Central Administrative Tribunal - Allahabad
Shiv Chand Ram Aged About 62 Years Son Of ... vs Union Of India on 4 February, 2011
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH ALLAHABAD
Dated: This the 04th day of February, 2011
Original Application No. 1327 of 2005
(U/S 19, Administrative Tribunal Act, 1985)
Honble Dr. K.B.S. Rajan, Member (J)
Honble Mr. D. C. Lakha, Member (A)
Shiv Chand Ram aged about 62 years son of late Ram Lakhan Chauhan, Resident of Mohalla Sayeedwara, Mohammadbad Gohana, District-Mau, employed and retired as B.C.R.H.S.G.II.P.A., Mau Nath Bhanjan in the District Mau.
.. Applicant
By Adv. : Shri A. Tripathi
Shri J. M. Sinha
V E R S U S
1. Union of India, through the Secretary, Ministry of Communication & I.T. Deptt. Of Posts, Dak Bhawan, New Delhi.
2. Chief Post Master General, U.P. Circle, Lucknow 226001.
3. Director Postal Services, (H.Q.) U.P. Circle, Lucknow 226001.
4. Director Postal Services, Gorakhpur Region, Gorakhpur-273001.
.... Respondents
By Adv. : Shri Himanshu Singh
O R D E R
(Delivered by Honble Dr. K.B.S. Rajan, Member-Judicial) The facts of the case as per the applicant are as under:-
(a) The applicant was initially appointed as Postal Assistant on 06-06-1966 and he had completed 26 years of service as on 05-06-1992.
(b) A charge sheet was issued to the applicant on 01-01-1993 and initially penalty of recovery of an amount of Rs.4,000/- was imposed, vide order dated 29-03-1993 but the same was reduced to Rs.2000/- by the appellate authority. This was also further modified by the Postal Member to one of 'censure' vide order dated 19-09-1998.
(c) The applicant was due for consideration for promotion under the BCR Scheme, as on 05-06-1992, when he had completed 26 years. He was however, afforded that promotion only w.e.f. 01-07-1995.
2. It is the case of the applicant that as he was inducted in service in June, 1966 and since as per the BCR Scheme, the crucial date for working out completion of 26 years is first Jan/ July each year, he was due for consideration by 01-01-1993 itself on which date there had been no proceedings were pending and as such, issue of charge sheet in July, 1993 cannot have any adverse impact on his entitlement to be considered for promotion under the BCR Scheme as on 01-01-1993.
3. The applicant superannuated in June, 2003.
4. The applicant had relied upon the following decisions in support of his case:-
(i) C.O. Arumugam and others vs State of Tamilnadu (1991) 17 ATC 402
(ii) Arvind Kumar Gupta vs Union of India (1989) 3 SLJ (CAT) 608
(iii) C.J. Prabhakar Rao vs Union of India 388 SCLD, 1994
(iv) Ranad and others vs Union of India AJC 1987(1) Page 57.
5. The case of the respondents is as under:-
(a) The applicant was appointed as Postal Assistant on 05-07-1966 and was afforded promotion under the TBOP Scheme in November, 1983. He completed 26 years of service only on 04-07-1992 and thus was eligible to be considered for promotion under the BCR scheme on the crucial date of 01-01-1993. It was on that date that he was also issued with a charge sheet, which culminated into censure after diluting the punishment of recovery of Rs.4,000/-.
(b) As per the rules in vogue, when disciplinary proceedings were pending, sealed cover procedure was to be adopted and the same was followed in the case of the applicant. He was given the benefit of promotion w.e.f. 01-07-1995.
(c) His claim for antedating the date of promotion under BCR w.e.f. 01-01-1993 had been rejected as he was not entitled to the same.
6. After exchange of pleadings the parties consented to file their written submission. The above contentions have been reiterated in the written submissions.
7. Written submissions and the pleadings have been carefully gone through. The crucial date for consideration for promotion after completion of 26 years is admittedly first January/First July of each year. In the instant case, if the date of initial appointment of the applicant was June, 1996 as stated by the applicant, then 1st January, 1993 is the crucial date in which event, the applicant was certainly entitled to be considered for promotion since as on that date there was no proceeding pending against him. See the decision in the case of Badrinath v. Govt. of T. N., (2000) 8 SCC 395,: wherein the Apex Court has held as under :-
In fact, if no disciplinary case could be said to be pending in the eye of the law, the question of following the sealed cover procedure would not arise.
8. Instead, if the date of initial appointment is July 1966 as stated by the respondents in their counter as well as in written submission, then 1st July 1993 is the date for consideration and if on that date charge sheet had been issued, then the applicant's case was to be kept under sealed cover and the consequential action as contained in the decision of the Apex Court in the case of K.V. Jankiraman shall follow. The Apex Court in the case of Union of India v. K.V. Jankiraman, (1991) 4 SCC 109, has held as under:
28. 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 sealed 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 pointed out that the said sub-paragraph directs that the officers 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 jeopardy contained in Article 20(2) of the Constitution. The Tribunal has, therefore, held that when an employee is visited with a penalty as a result of the disciplinary proceedings there should be a Review DPC as 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 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.
29. 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 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 praesenti. 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 penalties 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.
And, as held in the case of Union of India v. A.N. Mohanan,(2007) 5 SCC 425 -
Awarding of censure, therefore, is a blameworthy factor. A bare reading of Para 3.1 as noted above makes the position clear that where any penalty has been imposed the findings of the sealed cover are not to be acted upon and the case for promotion may be considered by the next DPC in the normal course.
9. In the instant case, when the respondents had vide para 3A as well as para 6 of their counter stated that the applicant's date of initial appointment was 05-07-1966, there has been no denial in the rejoinder or supplementary rejoinder. Of course, the applicant has in his written submission again stated that his date of initial appointment was 06-06-1966. No documentary proof has been found in the pleadings in support of this contention. As such the date of initial appointment has to be taken only as 05-07-1966 as stated by the respondents, which has not been denied in the rejoinder.
13. Be that as it may, the date of imposition of penalty in this case is 29th March, 1993. As per the decision of the apex court in Jankiraman (supra) in case where the proceedings end in imposition of penalty, then his case for promotion shall be considered in the 'usual manner by the next DPC'. In the instant case, the next DPC being 01-07-1993, the case of the applicant ought to have been considered from that date. For, the penalty was one of censure, though decided in 1998. The initial penalty is to be substituted by the final penalty. In that event, applying A.N. Mohanan's case, the applicant has to be considered for promotion under BCR w.e.f. 01.07.1993. It is not the case of the respondents that the applicant was not found fit for promotion on the basis of performance during these years and was found fit only from 01-07-1995. We can safely hold that the applicant's promotion under BCR Scheme was to be advanced from 01-07-1995 to 01-07-1993. Such an advancement does not depend upon the availability of vacancy as the promotion is based on a time bound scheme.
10. In view of the above, the OA is partly allowed. The date of promotion of the applicant under BCR Scheme is directed to be advanced from 01-07-1995 to 01-07-1993 and the notional fixation of pay on the promotional post be afforded to the applicant. The applicant is, however, entitled to pension on the basis of the revised pay as on the date of his superannuation. Accordingly, revised PPO be issued and arrears arising out of the same shall also be paid. This order shall be complied with, within a period of two months in so far as issue of revised PPO and payment of revised pension are concerned, while arrears arising out of the revised PPO be paid within a period of four months from the date of receipt of a certified copy of this order.
11. Under the circumstances, there shall be no orders as to cost.
(D.C. Lakha) (Dr. K.B.S. Rajan)
Member-A Member-J
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