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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