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PETITIONER: SMT. SUDHA SHRIVASTAVA

       Vs.

RESPONDENT: THE COMPTROLLER AND AUDITOR GENERAL OF INDIA

DATE OF JUDGMENT08/11/1995

BENCH: KIRPAL B.N. (J) BENCH: KIRPAL B.N. (J) KULDIP SINGH (J) AHMAD SAGHIR S. (J)

CITATION:  1996 AIR  571            1996 SCC  (1)  63  JT 1995 (9)   358        1995 SCALE  (6)449

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Kirpal.J.      Leave granted.      The only  question which  arises for  consideration  in this appeal  is whether  the heir of a civil servant who was prosecuted in  a court  of law but was ultimately acquitted, though by  that time  he  had  died,  can  be  permitted  to continue the  proceedings before  the court  and  claim  the grant of  retrospective promotion  to the  deceased and  the consequential monetary benefits.      The husband  of the  appellant, S.S.  Shrivastava was a member of  the Indian Audit and Accounts Services (Class-I). During the  period 1964-69,  he was  working as  a Financial Adviser to  the River  Valley Project  Department under  the State of  Bihar. After  the general  elections  of  1969,  a Commission of Enquiry was set-up to enquire into the alleged misdeeds  of   some  of   the  Ministers  in  the  erstwhile Government. After  the receipt  of the report, the said S.S. Shrivastava along  with the concerned minister and the Chief Administrator of  the River  Valley Project  was  prosecuted under the  Prevention of  Corruption Act.  The Special Judge convicted S.S.  Shrivastava  and  sentenced  him  to  simple imprisonment of  two years  and a  fine of  Rs.10,000/-.  An appeal was  preferred by  S.S. Shrivastava,  but during  the pendency of  the appeal  before the  High Court of Patna, he expired. On an application being made, the appellant as late Shri S.S. Shrivastava’s heir was permitted to be substituted in the proceedings. Ultimately, by judgment dated 13.4.1983, the said  appeal was allowed and the conviction and sentence were setaside.      The appellant,  thereafter sent  representations to the State claiming  retrospective  promotion  and  consequential benefits to  her husband,  but by order dated 10.7.1987, the said claims were rejected.

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    The appellant,  thereafter filed proceedings before the central Administrative  Tribunal, Patna  Bench,  Patna.  The case of  the appellant  was that  her husband  was  due  for promotion to  the post  of Accountant  General (Grade-II) in October, 1973 and to that of Accountant General (Grade-I) in October, 1981 and he would have been so promoted but for the criminal proceedings  and, as  such, it  is  only  just  and proper that  such promotions  be sanctioned and the monetary value of the same be paid to the appellant.      The respondent  contested the  application. Apart  from raising the  plea that  the said  application was  barred by time,  it   was  also   contended  that  the  same  was  not maintainable as  the claim of service was purely personal to the appellant’s  husband and  no sum  could be  paid on  the basis of  deemed promotion  to  the  appellant.  During  the pendency of the proceedings, the respondent had agreed to an order  dated   29.6.1984,  being   passed  by   the  Central Administrative Tribunal,  whereby, as  a  special  case,  an amount of  Rs.90,000/- was  allowed to the appellant towards the expenses incurred by the deceased in connection with the criminal proceedings.      With regards  to the  merits of  the claim, the case of the respondent,  before the  Tribunal, was that the deceased had been  considered for promotion to the post of Accountant General (Grade-II)  in October, 1973, but as his conduct was under investigation  before the court of law, "sealed cover" procedure was  followed and  if he  had been  alive when the judgment of  acquittal was  pronounced, only  then, he could have had  the benefit  of the seniority and fixation of pay, on notional  basis, but even he would not have been entitled to the  arrears of  pay. The  other claim with regard to the encashment of  leave was  refuted by the respondent with the contention that  no earned  leave was there to the credit of the appellant’s  husband and  the leave  taken  by  him  for defending the criminal proceedings could not be encashed.      The Tribunal vide its judgment dated 5.10.1989 rejected the application  of the  appellant by holding that the right for enforcement  of promotion  accrued only on the acquittal of the  appellant’s husband  and as before such acquittal he had  died,  then  this  personal  right  of  enforcement  of promotion did  not actually  accrue and,  therefore, nothing survived to  his legal  heirs. In coming to this conclusion, the Tribunal  was of the view that a civil servant could not claim promotion as of right and any benefit which would have arisen as  a result of the promotion could only have accrued to the officer himself and not to his legal heirs, if he had died before  the judgment  for acquittal  was delivered. The Tribunal also  came to  the conclusion  that the application was barred  by limitation. It found that after the acquittal of  appellant’s   husband,  a  representation  claiming  the benefits was  submitted by  the appellant  in January,  1984 which was  followed by  a reminder  in April,  1984  but  by letter dated 29.6.1984, the representation was rejected. The mere  fact  that  the  appellant  received  a  letter  dated 10.7.1987 rejecting  her fresh  application  dated  4.3.1987 could not,  it was held, give her a resh cause of action and the period  of limitation had to be reckoned from 29.6.1984. Therefore,  the  application  which  was  filed  before  the Tribunal in May, 1988 was barred by limitation as well.      During the  hearing of this appeal, the only contention which has  been raised  was with regard to the admissibility of the  claim of  the appellant  on merits and no contention was raised  and the  case proceeded  on the  basis that  the application filed  before the  Tribunal by the appellant was within limitation.  We, therefore,  proceed to  examine  the

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rival contentions on the merits of the claim.      According to  the appellant,  her husband  was due  for promotion to  the post  of Accountant  General (Grade-II) in the  pay-scale   of   Rs.2,250-2,500   in   October,   1973. Admittedly, a  "sealed cover"  procedure in  respect thereof was followed.  Thereafter according  to the  appellant,  her husband would  have become entitled to promotion to the post of Accountant  General (Grade-I)  in October, 1981 which was in the  pay-scale of  Rs.2,500-2,750/-. The  husband of  the appellant died  in October, 1981 and her submission was that his service  record and  Confidential Reports were very good and, but for the criminal proceedings which were pending, he would have been promoted in his turn. This Court in Union of India v. K.V. Jankiraman, (1991)4 SCC 109 has held that when the "sealed  cover" procedure  is followed  and  the  sealed cover is  opened on the complete exoneration of the employee from all the charges, then notional promotion is to be given to him from the date when his juniors were promoted. Arrears of salary  could be  granted from  the date  of the notional promotion having regard to the circumstances of the case. In this connection, it was observed as follows:      "We are,  therefore,  broadly  in  agreement  with  the      finding of  the  Tribunal  that  when  an  employee  is      completely exonerated  meaning thereby  that he  is not      found blameworthy  in the least and is not visited with      the penalty  even of  censure, he  has to  be given the      benefit of the salary of the higher post along with the      other benefits  from the  date on  which he  would have      normally     been      promoted     but     for     the      disciplinary/criminal proceedings.  However, there  may      be cases where the proceedings, whether disciplinary or      criminal, are,  for example, delayed at the instance of      the  employee  or  the  clearnce  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 complete, 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 n every      case   when    an    employee    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      jeopardize public  interest. 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 officers  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

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    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."      The claim of the appellant was rejected by the Tribunal primarily on  the ground  that the  right to promotion was a personal right  and the  heirs of the deceased have no right to make  only claim  in regard thereto. The Tribunal fell in error inasmuch  as the  process for promotion to the post of Accountant   General   (Grade-II),   regarding   late   S.S. Shrivastava had  already been  undertaken  and  the  "sealed cover" procedure  followed. Whatever the rights the deceased had, as a result of this "sealed cover" the procedure having been followed, stood established as on that date. Along with the right  to work  in the  higher post,  if he  was  to  be promoted, he  would have  also got  a right to salary in the higher scale. The effect of the acquittal of the appellant’s husband  must   be  regarded  as  if  he  had  been  wrongly convicted. He,  therefore, would  have had  a right  to have been placed  in the  higher scale  of pay,  if he  had  been selected for  promotion and  this is  a  right  which  would devolve on  the legal  heirs, if  during the pendency of the proceedings, the said employee expired.      It will  be useful  at this  stage to refer to the case Rameshwar Manjhi  v.  Management  of  Sangramgarh  Colliery, (1994)1 SCC  292. In  that case,  during the adjudication of dispute relating  to the  termination of a workman, the said workman died  and a  question arose  whether the  heirs  and legal representatives  of the deceased workman were entitled to continue  with the  proceedings for  adjudication.  While upholding the  right of  the heirs and legal representatives to continue  with the  proceedings for  adjudication, it was observed as follows:      "It is thus obvious that the applicability of the maxim      ‘action personalize  moritur cum  persona’ depends upon      the ‘relief claimed’ and the facts of each case. By and      large the  industrial disputes under Section 2-A of the      Act relate  to  the  termination  of  services  of  the      concerned workman.  In the  event of  the death  of the      workman during  pendency of the proceedings, the relief      of reinstatement, obviously, cannot be granted. But the      final determination  of  the  issues  involved  in  the      reference may be relevant for regulating the conditions      of service  of  the  other  workmen  in  the  industry.      Primary object of the Act is to bring industrial peace.      The Tribunals  and Labour  Courts under the Act are the      instruments for  achieving the  same objective.  It is,      therefore, in  conformity with  the scheme  of the  Act      that the  proceedings in  such cases should continue at      the instance  of the legal heirs/representatives of the      deceased workman.  Even otherwise  there may be a claim      for back  wages or  for monetary  relief in  any  other      form. The  death of  the workman during pendency of the      proceedings cannot  deprive  the  heirs  or  the  legal      representations  of   their  right   to  continue   the      proceedings and claim the benefits as successors to the      deceased workman."      Just as  a legal  representatives of  the workman could claim back  wages or  any other  monetary relief which would had ensued  to  the  deceased  workman,  similarly,  in  the present case,  the right  to get  the benefits,  which would have been  due to the appellant’s husband as a result of the "sealed cover"  procedure, would  devolve on  the appellant. The sealed cover will have to be opened and if it transpires that he  was fit  for promotion, then, he is to be deemed to

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have been promoted to the post of Accountant General (Grade- II) in the pay scale of Rs.2,250-2,500/- and, thereafter, he is also  have to  be considered for promotion to the post of Accountant  General   (Grade-I)  in   the  higher  scale  of Rs.2,500-2,750. It  is not  in dispute  that this  procedure would have  had  to  be  followed  if  the  husband  of  the appellant had  been alive  when the High Court delivered the judgment, setting-aside the conviction.      Even otherwise, if the husband of the appellant was not to be  promoted, he  would certainly  be entitled to receive salary in  the lower  poor till  the date  of his  death  in October, 1981. In Jankiraman’s case (supra), it was observed by this  Court that  when an employee is completely * and is not visited  with penalty,  then he  has  to  be  given  the benefit of  salary of  the higher  post along with the other benefit on  the date  on which  he would  normally have been promoted  but  for  the  disciplinary/criminal  proceedings. Moreover, this  is not  a case  where the  acquittal of  the deceased was  as a  result of his being given the benefit of doubt or  on account of non-availability of evidence. In the instant case,  the High  Court has  held, while allowing the criminal appeal  and setting-aside  the conviction that "one cannot but  hold that  late S.S.  Shrivastava had  not  done anything, which would justify a charge of corruption against him, much lese a charge of conspiracy".      For the  aforesaid reasons, this appeal is accordingly, allowed. The  order dated  5.10.1989, passed  by the Central Administrative Tribunal, Patna Bench, Patna is set-aside and the respondent  is directed  to open the sealed cover and to give to  the appellant  all the benefits in the light of the observations made  in the  judgment. The  needful should  be done within  three months  from the  date of this order. The appellant will also be entitled to costs.