TaxTMI 
TaxTMI 
1991 (8) TMI 292
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....ses 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 Tribunal, 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 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 partially 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 proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed....
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....t proceedings. However, no arrears of salary are paid in respect of the period. prior to the date of actual promotion. The Memorandum goes on to state further that it was noticed that 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 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 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 purp....
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....ficer, 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 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 officer when the disciplinary/court .proceedings are not concluded 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 promotion in such cases, his case should be placed before the DPC which is held after the 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 disciplinary proceedings, the ad hoc promotion al....
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....ion till that time, that there is no prima facie case in initiating disciplinary action or sanctioning prosecution, 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 Government 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 prosecution 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 commenced, 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 ca....
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....e 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 appellantauthorities 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 memorandum which says "but no arrears are allowed in respect of the period prior to the date of the actual promotion" is violative of Articles 14 and 16 of the Constitution because withholding of salary of the promotional 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 ....
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....em 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 elementary 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 employees, 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....
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....ed 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 Tribunal 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 proceedings against him, the findings in the sealed cover/covers shall not be acted upon" and has directed that if the proceedings result in a penalty, the person concerned should be considered for promotion in a Review DPC as on the original date in the light of the results of the scaled cover as also the imposition of penalty and his claim for promotion cannot be deferred for the subsequent DPCs as provided in the instructions. It may be p....
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....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 a 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. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively 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 i....
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.... 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 th....
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....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 benefits 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 decided 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. Disciplinary 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 volunt....
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....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 qualified Group-D staff. However, he was informed that. his appointment order as L.D.C. would be issued if he was exonerated 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 arrears 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 ....
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....er 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 promotion'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 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 fro....