1991 (0) GLHEL-SC 32896
SUPREME COURT OF INDIA
Hon'ble Judges:Ranganath Misra, M.H.Kania and P.B.Sawant JJ.
Union Of India Versus K.V.Jankiraman
Civil No. 3018 of 1987 ; 3021 of 1987 ;Civil No. 3016 of 1988 ;
51 of 1990 ; 55 of 1990 ;Civil No. 3083 of 1990 ; 4379 of 1990
;Special Leave Petition (Civil) No. 1094 of 1990 ; 2344 of 1990 ;
*J.Date :-
AUGUST 27, 1991
CONSTITUTION OF INDIA Article - 20(2) , 309 , 311 , 14 , 16
FUNDAMENTAL RULES Rule - 17(1)
Service Jurisprudence - Constitution of India - Art. 20(2), 309,
311 - promotion - meaning of expression "sealed cover procedure" -
when could be resorted to - held, it can be resorted to only after
charge memo/charge sheet is issued to employee - pendency of
preliminary investigation prior to that stage will not be
sufficient to enable authorities to adopt sealed cover procedure -
therefore, plea that there are serious allegations and it takes
time to collect necessary evidence to prepare and issue
charge-memo/charge-sheet, is not tenable.Constitution of India -
Art. 309, 311 - Fundamental Rules - R. 17(1) - promotion - adoption
of sealed cover procedure - where completely exonerated in
criminal/disciplinary proceedings and not visited with penalty even
of censure - permissibility to denial of benefits of promotional
post - held, employee cannot be deprived of any benefits including
salary of promotional post - principle of "no work no pay" is not
applicable in such case - R. 17(1) of Fundamental Rules would also
be inapplicable as employee not on its own remained away from work
- therefore, to deny salary to employee would be
illegal.Constitution of India - Art. 14, 16, 309, 311 - Government
of India (Department of Personnel Training) Office Memorandum dated
30-1-1982 - promotion - adoption of sealed cover procedure -
employee found guilty of misconduct - treated differently in
matters of promotion - whether act was discriminatory - held, no -
employee found guilty of misconduct cannot be placed on par with
other employees and his case has to be treated differently - there
is therefore, no discrimination when in matter of promotion,
employee is treated differently - order accordingly.
Imp.Para: [ 6 ] [ 7 ] [ 8 ]
Cases Referred To :
1. Union Of India V/s. Tejinder Singh, 1991 4 SCC 129 : 1986 (2)
Scale 860 : 1993 SCC(L&S) 666 : 1993 (8) SLR 558 : 1991 (2)
AllCJ 1335
Cited in :
1. (Referred To) :- Gurpal Singh Vs. High Court Of Judicature
For Rajasthan, JT 2012 (11) SC 557 : 2012 (8) Supreme 257 : 2012
JX(SC) 539 : 2012 GLHEL_SC 52367
2. (Relied on) :- Girijan Cooperative Corporation Limited,
Andhra Pradesh Vs. K.Satyanarayana Rao , 2010 (15) SCC 322 : 2013
(1) SCC(L&S) 579 : 2009 GLHEL_SC 53982
3. (Referred To) :- Greater Hyderabad Municipal Corporation Vs.
M.Prabhakar Rao, 2011 (8) SCC 155 : AIR 2011 SC 3173 : 2011 (8)
Scale 90 : 2011 (9) SCR 594 : JT 2011 (8) SC 174 : 2011 AIR SCW
4498 : 2011 (5) Supreme 375 : 2011 JX(SC) 524 : 2011 (2)
SCC(L&S) 363 : 2011 (131) FLR 314 : 2011 LabIC 3627 : 2011 (4)
PLJR(SC) 178 : 2011 (7) MLJ 1232 : 2011 (4) RSJ 310 : 2011 (5)
AllMR 969 : 2011 (4) JLJR(SC) 92 : 2011 (5) ALD(SC) 144 : 2011 (4)
SCT 46 : 2012 (1) LawHerald(SC) 794 : 2011 GLHEL_SC 50190
4. (Referred To) :- Bhajan Singh Vs. State Of Uttarakhand, 2013
(14) SCC 32 : 2013 (11) Scale 220 : JT 2013 (12) SC 414 : 2013 AIR
SCW 5576 : 2013 JX(SC) 594 : 2013 LabIC 4377 : 2013 (10) AD(SC) 373
: 2013 (6) AllMR 972 : 2013 (4) SCT 695 : 2013 (6) ALJ 582 : 2013
GLHEL_SC 54444
5. (Referred To) :- State Of Madhya Pradesh Vs. Ramanand Pandey,
2014 (10) SCC 610 : 2014 (11) Scale 735 : JT 2014 (12) SC 349 :
2014 AIR SCW 6270 : 2014 (8) Supreme 307 : 2014 JX(SC) 622 : 2015
(1) SCC(L&S) 150 : 2014 AIJEL_SC 55783
6. (Referred To) :- Sudha Shrivastava Vs. Comptroller And
Auditor General Of India, 1996 (1) SCC 63 : AIR 1996 SC 571 : 1995
(6) Scale 449 : 1995 (Supp4) SCR 797 : JT 1995 (9) SC 358 : 1995
AIR SCW 4490 : 1996 SCC(L&S) 259 : 1997 (2) LLJ 299 : 1996
AllCJ 569 : 1996 (32) ATC 205 : 1996 (3) SCT 319 : 1995 GLHEL_SC
30654
7. (Referred To) :- Food Corporation Of India Vs. Abhay Ram,
2002 (10) SCC 455 : 2000 GLHEL_SC 8892
8. (Followed) :- Chairman, State Bank Of India Vs. Golak Bihari
Dehury , 1996 (7) SCC 63 : 1996 SCC(L&S) 458 : 1995 (8) SLR 1 :
1996 (32) ATC 780 : 1995 GLHEL_SC 4677
9. (Referred To) :- Uco Bank Vs. Rajinder Lal Capoor, 2007 (6)
SCC 694 : AIR 2007 SC 2129 : 2007 (8) Scale 296 : 2007 (8) Scale
255 : 2007 (7) SCR 543 : 2007 (8) SCR 543 : JT 2007 (8) SC 581 :
2007 AIR SCW 3656 : 2007 (4) Supreme 474 : 2007 (3) RCR(Civ) 529 :
2007 JX(SC) 527 : 2007 (2) SCC(L&S) 550 : 2007 (4) SLR 658 :
2007 (114) FLR 413 : 2007 (55) AllIndCas 33 : 2007 (3) LLJ 352 :
2007 (4) PLJR(SC) 45 : 2007 (4) RAJ 40 : 2008 (1) SLJ 262 : 2007
(4) RSJ 237 : 2007 (4) BBCJ(SC) 286 : 2007 (3) RajLW 1979 : 2007
(3) CurLR 761 : 2007 LabLR 845 : 2007 GLHEL_SC 39333
10. (Referred To) :- State Of Madhya Pradesh Vs. Ramanand
Pandey, 2014 (10) SCC 610 : 2014 (11) Scale 735 : JT 2014 (12) SC
349 : 2014 AIR SCW 6270 : 2014 (8) Supreme 307 : 2014 JX(SC) 622 :
2015 (1) SCC(L&S) 150 : 2014 AIJEL_SC 55783
11. (Referred To) :- Ram Ashish Dixit Vs. Chairman Purvanchal
Gramin Bank Ltd, 2013 (6) SCC 309 : 2013 (6) Scale 345 : JT 2013
(10) SC 491 : 2013 (2) SCC(L&S) 503 : 2013 (137) FLR 704 : 2013
(3) AWC 2961 : 2013 (4) SCT 142 : 2012 GLHEL_SC 54327
12. (Referred To) :- Union Of India Vs. A.N.Mohanan, 2007 (5)
SCC 425 : 2007 (5) Scale 778 : 2007 (6) SCR 279 : JT 2007 (5) SC
565 : 2007 AIR SCW 2773 : 2007 (3) Supreme 680 : 2007 (2)
SCC(L&S) 187 : 2007 (3) SLR 579 : 2007 (113) FLR 877 : 2007
LabIC 2456 : 2007 (4) MLJ 1117 : 2007 (2) KerLT 758 : 2008 (1) SLJ
111 : 2007 (3) RSJ 605 : 2007 (3) JLJR(SC) 58 : AIRJharHCR 2007 198
: 2007 (3) JCR(SC) 29 : 2007 (3) SCT 476 : 2007 (3) CTC 621 : 2007
GLHEL_SC 39090
13. (Referred To) :- State Of Kerala Vs. E.K.Bhaskaran Pillai,
2007 (6) SCC 524 : AIR 2007 SC 2645 : 2007 (5) Scale 740 : 2007 (5)
SCR 251 : JT 2007 (6) SC 83 : 2007 AIR SCW 4766 : 2007 (2)
SCC(L&S) 487 : 2007 (3) SLR 705 : 2007 LabIC 3255 : 2007 (3)
KerLT 711 : 2008 (1) SLJ 164 : 2007 (3) RSJ 58 : 2007 (5) AllMR 420
: 2007 (3) UPLBEC 2396 : 2007 (3) JLJR(SC) 26 : 2007 (2) SCT 757 :
2007 (2) CalLJ 286 : ILR 2007 Ker 107 : 2007 GLHEL_SC 39104
14. (Referred To) :- Uco Bank Vs. Rajinder Lal Capoor, 2008 (5)
SCC 257 : AIR 2008 SC 1831 : 2008 (6) Scale 1 : 2008 (5) SCR 775 :
2008 AIR SCW 2526 : 2008 (2) Supreme 795 : 2008 (3) RCR(Civ) 371 :
2008 JX(SC) 761 : 2008 (2) SCC(L&S) 263 : 2008 (6) SLR 1 : 2008
(2) AWC 2030 : 2008 (Supp2) AWC 2030 : 2008 (3) LLJ 299 : 2008 (4)
RAJ 205 : 2008 (3) SLJ 257 : 2008 (4) RSJ 71 : 2008 (1) ISJ(Ban)
391 : 2008 GLHEL_SC 41078
15. (Referred To) :- State Of Gujarat Vs. Natvarlal Motilal
Chavda, 2015 (2) Supreme 113 : 2014 JX(SC) 817 : 2014 GLHEL_SC
56394
16. (Considered) :- Union Of India Vs. Anil Kumar Sarkar, 2013
(1) GLH 792 : 2013 (4) SCC 161 : AIR 2013 SC 1661 : 2013 (3) Scale
542 : JT 2013 (4) SC 103 : 2013 AIR SCW 2232 : 2013 (2) Supreme 402
: 2013 JX(SC) 172 : 2013 (2) SCC(L&S) 220 : 2013 (3) SLR 357 :
2013 (137) FLR 641 : 2013 LabIC 2395 : 2013 (4) AD(SC) 93 : 2013
(2) PLJR(SC) 289 : 2013 (3) MLJ 828 : 2013 (2) SLJ 468 : 2013 (2)
AllMR 954 : 2013 (2) JLJR(SC) 164 : 2013 (2) SCT 753 : AIR 2013 SC
2293 : 2013 (3) WBLR 478 : 2013 (2) KerLT(SN) 29 : 2013 (2)
AllMR(SC) 954 : 2013 GLHEL_SC 53843
17. (Referred To) :- U.P.State Sugar Corporation Ltd. Vs. Kamal
Swaroop Tondon, 2008 (2) SCC 41 : AIR 2008 SC 1235 : 2008 (1) Scale
615 : 2008 (1) SCR 887 : 2008 AIR SCW 1241 : 2008 (1) RCR(Civ) 661
: 2008 JX(SC) 70 : 2008 (1) SCC(L&S) 352 : 2008 (118) FLR 834 :
2008 (2) LLJ 854 : 2008 LabIC 1358 : 2008 (Supp2) KerLT 422 : 2008
(2) RSJ 106 : 2008 (3) RajLW 2194 : 2008 (2) CurLR 563 : 2008
GLHEL_SC 40365
18. (Relied on) :- State Of Madhya Pradesh Vs. Syed Naseem
Zahir, 1993 (Supp2) SCC 225 : AIR 1993 SC 1165 : 1992 (2) Scale 834
: 1992 (Supp1) SCR 962 : 1992 AIR SCW 3315 : 1993 (1) UJ 138 : 1993
(1) RCR(Civ) 261 : 1993 SCC(L&S) 429 : 1992 (5) SLR 618 : 1993
(66) FLR 1022 : 1993 (1) LLJ 174 : 1992 LabIC 2443 : 1993 (1)
PLJR(SC) 111 : 1993 (2) SLJ 85 : 1993 (24) ATC 249 : 1993 (1) CLR
719 : 1993 (1) ATR 1 : 1993 (1) CurSJ(SC) 166 : 1992 GLHEL_SC
28528
19. (Followed) :- State Of Madhya Pradesh Vs. J.S.Bansal, 1998
(3) SCC 714 : AIR 1998 SC 1015 : 1998 (1) Scale 478 : 1998 (1) SCR
734 : JT 1998 (1) SC 514 : 1998 AIR SCW 787 : 1998 (2) Supreme 148
: 1998 (3) SCJ 471 : 1998 SCC(L&S) 937 : 1998 (1) SLR 773 :
1998 (78) FLR 600 : 1998 (1) ApexCJ 488 : 1998 (1) LLJ 1221 : 1998
LabIC 998 : 1998 (2) AD(SC) 235 : 1998 (3) LabLN 58 : 1998 (2) SLJ
274 : 1998 (2) UPLBEC 978 : 1998 (2) CurLR 154 : 1998 (1) ESC 712 :
1998 (1) JabLJ 243 : 1998 (1) JLJ 243 : 1998 GLHEL_SC 28417
20. (Referred To) :- Government Of Andhra Pradesh Vs. Ch.Gandhi,
2013 (5) SCC 111 : AIR 2013 SC 2113 : 2013 (2) Scale 646 : JT 2013
(3) SC 131 : 2013 AIR SCW 1409 : 2013 (2) Supreme 33 : 2013 (2)
SCC(Cri) 884 : 2013 JX(SC) 125 : 2013 (137) FLR 143 : 2013 LabIC
1652 : 2013 (3) AD(SC) 437 : 2013 (3) ALD(SC) 32 : 2013 (2) SCT 207
: 2013 (2) SCT 208 : 2013 (1) CLR 833 : 2013 (1) KerLT(SN) 121 :
2013 GLHEL_SC 52661
21. (Referred To) :- Babu Lal Vs. Haryana State Agricultural
Mkt.Board, 2009 (4) SCC 287 : 2009 (2) Scale 388 : 2009 (3) SCR 130
: 2009 SCR 1344 : JT 2009 (2) SC 377 : 2009 (2) RCR(Civ) 165 : 2009
JX(SC) 143 : 2009 (1) SCC(L&S) 810 : 2009 (122) FLR 52 : 2009
(4) LLJ 28 : 2009 (2) RAJ 398 : 2009 (3) RSJ 226 : 2009 LabLR 936 :
2009 GLHEL_SC 42856
22. (Referred To) :- Sangeetaben Mahendrabhai Patel Vs. State Of
Gujarat , 2012 (2) GLH 145 : 2012 (7) SCC 621 : AIR 2012 SC 2844 :
2012 (4) Scale 549 : JT 2012 (4) SC 338 : 2012 AIR SCW 2664 : 2012
(3) Supreme 185 : 2012 (3) SCC(Cri) 445 : 2012 (2) RCR(Civ) 839 :
2012 JX(SC) 166 : 2012 CrLJ 2432 : 2012 (2) RCR(Cri) 757 : 2012 (2)
Crimes 203 : 2012 (3) PLJR(SC) 8 : 2012 (2) RAJ 405 : 2012 (2)
CriCC 671 : 2013 AllMR(Cri) 358 : 2012 (2) ALT(Cri)(SC) 479 : 2012
(2) JLJR(SC) 392 : 2012 (3) BCR 537 : 2012 (3) RajLW 2033 : 2012
(3) CivCC 227 : 2012 (77) ACrC 953 : 2012 (3) GLR 1841 : AIR 2012
SC 880 : 2012 (2) BCR(Cri) 651 : 2012 (2) GCD 1736 : 2012 (2) AICLR
801 : 2012 (31) GHJ 87 : 2012 (1) DCR 770 : ILR 2012 Ker 301 : 2012
(2) NIJ 40 : 2013 ACD 700 : 2012 GLHEL_SC 51137
23. (Considered) :- Union Of India Vs. Sudha Salhan, 1998 (3)
SCC 394 : AIR 1998 SC 1094 : 1998 (1) Scale 505 : 1998 (1) SCR 28 :
JT 1998 (1) SC 622 : 1998 AIR SCW 884 : 1998 (1) Supreme 501 : 1998
(1) UJ 593 : 1998 (1) RCR(Civ) 804 : 1998 SCC(L&S) 884 : 1998
(5) SLR 473 : 1998 (1) SLR 705 : 1998 (2) LLJ 241 : 1998 LabIC 957
: 1998 LabIC 857 : 1998 (2) AD(SC) 306 : 1998 (2) LabLN 385 : 1998
(2) SLJ 265 : 1998 (2) CurLR 554 : 1998 GLHEL_SC 33322
24. (Referred To) :- Delhi Development Authority Vs.
H.C.Khurana, 1993 (3) SCC 196 : AIR 1993 SC 1488 : 1993 (2) Scale
464 : 1993 (2) SCR 1033 : JT 1993 (2) SC 695 : 1993 AIR SCW 1417 :
1993 (2) UJ 342 : 1993 (3) RCR(Civ) 146 : 1993 SCC(L&S) 736 :
1993 (2) SLR 509 : 1993 (67) FLR 303 : 1993 (2) LLJ 303 : 1993
LabIC 1115 : 1993 (2) LabLN 34 : 1993 (3) RSJ 279 : 1993 (1) UPLBEC
1421 : 1993 (2) CurLR 683 : 1993 (24) ATC 763 : 1993 (2) SPJ 491 :
1993 GLHEL_SC 7516
25. (Distinguished) :- Union Of India Vs. Kewal Kumar, 1993 (3)
SCC 204 : AIR 1993 SC 1585 : 1993 (2) Scale 551 : 1993 (3) SCR 45 :
JT 1993 (2) SC 705 : 1993 AIR SCW 1737 : 1993 (2) UJ 340 : 1993 (3)
RCR(Civ) 76 : 1993 (2) SCJ 531 : 1993 SCC(L&S) 744 : 1993 (2)
SLR 554 : 1993 (67) FLR 228 : 1993 (2) LLJ 692 : 1993 LabIC 1317 :
1993 (2) LabLN 52 : 1993 (3) RSJ 303 : 1994 (2) UPLBEC 898 : 1993
(1) UPLBEC 1428 : 1993 (2) CurLR 680 : 1993 (24) ATC 770 : 1993
IJRep 254 : 1993 (3) SPJ 205 : 1993 (2) CurSJ(SC) 110 : 1993
GLHEL_SC 32915
26. (Distinguished) :- Telecommunication Engineering Service
Association India Vs. Union Of India, 1994 (Supp2) SCC 222 : 1994
(2) Scale 993 : 1994 (Supp1) SCR 84 : JT 1994 (7) SC 58 : 1995 (1)
UJ 741 : 1994 (3) RCR(Civ) 804 : 1994 SCC(L&S) 964 : 1994 (4)
SLR 15 : 1995 (2) LLJ 585 : 1995 (2) LabLN 670 : 1995 (1) SLJ 233 :
1994 (4) RSJ 656 : 1995 (1) RSJ 204 : 1994 (27) ATC 742 : 1995 (1)
GCD 297 : 1994 GLHEL_SC 31849
27. (Referred To) :- Union Of India Vs. R.S.Sharma, 2000 (4) SCC
394 : AIR 2000 SC 2337 : 2000 (3) Scale 409 : 2000 (3) SCR 151 : JT
2000 (4) SC 649 : 2000 AIR SCW 2414 : 2000 (3) Supreme 409 : 2000
(2) RCR(Civ) 758 : 2000 SCC(L&S) 653 : 2000 (2) SLR 428 : 2000
(85) FLR 915 : 2000 (5) SRJ 219 : 2000 (3) AWC 1811 : 2000 (2) LLJ
1271 : 2000 LabIC 2392 : 2000 (3) LabLN 4 : 2000 (3) PLJR(SC) 36 :
2000 (3) SLJ 349 : 2000 (2) UPLBEC 1635 : 2000 (2) CurLR 358 : 2000
(4) ALT(SC) 33 : 2000 GLHEL_SC 33160
28. (Referred To) :- Chairman-cum-m.D., Coal India Ltd. Vs.
Ananta Saha, 2011 (5) SCC 142 : 2011 (4) Scale 398 : 2011 (5) SCR
44 : JT 2011 (4) SC 252 : 2011 AIR SCW 3240 : 2011 (3) Supreme 524
: 2011 (2) UJ 1514 : 2011 JX(SC) 303 : 2011 (1) SCC(L&S) 750 :
2011 (3) SLR 176 : 2011 (129) FLR 787 : 2011 (5) AWC 4574 : 2011
(3) LLJ 165 : 2011 LabIC 2592 : 2011 (5) MLJ 139 : 2011 (3) AllMR
419 : AIRJharHCR 2011 751 : 2011 (2) JCR(SC) 228 : 2011 LabLR 673 :
2011 (2) JCR 228 : 2011 GLHEL_SC 49641
29. (Referred To) :- Union Of India Vs. Sangram Keshari Nayak,
2007 (6) SCC 704 : 2007 (6) Scale 348 : 2007 (6) SCR 896 : 2007 (5)
SCR 896 : JT 2007 (6) SC 272 : 2007 (4) Supreme 246 : 2007 (3)
RCR(Civ) 512 : 2007 JX(SC) 361 : 2007 (2) SCC(L&S) 587 : 2007
(3) SLR 603 : 2007 (114) FLR 718 : 2007 (56) AllIndCas 147 : 2007
(4) RAJ 29 : 2008 (1) SLJ 84 : 2007 (3) RSJ 665 : 2007 GLHEL_SC
39148
30. (Referred To) :- Rani Laxmibai Kshetriya Gramin Bank Vs.
Manoj Kumar Chak, 2013 (6) SCC 287 : AIR 2013 SC 2473 : 2013 (5)
Scale 486 : JT 2013 (4) SC 549 : 2013 AIR SCW 3138 : 2013 JX(SC)
234 : 2013 (2) SCC(L&S) 481 : 2013 (3) SLR 427 : 2013 (137) FLR
984 : 2013 (3) AWC 2760 : 2013 LabIC 2465 : 2013 (5) AD(SC) 253 :
2013 (2) SLJ 480 : 2013 (4) AllMR 415 : AIRJharHCR 2013 781 : 2013
(3) SCT 177 : 2013 (2) CLR 337 : 2013 (4) ALJ 279 : 2013 GLHEL_SC
53940
31. (Followed) :- State Of Tamil Nadu Vs. Thiru K.S.Murugesan,
1995 (3) SCC 273 : 1995 (2) Scale 310 : 1995 (2) SCR 386 : JT 1995
(4) SC 307 : 1995 AIR SCW 1591 : 1995 (3) SCJ 229 : 1995
SCC(L&S) 668 : 1995 (2) SLR 392 : 1995 (71) FLR 319 : 1996 (3)
LLJ 333 : 1995 LabIC 1753 : 1995 (3) SLJ 237 : 1995 (3) RSJ 271 :
1995 (29) ATC 555 : 1995 (3) SCT 345 : 1995 GLHEL_SC 29745
32. (Relied on) :- Bank Of India Vs. Degala Suryanarayana, 1999
(5) SCC 762 : AIR 1999 SC 2407 : 1999 (4) Scale 75 : 1999 (3) SCR
824 : JT 1999 (4) SC 489 : 1999 AIR SCW 2529 : 1999 (6) Supreme 39
: 1999 (3) RCR(Civ) 669 : 1999 SCC(L&S) 1036 : 1999 (4) SLR 292
: 1999 (82) FLR 1004 : 1999 (82) FLR 682 : 1999 (7) SRJ 260 : 1999
(2) LLJ 682 : 1999 LabIC 2819 : 1999 (6) AD(SC) 337 : 1999 (3)
LabLN 532 : 1999 (3) PLJR(SC) 83 : 2001 (1) SLJ 113 : 1999 (3)
UPLBEC 1743 : 1999 (2) CurLR 465 : 1999 (3) LRI 936 : 1999 (95) FJR
477 : 1999 (5) ALD(SC) 1 : 1999 LabLR 1073 : 1999 (3) ESC 1927 :
1999 (2) AndhWR 98 : 1999 (2) BankCLR 313 : 1999 GLHEL_SC 2860
33. (Referred To) :- Union Of India Vs. Mihir Kumar
Bandopadhyay, 2009 (16) SCC 329 : 2002 GLHEL_SC 53516
34. (Relied on) :- Collector Of Thanjavur Distt. Vs.
S.Rajagopalan, 2000 (9) SCC 145 : JT 2000 (7) SC 309 : JT 2000 (3)
SC 376 : 2000 AIR SCW 4954 : 2000 (3) RCR(Civ) 111 : 2000
SCC(L&S) 876 : 2000 (2) SLR 552 : 2000 (85) FLR 381 : 2000 (2)
AWC 1486 : 2000 (2) LabLN 415 : 2000 (4) ICC 119 : 2000 (2) UPLBEC
1579 : 2000 (2) CurLR 5 : 2000 (3) CivCC 318 : 2000 (3) LJR 408 :
2000 (2) ESC 1400 : 2000 GLHEL_SC 5637
Equivalent Citation(s):
1991 (4) SCC 109 : 1991 AIR SC 2010JUDGMENT :- P.B.SAWANT,
J.
1 Civil Appeals Nos. 3019/ 87, 3020/87 and 3016/88 arise out of
the Judgement dated 2.03.1987 delivered by the Full Bench of the
Central Administrative Tribunal (hereinafter referred to as the
'Tribunal').
Civil Appeals Nos. 3018/87 and 3021/87 arise out of the
judgments dated April 24, , 87 and Ap 1.04.1987 respectively of the
Tribunal, Hyderabad Bench.
Civil Appeals Nos. 3083/90 and 4379/90 arise out of the
judgments dated 2.03.1989 and 15.09.1989 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 decision dated
12.07.1989 of the Tribunal, Chandigarh Bench.
Special Leave Petition (C) No. 1094 of 1990 arises out of the
decision dated 29.06.1989 of the Tribunal, Bombay Bench.
Special Leave Petition (C) No. 2344 of 1990 arises out of the
decision dated 18.09.1989 given by the Tribunal, Principal Bench,
New Delhi.
Special Leave Petition 1 (C) No. 11680 of 1991 arises out of the
decision dated 25.01.1991 given by the Tribunal, 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 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 partially 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 - authorities have
by these appeals challenged the findings recorded by she different
Benches of the Tribunal in reply to one or the other 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
30.01.1982 on the subject. We may, therefore, first refer to the
said memorandum.
4 The Government of India (Department of Personnel and Training)
issued an Office Memorandum No. 22011/1/79. Estt.(A) dated
30.01.1982 on the subject of promotion of officers 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
disciplinary proceedings are pending or a decision has been taken
by the competent disciplinary authority to initiate disciplinary
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 Departmental 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 departmental/ 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 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 Memorandum goes on to state further
that it was noticed that some times 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 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 promotion" 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 disciplinary/ 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.
In the normal course, on the conclusion 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
concerned may then be promoted, if necessary by reverting the
junior-most 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 preceding the
date of actual promotion.
If any penalty is imposed on the officer as a result of the
disciplinary proceedings 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
considered in the usual manner by the next D. P. C. which meets in
the normal course after the conclusion of the disciplinary/ Court
proceedings. 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 from 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 officer when the
disciplinary/Court proceedings are not concluded 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
promotion in such cases, his case should be placed before the
D.P.C. which is held after the 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 disciplinary 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 benefits. 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
D.P.C.
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 proceed 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 up to date it may be pointed out that in
view of the decision of this Court in Union of India V/s. Tajinder
Singh, (1986) 2 Scale 860, decided on 26.09.1986, the Government of
India in the Department of Personnel and Training issued another
Office Memorandum No. 22011/2/86. Estta.(A) dated 12.01.1988 in
supersession of all the earlier instructions on the subject
including the Office Memorandum dated 30.01.1982 referred to above.
There is no difference in the instructions contained in this and
the earlier aforesaid Memorandum of 30.01.1982, except that this
Memorandum provides in paragraph 4 for a six monthly review of the
pending proceedings 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
conclusion 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 prosecution, 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 D.P.C. A further guideline contained in this
Memorandum is that the same sealed cover procedure is to be applied
where a Government servant is recommended for promotion by the
D.P.C., but before he is actually promoted he is either placed
under suspension or disciplinary proceedings are taken against him
or a decision has been taken to initiate the proceedings or
criminal prosecution is launched or sanction for such prosecution
has been issued or decision to accord such sanction is taken.
These differences in the two Memorandum 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 commenced, the Full Bench of the Tribunal has
held that it is only when a charge-memo in a disciplinary
proceedings or a charge-sheet in a criminal prosecution is issued
to the employee that it can be said that the departmental
proceedings/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 initiated at
the instance of the interested persons, they are kept 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 would 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 criminal proceedings
against an official;
(2)...
(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 30.01.1982 has, among other things, held that the
portion of paragraph 2 of the memorandum which says "but no arrears
are allowed in respect of the period prior to the date of the
actual promotion" is violative of Articles 14 and 16 of the
Constitution because withholding of salary of the promotional post
for the period 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 initiated against them.
The Tribunal has, therefore, directed that on exoneration, full
salary should be paid to such employee which he would have received
on promotion if he had not been subjected to disciplinary
proceedings.
We are afraid that the Tribunal's reference to paragraph 2 of
the Memorandum is incorrect. Paragraph 2 only recites the state of
affairs as existed on 30.01.1982 and the portion of the Memorandum
which deals with the relevant point is the last sentence of the
first sub-paragraph 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 statutory 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 there departmental 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 the penalty even of censure indicating thereby
that he was not blameworthy in the least, he should not be deprived
of any benefits including 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 Rules and Supplementary Rules which read as
follows:
"F.R. 17 (1). Subjects to any exceptions 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 elementary rule that a person is
to be paid only for the work he has done and not for the work he
has not done. As against this, it was pointed out on behalf of the
concerned employees, 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
privatations 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 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."
To this extent we set aside the conclusion of the Tribunal 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 proceedings against him, the findings in the sealed cover /
covers shall not be acted upon" and has directed that if the
proceedings result in a penalty, the person concerned should be
considered for promotion in a Review DPC as on the original date in
the light of the results of the sealed cover as also the imposition
of penalty, 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 subparagraph 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
jeopardy contained in Art. 20(2) of the Constitution". The Tribunal
has, therefore, held that when an employee is visited with a
penalty as a result of the disciplinary proceedings there should be
a Review DPC as 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 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 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 a 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. The least that
is expected of any administration is that it does not reward an
employee with promotion retrospectively from a date when for his
conduct before that date he is penalised in praesenti. 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 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. 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 12.01.1988.
9 In the result, in Civil Appeals Nos. 3019/87,3020/ 187 and
3016/88 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
10 In this ease, no charge-sheet was served on the
respondent-employee when the DPC met to consider the respondent's
promotion. 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 immediate junior Shri
M. Raja Rao was promoted pursuant to the order dated 30.04.1986.
The Tribunal has also directed the authorities to grant to the
respondent all the consequential benefits. The Tribunal has further
stated in the impugned order that its order would not mean that the
disciplinary proceedings instituted against the respondent/
employee 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. 3021 OF 1987
11 In this case, the DPC did not consider the case of the
respondent-employee for crossing efficiency bar w.e.f. 14.09.1983
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. 14.09.1983 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 to 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
12 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 11.10.1985
the disciplinary proceedings ended in complete exoneration.
Thereafter, a DPC was again constituted in March 1986 which, after
consideration of the employee's case, recommended him for promotion
w.e.f. 26.07.1986. 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, therefore, rightly directed the
appellant to open the sealed cover and if the DPC in 1982 had found
him fit for promotion, 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 appellate 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, therefore, allowed partly with no order
as to costs.
CIVIL APPEAL NO. 4379 of 1990
13 In this case the respondent-employee was not recommended for
promotion by the DPC in its meeting held on 1.02.1988. Instead, the
DPC had kept the results in a sealed cover because of the pending
disciplinary proceedings. Admittedly, no charge-memo was served on
the employee till the date the DPC met on 1.02.1988. It was issued
only on 2.03.1989. The Tribunal has, therefore, 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 1.02.1988. If the DPC had
considered the case of the employee on 1.02.1988 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 1.02.1988. In case he is so found fit, he would be
entitled to the benefits 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 decided
by the appellate authority in the light of what we have stated
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
14 These appeals are filed against five respondent employees.
Disciplinary proceedings as well as criminal prosecutions 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 15.07.1983. They
admitted guilt and pleaded revocation of their suspension on
depositing the amount of Rs. 1600.00., 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 14.01.1985. However, this was done
without prejudice to the departmental proceedings which were
subsequently initiated and the formal chargesheet was issued to the
employees on 24.12.1987.
15 The Departmental Promotion Committee met in July 1986 to
consider the cases of the employees for promotion but resorted to
sealed cover procedure in view of the pendency of the disciplinary
proceedings against them. There is no dispute that the formal
charge-sheet was issued either on August or 24.12.1987. Conflicting
months have been mentioned in the decision, of the Tribunal.
16 However, we find that the Tribunal has taken a mechanical
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-employees and the consequent withdrawal of the
prosecutions without prejudice to the authorities' right to
institute departmental proceedings.
17 In view of the aforesaid peculiar facts of the present case,
the DPC which met in July 1986 was justified -in resorting 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 decision 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,
therefore, allow these appeals as above with no order as to
costs.
S.L. P. (CIVIL,) NO. 1094 of 1990
18 Special leave granted.
The respondent-employee in this case was a Sepoyin the
Department of Central Excise and Customs. He passed his
Departmental examination for the post of Lower Division Clerk
against 10 Per Cent vacancies and by letter of 14.10.1981, he was
informed about his selection for the said post against the said
vacancies reserved for educationally qualified Group-D staff.
However, he was informed that his appointment order as L.D.C. would
be issued if he was exonerated 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 6.06.1985
he was appointed to officiate as Lower Division Clerk. By a
subsequent order of 3.07.1985, the earlier order of 6.06.1985 was
made effective from 25.09.1981. By yet another order of 29.07.1985,
his pay was fixed by giving him increment from 25.09.1981 but he
was denied arrears of pay from that date till 2.06.1985. The
employee did not challenge the said order denying him arrears of
pay till he made his representation on 18.02.1988. 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, 198 1.06.1985.
19 In view of what we have held above, the appeal is allowed,
the impugned order is hereby set aside and instead the appellate
authorities are directed to examine the question whether the
respondent-employee was entitled to any salary and if so to what
extent in the light of the view taken by us. The appellate
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. 11680 of 1991
20 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 cover and if the result shows that the DPC has found the
respondent-employee fit for promotion to the post of Commissioner
of Income-tax, to give effect to the said recommendations. The
admitted facts are that the DPC which met in 1988 had considered
the respondent-employee'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
18.05.1990. Till the date of the impugned order of the Tribunal,
i.e., 1.01.1991, no charge-sheet was served upon the
respondent-employee. However, 12 persons junior to him were
promoted by an order dated 16.04.1990. 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
21 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 22.02.1988. By an
order of 19.08.1988 a penalty of withholding of increment for one
year was imposed on the respondent as a result of the said
disciplinary proceedings.
22 On 3.06.1988, the DPC met for considering the promotion to
the Selection Grade. Pursuant to this meeting, by an order of
28.07.1988 some juniors were given the Selection Grade with
retrospective effect from 30.07.1986. The respondent-employee's
name was kept in a sealed cover and was, therefore, not included in
the list of the promotee officers.
23 The Tribunal has found fault with the authorities on two
grounds. The Tribunal has observed that although when the DPC met
in June 1988, the employee was already served with a charge-sheet
on 22.02.1988 and, therefore, the sealed cover procedure could not
be faulted, since admittedly his juniors were given promotion with
retrospective effect from 30.07.1986, the DPC should not have
excluded the respondent's name from consideration when it met on
3.06.1988. 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 promotion 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 erroneous view of the matter. Admittedly, the DPC met in
June 1988 when the employee was already served with the
charge-sheet on 22.02.1988. The charge-sheet was for misconduct for
the period between 1982 and 1985. Admittedly further, the employee
was punished by an order of 19.08.1988 and his one increment was
withheld. Although, therefore, the promotions to his juniors were
given with retrospective effect from 30.07.1986, the denial of
promotion to the employee was not unjustified. The DPC had for the
first time met on 3.06.1988 for considering promotion to the
Selection Grade. It is in this meeting that his juniors were given
Selection Grade with retrospective effect from 30.07.1986, 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.
30.07.1986, 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. 30.07.1986 he would stand rewarded notwithstanding 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.
24 Before we part with these appeals, we make it clear that if
any of the respondent employee/s in any of the above appeals
has/have been given any benefits the same will not be
disturbed.
