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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.