Patna High Court
Lala Shashi Bhushan Verma vs Union Of India & Ors on 18 May, 2012
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.369 of 2000
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Lala Shashi Bhushan Verma, Son of Late Tribeni Prasad Ex.Assistant Accounts
Officer, Resident of Road No.9(Last), South Ashjok Nagar, Patna-800 020.
Plaintiff.... .... Appellant/s
Versus
1. Union Of India, through the Chief Secretary, Union of India, Union Secretariat,
Buildings, New Delhi.
2. The Financial Advisor (Defence Services) Govt. of India, Ministry of Defence,
New Delhi.
3. The Secretary, Ministry of Defence, Govt., of India, New Delhi-11.
4. The Controller General of Defence Accounts, R.K. Puram, West Block V, New
Delhi-32.
5. The Controller of Defence Accounts, Fraser Road, Patna-19.
6. Sri S. Vishwanath, Joint Controller of Defence Accounts, Fraser Raod, Patna-
19. Defendant-Respondent .... .... Respondent/s
with
Second Appeal No. 73 of 2001
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1. Union Of India, through the Chief Secretary, Union of India, Union Secretariat,
Buildings, New Delhi.
2. The Financial Advisor(Defence Services)Govt. of India, Ministry of Defence,
New Delhi.
3. The Secretary, Ministry of Defence, Govt., of India, New Delhi-11.
4. The Controller General of Defence Accounts, R.K. Puram, West Block V, New
Delhi-32.
5. The Controller of Defence Accounts, Fraser Road, Patna-19.
6. Sri S. Vishwanath, Joint Controller of Defence Accounts, Fraser Raod, Patna-
19. Defendant-Respondent Defendants .... .... Appellant/s
Versus
Lala Shashi Bhushan Pd. Verma, Son of Late Tribeni Prasad, deceased, Permanent
Auditor Serving in the office of Controller of Defence Accounts, Patna..
Plaintiff-.... .... Respondent/s
===========================================================
Appearance :
(In SA No. 369 of 2000)
For the Appellant/s : IN PERSON
For the Respondent/s : Binay Kumar Pandey, Advocate.
(In SA No. 73 of 2001)
For the Appellant/s : Binay Kumar Pandey, Advocate
For the Respondent/s : IN PERSON
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CORAM: HONOURABLE MR. JUSTICE V. NATH
CAV JUDGMENT
Date: 18-05-2012
2 Patna High Court SA No.369 of 2000 dt.18-05-2012
2 / 21
V.Nath, J. These two appeals have been filed against the
judgment and decree dated 31.05.2000 whereby a common
judgment and decree has been passed by Additional District Judge
X, Patna partly allowing T.A.No. 190/78 filed by the appellant in
S.A.No. 369/2000, and dismissing the T.A.No.193/78 filed by the
appellant in S.A.No. 73/2001.
2. The S.A.No. 73/2001 has been directed to be heard
alongwtih S.A.No. 369/2000.
3. Heard the parties.
4. The Title Suit No. 24/77/28/78 was filed by the appellant
Lala Shashi Bhushan Prasad Verma (appellant in S. A. No.
369/2000) against the appellants of S.A.No. 73/2001 seeking the
following reliefs.
(a) That it be declared that the plaintiff was eligible
and quite competent under the prevailing departmental rules and
his service conditions for a permanent assignment of the post in
the department on the dates of several vacancies every year
commencing from 01.01.67.
(b) That it be also declared that departmental
proceeding from its very inception initiated by the departmental
authorities was illegal, arbitrary, malafide, unconstitutional and in
defiance of the principles of natural justice and decided against the
3 Patna High Court SA No.369 of 2000 dt.18-05-2012
3 / 21
materials on the basis of illegal evidence and surmises, in
pursuance of the report of the conducting officer actuated by
malice, misdirection and misconception of law up to the appellate
judge.
(c) That on the adjudication of the above a
consequential relief of setting aside the impugned order in
Annexure "3" as illegal and inoperative be awarded with
discretion to the defendants that the plaintiff is eligible for the
arrears of pay and allowances in the time scale 380-EB-12-500-
EB-15-560 operative from 01.12.1973.
(d) That the medical bills of Rs. 440=47 p. which
remains unpaid by the department on account of the impugned
order in Annexure "3" be allowed to be recovered to the plaintiff.
(e) That the defendants be directed to treat the plaintiff
as having passed the subordinate accounts service examination
part II of 1967 by giving the effect of his passing the said
examination in December 1982 and then consider plaintiff‟s
promotion to Accountants grade now designated as section officer
(Accounts))retrospectively.
(f) That the cost of the suit be also awarded in favour
of the plaintiff.
5. It will be convenient hereinafter to refer to the parties as
4 Patna High Court SA No.369 of 2000 dt.18-05-2012
4 / 21
plaintiff and defendants which position they held with suit.
6. The matrix of facts relevant for adjudication of the
substantial questions of law arising in these appeals are, in short,
that the plaintiff Lala Shashi Bhushan Prasad Verma was
appointed as Upper Division Clerk on probation for one year on
01.10.62in the defence accounts department. By order dated 01.07.1966 his service was made quasi permanent. His grievances are that although he became entitled to permanency in service but the defendants wrongly denied the said status to him and had also wrongly not allowed him to appear in the Subordinate Accounts Service examination conducted by the department, passing of which was necessary for promotion to the Subordinate Accounts Service Section Officer (accounts) grade. His further grievance is that the departmental proceeding had been wrongly initiated and decided against him awarding punishment to him for submission of the alleged false medical bills.
7. The defendants, in turn, have asserted that although by order dated 01.07.1966 the plaintiff was granted quasi permanent status in service but recommendation for permanency and permission to appear in the subordinate accounts service examination were not granted as some of the annual confidential reports of the plaintiff contained adverse remarks. The defendants 5 Patna High Court SA No.369 of 2000 dt.18-05-2012 5 / 21 have further supported the punishment awarded to the plaintiff in the departmental proceeding and asserted that the departmental proceeding was conducted in valid and legal manner. In the written statement the defendants have extensively referred to the different rules and provisions governing the procedure for recommendation and grant of permanency status in service as well as the grant of permission to appear in the Subordinate Service Accounts Examination (henceforth referred to as „examination‟) to the auditor which is admittedly the redesignation to the post which the plaintiff held.
8. The trial court partly decreed the suit holding that the departmental proceeding had not been conducted in fair and legal manner violating the principles of natural justice and consequently set aside the punishment imposed upon the plaintiff and also the appellate order upholding the same. The trial court, however, refused other reliefs including the reliefs with regard to grant of confirmation and permanency status in service as claimed. Thereafter both the plaintiff and the defendants filed T.A.No. 190/78 and T.A. No.193/78 respectively. The appellate court dismissed the T.A.No. 193/78 filed by the defendants and allowed the T.A.No. 190/78 filed by the plaintiff holding that the plaintiff had been wrongly denied the confirmation of service and grant of 6 Patna High Court SA No.369 of 2000 dt.18-05-2012 6 / 21 permanency status therein and had also been wrongly denied the opportunity to appear in the examination by the defendants and further upheld and concurred with the findings of the trial court with regard to the departmental proceeding and setting aside of the conviction and punishment of the plaintiff in the said proceeding.
9. The defendants thereafter preferred S.A.No. 121/85 as well as S.A.No. 122/85 before this Court. After hearing the parties both the second appeals were allowed and the matter was remitted back to the appellate court below for fresh decision in accordance with law. It would be relevant to point out here that the appellate court below, on the prayer of the plaintiff transferred the two appeals to the Central Administrative Tribunal for hearing and disposal which after hearing the parties dismissed the two appeals on merits. However, the Hon‟ble Supreme Court, in appeal by the plaintiff, set aside the order of the tribunal and directed that the appeals be reheard by the Additional District Judge in accordance with the order of remand of the High Court.
10. After the order and direction by the Apex Court, the appellate court below took up the hearing of the two appeals and formulated the following points for determination:
(i) Whether the plaintiff/appellant was holding quasi permanent post w.e.f. 01.07.66 and as such he was eligible for the 7 Patna High Court SA No.369 of 2000 dt.18-05-2012 7 / 21 permanency on the availability of the vacancy?
(ii) Whether the departmental proceeding was void and illegal?
(iii) Whether the plaintiff/appellant‟s medical bill of Rs. 440.47 paise was a genuine bill?
(iv) Whether the plaintiff/appellant is entitled for being placed in the Gradation List dated 01.03.1969 below Sl.no.30 and above Sl.no. 31?
(v) Whether the appellants after three years of service from the date of appointment was eligible for appearing at the Annual subordinate service examination, if so, whether withholding permission to the plaintiff/appellant to appear in the said examination from 1966 to 1976 is illegal, arbitrary, adversely effecting his service career?
11. The appellate court has come to the finding that the permanent assignment had been denied to the plaintiff on non- existing grounds and he had also been wrongly denied the opportunity to appear in the examination from 1966 to 1976. After taking notice of the fact that the plaintiff passed the part I of the examination in 1980 and part II of the examination in 1982, the appellate court however held that the plaintiff cannot be granted the status of passing the examination with effect from 1967 on the 8 Patna High Court SA No.369 of 2000 dt.18-05-2012 8 / 21 ground that the mischief has already been done and it cannot be cured. The appellate court has also held that the departmental proceeding in question against the plaintiff was not conducted in fair manner and the enquiry officer was highly prejudiced and acted arbitrarily in conducting the proceeding. Consequently it has been concluded that the departmental proceeding against the plaintiff was illegal, malafide and unconstitutional and conducted against the principles of natural justice and the order of punishment passed therein was set aside holding the plaintiff to be eligible to the arrears of pay and allowances in the time scale of Rs. 380-EB-12- and Rs. 500-EB-15-560 w.e.f. 01.12.1973. The plaintiff has also been held entitled to the medical bill as claimed by him.
12. The S.A.No. 369/2000 filed by the plaintiff was admitted for hearing on the following substantial questions of law :
(i) Whether there are limitations for the court to grant the relief after adjudicating the grievances of the appellant?
(ii) Whether the learned Additional District Judge X, Patna gave a wrong legal approach in refusing the relief?
(iii) Whether there were hardship and restriction before the learned Additional District Judge X, Patna which made him to hold that it would be hard for the court to grant such relief. The 9 Patna High Court SA No.369 of 2000 dt.18-05-2012 9 / 21 mischief has already been done and it cannot be cured?
(iv) Whether the petitioner is entitled to the reliefs as prayed for as the denial of opportunity to appear at the said examination from 1966 to 1976 which is held to be illegal in the impugned judgment of ADJ Xth, Patna ?
13. The S.A.No. 73/01 filed by the defendants has been admitted for hearing on 06.04.2007 and the following substantial questions of law have been formulated for consideration:-
(i) Whether the learned courts below were authorized to look into the veracity of the disciplinary proceedings under Central Civil Services (Classification Control and Appeals)Rules, 1965 framed under Article 309 of the Constitution of India specially when there was a provision of appeal with respect to the question of penalty which is involved in the instant second appeal?
(ii) Whether the impugned judgment and decree with respect to promotion are violative of specific provisions of law in that regard?
14. In view of the facts as aforementioned and the substantial questions of law which have been formulated in the two second appeals, the demonstrable facets of discord between the parties are (i) confirmation and permanency of the plaintiff‟s service,(ii) non-grant of permission to the plaintiff for appearing in 10 Patna High Court SA No.369 of 2000 dt.18-05-2012 10 / 21 the examination and (iii) the validity and legality of the disciplinary proceeding, its conduct and the punishment to the plaintiff.
15. It is not in dispute that the plaintiff had been appointed on 01.10.1962 as upper division clerk with a probationary period of one year in the defence accounts department under the defendants. It has been accepted in the written statement by the defendants that the plaintiff was found fit by the controller in respect to his age, qualification, work, conduct and character till the 1st July, 1966 on which date his service was declared to be quasi permanent in the grade of upper division clerk. Elaborately referring to the rules, the defendants in their written statement have further pointed out that the effect of permanency in service was to be given to a govt. servant holding quasi permanent service on the basis of All India Seniority and availability of vacancy in substantive grade and for the purpose of confirmation of the services of auditors, the recommendation of local promotion committee regarding the suitability or otherwise used to be called for by the Controller General, Defence accounts, New Delhi from all the controllers as and when the vacancies occurred. It has been further accepted by the defendants that the suitability of an auditor for confirmation was earlier to be based upon the annual 11 Patna High Court SA No.369 of 2000 dt.18-05-2012 11 / 21 confidential report of preceding three years which was required to be free from adverse remarks but from May, 1959 there was relaxation in the criteria and the recommendations thereafter was to be based on the merits of each case taking into account the record of the individuals and their current performance. This criterion for evaluation continued until October, 1972 when it was revised.
16. The defendants in the written statement have further stated that the Controller General, Defence Accounts, New Delhi called for recommendation for confirmation from the local promotion committee of the auditors (direct recruits) appointed between March, 1962 to April, 1963 and the case of the plaintiff was considered for recommendation and found not fit. The relevant statement in the written statement runs as follows:
"...The recommendation of the local promotion committee in respect of individuals appointed as auditor (direct recruits) during March 62 to April, 63 was called for by the CGDA, New Delhi in the month of January, 1967. Sri Verma being an appointee on 01.10.1962, his case for confirmation together with others was sent alongwith recommendation of LPC on the basis of his ACR 1964, 1965-1966. As the ACR 1964 of the plaintiff was adverse against him and a disciplinary case was pending against 12 Patna High Court SA No.369 of 2000 dt.18-05-2012 12 / 21 him, he was not recommended fit by the LPC for confirmation..."
17. The defendants have also further given in detail the remarks made in the annual confidential reports of the relevant years with further statement that the punishment awarded to the plaintiff in a departmental proceeding had been cancelled in the year 1970 after administering him only a warning. Again it has been pointed out that another punishment awarded to the plaintiff was also subsequently cancelled in the year 1971. Thus from the own showing of the defendants, the plaintiff‟s name was not recommended for confirmation on the basis of adverse remarks in the ACR of 1964 although the ACR of 1965 and 1966 contained the remarks "very good" and "good". The remark in the year 1964 could not have been the sole criteria for refusing the recommendation of the name of the plaintiff, in view of the revision of the yardstick of suitability in May, 1959 which continued till October, 1972 by which the annual confidential reports no more remained the sole consideration and the current performance of the employees was also to be looked into. It is also not the case of the defendants that the sealed cover procedure was adopted in making the recommendation in view of the pending disciplinary proceeding against the plaintiff and this fact assumes relevancy when the disciplinary proceedings against the plaintiff 13 Patna High Court SA No.369 of 2000 dt.18-05-2012 13 / 21 admittedly had been cancelled and did not lead to punishment. It has been pointed out on behalf of the plaintiff that the forwarding list brought on record as Ext. K by the defendants did not contain any mention of the recommendation of any local promotion committee and pointing out to the part of the deposition of D.W.2, the plaintiff has submitted that the said list contained the remarks made by the Controller, Defence Accounts and not by local promotion committee which was the requirement as pleaded by the defendants in the written statement. The learned counsel appearing on behalf of the defendants could not satisfactorily explain and reconcile the inconsistencies in the statements made in paragraph 8 of the written statement. Clearly, the plaintiff‟s case was forwarded with unfavourable recommendations which were not based upon the prescribed criteria as modified and also against the rules which required the sealed cover procedure to be adopted in case of pending disciplinary proceedings, and consequently the plaintiff had been consistently denied opportunities for consideration for confirmation and permanency in his service. The appellate court below has considered in detail the rules, evidence and cases of the parties in this regard and has rightly come to the finding that the plaintiff was entitled for recommendation of his name for confirmation and permanency as and when the vacancy 14 Patna High Court SA No.369 of 2000 dt.18-05-2012 14 / 21 occurred after 01.01.1967.
18. It is the plaintiff‟s case that as per the prescribed rule, a quasi permanent auditor who had passed the subordinate accounts service examination was to be given preference over others for absorption in the permanent cadre of the department but the defendants denied the permission to the plaintiff for appearing in the said examination right from 1966 till 1976 on non-existent grounds. However, it is the case of the defendants as pleaded in the written statement that the plaintiff was not permitted to appear in the said examination only because his annual confidential reports were constantly adverse. It will be pertinent to point out here that according to the rules, the normal method of appointment to the subordinate accounts service section officer (accounts) grade was to be done by promotion and the auditors who had passed the subordinate accounts service examination and found fit by the local promotion committee were ordinarily entitled to be selected for promotion. The eligibility of the plaintiff for appearing in the examination was regulated by the rules which prescribed as an essential qualification the three years service in the department which the plaintiff fulfilled. The rules nowhere required the consideration of 2/3 years annual confidential reports for granting permission for appearing in the examination which has been 15 Patna High Court SA No.369 of 2000 dt.18-05-2012 15 / 21 asserted by the defendants. Admittedly the plaintiff was granted quasi permanent status in service by order dated 01.07.1966 by the defendants after finding his conduct, work and character as satisfactory. No rule or instruction existing in the year 1966-69 had been brought on record or even mentioned in the written statement by the defendants to establish that the consideration of 2/3 years annual confidential reports was the main criteria for the grant of such permission. A confidential letter by the Controller General, Defence Accounts dated 04.08.1970 has been mentioned in the written statement to support the requirement for consideration of the annual confidential reports before the grant of permission which itself shows that no such requirement earlier existed. As such it is clear that from the year 1966 to 1969 the defendants wrongly denied the opportunity to the plaintiff from appearing in the examination only on the ground of adverse remark in some annual confidential reports even though he was otherwise fully eligible, and thereby wrongly deprived him the chance to acquire the necessary qualification for preferential consideration for acquiring the permanent status and also the promotion. The instruction by the Controller General, Defence Accounts as contained in the abovementioned letter dated 04.08.1970 prescribing consideration of annual confidential 16 Patna High Court SA No.369 of 2000 dt.18-05-2012 16 / 21 reports as further qualification for granting permission to appear in the examination cannot be said to be consistent with the rules which do not authorize the Controller to substantially modify by prescribing additional qualification to the existing order for appearing in the examination. Even the plea of pendency of disciplinary proceeding cannot justify the action of the defendants in absence of adoption of sealed cover method. The appellate court below has again elaborately considered all the aspects of the matter and has rightly come to the conclusion that the denial of opportunity to the plaintiff from appearing in the examination from the year 1966 to 1976 was against the rules and not justified.
19. Both the courts below have concurrently held that the departmental proceeding initiated against the plaintiff in the year 1973, culminating in the award of punishment, had been wrongly conducted violating the principles of natural justice. It has also been found that the enquiry officer was highly prejudiced against the plaintiff and acted in arbitrary manner. The order of punishment against the plaintiff has been set aside and the plaintiff has been held to be entitled to the medical bill as claimed by him. It is the case of the plaintiff that he filed the appeal against the order passed in the departmental proceeding awarding punishment. But his appeal has also been dismissed by the financial advisor 17 Patna High Court SA No.369 of 2000 dt.18-05-2012 17 / 21 defence service (defendant no.2) This fact has been accepted by the defendants in the written statement. As such the submission of the defendants in S.A.No. 73/01 that the courts below had no jurisdiction to look into the veracity of the disciplinary proceeding in view of the provision of appeal with respect to the question of penalty has no substance. Moreover, in view of the order of this Court passed in earlier second appeal filed by the defendants and further the order of the Hon‟ble Supreme Court, directing the two appeals to be heard and decided afresh by the appellate court (the Additional District Judge), also it is no more be open to the defendants to raise the question of maintainability of the suit and assail the jurisdiction of the courts below to pass the impugned judgment and decree.
20. From the facts and the discussions made above, it is clear that the plaintiff has been wrongly denied the opportunity for consideration of his case for permanency and he has also been wrongly denied the opportunity to appear in the Subordinate Accounts Examination and thereby acquire additional qualification for preferential consideration for confirmation and permanency and also for promotion. However, it is not in dispute that the plaintiff had been granted permission to appear in the examination in the year 1976 and he had passed part I in the examination in the 18 Patna High Court SA No.369 of 2000 dt.18-05-2012 18 / 21 year 1980 and part II examination in the year 1982 during the pendency of the appeal in the Court below. The question that emanates is as to whether in such a circumstance the plaintiff is entitled to the grant of a retrospective status of permanency against the vacancies occurring from 01.01.1967 and also the retrospective effect of passing his examination in the year 1982 in the year 1967? The appellate court below has declined to grant the said relief to the plaintiff stating that the mischief had already been done and it cannot be undone. Here it cannot be lost sight of that although the plaintiff has been wrongly denied the consideration of his case for permanency as well as the opportunity to appear in the examination but it cannot be said with certainty nor it is the case of the plaintiff that if the necessary recommendation for his permanency would have been made by the concerned authorities, the favourable decision must have ensued, and further if the opportunity of appearing in the examination would have been granted earlier he would have certainly passed the examinations. The relief for grant of retrospectivity of status as claimed cannot be granted when there is scope of hypotheses and room for the element of uncertainty. The appellate court below has therefore committed no illegality in not granting the relief in this regard, in the manner, as prayed by the plaintiff. However, as the plaintiff 19 Patna High Court SA No.369 of 2000 dt.18-05-2012 19 / 21 has succeeded in establishing the wrongful denial of opportunities by the defendants for consideration of his case for permanency as well as grant of permission to appear in the examination, resulting in varied losses to him, the finding by the appellate court below denying the relief to him on the ground that the mischief had been done and could not be cured, on the whole, cannot be sustained. The appellate court below, in view of its findings, should have appropriately moulded the relief in the interest of justice and granted the same to the plaintiff by exercising discretion under Order VII, Rule 7 C.P.C.. It would therefore subserve the interest of justice, if the defendants are directed to adequately compensate the plaintiff for the losses suffered by him. At this juncture, it is apposite to notice the observations of the apex court in the case of Union of India Vs. K.V. Janki Raman AIR 1991 SC 2010 where their lordships were considering the question of payment of all the benefits including the salary of the promotional post to an employee who had been completely exonerated in the disciplinary proceeding. The tribunal, though, found him entitled to notional promotion but refused the payment of salary of the period of notional promotion preceding the date of actual promotion. Their lordships did not accept the contention of the authorities based upon the normal rule "no work no pay" which was advanced to 20 Patna High Court SA No.369 of 2000 dt.18-05-2012 20 / 21 support the decision of the tribunal and have held as follows:
"...We are therefore broadly in agreement with the finding of the tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not compensated with the penalty even of censure, he has to be given the benefit of the salary of the higher post alongwith the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases, where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the 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 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 ignore however such circumstances when they exist and lay down an inflexible rules that in every case when an employee is exonerated from disciplinary/ criminal proceedings he will be entitled to all salary for the intervening period is to undermine the discipline in the
21 Patna High Court SA No.369 of 2000 dt.18-05-2012 21 / 21 administration and jeopardize public interests..."(emphasis supplied)
21. Accordingly, the plaintiff is granted the modified relief of adequate compensation by the defendants for wrongly keeping him out of consideration for permanency and not granting him permission to appear in the examination from 1966 uptill 1976. The concerned authority is accordingly directed to decide the quantum of adequate compensation to the plaintiff by taking into consideration all the facts and circumstances of the case and pass a reasoned order within six months from the date of production/ receipt of a copy of this order.
22. The substantial questions of law, raised in both the appeals are thus answered and the S.A.No.369/2000 is accordingly allowed in part and the S.A. No. 73/2001 is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
(V. Nath, J) Nitesh