Union of India Vs. K.V. Jankiraman [1991] INSC 211 (27 August 1991)
Sawant,
P.B. Sawant, P.B. Misra, Rangnath (Cj) Kania, M.H.
CITATION:
1991 AIR 2010 1991 SCR (3) 790 1991 SCC (4) 109 JT 1991 (3) 527 1991 SCALE
(2)423
ACT:
Civil
Services: Government of India (Deptt. of Personnel and Training)
Office Memorandum No. 22011/1/79 Estt. (A) dated 30. 1.82--Promotion--Sealed
cover procedure-When could be resorted to--Exoneration from all
charges--Notional promotion from the date the juniors were promoted--Arrears of
salary from date of notional promotion--Grant of--Pro- ceedings delayed because
of the employee's acts or acquitted on benefit of doubt or owing to
non-availability of evidence due to employee's acts--Entitlement to back
wages--To be decided by the authority concerned--Employee visited with penalty
in disciplinary proceedings or found guilty by court--Findings contained in
sealed cover--not to be acted upon--Consideration for promotion-Whether
authority could take into account past record including penalty awarded
earlier.
Constitution
of India, 1950:Article 20(2)--Non-promotion
of employee till the date on which he was held guilty--Whether amounts to
double jeopardy.
Fundamental
Rules: Rule 17( 1)--No work no pay rule Ap- plicability of--Where employee
willing but not allowed to work.
HEAD NOTE:
When
an employee is due for promotion, increment etc. but disciplinary/criminal
proceedings are pending against him at the relevant time, the findings of his
entitlement to such benefit are kept in a sealed cover to be opened after the
proceedings in question are over.
According
to this procedure, while the findings are kept in the sealed cover, the vacancy
which might have gone to the officer concerned is filled only on an officiating
basis. If on the conclusion of the departmental/court pro- ceedings, the
officer concerned is completely exonerated, and where he is under suspension it
is also held that the suspension was wholly unjustified, the sealed, cover is
opened and the recommendations of the DPC are acted upon. If the officer could
have been promoted earlier, he is promoted to the post which is Idled on an 791
officiating basis, the officiating arrangement being termi- nated. On his
promotion, the officer gets the benefit of seniority and fixation of pay on a
notional basis with reference to the date on which he would have been promoted
in the normal course, but for the .pending disciplinary/court proceedings. However,
no arrears of salary. are paid in respect of the period prior to the date of
actual promotion.
Sometimes
the cases in the courts or the departmental proceedings take unduly long time
to come to a conclusion and the officers undergo considerable hardship, even
where it was not intended to deprive. them of promotion for such a long time.
The Government in consultation with the Union Public Service Commission
examined how the hardship caused to the Government servant in such
circumstances could be mitigated and laid down certain procedures by an Office
Memorandum No. 2201111179-Eatt. (A) dated January 30, 1982.
In
interpreting the Memorandum as to what is the date from which it can be said
that disciplinary/criminal pro- ceedings are pending against an employee; as to
what would be the course to be adopted when the employee is held guilty in such
proceedings if the guilt merits punishment other than that of dismissal; and as
to what benefits an employee who is completely or partially exonerated is
entitled to and from which date, different Benches of the Central Adminis- trative
Tribunal recorded their findings and while doing so, the Full Bench of the
Tribunal struck down two provisions of the said Memorandum dated January 30,
1982, which related to a prohibiton against acting upon the findings contained
in the sealed cover in case the officer was imposed penalty as a result of
disciplinary proceedings or found guilty in the Court proceedings against him
and regarding arrears of pay for the period of notional promotion.
Aggrieved
by the decisions of the various Benches of the Tribunal, the Union of India and
other authorities preferred the present appeals and special leave petitions.
Disposing
of them matters, this Court,
HELD:
1. The sealed cover procedure is to be resorted to only after the
charge-memo/charge-sheet is issued. The pendency of preliminary investigation
prior to that stage will not be sufficient to enable the authorities to adopt
the sealed cover procedure. The preliminary investigations take an inordinately
long time and particularly when they are initiated at the instance of the
interested persons, they are kept 792 pending deliberately. Many times they
never result in the issue of any charge-memo/charge-sheet. If the allegations
are serious and the authorities are keen in investigating them ordinarily it
should not take much time to collect the relevant evidence and finalise the
charges. If the charges are that serious, the authorities have the power to
suspend the employees under the relevant rules, and the suspension by itself
permits a resort to the sealed cover procedure.
The
authorities thus are not without a remedy. [799F-H; 800A-B]
2.
When an employee is completely exonerated meaning thereby that he is not found
blame worthy in the least and is not visited with the penalty even of censure,
he has to be given the benefit of the salary .of the higher post along with the
other benefits from the date on which he would have normally been promoted but
for the disciplinary/criminal proceedings. However, there may be cases. where
the proceed- ings, whether disciplinary or criminal, are delayed at the
instance of the employee or the clearance in the discipli- nary proceedings or
acquittal in the criminal proceedings is with benefit of doubt or on account of
non availability of evidence due to the acts attributable to the employee etc.
In
such circumstances, the concerned authorities must be vested with the power to
decide whether the employee at all deserves any salary for the intervening
period and if he does, the extent to which he deserves it. Life. being com- plex,
it is not possible to anticipate and enumerate exhaus- tively all the
circumstances under which such consideration may become necessary.. To ignore,
however, such circumstances when they exist and lay down an inflexible rule
that in every case when an employee is exonerated in disciplinary/criminal
proceedings he should be entitled to all salary lot the intervening period is
to undermine disci- pline in the administration and jeopardise public
interests.
The
Tribunal was not right in holding that to deny the salary to an employee would
in all circumstances be illegal. [802G-H; 803A-D]
3. The
normal rule of "no work no pay" is not applicable to cases where the
employee although he is willing to work is kept away from work by the
authorities for no fault of his. This is not a case where the employee remains
away from work for his own' reasons, although the work is offered to him. It is
for this reason that F.R. 17(1).will also be inapplicable to such caseS.
[802F-G]
4. The
Tribunal erred in holding that when an officer is found guilty in the discharge
of his duties, an imposition of penalty is all that is necessary to improve his
conduct and to enforce discipline and ensure purity in the adminis- tration. In
the first instance, the penalty short of 793 dismissal will vary from reduction
in rank to censure. The Tribunal has not intended that the promotion should be
given to the officer from the original date even when the penalty imparted is
of reduction in rank. On principle, the officer cannot be rewarded by promotion
as a matter of course even if the penalty is other than that of reduction in
rank. [804F-G]
5. An
employee has no right to promotion. He has only a right to be considered for
promotion. The promotion to a post and more so, to a selection post, depends upon
several circumstances. To qualify for promotion, the least that is expected of
an employee is to have an unblemished record.
That
is the minimum expected to ensure a clean and efficient administration and to
protect the public interests. An employee found guilty of misconduct cannot be
placed on par with the other employees and his case has to be treated
differently. There is therefore, no discrimination when in the matter of
promotion, he is treated differently. [804G-H; 805A]
6. The
least that is expected of any administration is that it does not reward an employee'with
promotion retro- spectively from a date when for his conduct before that date
he is penalised in presenti. When an employee is held guilty and penalised and
is, therefore, not promoted at least till the date on which he is penalised, he
cannot be said to have been subjected to a further penalty on that account. A
denial of promotion in such circumstances is not a penalty but a necessary
consequence of his conduct. [805B-C]
7.
While considering an employee for promotion his whole record has to be taken
into consideration and if a promotion committee takes the penalties imposed
upon the employee into consideration and denies him the promotion, such denial
is not illegal and unjustified. If the. promoting authority can take into
consideration the penalty or penalties awarded to an employee in the past while
considering his promotion and deny him promotion on that ground, it will be
irrational to hold that it cannot take the penalty into consideration when it'
is imposed at a later date because of the pendency of the proceedings, although
it. is for conduct prior to the date the authority considers the promotion.
[805C-D]
CIVIL
APPELLATE JURISDICTION: Civil "Appeals Nos. 30 18-21 of 1987.
From
the Judgment and Orders dated 24.4.87, 2.3.87, & 1.4.87 of the Central
Administrative Tribunal, Hyderabad in Original Applica- 794 tion No. 121/86,
T.A. Nos. 958& 180 of 1986 and O.A. No. 140of 1986.
WITH CA
Nos. 3016/88 & 51-55/90 with CA Nos. 3083 & 4379 of 1990 and S.L.P. (C)
Nos. 1094, 2344/90, 11680 of 1991.
Altar
Ahmed, Additional Solicitor General, V.C. Mahajan, J.D. Jain, C.V.S. Rao, Hemant
Sharma, B. Parthasarthy, A. Subba Rao, M.N. Krishnamani, Pravir Choudhary, Ms. Indu
Malhotra, Ms. Shirin Jain, T.V.S.N. Chari, Ms. Suruchi Aggarwal and Ms. Manjula
Gupta for the appearing parties.
The
Judgment of the Court was delivered by SAWANT, J. Civil Appeals Nos. 3019/87,
3020/87 and 3016/88 arise out of the judgment dated March 2, 1987 deliv- ered by
the Full Bench of the Central Administrative Tribu- nal (hereinafter referred
to as the 'Tribunal').
Civil
Appeals Nos. 3018/87 and 3021187 arise out of the judgments dated April 24,
1987 and April 1, 1987 respective- ly of the Tribunal, Hyderabad Bench.
Civil
Appeals Nos. 3083/90 and 4379/90 arise out of the judgments dated March, 2,
1989 and September 15, 1989 of the Madras and Hyderabad Bench of the Tribunal
respectively and which are based on the aforesaid decision of the Full Bench of
the Tribunal.
Civil
Appeals Nos. 51-55 of 1990 arise out of the deci- sion dated July 12, 1989 of the Tribunal, Chandigarh Bench.
Special
Leave Petition (C) No. 1094 of 1990 arises out of the decision dated June 29,
1989 of the Tribunal; Bombay Bench.
SpeCial
Leave Petition (C) No. 2344 of 1990 arises out of the decision dated 18th September, 1989 given by the Tribunal, Principal
Bench, New Delhi.
Special
Leave Petition (C) No. 11680 of 1991 arises out of the decision dated January 25, 1991 given by the Tribu- nal, Principal
Bench, New Delhi.
2, The
common questions involved in all these matters relate to what in service
jurisprudence has come to be known as "sealed cover procedure".
Concisely stated, the questions are:--
(1) what
is the date from which it can be said that disciplinary/criminal proceedings
are 795 pending against an employee?
(2)
What is the course to be, adopted when the employee is held guilty in such
proceedings if the guilt merits punishment other than that of dismissal?
(3) To
what benefits an employee who is completely or par- tially exonerated is
entitled to and from which date?'
The
,'sealed cover procedure" is adopted when an employee is due for
promotion, increment etc. but disciplinary/criminal proceedings are pending
against him at the relevant time and hence, the findings of his entitlement to
the benefit are kept in a sealed cover to be opened after the proceedings in
question are over'. Hence. the relevance and importance of the questions.
3. The
Union of India and the other appellant-authori- ties have by these appeals
challenged the findings recorded by the different Benches of the Tribunal in
reply to one or the other' of or all the aforesaid three questions, in the
decisions impugned therein. While recording its findings, the Full Bench of the
Tribunal has also struck down two provisions of the Central Government
Memorandum of 30th
January, 1982 on the
subject. We may, therefore, first refer to the said memorandum.
4. The
Government of India (Deptt. of Personnel & Train- ing)
issued an Office Memorandum No, 22011/1/79. Estt. (A) dated January 30, 1982 on the subject of promotion of offi-
cers in whose cases "the sealed cover procedure" had been followed
but against whom disciplinary/court proceedings were pending for a long time. The
Memorandum stated that according to the existing instructions, cases of
officers (a) who are under suspension or (b) against whom discipli- nary
proceedings are pending or a decision has been taken by the competent
disciplinary authority to initiate discipli- nary proceedings or, (c) against
whom prosecution has been launched in a court of law or sanction for
prosecution has been issued, are considered for promotion by the Departmen- tal
Promotion Committee (hereinafter referred to as the 'DPC') at the appropriate
time but the findings of the Committee are kept in a sealed cover to be opened
after the conclusion of the disciplinary/court proceedings. While the findings
are kept in the sealed cover, the vacancy which might have gone to the officer
concerned is filled only on an officiating basis. If on the conclusion of the departmen-
tal/court proceedings, the officer concerned is completely exonerated, and
where he is under suspension it is also held that the suspension was.wholly
unjustified, the sealed cover is opened and the recommendations of the DPC are
acted upon.
If the
officer could have been promoted earlier, he is promoted to the post which is
filled on an officiating basis, the officiating arrangement being terminated.
On his 796 promotion, the officer gets the benefit of seniority and fixation of
pay on a notional basis with reference to the date on which he would have been
promoted in the normal course, but for the pending disciplinary/ court
proceedings.
However,
no arrears of salary are paid in respect of the period. prior to the date of
actual promotion. The Memoran- dum goes on to state further that it was noticed
that some- times the cases in the courts or the departmental proceed- ings take
unduly long time to come to a conclusion and the officers undergo considerable
hardship, even where it is not intended to deprive them of promotion for Such a
long time.
The
Government, therefore, in consultation with the Union Public Service Commission
examined how the hardship caused to the Government servant in such
circumstances can be mitigated and has laid down the following procedure in
such cases:
"3.
(i)(a) It may be ascertained whether there is any departmental
disciplinary-proceedings or any case in a court of law pending against the
individual under consideration, or (b) there is a prima-facie case on the basis
of which a decision has been taken to proceed against the official either
departmentally or in a court of law. ' (ii) The facts may be brought to the
notice of the Departmental PromOtion Committee who may then assess the
suitability of the official(s) for promotion to the next grade/post and for the
purpose of this assessment, the D.P.C. shall not take into consideration the
fact of the pending case(s) against the official. In case an official is found
"unfit for promo- tion' on the basis of his record, without taking into
consideration, the case(s) pending against him, the findings of the D.P.C.
shall be recorded in the proceedings. In respect of any other kind of
assessment, the grading awarded by the D.P.C. may be kept in a sealed cover.
(iii)
After the findings are kept in a sealed cover by the Departmental Promotion
Committee subsequent D.P.Cs., if any, held after the first D.P.C. during the
period the discipli- nary/court proceedings may be pending, will also consider
the officer's case and record their findings. which will again be kept in
sealed cover in the above manner.
797 In
the normal course, on the conclu- sion of the disciplinary/court proceedings,
the sealed cover or covers may be opened, and in case the officer is completely
exonerated i.e. no statutory penalty, including that of censure, is imposed,
the earliest possible date of his promotion but for the pendency of the
disciplinary/court proceedings against him, may be determined with reference to
the position(s) assigned to him in the findings in the sealed cover/covers and
with reference to the date of promotion of his next junior on the basis of such
position. The officer con- cerned may then be promoted, if necessary by reverting
the juniormost officiating person, and he may be given a notional promotion
from the date he would have been promoted, as determined in the manner
indicated above. But no arrears of pay shall be payable to him for the period
.of notional promotion proceeding the date of actual promotion.
If any
penalty is imposed on the officer as a result of the disciplinary pro- ceedings
or if he is found guilty in the court proceedings against him, the findings in
the sealed cover/covers shall not be acted upon.
The
officer's case for promotion may be con- sidered in the usual manner by the
next D.P.C.
which
meets in the normal course after the conclusion of the disciplinary/court
proceed- ings. The existing instructions provide that in a case where departmental
disciplinary proceedings have been held under the relevant disciplinary rules,
"warning" should not be issued as a result of such proceedings. If it
is found as a result of the proceedings that some blame attaches to the
officer, then the penalty of censure at least should be imposed.
This
may be kept in view so that no occasion arises for any doubt on the point
whether or not an officer has been completely exonerated in disciplinary
proceedings held against him." Clause (iv) of Para 3 of the Memorandum
then lays down the procedure for ad hoc appointment of the concerned offi- cer
when the disciplinary/court .proceedings are not con- cluded even after the
expiry of two years from the date of the DPC which first considered him for
promotion and whose findings are kept in the sealed cover, provided however
that the officer is not under suspension. It is not necessary to reproduce that
clause in extenso here. Suffice it to say that the Memorandum urges that in
making the ad hoc promo- tion in such cases, his case should be placed before
the DPC which is held after the 798 expiry of the said period of two years, and
the ad hoc promotion has to be made on the basis of the totality of the record
of service etc.
Para 4
of the Memorandum states that if the officer concerned is acquitted in the
court proceedings on the merits of the case or exonerated in departmental discipli-
nary proceedings, the ad hoc promotion already made may be confirmed and the
promotion treated as a regular one from the date of the ad hoc promotion with
all attendant bene- fits. In such cases, the sealed cover may be opened and the
official may be assigned his place in the seniority list as he would have got
in accordance with the recommendation of the DPC. Paras 5, 6 and 7 of the Memorandum
then read as follows:
"5.
Where the acquittal in a court case is' not on merits but purely on technical
grounds, and the Government either proposes to take the matter to a higher
court or to pro- ceed against the officer departmentally, the appointing
authority may review whether the ad-hoc promotion should be continued.
6.
Where the 'acquittal by court is on technical grounds, if the Government does
not propose to go in appeal to a higher court or to take further departmental
action, action should be taken in the same manner as if the officer had been
acquitted by the court on merits.
7. If
the officer concerned is not acquitted/exonerated in the court proceedings or
the departmental proceedings, the ad-hoc promotion already granted should be brought
to an end by the issue of the "further order" contemplated in the
order of ad-hoc promotion (Please see para 3(vi) above) and the officer
concerned reverted to the post from which he was promoted on ad-hoc basis.
After such reversion, the officer may be considered for future promotion in the
usual course by the next D.P.C." ,
5. To
bring the record uptodate, it may be pointed out that in view of the decision
of this Court in Union of India & Anr. v. Tajinder Singh, [ 1986] 2 Scale
860 decided on September 26, 1986, the Government of India in the Deptt. of
Personnel & Training issued another' Office Memorandum No. 22011/2/86. Estt.
(A) dated January 12,
1988, in superses- sion
of all the earlier instructions on the subject 799 including the Office Memorandum
dated 30th January,
1982 referred to
above. There is no difference in the instruc- tions contained in this and the
earlier aforesaid Memorandum of January 30, 1982, except that this Memorandum
provides in paragraph 4 for a six-monthly review of the pending proceed- ings
against the Government servant where the proceedings are still at the stage of
investigation and if as a result of the review, the appointing authority comes
to the conclu- sion on the basis Of material and evidence collected in the investigation
till that time, that there is no prima facie case in initiating disciplinary
action or sanctioning prose- cution, the sealed cover is directed to be opened
and the employee is directed to be given his due promotion with reference to
the position assigned to him by the DPC. A further guideline contained in this
Memorandum is that the same sealed cover procedure is to be applied where a
Govern- ment servant is recommended for promotion by the DPC, but before he is
actually promoted, he is either placed under suspension or disciplinary
proceedings are taken against him or decision has been taken to initiate the
proceedings or criminal prosecution is launched or sanction for such prose- cution
has been issued or decision to accord such sanction is taken.
These
differences in the two Memoranda have no bearing on the questions to be
answered.
6. On
the first question, viz., as to when for the purposes of the sealed cover
procedure the disciplinary/criminal proceedings can be said to have com- menced,
the Full Bench of the Tribunal has held that it is only when a charge-memo in a
disciplinary proceedings or a chargesheet in a criminal prosecution is issued
to the employee that it can be said that the departmental proceed- ings/criminal
prosecution is initiated against the employee.
The
sealed cover procedure is to be resorted to only after the
charge-memo/charge-sheet is issued. The pendency of preliminary investigation
prior to that stage will not be sufficient to enable the authorities to adopt
the sealed cover procedure. We are in agreement with the Tribunal on this
point. The contention advanced by the learned counsel for the
appellant-authorities that when there are serious allegations and it takes time
to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it
would not be in the interest of the purity of administration to reward the
employee with a promotion, increment etc. does not impress us. The acceptance
of this contention would result in injustice to the employees in many-cases. As
has been the experience so far, the preliminary investigations take an
inordinately long time and particularly when they are initi- ated at the 800
instance of the interested persons, they are kept pending deliberately. Many
times they never result in the issue of any charge-memo/chargesheet. If the
allegations are serious and the authorities are keen in investigating them, ordi-
narily it slould not take much time to collect the relevant evidence and finalise
the charges. What is further, if the charges are that serious, the authorities
have the power to suspend the employee under the relevant rules, and the
suspension by itself permits a resort to the sealed cover procedure. The
authorities thus are not without a ,remedy.
It was
then contended on behalf of the authorities that conclusions nos. 1 and 4 of
the Full Bench of the Tribunal are inconsistent with each other. Those
conclusions are as follows:
"(1)
consideration for promotion, selection grade, crossing the efficiency bar or
higher scale of pay cannot be withheld merely on the ground of pendency of a
disciplinary or crimi- nal proceedings against an official;
( 3 )
................................................
(4) the
sealed cover procedure can be resorted only after a charge memo is served on
the concerned official or the charge sheet filed before the criminal court and
not before . ' ' There' is no doubt that there is a seeming contradiction
between the two conclusions. But read harmoniously, and that is what the Full
Bench has intended, the two conclusions can be reconciled with each other. The
conclusion no. 1 should be read to mean that the promotion etc. cannot be
withheld merely because some disciplinary/criminal proceedings are pending
against the employee. To deny the said benefit, they must be at the relevant
time pending at the stage when charge-memo/charge-sheet has already been issued
to the employee. Thus read, there is no inconsistency in the two conclusions.
We,
therefore, repel the challenge of the appellant- authorities to the said
finding of the Full Bench of the Tribunal.
7. The
Full Bench of the Tribunal, while considering the earlier Memorandum dated 30th
January. 1982 has, among other things, held that the portion of paragraph 2 of
the memoran- dum which says "but no arrears are allowed in respect of the
period prior to the date of the 801 actual promotion" is violative of
Articles 14 and 16 of the Constitution because withholding of salary of the
promotion- al post for the perked during which the promotion has been withheld
while giving other benefits, is discriminatory when compared with other
employees' who are not at the verge of promotion when the disciplinary
proceedings ' were intiated against them.
The
Tribunal has, therefore, directed that. on exonera- tion. full salary should be
paid to such employee which he would have on promotion if he had not been
subjected to disciplinary proceedings.
We are
afraid that the Tribunal's reference to para- graph 2 of the Memorandum is
incorrect. Paragraph 2 only recites the state of affairs as existed on January
30, 1982 and the portion of the Memorandum which deals with the relevant point
is the 'last sentence of the first sub-para- graph after clause (iii) of
paragraph 3 of the Memorandum which is reproduced above. That sentence reads as
follows:
"But
no arrears of pay shall be payable to him for the period of notional promotion
preceding the date of actual promotion".
This
sentence is preceded by the observation that when the' employee is completely
exonerated on the conclusion of the disciplinary/court proceedings, that is,
when no statu- tory penalty, including that of censure, is imposed, he is to be
given a notional promotion from the date he would have been promoted as
determined by the Departmental Promotion Committee. This direction in the
Memorandum has also to be read along with the other direction which follows in
the next sub-paragraph and which states that if it is found as a result of the
proceedings that some blame attaches to the officer then the penalty of censure
at least, should be imposed. This direction is in supersession of the earlier
instructions which provided that in a case where departmen- tal disciplinary
proceedings have been held, "warning" should not be issued as a
result of such proceedings.
There
is no doubt that when an employee is completely exonerated and is not visited
with the penalty even of censure indicating thereby that he was not blame
worthy in the least, he should not be deprived of any benefits includ- ing the
salary of the promotional post. It was urged on behalf of the
appellant-authorities in all .these cases that a person is not entitled to the
salary of the post unless he assumes charge of the same. They relied on F.R.
17(1)' of the Fundamental 802 Rules and Supplementary Rules which reads as
follows:
"F.R.
17(1) Subject to any excep- tions specifically made in these rules and to the
provision of sub-rule (2), an officer shall begin to draw the pay and
allowances attached to his tenure of a post with effect from the date when he
assumes the duties of that post, and shall cease to draw them as soon as he
ceases to discharge those duties:
Provided
that an officer who is absent from duty without any authority shall not be
entitled to any pay and allowances during the period of such absence." It
was further contended on their behalf that the normal rule is "no work no
pay". Hence a person cannot be allowed to draw the benefits of a post the
duties of which he has not discharged. To allow him to do so is against the elemen-
tary rule that a person is to be paid only for the work he bas done and not for
the work he has not done. As against this, it was pointed out on behalf of the
concerned employ- ees, that on many occasions even frivolous proceedings are
instituted at the instance of interested persons, sometimes with a specific
object of denying the promotion due, and the employee concerned is made to
suffer both mental agony and privations which are multiplied when he is also
placed Under suspension. When, therefore, at the end of such sufferings, he
comes out with a clean bill, he has to be restored to all the benefits from
which he was kept away unjustly.
We are
not much impressed by the contentions advanced on behalf of the authorities.
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. This is not a case where
the employee remains away from work for his own reasons, although the work is
offered to him. It is for this reason that F.R. 17(1) will also be inapplicable
to such cases.
We
are, therefore, broadly in agreement with the -find- ing of the Tribunal that
when an employee is completely exonerated meaning thereby that he is not 'found
blameworthy in the least and is not visited with the penalty even of censure,
he has to be given the benefit of the salary of the higher post along with the
other benefits from the date on which he would have normally been promoted but
for the disciplinary/ 803 criminal proceedings. However, there may be cases'
where the pro ceedings, whether disciplinary or criminal, are, for example, delayd
at the instance of the employee or the clearance in the disciplinary
proceedings or acquittal in the criminal proceedings is with benefit of doubt
or on account of non-availability of evidence due to the acts attributable to
the employee etc. In such circumstances, the concerned authorities must be
vested with the power to decide whether the employee at all deserves any salary
for the intervening period and if he does, the extent to which he deserves it.
Life being complex, it is not possible to anticipate and enumerate exhaustively
all the circumstances under which such consideration may become necessary. To ignorehowever,
such circumstances when they exist and lay down' an inflexi ble rule that in
every case when an employ- ee is exonerated in disciplinary/ criminal
proceedings he should be entitled to all salary for the intervening period is
to undermine discipline in the administration and jeopar- dise public
interests. We are, therefore, unable to agree with the Tribunal that to deny
the salary to an employee would in all circumstances be illegal. While,
therefore, we do not ap- prove of the said last sentence in the first
sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz..
"but no arrears of pay shall be payable to him for the period of notional
promotion preceding the date of actual promotion", we direct that in place
of the said sentence the following sentence be read in the Memorandum:
"However,
whether the officer concerned will be entitled to any arrears of pay for the
period of notional promotion preceding the date of actual promotion, and if so
to what extent, will be decided by the concerned authority by taking into
consideration all the facts and circumstances of the disciplinary
proceeding/criminal prosecution. Where the authority denies arrears of salary
or part of it, it will record its reasons for doing so." To this extent we
set aside the conclusion of the Tribu- nal on the said point.
8. The
Tribunal has also struck down the 'following portion in the second
sub-paragraph after clause (iii) of paragraph 3 which reads as follows:
"If any penalty is imposed on the officer as a result of the disciplinary
proceedings or if he is found guilty in the court proceed- ings against him,
the findings in the sealed cover/covers shall not be acted upon" and has
directed that if the pro- ceedings result in a penalty, the person concerned
should be considered for promotion in a 804 Review DPC as on the original date
in the light of the results of the scaled cover as also the imposition of
penal- ty and his claim for promotion cannot be deferred for the subsequent DPCs
as provided in the instructions. It may be pointed out that the said
sub-paragraph directs that "the officer's case for promotion may be
considered in the usual manner by the next DPC which meets in the normal course
after the conclusion of the disciplinary/court proceedings".
The
Tribunal has given the direction in question on the ground that such deferment
of the claim for promotion to the subsequent DPCs amounts to a double penalty.
According to the Tribunal, "'it not only violates Articles 14 and 16 of
the Constitution compared with other .employees who are not at the verge of
promotion when the disciplinary proceedings are Initiated against them but also
offends the rule against double leopardy contained in Article 20(2) of the Constitu-
tion". The Tribunal has, therefore,. held that when an em- ployee is
visited with a penalty as a result of the disci- plinary proceedings there
should be a Review DPC us on the date when the sealed cover procedure was
followed and the review DPC should consider the findings in the sealed cover as
also the penalty imposed. It is not clear to us as to why the Tribunal wants
the review DPC to consider the penalty imposed while considering the findings
in the sealed cover if, according to the Tribunal, not giving effect to the
findings in the sealed cover even. when a penalty is imposed, amounts to double
jeopardy. However, as we read the findings of the Tribunal, it appears that the
Tribunal in no case wants the promotion of the officer to be deferred once the
officer is visited with a penalty in the disciplinary proceedings and the
Tribunal desires that the officer should be given promotion as per the findings
in the sealed cover.
According
to us, the Tribunal has erred in holding that when an officer is found guilty
in the discharge of his duties, an imposition of penalty is all that is
necessary to improve his conduct and to enforce discipline and ensure purity in
the administration. In the first instance, the penalty short of dismissal will
vary from reduction in rank to censure. We are sure that the Tribunal has not
intended that the promotion should be given to the officer from the original
date even when the penalty imparted is of reduction in rank. On principle, for
the same reasons, the officer cannot be rewarded by promotion as a matter of
course even if the penalty is other than that of the reduction in rank.
An
employee has no right to promotion. He has only a right to be considered for
promotion. The promotion to a post and more so, to a selection post, depends
upon several circum- stances. To qualify for promotion, the least that is
expect- ed of an employee is to have an 805 unblemished record. That is the
minimum expected to ensure a clean and efficient administration and to protect
the public interests. An employee found guilty of a misconduct cannot be placed
on par with the other employees and his case has to be treated differently.
There is, therefore, no discrimi- nation when in the matter of promotion, he is
treated dif- ferently. The least that is expected of any administration is that
it does not reward an employee with promotion retro- spectively from a date
when for his conduct before that date he is penalised in presentii. When an
employee is held guilty and penalised and is, therefore, not promoted at least
till the date on which he is penalised, he cannot be said to have been
subjected to a further penalty on that account. A denial of promotion in such
circumstances is not a penalty but a necessary consequence of his conduct. In
fact, while considering an employee for promotion his whole record has to be
taken into consideration and if a promotion committee takes the penalties
imposed upon the employee into consideration and denies him the promotion, such
denial is not illegal and unjustified. If, ,further, the promoting authority
can take into consideration the penalty or penal- ties awarded to an employee
in the past while considering his promotion and deny him promotion on that
ground, it will be irrational to hold that it cannot take the penalty into
consideration when it is imposed at a later date because of the pendency of the
proceedings, although it is for conduct prior to the date the authority
considers the promotion. For these reasons, we are of the view that the
Tribunal is not right in striking down the said portion of the second sub-
paragraph after clause iii) of paragraph 3 of the said Memorandum. We,
therefore, set aside the said findings of the Tribunal.
In the
circumstances, the conclusions arrived at by the Full Bench of the Tribunal
stand modified as above. It is needless to add that the modifications which we
have made above will equally apply to the Memorandum of January 12,1988
9. In
the result, in Civil Appeals Nos. 3019/87, 3020/87 and 30 16/88 which arise out
of the decision of the Full Bench, the Division Bench of the Tribunal to which
the matters are remanded by the Full Bench., will dispose of the cases of the
employee/s involved in the appeals in the light of what we have held
hereinabove.
Civil
Appeal No. 3018 of 1987 In this case, no charge-sheet was served on the respon-
dentemployee when the DPC met to consider the respondent's promotion.
806
Yet, the sealed cover procedure was adopted. The Tribunal has rightly directed
the authorities to open .the sealed cover and if the respondent was found fit
for promotion by the DPC, to give him the promotion from the date his immedi-
ate junior Shri M. Raja Rao was promoted pursuant to the order dated April 30,
1986. The Tribunal has also directed the authorities to grant to the respondent
all the conse- quential benefits. The Tribunal has further stated in the
impugned order that its order would not mean that the disci- plinary
proceedings instituted against the respondent-em- ployee should not go on. We
see no reason to interfere with this order. The appeal, therefore, stands
dismissed. In the circumstances of the case, however, there will be no order as
to costs.
Civil
Appeal No. 302 1 of 1987 In this case, the DPC did not consider the case of the
respondent-employee for crossing efficiency bar w.e.f. 14th September, 1983 on
the ground that disciplinary proceedings were contemplated against him. We are,
therefore, of the view that the Tribunal's direction that the DPC should be
convened to consider the case of the respondent for crossing the efficiency bar
w.e.f. 14th September, 1983 on the basis of his confidential record at the
relevant date and without reference to the contemplated disciplinary
proceedings is both proper and valid. In this case also the Tribunal has given
the said direction without prejudice to the right of the appellant-authorities
to take any disciplinary action as might have been contemplated. This order
also does not require any interference from this Court. Hence, the appeal
stands dismissed. In the circumstances of the case, however, there will be no
order as to costs.
Civil
Appeal No. 3083 of 1990 In this case, the respondent-employee's case was
considered for promotion by the DPC in August 1982. However, the result was
kept in a sealed cover in view of the pending disciplinary proceedings against
him. According to the employee, on October 11, 1985 the disciplinary
proceedings ended in complete exoneration. Thereafter, a DPC was again constitut-
ed in March 1986 which, after consideration of the employ- ee's case, recommended
him for promotion w.e.f. July 26, 1986. this was obviously contrary even to the
instructions contained in the Memorandum. He was entitled to promotion from the
date his immediate junior was promoted in or after August 1982 if he was in
August 1982 found fit for promotion by the DPC, The Tribunal has, 807
therefore, rightly directed the appellant to open the sealed cover and if the
DPC in 1982 had found him fit for promo- tion, to give him the promotion from
the date on which his immediate junior was promoted. However, while doing so,
the Tribunal has' also directed arrears of salary to be paid for intervening
period along with all consequential benefits.
Since
we have held disagreeing with the decision of the Full Bench of the Tribunal
that the .benefit of the arrears of salary will not flow automatically but will
depend upon the circumstances in each case, we modify the said order to the
extent it directs the payment of arrears of salary, and direct the
appellant-authority to consider whether the employee in the circumstances of
the case was entitled to any arrears of salary and to what extent. The
authority will, of course give reasons for denial of the whole or part of the
arrears of salary The appeal is, there- fore, allowed partly with no order as to
costs.
Civil
Appeal No. 4379 of 1990 In this case, the respondent-employee was not
recommend- ed for promotion by the DPC in its meeting held on February-1, 1988
Instead, the DPC had kept the results in a sealed cover because of the pending dis.ciplinary
proceed- ings. Admittedly, no charge-memo was served.On the employee till the
date the DPC met on February 1, 1988 it was issued only in March 2, 1989. The
Tribunal has,-therefor rightly directed the authorities tO open the sealed
cover. We are, however, unable to understand the direction of the Tribunal to
convene a Review DPC for considering the employee's case as on February 1 1988.
If the DPC had considered the case of the employee on February 1, 1988 and
withheld the result because of the pending disciplinary proceedings, the proper
direction would have been to ask the appellant-authority to open the sealed
cover and if the employee was found fit for promotion, to direct the authority
to promote him from the date on which his immediate junior was promoted as a
result of the recommendation of the DPC on February 1, 1988. In case he is so
found fit, he would be entitled to the bene- fits of seniority etc. on a
notional basis. However, whether he. would be entitled to the arrears of salary
for the intervening period and to what extent will have to be decid- ed by the
appellant authority in the light of what we have state above. In case the
authority denies to the employee the salary in full or in part, it will, of
course, record its reasons for doing so. The appeal is therefore, allowed
partly as above with no order as to costs. ..
Civil
Appeals Nos. 51-55 of 1990 These appeals are filed against five
respondent-employees.
Dis
808 ciplinary proceedings as well as criminal prosecution were launched against
each of them for lodging false Leave Travel Concession claims and for using
forged documents to support them. The employees were suspended from service on 15th July , 1983. They admitted guilt and pleaded
revocation of their suspension on depositing the amount of Rs. 1600. They were
reinstated in service in November, 1983. Keeping in view the deposit of the
amount voluntarily in October 1983, a lenient view was taken and the criminal. prosecutions
against them were dropped by the Administration by an order of January 14, 1985. However, this was done without
prejudice to the departmental proceedings which were subsequently initiated and
the formal chargesheet was issued to the employees on December 24, 1987.
The
Departmental Promotion Committee met in July 1986 to consider the cases of the
employees for promotion but re- sorted to sealed cover procedure in view of the
pendency of the disciplinary proceedings against them. There is no dispute that
the formal chargesheet was issued either on August or December 24, 1987. Conflicting months have been
mentioned in the decision of the Tribunal.
However,
we find that the Tribunal has taken a mechani- cal view and applied the
decision of the Full Bench and directed the promotions to be given to the
employees on the basis of the recommendations, if any, of the DPC of July 1986.
We are of the view that in the present case when the DPC met in July 1986, the
Committee had before it the record of the refund of the amount by the
respondent-employ- ees and the consequent withdrawal of the prosecutions with-
out prejudice to the authorities' right to institute depart- mental
proceedings.
In
view of the aforesaid peculiar facts of the present case, the DPC which met in
July 1986 was justified in re- sorting to the .sealed cover procedure,
notwithstanding the fact that the charge-sheet in the departmental proceedings
was issued in August/December, 1987. The Tribunal was, therefore, not justified
in mechanically applying the deci- sion of the Full Bench to the facts of the
present case and also in directing all benefits to be given to the employees
including payment of arrears of salary. We are of the view that even 'if the
results in the sealed cover entitle the employees to promotion from the date
their immediate juniors were promoted and they are, therefore, so promoted and
given notional 'benefits of seniority etc., the. employees in no case should be
given any arrears of salary. The denial of the benefit of salary will, of
course, be in addition to the penalty,.if any,. imposed on the employees at the
end of the disciplinary proceedings. We, 809 therefore, allow these appeals as
above with no order as to costs.
S.L.P.
(Civil) No. 1094 of 1990 Special leavegranted.
The
respondent-employee in this case was a Sepoy in the Department of Central
Excise and Customs. He passed his Departmental examination for the post of
Lower Division Clerk against 10% vacancies and by letter of October 14, 1981,
he was informed about his selection for the said post against the said
vacancies reserved for educationally quali- fied Group-D staff. However, he was
informed that. his appointment order as L.D.C. would be issued if he was exon- erated
from the disciplinary proceedings which were then pending against him. In the
Departmental Inquiry, .he, was exonerated of all the charges and by an order.of
June 6, 1985 he was appointed to officiate as
Lower Division Clerk.
By a
subsequent order of July
3, 1985, the earlier
order of June 6, 1985 was made effective from September 25, 1981. By yet another order of July 29, 1985, his pay was fixed by giving him
increment from September
25, 1981 but he was
denied arrears of pay from that date till June 2, 1985. The employee did not challenge the
said order denying him ar- rears of pay till he made his representation on February 18, 1988. To his representation a reply was
sent that since he had not worked as LDC during the said period he was not
entitled to the arrears of salary. By the impugned decision, the Tribunal has
directed the authorities to grant to the respondent-employee his pay and
allowances from September
25, 1981 to June 2, 1985.
In
view of what we have held above, the appeal is al- lowed, the impugned order is
hereby set aside and instead the appellant-authorities are directed to examine
the ques- tion whether the respondentemployee was entitled to any salary and if
so to what extent in the light of the view taken by us. The
appellant-authorities will, of course, have to record reasons if the arrears of
salary in its entirety or in part are denied to the employee. In the
circumstances of the case, however, there will be no order as to costs.
S.L.P.
(Civil) No. 11680of1991 Special leave granted'.
The
order impugned in this appeal is an interim one whereby the Tribunal has
directed the appellant-Union of India to open the sealed 810 cover and if the result shows that the DPC has
found the respondentemployee fit for promotion to the post of Commis- sioner of
Incometax, to give effect to the said recommenda- tions. The admitted facts are
that the DPC which met in 1988 had considered the respondentemployee's case for
promotion to the post of Commissioner of Income-tax. However, since some
departmental proceedings were pending against him, he was not given the ,said
promotion. It was for the first time in 1990, that the appellants served on him
a memorandum asking his explanation in respect of certain alleged acts of
misconduct to which he sent a reply on May 18, 1990. Till the date of the 'impugned
order of the Tribunal, i.e., January 1, 1991,
no charge-sheet was served upon the re- spondent-employee. However, 12 persons.
junior to him were promoted by an order dated April 16, 1990. The Tribunal has, as stated above, therefore, made the
impugned order. There is .no direction in the order to pay him the arrears of
salary for the interregnum. In the circumstances of the case, we do not think
it necessary to interfere with the impugned order. The appeal, therefore,
stands dismissed. In the circumstances of the case, however, there will be no
Order as to costs.
S.L.P.
(Civil) No. 2344 of 1990 Special leave granted.
The
peculiar facts in this case are that at the relevant time the
respondent-employee was working as Superintending Engineer since July 1986.
When earlier he was working as Garrison Engineer in Bikaner Division, there was
a fire in the Stores in April 1984 and there were also deficiencies in the
Stores held by: the Store-keeper during the 'period between 1982 and 1985.
Hence, disciplinary proceedings were commenced in February 1988 and the
respondent was served with a charge-sheet on February 22, 1988. By an order of August 19, 1988 a penalty of withholding of
increment for one year was imposed on the respondent as a result of the said
disciplinary proceedings.
On June 3, 1988, the DPC met for considering 'the
promo- tion'to the Selection Grade. Pursuant to this meeting, by an order of July 28, 1988 some juniors were given the
Selection Grade with retrospective effect from July 30, 1986. The respondent-employee's name was kept in a sealed cover
and was, therefore, not included in the list of the promotee officers.
The
Tribunal has found fault With the authorities on two 811 grounds. The Tribunal
has observed that although when the DPC met in June 1988, the employee was
already served with a charge-sheet on February 22, 1988 and, therefore, the
sealed cover procedure could not be faulted, since admittedly his juniors were
given promotion with retrospective effect from July 30, 1986,. the DPC should
not have excluded the re- spondent's name from consideration when it met on June 3, 1988. The second fault which the
Tribunal has found is that since the penalty of stoppage of increment was
imposed at the end of the disciplinary proceedings, it was not open for the
authorities to deny the 'respondent his promotion to the. Selection Grade as
that amounted to 'double penalty.
Having
taken this view, the Tribunal has directed that a Review DPC should consider
the 'respondent's case for promo- tion w.e.f. July 1986 when his juniors were
given promotion taking into account his performance and confidential records up
to 1986. We are afraid the Tribunal has taken an errone- ous view of the
matter. Admittedly, the DPC met in June 1988 when the employee was already
served with the charge-sheet on February 22, 1988. The charge-sheet was for misconduct for the period between
1982 and 1985. Admittedly further, the employee was punished by an order of August 19, 1988 and his one increment was withheld.
Although, therefore, the promotions to his juniors were given with retrospective
effect from, July 30,
1986, the denial of
promotion to the employee was not unjustified. The DPC had for the first time. met
on June 3, 1988 for considering promotion to the
Selection Grade. It is in this meeting that his juniors were given Selection
Grade with retrospective effect from July 30, 1986, and the sealed cover procedure was
adopted in his case. If no disciplinary .proceedings were pending against him
and if he was. otherwise selected by the DPC he Would have got the Selection
Grade w.e.f. July 30,
1986, but in that case
the. disciplinary proceedings against him for his misconduct for the earlier
period, viz., between 1982 and 1985 would have been meaningless. If the
Tribunal's finding is 'accepted it would mean that by giving him the Selection
Grade w.e.f. July 30, 1986 he would stand rewarded not with- standing his
misconduct for the .earlier period for which disciplinary proceedings were
pending at the time of the meeting of the DPC and for which again he was
visited with a penalty. We, therefore, allow the appeal and set aside. the
finding of the Tribunal. There will, however, be no order as to costs.
Before
we part with these appeals, we make it clear that if any of the
respondent-employees in any of the above appeals has/have been given any
benefits the same will not be disturbed.
G.N.
Appeals disposed of.
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