Punjab-Haryana High Court
J.S Kataria vs Union Of India And Anr on 19 November, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
MUKESH KUMAR SALUJA
CWP No.15287 of 1994 1 2014.12.02 12:38
I attest to the accuracy and
authenticity of this document
HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT
CHANDIGARH
CWP No.15287 of 1994
Date of decision:19.11.2014
J.S.Kataria
...Petitioner
Versus
Union of India and others
...Respondents
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
1. To be referred to the Reporters or not ?
2. Whether the judgment should be reported in the Digest ?
Present: Mr.R.K.Malik, Sr. Advocate with
Mr.Ramandeep Singh, Advocate for the petitioner.
Mr.Rishav Jain, Advocate for the respondents.
RAMESHWAR SINGH MALIK, J. (Oral)
The present writ petition is directed against the orders dated 9.12.1991 (Annexure P-8), 23.12.1993 (Annexure P-15) and 12.5.1994 (Annexure P-18) passed by the respondent authorities, thereby denying the right of consideration for promotion to the petitioner with effect from the due date.
Notice of motion was issued and pursuant thereto, written statement was filed on behalf of the respondents.
Learned senior counsel for the petitioner submits that a charge- sheet was issued against the petitioner on 10.5.1987 for the alleged misconduct, during the year 1984-85. The enquiry was conducted and report thereof was submitted on 29.9.1988. He further submits that a minor punishment came to be awarded to the petitioner vide order dated 10.5.1991 (Annexure P-1). In the interregnum , first batch of juniors of the petitioner MUKESH KUMAR SALUJA CWP No.15287 of 1994 2 2014.12.02 12:38 I attest to the accuracy and authenticity of this document was promoted in the month of February 1988 and result of consideration for the promotion, qua the petitioner, was kept in a sealed cover. Similarly, the second batch of juniors of the petitioner was considered and promoted on 4.3.1989 and result of the petitioner was kept in a sealed cover. Again, in the month of June 1990, third batch of juniors of the petitioner was considered and promoted, whereas result of the petitioner was kept in a sealed cover. He further submits that punishment will relate back to the date of misconduct for the year 1984-85. In support of his contentions, he places reliance on two judgments of this Court in Major Singh Gill v. The State of Punjab, 1992 (2) RSJ 236 and Parbodh Sagar v. Punjab State Electricity Board, Patiala and others, 1997(3) RSJ 194. He would next contend that as per the undisputed procedure for promotion, five years' service record of the petitioner was to be considered for the purpose of promotion and the petitioner would be entitled to be considered for promotion in the month of June 1990 along with third batch of his juniors. He submits that the above-said two judgments relied upon by him also support this contention. He also places reliance on instructions dated 14.9.1992. He concluded by submitting that petitioner would be entitled for further promotion as and when the same becomes due. He prays for setting aside the impugned orders, by allowing the present writ petition.
Per contra, learned counsel for the respondents submits that in view of the judgment of the Hon'ble Supreme Court in Union of India v. K.V.Jankiraman, 1991 (3) SCT 317, petitioner was not entitled to be considered for promotion, because he has been found guilty and punishment was accordingly awarded to him vide order dated 10.5.1991 (Annexure P-1). He further submits that petitioner was considered for the service MUKESH KUMAR SALUJA CWP No.15287 of 1994 3 2014.12.02 12:38 I attest to the accuracy and authenticity of this document benefits and he was granted the selection grade in the year 1993. He concluded by submitting that petitioner was not entitled for anything more because the petitioner did not challenge the order of punishment (Annexure P-1). He prays for dismissal of the writ petition.
Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the case in hand, instant writ petition deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.
It is a matter of record and not in dispute that alleged misconduct was committed by the petitioner somewhere in the year 1984-
85. However, a belated charge-sheet came to be issued to the petitioner on 10.5.1987. Although the enquiry report was submitted on 29.9.1988, yet a minor punishment came to be awarded to the petitioner as late as on 10.5.1991 (Annexure P-1). No reason, whatsoever, is forthcoming on the part of the respondents as to why this much delay was caused in taking the issue to the logical end. When the enquiry report had been submitted on 29.9.1988, the competent authority ought to have passed the appropriate order of punishment without any further delay. However, a minor punishment was awarded to the petitioner after an inordinate long delay, i.e., on 10.5.1991.
In such a situation, the first question that falls for consideration of this Court is whether respondents can be permitted to draw benefit out of their own wrong, in this regard. Should the petitioner be denied his right of consideration because of the unexplained delay caused by the respondents MUKESH KUMAR SALUJA CWP No.15287 of 1994 4 2014.12.02 12:38 I attest to the accuracy and authenticity of this document authorities?
After due consideration of the matter, this Court is of the view that answer to the above-said two questions has to be an emphatic no. Neither respondents can be permitted to draw any benefit out of their own wrong nor the valuable right of the petitioner, i.e. right of consideration for promotion can be denied because on the unexplained delay on the part of the respondents.
While passing the impugned order dated 9.12.1991 (Annexure P-8), respondent authorities proceeded on a factually incorrect approach, presuming that a major punishment was awarded to the petitioner, which was contrary to their own official record. Proceeding on such a misconceived approach, the present one was bound to be the result. A bare reading of the above-said three impugned orders would show that respondents have tried to draw undue benefit out of their own wrong in causing the delay, firstly while issuing the charge sheet, then in conducting the enquiry and thereafter while passing the impugned punishment order (Annexure P-1). Having said that, this Court feels no hesitation to conclude that since the respondent authorities proceeded on a misconceived and perverse approach, while passing the impugned orders, the same cannot be sustained.
Learned senior counsel for the petitioner has rightly contended, relying upon the above-said two judgments of this Court in Major Singh Gill's case (supra) and Parbodh Sagar's case (supra), that the punishment awarded to the petitioner vide Annexure P-1 dated 10.5.1991 would relate back to the date of alleged misconduct in the year 1984-85. The relevant observations made by this Court in Major Singh Gill's case (supra), read MUKESH KUMAR SALUJA CWP No.15287 of 1994 5 2014.12.02 12:38 I attest to the accuracy and authenticity of this document as under:-
"There is no reason as to why the petitioner should not have been dealt with similarly. If at all punishment is awarded to the petitioner that would relate back to the date of cause of action for the punishment i.e. 1973 or 1975. This enquiry certainly could not be taken into consideration against the petitioner. It is further apparent from the letter dated June, 1984 from the Financial Commissioner, Punjab to the Chairman; Punjab Public Service Commission (copy Annexure P-7) that Shri B.S. Sood was awarded punishment of stoppage of one increment without cumulative effect but was found fit for promotion by the Screening Committee. Similarly, Ram Parkash whose three grade increments were stopped with cumulative effect had also been found fit for promotion to Class-1. On the same parity even if the proposed punishment of stoppage of one increment with cumulative effect is awarded (which in fact yet to be decided) the petitioner could not have been ignored for promotions on this ground. From the remarks by the Screening Committee for ignoring the petitioner (which I have already quoted above) it is obvious that the only reason for not finding the petitioner suitable was the pendency of the 1973 enquiry. I have already held that this record pertaining to enquiry of 1973 could not have been taken into consideration as only record prior to 5 years of the promotion had to be taken into consideration. The petitioner was ignored by taking into consideration irrelevant record. I may not be taken to be laying down that the Court can go into the question of suitability of a particular officer, but the Court can certainly go into the question whether the consideration was on the relevant record/material. The adverse report for the year 1984- 85 was rightly not considered by the Screening Committee against the petitioner inasmuch as the representation of the petitioner against those remarks has so far been decided by the Government."MUKESH KUMAR SALUJA
CWP No.15287 of 1994 6 2014.12.02 12:38 I attest to the accuracy and authenticity of this document The above-said view taken by this Court in Major Singh Gill's case (supra) was reiterated in Parbodh Sagar's case (supra) and the following observations, which can be gainfully followed in the present case, were made:-
"Mr. Patwalia referred to the observations of R.S. Mongia, J. in Major Singh Gill v. State of Punjab, 1992(2) RSJ 236 to contend that the order of punishment passed in January 1994 should relate back to the period when the alleged misconduct had been committed. In paragraph 8, it was observed that ''the punishment which was awarded would relate back to the period when the alleged offence/misconduct was committed or in any case when the same was detected. Even if any punishment is awarded to the petitioner now that would relate back to the year 1973 when the alleged misconduct/irregularities took place or the year 1975 when the charge-sheet was served....'' This appears to be a fair rule. That being so, the petitioner's claim should be considered in the same manner as that of the other persons. The consideration of the record should be confined to the same number of years of has been seen in the case of respondent No.
4."
So far as the judgment relied upon by the learned counsel for the respondents is concerned, there is no dispute about the law laid down therein. However, on close perusal of the cited judgment, the same has been found distinguishable on facts and is of no help to the respondents. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgemade law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil MUKESH KUMAR SALUJA CWP No.15287 of 1994 7 2014.12.02 12:38 I attest to the accuracy and authenticity of this document Nadu and others, 2002 (3) SCC 533.
Reverting back to the facts of the present case and respectfully following the law laid down by this Court, in the two cases referred hereinabove, it can be unhesitatingly held that the respondents have treated the petitioner in an arbitrary manner and the impugned orders cannot be sustained.
It brings this Court to the next aspect of the matter as to when the petitioner would have been entitled for consideration for promotion. In view of the findings recorded hereinabove, on the basis of above-said two judgments passed by this Court that minor punishment awarded to the petitioner vide order dated 10.5.1991 (Annexure P-1) would relate back to the date of his alleged misconduct, petitioner would become entitled for consideration for promotion along with the third batch of his juniors in the month of June 1990. It is so said, because at that time only five years' service record was to be considered for considering any employee of the respondent-department for promotion. Learned senior counsel for the petitioner has rightly placed reliance on the relevant instructions dated 10.4.1989 of the respondent-department, issued vide Annexure P-3.
The relevant clause No.13 of the instructions at page 27 of the paper-book, reads as under:-
"An officer whose increments have been withheld or who has been reduced to a lower stage in the time scale, cannot be considered on that account to be ineligible for promotion to the higher grade as the specific penalty of withholding promotion has not been imposed on him. The suitability of the officer for promotion should be assessed by the Departmental Promotion Committee as and when occasions arise for such assessment. In assessing the suitability, the Departmental Promotion MUKESH KUMAR SALUJA CWP No.15287 of 1994 8 2014.12.02 12:38 I attest to the accuracy and authenticity of this document Committee will take into account the circumstances leading to the imposition of the penalty and decide whether in the light of the general service record of the officer and the fact of the imposition of the penalty he should be considered suitable for promotion. However, even where the Departmental Promotion Committee considers that despite the penalty the officer is suitable for promotion, the officer should not be actually promoted during the currency of the penalty."
When a pointed question was put to learned counsel for the respondents in this regard, as to why instructions (Annexure P-3) would not be coming to the rescue of the petitioner, he had no answer and rightly so, because it was a matter of record. In such a situation, it can be safely concluded that since petitioner was not considered for promotion along with the third batch of his juniors in the month of June 1990, a serious prejudice has been caused to the petitioner at the hands of the respondents authorities and the impugned orders cannot be sustained, for this reason also.
It goes without saying that once the petitioner is held to be entitled for consideration for promotion in the month of June 1990, he would be entitled for next promotion(s) as and when the same becomes due along with all consequential service benefits.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that since a serious prejudice has been caused to the petitioner without there being any fault on his part, the impugned orders cannot be sustained and the same are hereby set aside. Petitioner is declared entitled for consideration for promotion along with third batch of his juniors in the month of June 1990. Natural consequences would follow. Petitioner MUKESH KUMAR SALUJA CWP No.15287 of 1994 9 2014.12.02 12:38 I attest to the accuracy and authenticity of this document would be entitled for consideration for further promotion(s) as and when the same becomes due along with all consequential service benefits.
Consequently, the respondents are directed to do the needful within a period of two months from the date of receipt of a certified copy of this order. Since the due service benefits of the petitioner have been illegally withheld for this long period, he would also be entitled for interest @ 9% per annum on the arrears of salary. If needful is not done within the stipulated period, petitioner shall be entitled for interest @ 12% per annum from the date the amount became due till the date of actual payment.
Resultantly, with the abovesaid observations made and directions issued, the present writ petition stands allowed, however, with no order as to costs.
19.11.2014 (RAMESHWAR SINGH MALIK) mks JUDGE