Union of India & Ors Vs. A.N. Mohanan [2007] Insc 421 (18
April 2007)
Dr. ARIJIT PASAYAT & D.K. JAIN
CIVIL APPEAL NO. 2020 2007 (Arising out of SLP (C) No. 26408 of 2004) Dr.
ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the judgment of the Division Bench of the
Kerala High Court dismissing the writ petition filed by the appellants. In the
writ petition challenge was made to the order passed by the Central
Administrative Tribunal, Ernakulam Bench (in short the 'CAT') in O.A. No.
203 of 2002.
The controversy lies within a very narrow compass.
Departmental enquiry was started against the respondent on 3.8.1999. The
Departmental Promotion Committee (in short the 'DPC') made the selection on
1.11.1999. Since the enquiry was pending against the respondent, sealed cover
procedure was adopted. On 13.9.2001 the penalty of censure was awarded.
Promotion was granted to the respondent on 26.11.2001. However, he claimed that
promotion should have been given to him with effect from 1.11.1999. He moved
the CAT seeking for such direction. CAT by its order dated 18th June, 2004 held that penalty of censure is not a bar for promotion and though the sealed cover
procedure was adopted, the sealed cover should have been opened and the
recommendation of DPC should have been given effect to by giving the respondent
promotional benefit with effect from 1.11.1999.
The order of CAT was challenged before the High Court by filing a writ
petition. The High Court noted that awarding of penalty of censure would not
affect the promotion of the respondent and the department was not right in
contending that the awarding of penalty (censure) would stand on the way of
promotion. Accordingly the writ petition was dismissed.
Learned counsel for the appellants submitted that the effect of Rule 3.1 of
the Office Memorandum relating to promotion of government servants dated
14.9.1992 issued by the Government of India, Ministry of Personnel, Public
Grievances and Pensions, Department of Personnel and Training, has been lost sight
of. According to him, Rule 3.1 clearly postulates that where penalty has been
imposed, findings of the sealed cover/covers are not to be acted upon and the
case of promotion can be considered by the next DPC in the normal course.
Learned counsel for the respondent on the other hand submitted that the
awarding of penalty i.e. censure was not the sole ground for seeking promotion
with effect from 1.11.1999, and it was because of the conclusion that the
validity of previous panel had been exhausted.
Few Rules as contained in the Office Memorandum need to be noted.
Rules 3 and 3.1 read as follows:
Rule 3 : On the conclusion of the disciplinary case/criminal prosecution
which results in dropping .of allegations against the Govt. servant, the sealed
cover or covers shall be opened. In case the government servant is completely
exonerated, the due date of his promotion will be determined with reference to
the position assigned to him in the findings kept in the sea1ed cover/covers
and with reference to the date of promotion of his next junior on the basis of
such position. The Government servant may be promoted, if necessary, by
reverting the Junior, most officiating person. He may be promoted notionally
with reference to the date of promotion of junior. However, whether the officer
convened 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 appointing authority by taking into consideration all the
facts and circumstances of the disciplinary proceedings/criminal prosecution.
Where the authority denies arrears of salary or part of it, it will record its
reasons for doing so. It is not possible to anticipate and enumerate
exhaustively all the circumstances under which such denials of arrears of
salary or part of it may become necessary. However, there may be cases where
the proceedings, whether disciplinary or criminal, are, for example, delayed 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., these are only some of the circumstances where such denial can be justified.
Rule 3.1: If any penalty is imposed on the Government servant as a result of
the disciplinary proceedings or if he is found guilty in the Criminal
prosecution against him, the finding of the sealed cover/covers shall not be
acted upon. His case for promotion may be considered by the next DPC in the
normal course and having regard to the penalty imposed on him."
Though learned counsel for the respondent submitted that awarding of censure
does not amount to awarding of penalty, the same is clearly untenable. In Union
of India etc.etc. v. K.V. Jankiraman etc.etc. (AIR 1991 SC 2010) at page 2017
it was held as follows:
"We are, therefore, broadly in agreement with the finding 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/criminal proceedings. However, there may
be cases where the proceedings, whether disciplinary or criminal, are, for
example, delayed 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 ignore, however, such circumstances when they exist and
lay down an inflexible rule that in every case when an employee is exonerated
from disciplinary/ criminal proceedings he should be entitled to all salary for
the intervening period is to undermine discipline in the, administration and
jeopardise 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 approve 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."
Awarding of censure, therefore, is a blameworthy factor.
A bare reading of Rule 3.1 as noted above makes the position clear that
where any penalty has been imposed the findings of the sealed cover are not to
be acted upon and the case for promotion may be considered by the next DPC in
the normal course.
Having regard to the penalty imposed on him, undisputedly the respondent has
been given promotion with effect from 26.11.2001. His claim for promotion with
effect from 1.11.1999 was clearly unacceptable and, therefore, the CAT and the
High Court were not justified in holding that he was entitled to be promoted
with effect from 1.11.1999. The order of High Court affirming the view taken by
the CAT cannot be sustained and is, therefore, set aside.
The appeal is allowed without any orders as to costs.
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