the chargesheet so prepared was cancelled & a report stating that chargesheet was not fit to be submitted in the court along with cancelled chargesheet has been submitted to court in respect of Q ,R and S.
Mr. Q , on probation was given conditional confirmation subject to satisfactory verification of character & antecedents.He was however deconfirmed on the pretext of pendency of criminal case against him in which though no chargesheet was filed against him and a sort of closure report was submitted but acceptance of such closure report by court is pending.
is this action in order? I rely on the ratio laid down by supreme court in the case of Janki Raman vs UOI, DOPT circulars on vigilance clearance and OM dated 14.9.1992 on procedure to be followed for confirmation/promotion ,during pendency of a criminal case which says that a criminal case can not be said pending against an employee unless chargesheet has been filed in the court & promotions etc can not be withheld till then.

[Dr. Ashok Dhamija]

Vigilance Clearance Guidelines of 2007 for Central Government servants are applicable with respect to (a) empanelment, (b) any deputation for which clearance is necessary, (c) appointments to sensitive posts and assignments to training programmes (except mandatory training). Vigilance clearance guidelines do not apply to confirmation of probation period, as far as I understand.

The Supreme Court decision in the case of Union of India v. K.V. Jankiraman, (1991) 4 SCC 109 : AIR 1991 SC 2010, is basically in respect of sealed cover procedure which is used when the employee is due for promotion, etc. As far as I understand it is not applicable for confirmation of probation period.

Office Memorandum No.22011/4/91-Estt.(A) the 14th Sept., 1992, issued by the Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training, following the above Jankiraman case judgment, is also concerned mainly with promotion, and the Subject itself shows: “Promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation – Procedure and guidelines to be followed”.

When a new employee joins service, his antecedents are checked and a police verification report is generally called for, on the basis of attestation form filled by the employee. Though I have not seen the relevant documents in your case, it appears that you are referring to such verification report and checking of antecedents. It may be difficult to apply the judgment on sealed cover procedure and the guidelines on vigilance clearance to the initial appointment on probation and its confirmation. The initial appointment itself is generally supposed to be subject to a satisfactory police verification and checking of antecedents.

In any case, from what you have mentioned, it appears that the probation period has not been terminated but only that the decision on confirmation period has been kept pending in view of the pendency of the criminal case investigation. Since you have mentioned that a closure report has been filed by police in court, which is pending acceptance by court, I think you should have patience and the confirmation may follow after acceptance of the closure report by court.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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