Full Judgment Text
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PETITIONER:
UNION OF INDIA ETC. ETC.
Vs.
RESPONDENT:
K.V. JANKIRAMAN ETC. ETC.
DATE OF JUDGMENT27/08/1991
BENCH:
SAWANT, P.B.
BENCH:
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.
HEADNOTE:
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
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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-
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nary proceedings or acquittal in the criminal proceedings is
with benefit of doubt or on account of nonavailability 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
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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]
JUDGMENT:
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
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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
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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
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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
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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 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-
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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"
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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
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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
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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
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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
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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-
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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.
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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-
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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 notwith-
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.
812