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CASE NO.: Appeal (civil)  2020 of 2007

PETITIONER: Union of India & Ors

RESPONDENT: A.N. Mohanan

DATE OF JUDGMENT: 18/04/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T CIVIL APPEAL NO.    2020 2007 (Arising out of SLP (C) No. 26408 of 2004)

 Dr. ARIJIT PASAYAT, J.

Leave granted.

Challenge in this appeal is to the judgment of the  Division Bench of the Kerala High Court dismissing the writ  petition filed by the appellants.  In the writ petition challenge  was made to the order passed by the Central Administrative  Tribunal, Ernakulam Bench (in short the ’CAT’) in O.A. No.  203 of 2002.   

The controversy lies within a very narrow compass.

Departmental enquiry was started against the  respondent on 3.8.1999.  The Departmental Promotion  Committee (in short the ’DPC’) made the selection on  1.11.1999.  Since the enquiry was pending against the  respondent, sealed cover procedure was adopted.  On  13.9.2001 the penalty of censure was awarded.  Promotion  was granted to the respondent on 26.11.2001.  However, he  claimed that promotion should have been given to him with  effect from 1.11.1999.  He moved the CAT seeking for such  direction.  CAT by its order dated 18th June, 2004 held that  penalty of censure is not a bar for promotion and though the  sealed cover procedure was adopted, the sealed cover should  have been opened and the recommendation of DPC should  have been given effect to by giving the respondent promotional  benefit with effect from 1.11.1999.  

The order of CAT was challenged before the High Court  by filing a writ petition.  The High Court noted that awarding  of penalty of censure would not affect the promotion of the  respondent and the department was not right in contending  that the awarding of penalty (censure) would stand on the way  of promotion.  Accordingly the writ petition was dismissed.

Learned counsel for the appellants submitted that the  effect of Rule 3.1 of the Office Memorandum relating to  promotion of government servants dated 14.9.1992 issued by  the Government of India, Ministry of Personnel, Public  Grievances and Pensions, Department of Personnel and

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Training, has been lost sight of.  According to him, Rule 3.1  clearly postulates that where penalty has been imposed,   findings of the sealed  cover/covers are not  to be acted upon  and the case of promotion can be considered by the next DPC  in the normal course. Learned counsel for the respondent on the other hand  submitted that the awarding of penalty i.e. censure was not  the sole ground for seeking promotion with effect from  1.11.1999, and it was because of the conclusion that the  validity of previous panel had been exhausted.

Few Rules as contained in the Office Memorandum need  to be noted.  

Rules 3 and 3.1 read as follows:           Rule 3 :    On  the     conclusion      of the  disciplinary case/criminal prosecution which  results in dropping .of allegations against the  Govt. servant, the sealed cover or covers shall  be opened. In case the government servant is  completely exonerated, the due date of his  promotion will be determined with reference to  the position assigned to him in the findings  kept in the sea1ed cover/covers and with  reference to the date of promotion of his next  junior on the basis of such position. The  Government servant may be promoted, if  necessary, by reverting the Junior, most  officiating person. He may be promoted  notionally with reference to the date of  promotion of junior. However, whether the  officer convened will be entitled to any arrears  of pay for the period of notional promotion  preceding the date of actual promotion, and if  so to what extent, will be decided by the  appointing authority by taking into  consideration all the facts and circumstances  of the disciplinary proceedings/criminal  prosecution. Where the authority denies  arrears of salary or part of it, it will record its  reasons for doing so. It is not possible to  anticipate      and enumerate exhaustively all the  circumstances under which such denials of  arrears of salary or part of it may become  necessary. However, there may be cases where  the proceedings, whether disciplinary or  criminal, are, for example, delayed at the  instance of the employee or the clearance in  the disciplinary proceedings or acquittal in the  criminal proceedings is with benefit of doubt or  on account of non- availability of evidence due  to the acts attributable to the employee etc.,  these are only some of the circumstances  where such denial can be justified.

Rule 3.1: If any penalty is imposed on the  Government servant as a result of the  disciplinary proceedings or if he is found guilty  in the Criminal prosecution against him, the  finding of the sealed cover/covers shall not be  acted upon. His case for promotion may be  considered by the next DPC in the normal  course and having regard to the penalty  imposed on him."

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Though learned counsel for the respondent submitted  that awarding of censure does not amount to awarding of  penalty, the same is clearly untenable. In Union of India  etc.etc. v. K.V. Jankiraman etc.etc. (AIR 1991 SC 2010) at  page 2017 it was held as follows:

"We are, therefore, broadly in agreement  with the finding of the Tribunal that when an  employee is completely exonerated meaning  thereby that he is not found blameworthy in  the least and is not visited with the penalty  even of censure, he has to be given the benefit  of the salary of the higher post along with the  other benefits from the date on which he would  have normally been promoted but for the  disciplinary/criminal proceedings. However,  there may be cases where the proceedings,  whether disciplinary or criminal, are, for  example, delayed at the instance of the  employee or the clearance in the disciplinary  proceedings or acquittal in the criminal  proceedings is with benefit of doubt or on  account of non-availability of evidence due to  the acts attributable to the employee etc. In  such circumstances, the concerned authorities  must be vested with the power to decide  whether the employee at all deserves any  salary for the intervening period and if he  does, the extent to which he deserves it. Life  being complex, it is not possible to anticipate  and enumerate exhaustively all the  circumstances under which such  consideration may become necessary. To  ignore, however, such circumstances when  they exist and lay down an inflexible rule that  in every case when an employee is exonerated  from disciplinary/ criminal proceedings he  should be entitled to all salary for the  intervening period is to undermine discipline  in the, administration and jeopardise public  interests. We are, therefore, unable to agree  with the Tribunal that to deny the salary to an  employee would in all circumstances be illegal.  While, therefore, we do not approve of the said  last sentence in the first sub-paragraph after  clause (iii) of paragraph 3 of the said  Memorandum, viz., "but no arrears of pay  shall be payable to him for the period of  notional promotion preceding the date of  actual promotion", we direct that in place of  the said sentence the following sentence be  read in the Memorandum:

"However, whether the officer  concerned will be entitled to any  arrears of pay for the period of  notional promotion preceding the  date of actual promotion, and if so  to what extent will be decided by the  concerned authority by taking into  consideration all the facts and  circumstances of the disciplinary  proceeding/criminal prosecution.   Where the authority denies arrears

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of salary or part of it, it will record  its  reasons for doing so."

Awarding of censure, therefore, is a blameworthy factor.   A bare reading of Rule 3.1 as noted above makes the position  clear that where any penalty has been imposed the findings of  the sealed cover are not to be acted upon and the case for  promotion may be considered by the next DPC in the normal  course.

Having regard to the penalty imposed on him,  undisputedly the respondent has been given promotion with  effect from 26.11.2001. His claim for promotion with effect  from 1.11.1999 was clearly unacceptable and, therefore, the  CAT and the High Court were not justified in holding that he  was entitled to be promoted with effect from 1.11.1999.  The  order of High Court affirming the view taken by the CAT  cannot be sustained and is, therefore, set aside.

The appeal is allowed without any orders as to costs.