Central Administrative Tribunal - Madras
K M Vedapuri vs M/O Water Resources on 4 January, 2024
1 OA 410/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00410/2016
Dated Thursday, the 4th day of January Two Thousand Twenty Four
CORAM : HON'BLE MS. LATA BASWARAJ PATNE, Member (J)
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A)
K.M.Vedapuri, S/o. Late K. S. Margabandhu,
Flat 2B, J.D.Shantiniketan,
141, Rajamannar Salai, K. K. Nagar,
Chennai 600078. ....Applicant
By Advocate M/s. P. Ulaganathan
Vs
1.Union of India rep by,
The Secretary,
Ministry of Water Resources, R.D & G.R.,
Shram Shakti Bhawan, Rafi Marg,
New Delhi 110001.
2.The Director/Deputy Secretary,
Ground Water Establishment Section,
Ministry of Water Resources R.D & G.R,
Shram Shakti Bhavan,
Rafi Marg, New Delhi 110001.
3.The Director (Administration),
Central Groundwater Board,
Ministry of Water Resources,
Bhujal Bhavan,
NH IV, Faridabad 121001, Haryana. ....Respondents
By Advocate Mr. S. Nagarajan
2 OA 410/2016
ORDER
(Pronounced by Hon'ble Mr. Varun Sindhu Kul Kaumudi, Member(A)) This OA has been filed by the applicant seeking the following relief:-
"To direct the respondents to consider the applicant for promotion to the grade of Senior Hydro Geologist with effect from the date one of his juniors was promoted in 09/12.12.1983 and to the grade of Scientist D with effect from 1st January, 1990 as well as to the grade of Regional Director in the year 2000 when one of his juniors was promoted to the respective grades, in accordance with the sealed cover procedure prescribed by the Government of India, by holding Review DPC, or pass any other appropriate order or direction, in the circumstances of the case and thus render justice."
2. The brief facts of the case, according to the Applicant, are as under :-
i. The applicant was appointed in the respondent department, on merit, as Assistant Hydrogeologist, a Class II post, by direct recruitment, with effect from 24.05.1971, and as Junior Hydrogeologist, a Class I post, with effect from 01.06.1971.
ii. He proceeded on deputation to Algeria for a foreign assignment, after being relieved by the Government of India in February, 1979, for a term of two years. Subsequently, he was granted an extension of further period of one year and was required to resume duty in the Government of India before 10.02.1982. However, he could not resume duty in the Government of India, for want of a formal relieving orders by the Government of Algeria, which sought to utilize his services for a further period. He reported back in February, 1984. On his 3 OA 410/2016 return, he faced major penalty proceedings under Rule 14 of CCS (CCA) Rules, for overstay from 11.02.1982 to 12.02.1984. The respondent Ministry instituted the proceedings under O.M., dated 25.08.1982.
iii. Based on the Inquiry Report, the President of India (DA) imposed the penalty of "compulsory retirement" on the applicant, by an order, dated 10.06.1988. Aggrieved by the order of penalty, he moved this Tribunal by filing an OA No. 163 of 1989. This Tribunal, by an order, dated 31.07.1990, set aside the order of penalty imposing compulsory retirement, on the ground of discrimination and "for having taken action on consideration of an alleged conduct not found in the charge memo".
iv. The Applicant has stated that, taking advantage of the liberty given to the respondents to consider the case afresh, the Disciplinary Authority issued a fresh Charge Memorandum, dated 27.08.1991, and by an order, dated 19.05.1997, the D.A. again issued an order of penalty of "compulsory retirement" on the applicant. Against the said order of compulsory retirement, the applicant filed an OA No. 264 of 1998. By an order, dated 25.01.2000, this Tribunal, set aside the impugned order of compulsory retirement, mainly on the ground that the DA had not applied his mind in dealing with the defence of discrimination and not considering as to how the case of the applicant is different from those of the other 21 officers and also for not giving the reasons for disagreeing with the report of the Inquiry Officer who had found the charges as "NOT PROVED". Against the said order of this Tribunal, the respondents filed Writ Petition in 4 OA 410/2016 W.P. No.19290 of 2000. The Hon'ble High Court of Madras dismissed the Writ Petition, on the ground of discrimination and violation of Article 14 of the Constitution of India. The Special Leave Petition before the Hon'ble Apex Court and the Review Petition on the said SLP were dismissed on 14.07.2003 and 07.10.2015, respectively.
v. The applicant further submits that the respondent, thereafter, issued an order, dated 09.08.2006, "setting aside the Ministry's order No. 6/4/91-Vig dated 19.05.1997". However, while doing so, taking note of the fact that the applicant had already attained the age of superannuation from service, on 30.06.2004, the respondents further ordered that the disciplinary proceedings shall be deemed to continue under Rule 9 of the CCS (Pension) Rules, 1972, and that he should be deemed to be under suspension w.e.f.10.06.1988.
vi. The respondents further issued another Office Memorandum, dated 09.08.2006, stating that all the charges framed, vide Memoradum, dated 27.08.1991, against the applicant were fully proved. The applicant was called upon to make a representation. As against the said Office Memorandum, he made a representation. The Union Public Service Commission, advised the respondent against imposing any penalty on the applicant, without addressing the question of discrimination. The respondents issued an order, dated 08.06.2011, (i) dropping the proceedings under Rule 9 of CCS (Pension) Rules;
(ii) treating the period of "unauthorized absence" from duty w.e.f 11.2.1982 to 12.2.1984 as 'dies non' for all purposes viz. increments, leave and pension 5 OA 410/2016 etc. The interruption in service caused due to his unauthorized absence will also have the effect of forfeiture of past service under Rule 27 of the CCS (Pension) Rules, 1972 and (iii) treating the period of deemed suspension w.e.f. 10.06.1988 to the date of retirement on attaining the age of superannuation on 30.6.2004, as duty for all purposes and he be paid full pay and allowances admissible to him, after adjusting the payment already made to him. (emphasis added) vii. Against the order, dated 08.06.2011, he made a representation through the Grievance Forum of the Government of India. The applicant states that the Respondents, thereupon, issued an order, dated 04.01.2014, substituting the said obnoxious order with the following:
"The period of his unauthorized absence from duty w.e.f 11.02.1982 to 12.02.1984 may be treated as 'dies non' for all purposes except pension" (emphasis added) viii. The applicant further submits that, while he was on foreign assignment in Algeria, the second respondent issued an order dated, 05.05.1979, promoting 10 officers, including the applicant, to the post of Senior Hydrogeologist on purely temporary and adhoc basis. The appointment, as per the said order, was to come into effect from the date of assumption of charge on repatriation to the parent department. However, even before the applicant resumed duty in the respondent department, he was visited with the above disciplinary proceedings which resulted in the penalty orders, which ultimately came to be set aside. Even 6 OA 410/2016 before all the disciplinary proceedings could be concluded in his favour, he had retired from service on attaining the age of superannuation on 30.06.2004.
ix. The applicant submits that since the disciplinary proceedings were not concluded within the period of two years, on his representation, he was promoted to the post of Senior Hydrogeologist, on ad hoc basis with effect from 21.08.1987. His request for regular promotion to the said post and for early confirmation in the post of Jr. Hydrogeologist was turned down by the respondents by the letter, dated 04.06.1991, on the ground of pending disciplinary proceedings.
x. The applicant further submits that Shri. S.A.H. Jaffery and M.Sankaran, two of his juniors in the grade of Junior Hydrogeologist, were promoted as Senior Hydrogeologist on regular basis with effect from 09.12.1983 and 12.12.1983 respectively, by the Notification, dated 06.02.1984. It is further pertinent to note that, as per the Civil List of Officers of the Hydrogeological Discipline of the Central Ground Water Board, as on 01.01.1997, issued on 29.01.1997, the said S.A.H.Jaffrey, was further promoted from the grade of Senior Hydrogeologist to the grade of Scientist 'D' on 01.01.1990. The applicant further understood that one of his juniors, ie., M.C.Jindal in the grade Junior Hydrogeologist, was even promoted as Regional Director. Had the sealed cover been adopted, he would have been promoted as Senior Hydrogeologist and considered for promotion to higher grades like Scientist D and Regional Director in 1990 and 2000, respectively. No promotion, even notionally, was 7 OA 410/2016 given to him, even after the conclusion of the disciplinary proceedings, in which he was fully exonerated. Even the assurance given in the letter, dated 04.06.1991, was not honoured. The failure to give the applicant promotion by following the sealed cover procedure has had a cascading effect on his career advancement, in that he had not been considered for a series of promotions in the grades of Senior Hydrogeologist, Scientist D and Regional Director.
xi. The applicant submits that, on his representation for promotion, the second respondent issued a reply, dated 30.07.2014. It was communicated that since the unauthorized absence from duty w.e.f. 11.02.1982 to 12.02.1984 had been treated as dies non for all purposes except pension, as such the aforesaid period cannot be counted as regular service to be considered for promotion.
Aggrieved, the applicant has filed this OA.
3. The main grounds raised for relief, in brief, are as follows:-
i. The act of the respondents in not counting the period from 11.02.1982 to 12.02.1984 as qualifying for promotion is erroneous. Since he had been completely exonerated in the disciplinary proceedings, as per F.R.54 (2) & (3), the period of absence should have been treated as duty with full pay and allowances.
ii. The act of the respondents in not allowing the applicant promotion to the grade of Senior Hydro Geologist and to further grades like Scientist D and Regional Director, from the date one of the juniors was promoted to these grades, is a violation of the sealed cover procedure, prescribed in the 8 OA 410/2016 Government of India O.M, dated 14.09.1992, as well as the O.M., dated 25.01.2016, and the law laid down by the Hon'ble Apex Court in Janakiraman's case reported in AIR 1991 SC 2010.
iii. The respondents have committed a grave error in continuing with the disciplinary proceedings under Rule 9 of the CCS (Pension) Rules, 1972, because the penalty order of compulsory retirement had already been set aside by the Hon'ble High Court of Madras on 23.11.2001 and SLP against the said order of the High Court was also dismissed in 2003, much before the applicant attained the age of superannuation on 30.06.2004. While so, by illegally continuing the proceedings even after the retirement, by invoking Rule 9 ibid, the respondent unnecessarily dragged on the proceedings. The applicant is in no way responsible for the delay in concluding the proceedings. Hence, he is entitled to the protection under the sealed cover procedure. iv. The respondent, having promised to consider the case of promotion, on the conclusion of the disciplinary proceedings and having stated that the promotions given to his juniors is subject to the result of the O.A. filed by him, is estopped from denying the applicant his promotion from the date one of his juniors was promoted.
v. The act of the respondents is tainted with malafide motives, discriminatory and in violation of Article 14 of the Constitution of India. In the case of several other employees, who had been visited with the treatment of dies non for overstayal in foreign assignment, like Shri M.L.Shrivastava and 9 OA 410/2016 R.M.Joshi, to name a few, their due promotions had been given by the respondents. Despite various judicial pronouncements in the CAT and the Hon'ble High Court of Madras and the advice pointing out the discrimination meted out to the applicant, the respondent chose to ignore the claim of the applicant.
vi. The act of the respondents, as per the applicant, is against all principles of natural justice, equity, fair play and good conscience.
4. The respondents have highlighted their stand, as follows:-
(i) The disciplinary proceedings against the applicant were initiated during 1982 for overstay from 11-2-1982 to 12-02-1984 and on completion of the disciplinary proceedings, major penalty under Rule 14 was imposed on him and he was compulsory retired from Government service, vide Ministry's Order No.6(4)/82-vig, dated 10.06.1988. But, the applicant filed O.A. No. 163/89 and the Hon'ble CAT, Madras Bench, set aside the order and directed the disciplinary Authority to reconsider the punishment given to Sh.K.M. Vedapuri.
(ii) As per order, dated 31.07 1990, passed by the Hon'ble Tribunal in OA. No. 163 of 1989, the Ministry set aside the said penalty order while placing him under deemed suspension w.e.f. 10.06.1988. Inquiry was again conducted and, after re-examining the case, penalty of compulsory retirement from service was imposed again on Sh. K. M. Vedapuri, vide Ministry's Order No.6/4/91-vig, dated 19.05.1997. This Tribunal, in its order, dated 25.01.2000, in O A. No 264/98, set aside the Ministry's order, directing the disciplinary authority to give 10 OA 410/2016 a fresh notice to the applicant, showing clearly the reasons for differing from the enquiry officer's report declaring the charges as "Not Proved" and pass orders afresh. In subsequent judicial proceedings, the Hon'ble High Court and the Supreme Court dismissed the Writ Petition as well as the SLP and the review petition, without accepting the stand of the government.
(iii) As per the Court's directions, the Ministry issued Order under letter No.6/1/2001-vig (Pt. II), dated 09-08-2006, setting aside the previous order imposing the penalty of compulsory retirement on Sh. K.M. Vedapuri. However, the disciplinary proceedings were deemed to continue under Rule 9 of the CCS (Pension) Rules, 1972, against him. He was deemed to be under suspension w.e.f.10.06.1988.
(iv) It is submitted that the period of deemed suspension, w.e.f. 10.06 1988 to the date of his retirement on attaining the age of superannuation on 30.06.2004, has been treated as "duty" for all purposes and he is to be paid full pay and allowances admissible to him, after adjusting the compulsory retirement pension, gratuity etc., already drawn by him, if any." Also Sh. K. M. Vedapuri is entitled to "superannuation pension" under the Rule 35 of the CCS (Pension) Rules, 1972, from the date of his retirement, on attaining the age of superannuation, ie., June 2004, as stated in the said order. Accordingly, the Regional Director, CGWB, CR, Nagpur, has taken up the matter to process the payments of all the pending retirement dues/ benefits of Sh. K.M Vedapuri, ex-Junior Hydrogeologist.
11 OA 410/2016
(v) The aforesaid order was later on modified, vide order, dated 04.01.2014. The period of his unauthorized absence from duty w.e.f. 11.02.1982 to 12.02.1984 was treated as dies non for all purposes except pension. The representation of Shri. K.M. Vedapuri was considered by the Ministry, and not acceded to, as per their letter, dt. 30.07.2014. Since his unauthorized absence from duty, w.e.f. 11.02.1982 to 12.02.1984, had been treated as dies non for all purposes except pension, as such the aforesaid period could not be counted for regular service to be considered for promotion. In view of the above, his request for regular promotion as Sr. Hydrogeologist (Scientist C) was not considered by the Competent Authority. The applicant was found unfit for promotion to the grade of senior Hydrogeologist w.e.f. the date one of his juniors was promoted, i.e., 9/12.12.1983, and to the grade of Scientist. D, w.e.f 01.01.1990, as well as to the grade of Regional Director in the year 2000. It was prayed by the Respondents that the Hon'ble Tribunal may be pleased to dismiss the application with costs.
5. Heard both sides and perused the records.
6. A bench of this Tribunal, by order, dated 31.07.1990 in OA No. 163 of 1989, had set aside the orders of punishment, dated 10.06.1988, and given a direction to consider the fact of discrimination brought out by the applicant. On this, a fresh charge memo was issued by the official respondents and, this time, the enquiry officer found the charges as not proved, (emphasis added), however, the Disciplinary Authority differed from the findings of the enquiry officer, and, 12 OA 410/2016 having given certain grounds for his disagreement, in the notice issued to the applicant, dismissed the contention of the applicant, whereby he had invoked Article 14 of the Constitution, as not valid.
7. In the subsequent OA 264 of 1998, in its order, dated 25.01.2000, it was observed by this Tribunal that by an order, dated 19.05.1997, the Disciplinary Authority, -
"imposed the penalty of compulsory retirement on the applicant in OA 264/98 and on the same day dismissed the applicant from service i.e. the applicant in OA 265/98. The applicants are before us against these orders."
8. The significant portion of the judgement, dated 25.01.2000, of the Central Administrative Tribunal is extracted below -
A reading of the order of the disciplinary authority dated 19.05.1997 which is impugned in this application clearly shows that the allegation based on Art. 14 has not been met squarely by the disciplinary authority. When this Tribunal has given a direction to consider the issue specifically on the question of Art. 14 of the Constitution raised by the applicants, we are of the opinion that the disciplinary authority did not give full justice to the applicants. (emphasis added) A reference to the portion of the order in which the disciplinary authority has dealt with the matter (Page No. 62 of the application) is enough to show how the disciplinary authority has not applied his mind.
"Whereas the disciplinary authority, in pursuance of the directions of the Central Administrative Tribunal in this case, has also considered the matter of discrimination which was brought out by Shri K. M. Vedapuri in the Tribunal and in his defence statements. After considering all the case of alleged discrimination carefully on the basis of documents available on record, it has been observed that each case of overstay on deputation abroad had its own merits and the outcome of every case was not identical or comparable 13 OA 410/2016 because it depended on various factors such as different disciplinary authorities taking different decisions in regard to the quantum of punishment based on their findings etc., response shown by individual officers to the instructions of the Government of India asking them to revert back; Government being unaware of the officers signing fresh contracts etc. The decisions of the Government of India in regard to grant of extension of deputation period in individual case obviously depended on the exigencies of service in each case and at a particular point of time. It is, therefore, not possible to link this case with cases of other officers on deputation abroad and the question of discrimination does not arise."
The Tribunal also observed that " A reading of this portion of the order passed by this disciplinary authority clearly shows that the disciplinary authority has not applied his mind to this issue raised by the applicants."
9. The Tribunal also cited the following:-
"6. The disciplinary authority shall give a fresh notice to the applicants showing clearly the reasons for differing from the enquiry officer's report and after receiving the reply from the applicants. the disciplinary authority can pass an order afresh. In doing so, the disciplinary authority is expected to deal with the case of the other 21 officers and how the case of the applicants are different from that of the other 21 officers.
"7. It is enough to cite the case decided by the Supreme Court in Sengara Singh Vs. State of Punjab (1984 1 LLJ
161) where dismissal of 1100 members of police force for participation in agitation and criminal prosecutions were launched against agitators and subsequently 100 police constables were reinstated and the case was taken before the Supreme Court whether the action of the government is discriminatory, the Supreme Court held that the action taken by the Government is violative of Art. 14 of the Constitution i.e. any arbitrary action taken which would tantamount to 14 OA 410/2016 the denial of equity is violative of Art. 14 of the Constitution. As a result, both the OAs were allowed."
This Tribunal had given clear directions as follows -
"6. ......
The disciplinary authority shall give a fresh notice to the applicants showing clearly the reasons for differing from the enquiry officer's report and after receiving the reply from the applicants, the disciplinary authority can pass an order afresh. In doing so, the disciplinary authority is expected to deal with the case of the other 21 officers and how the case of the applicants are different from that of the other 21 officers."
10. The Hon'ble High Court of Madras was approached by the respondent department in the OAs, against the orders, dated 25.01.2000, of the Tribunal, vide W.P. Nos. 19290 & 19291 of 2000. The High Court also felt that "It is a clear violation of Art. 14 of the Constitution of India and therefore such violation is not permissible and hence we are unable to accept the case of the petitioners."
11. SLP and Review Petition in the matter were rejected by the Hon'ble Supreme Court.
12. The respondent department has, thereafter, issued an order, dated 09.08.2006, stating that the punishment of compulsory retirement was set aside, however, "the disciplinary proceedings shall be deemed to continue under Rule 9 of the CCS (Pension) Rules, 1972, against him. He shall be deemed to be under suspension w.e.f. 10.06.1988".
13. Vide another OM, dated 09.08.2006, he was again given a notice and asked to submit a representation against the enquiry report and the note of 15 OA 410/2016 disagreement against the findings of the enquiry authority, dated 27.07.1992, holding that Articles 1, 2, and 3 of the charge memo were not proved against Shri K. M. Vedapuri.
14. Vide order, dated 08.06.2011, the Department ordered as follows -
"(i) The disciplinary proceedings initiated against him vide this Ministry's Memorandum No. 6(4)/91-Vig dated 27.08.1991 and proceedings continued vide this Ministry's Order No. 6/1/2001- Vig(Pt-II) dated 09.08.2006 under Rule 9 of CCS(Pension) Rules may be dropped by communicating Govt. displeasure.
(ii) The period of his unauthorised absence from duty w.e.f. 11.02.1982 to 12.02.1984 may be treated as 'dies non' for all purposes viz. increments, leave and pension, etc. The interruption in service caused due to his unauthorised absence will also have the effect of forfeiture of past service under Rule 27 of the CCS (Pension) Rules, 1972.
(iii) His period of deemed suspension w.e.f 10.06.1988 to the date of his retirement on attaining the age of superannuation on 30.06.2004 be treated as 'duty' for all purposes and he be paid full pay and allowance admissible to him, after adjusting the compulsory retirement pension, gratuity, etc. already drawn by him, if any. As laid down in F.R. 54, the payment will be subject to fulfilment of other conditions under which such conditions are admissible.
(iv) Shri Vedapuri will be entitled to 'superannuation pension' under Rule 35 of the CCS (Pension) Rules, 1972 from the date of his retirement on attaining the age of superannuation i.e. June, 2004. He will also be entitled to payment of gratuity as per CCS (Pension) Rules after reckoning the factors of payment of retirement gratuity accordingly."
15. On the representation of Shri. K. M. Vedapuri, seeking restoration of qualifying service with pension, the punishment was once again modified stating that 16 OA 410/2016 "the period of his unauthorised absence from duty, w.e.f. 11.02.1982 to 12.02.1984, may be treated as 'dies non' for all purposes except pension". (emphasis added)
16. Thereafter, Shri Vedapuri received a letter, dated 30.07.2014, wherein, regarding his request, for regular promotion as Sr. Hydrogeologist, it was said that "..... since your unauthorised absence from duty w.e.f. 11.02.1982 to 12.02.1984 had been treated as 'dies non' for all purposes except pension, as such the aforesaid period cannot be counted for the regular service to be considered for promotion".
Thus, his request for regular promotion as Sr. Hydrogeologist was turned down by the competent authority.
17. Having traversed a long way, through several rounds of departmental proceedings, award of punishment of compulsory retirement and subsequent modification of orders, the applicant is now focusing on his claim for promotion, which, according to him, was granted to persons who were also allegedly involved in similar over-stayal after completion of the authorised period of deputation abroad and had entered into contract with a foreign country, on their own, without the approval of the Department/Government of India.
18. Having seen various orders in OAs, WPs, and SLP and petitions filed in the Supreme Court, the following issues need to be clarified, in order to arrive at a conclusion -
(i) Whether during the relevant period, the applicant was eligible for consideration of promotion by the sealed cover procedure, as Senior 17 OA 410/2016 Hydrogeologist, Scientist - D and Regional Director, as per DOPT OMs, dated 14.09.1992 and 25.1.2016?
(ii) Whether the department followed the correct procedure in deciding his case in respect of promotion claimed which was denied?
(iii) Was there any discrimination in considering his case and rejecting promotion to him, while granting the same to others who had allegedly indulged in similar unauthorised acts like over-stayal after deputation period came to an end and signing of fresh contract / agreement with a foreign country. The applicant retired on 30.06.2004.
19. The allegation that the sealed cover procedure was not followed in his case has not been addressed at all by the Respondents, as per the arguments submitted by the learned counsel for the applicant. The respondents, in their reply, have not made any averment as to whether DPC considered the case of the applicant along with his juniors and whether the recommendations of the DPC in respect of the applicant were kept in sealed cover, as prescribed. The justification for not throwing any light on the issue is that the case being more than 30 years old, the old records are not traceable. If that be so, as pleaded on his behalf, the applicant cannot suffer for no fault of his. According to him, the respondents should be directed to hold a review DPC. DOPT OM, dated 25.01.2016, states that, even if the Government Servant who has retired by the time he is exonerated of all the charges, notional promotion should be granted till the date of retirement, if found fit on opening of the sealed cover. He would 18 OA 410/2016 be entitled to fixation of pension on the basis of such notional pay on his notional promotion.
20. As per "FR.18 of the Fundamental Rules (1) Treatment of wilful absence from duty not regularised:
Wilful absence from duty, even though not covered by grant of leave, does not entail loss of lien. The period of absence not covered by grant of leave shall have to be treated as ''dies non'' for all purposes, viz., increment, leave and pension. Such absence without leave where it stands singly and not in continuation of any authorized leave of absence will constitute and interruption of service for the purpose of pension and unless the pension sanctioning authority exercises its powers under Article 421, Civil Service Regulations (now Rule 27 of the CCS (Pension) Rules) to treat the period as leave without allowance, the entire past service will stand forfeited."
21. As per "Rule 25 of the CCS(Pension) Rules -
Counting of past service on reinstatement.-
(1) A Government servant who was dismissed, removed or compulsorily retired from service, but is reinstated on appeal or review, is entitled to count his past service as qualifying service.
(2) The period of interruption in service between the date of dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement, and the period of suspension, if any, shall not count as qualifying service unless regularized as duty or leave by a specific order of the authority which passed the order of reinstatement." (emphasis added)
22. The letter, dated 24.12.2023, issued by the Assistant Director General (GDS/PCC), Ministry of Communications and IT is extracted hereunder:
"...... Accordingly, it is clarified that dies non period will not be counted as regular service for the purpose of grant of financial upgradations under ACP/MACP Schemes".19 OA 410/2016
23. This case has seen prolonged and several rounds of representations and litigation. The misconduct on the part of the applicant in this OA is not in doubt. The issue is whether the applicant has been treated fairly in the course of the enquiry by the department and in the matter of penalty imposed on him vis-a-vis similarly placed colleagues who had also reported late after unauthorised stay abroad where they had been sent on deputation. Many of them had even indulged in acts like signing contracts with foreign parties. The observations of the Hon'ble High Court of Madras in order, dated 23.11.2001, in WP No. 19290 and 19291 of 2000, are pertinent and are extracted below:-
"14. As such, the overstayal of the respondents regardless of the fact they were called upon to repatriate to Government of India is liable to be condemned. But it is the case of the respondents that they and 21 other persons belonging to the same Ministry working in the Central Water Commission or Central Ground Water Board were dealt with in a different manner and the respondents were dealt with very harshly.
"..... it is for the disciplinary authority to consolidate and to consider how far the result of the enquiry officer is justified. The disciplinary authority has not applied its mind in that sense of the matter inspite of the fact that the Tribunal specifically remanded the matter for that purpose. Therefore, we feel that it is a clear violation of Art. 14 of the Constitution of India and that therefore, such a violation is not permissible and hence, we are unable to accept the case of the petitioners."
24. The penalty awarded to the applicant has been modified several times at the behest of tribunal / Court, as dealt with above. The table of officials showing their period of overstayal, beyond the authorised period of deputation, 20 OA 410/2016 submitted by the applicant is vital. The High Court has also referred to it and clearly stated that the discrimination apparent in the matter of punishment cannot be overlooked or condoned, as it is violative of Article 14 of the Constitution of India.
25. The facts of overstayal in Algeria by the petitioner and signing of contract with foreign government are well established. However, as held by the High Court of Punjab & Haryana in the case of Sengara Singh, the punishment given to some cannot be more than that meted out to others, if the charge of misconduct is similar. The same principle has to be applied to this case.
26. The role of enquiry officers and the competence of the Disciplinary Authority and the Revisionary Authority is not in question. However, the remarks of the Disciplinary Authority that "the outcome of different Disciplinary Authorities taking different decisions in regard to the quantum of punishment based on their findings etc., response shown by individual officers to the instructions of the Government of India"
has been taken note of by this Tribunal, in its order, dated 25.01.2000, in OA numbers 264 & 265 of 1998. The Tribunal had remitted back the impugned orders to the Disciplinary Authority for dealing with the case afresh under specific directions that "the Disciplinary Authority shall give a fresh notice to the applicants showing clearly the reasons for differing from the enquiry officer's report and after receiving the reply from the applicants, the Disciplinary Authority can pass an order afresh. In doing so, the Disciplinary Authority is expected to deal with the case of other 21 officers and how the 21 OA 410/2016 case of the applicants are different from that of the other 21 officers."(emphasis added)
27. The Tribunal also referred to its earlier findings that the question of Article 14 has to be considered as in the case decided by the Supreme Court in Sengara Singh Vs. State of Punjab (1984 1 LLJ 161). Wherein it was held that "the action taken by the Government in violative of Article 14 of the Constitution i.e., any arbitrary action taken which would tantamount to the denial of equity is violative of Article 14 of the Constitution."
28. The basic issue being of denial of a series of promotions, it is worth looking at the communication in this regard. Vide the letter, dated 04.06.1991, the Ground Water Desk, Ministry of Water Resources, had informed the applicant that "....... your case for promotion to the post of Sr. Hydrogeologist (SC.'C') will be considered as and when due, as per relevant Govt. instructions. Confirmation in the post of Jr. Hydrogeologist (SC.'B') can only be taken after the disciplinary proceedings are concluded."
29. In regard to the disciplinary proceedings, which were underway against the applicant, he has raised the point of sealed cover procedure and cited DOPT OM, dated 14.09.1992. The subject in the said DOPT OM, and the relevant paras are extracted below:
"Promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation - Procedure and guidelines to be followed.22 OA 410/2016
"2. At the time of consideration of the cases of Government servant for promotion details of Government servant in the consideration zone for promotion falling under the following category should be specifically brought to the notice of the Departmental Promotion Committee.
a) Government servants under suspension.
b) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
c) Government servants in respect of whom prosecution for criminal charge is pending.
"2.1 The Departmental Promotional Committee shall assess the suitability of Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC including 'unfit for promotion' and the grading awarded by it will be kept in a sealed cover. (emphasis added) The cover will be superscribed "Findings regarding suitability for promotion to the grade/post of ..........in respect of Shri...........(name of the Government servant). Not to be opened till the terminator (sic) of the disciplinary case/criminal prosecution against Shri.....". The proceeding of the DPC need only contain the note. 'The findings are contained in the attached sealed cover'. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover."
"2.2. The same procedure outlined in the para above will be followed by the subsequent Departmental Promotion Committee convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded. (emphasis added)"
"3. On the conclusion of the disciplinary case/criminal prosecution which results in dropping of allegations against the Government servant, the sealed cover or covers shall be opened. In case the Government servant is completely 23 OA 410/2016 exonerated, the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The Government servant may be promoted, if necessary, by reverting the junior most officiating person. He may be promoted notionally with reference to the date of promotion of his junior. 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 appointing 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....."
(emphasis added) "5.3 If the Government servant concerned is acquitted in the criminal prosecutions on the merits of the case or is fully exonerated in the departmental proceeding, 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 benefits. In case the Government servant could have normally got his regular promotion from a date prior to the date of his ad-hoc promotion with reference to his placements in the DPC proceedings kept in the sealed cover(s) and the actual date of promotion of the person ranked immediately junior to him by the same DPC. he would also be allowed his due seniority and benefit of notional promotion as envisaged in para 3 above.
"5.4 ...... if the Government servant is not exonerated in the departmental proceedings, the ad-hoc promotion granted to him should be brought to an end."
"7. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the 24 OA 410/2016 charges against him and the provisions contained in O.M. will be applicable in his case also."
30. The relevant paragraphs of the Hon'ble Apex Court judgment in the matter of the Union of India and Others Vs K. V. Jankiraman and Others in Civil Appeal Nos. 3018-21 of 1987 are extracted hereunder:
"23. .....
FR.17 (1)Subject to any exceptions 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."
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. ....
.... 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.
.....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 present ii. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date 25 OA 410/2016 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......."
34. 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 constituted in March 1986 which, after consideration of the employee'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, 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. ......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, therefore, allowed partly with no order as to costs.
39. ......... 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. 26 OA 410/2016
We, therefore, allow these appeals as above with no order as to costs."
31. The relevant paragraphs of the judgment, dt. 06.01.2015, in the matter of K. Ibrahimkutty Vs. The Chairman & Managing Director, Kerala State Road Transport Corporation, Thiruvananthapuram and Others (CDJ 2015 Ker HC 098) are extracted hereunder:
"24. It is to be further seen that in cases where the senior in the rank qualifies for grade promotion on a date later than that of his junior (owing to the delay on the part of the senior attaining prescribed length of qualifying service), the senior will be given notional promotion to the post in the higher grade on the date on which any of his juniors in the rank who completes the prescribed qualifying service is promoted. It is essentially to avoid disturbance of inter-se rank held by them and to maintain the same sequence of ranking in the promoted post, as in the lower post. Nevertheless, the monetary benefit of fixation of pay in the promoted post shall not be given to the senior so (notionally) promoted, until he completes the prescribed length of qualifying service in the lower post. Monetary benefit based on grade promotion shall accrue only on completion of prescribed length of qualifying service in the lower post. "
"26. In the end, it is specifically stipulated that leave without allowance made use of for the purpose of other employment shall not be counted as qualifying service for grade promotion."
50. In that process, it is observed thus:
"6. .... In other words, inter-se seniority among persons in the same cadre is not fixed based on the length of effective service or attendance. Even in Ext.R1 (e) Grade Promotion Rules it is only indicated that the periods of dies-non is imposed only to cover up the periods of break for the purpose of monetary benefits. Therefore it is evident that, even in the case where the period of LWA is treated WP(C).17423 /2013 10 as 'dies non' seniority will not be affected.27 OA 410/2016
"52. In the light of the above discussion, the whole issue can be summed up thus:
......
(3) Dies-non does not result in cessation of service, affecting the length of service.
.......
(6) Even after rejoining, the employee's grade seniority is to be resumed from where it has been left vis-a- vis his juniors, but the said employee's over-all service seniority continues to run all through, in terms of Rule 27 of KS & SSR, like an undercurrent, without affecting those that have already been promoted in the rank;
......"
32. The relevant paragraph in the order, dated 15.04.2019, in OA 411/2016, filed by the applicant before this Tribunal reads as under:
"5. .........However by Annexure A-12 order dated 04.01.2014, an amendment was made to treat the period of unauthorised absence from duty w.e.f. 11.02.1982 to 12.02.1984 as Dies-non for all purposes except pension. Accordingly, the question of forfeiture of past service on account of Dies non would not arise as any such forfeiture would affect his pension."
This OA was dismissed as "wholly misconceived."
33. The case of the applicant for promotion was not considered, because the decision conveyed by the Ministry stated that "the period of his unauthorised absence from duty w.e.f. 11.02.1982 to 12.02.1984 may be treated as 'dies-non' for all purposes except pension." But Shri. R. M. Joshi, Scientist 'C' (Rtd.), according to the applicant, got promotion despite having dies non and served in the promoted post before taking voluntary retirement.
34. There is no indication in the pleadings of the Respondents that the case of 28 OA 410/2016 Shri. K.M. Vedapuri was considered by the DPC and the procedure of sealed cover was followed, as per the DOPT guidelines described in detail above. The penalty of compulsory retirement was withdrawn and the period of deemed suspension, upto his date of superannuation was treated as on 'duty'. Even the period of dies non, for the unauthorised absence, was not considered adversely for the purpose of pension. The point of treating him differently from others, for the sake of promotion, despite 'dies non' for unauthorised absence from duty recorded against them, is the remaining issue here. Non-availability of service records, in such a hotly contested case, is also no ground for denial of dues. The notings of the Department/Ministry, in this regard, that have been annexed by the Applicant are significant.
35. This Tribunal and the Hon'ble High Court have already come down heavily on the point of discrimination and it was specifically directed to state the reasons for considering the case of the official differently from those of similarly placed officials. This aspect has not been satisfactorily answered by the respondents. The list of 21 officers annexed by the applicant clearly shows that one R. M. Joshi had also overstayed unauthorisedly in Algeria like the applicant. For both the officials, the period of unauthorised absence was declared as dies non. Shri. R. M. Joshi was also awarded 'Censure'. There are other glaring cases of this nature in the list. Dies non is the reason given by the Department in the communication, dated 30.07.2014, to the applicant, for not counting the said period "for regular service to be considered for promotion". On the other 29 OA 410/2016 hand, Shri. R. M. Joshi got his promotions and the consequential financial benefits. Shri. Joshi took voluntary retirement in April, 2003, as Scientist 'C'. The requisite period of three months' notice in this regard was waived for Shri. R. M. Joshi.
36. Discrimination in service matters, as above, is violation of the principles laid down by Article 14 of the Constitution. It is found that the applicant has made out a case for consideration of his seniority from the due dates, since he has been treated on duty after all charges against him were dropped. As regards regularisation in the posts of Sr. Hydrogeologist and subsequent promotion to higher posts in the cadre, the applicant is entitled to fair consideration, at par with his juniors who carry similar entry in their record regarding dies non and he must be granted notional promotion, accordingly, with all consequential benefits, within a period of 3 months from the receipt of a copy of this order, failing which he will be entitled to an interest @ 9% p.a.
37. The OA is allowed on the above terms.
38. No order as to costs.
(Varun Sindhu Kul Kaumudi) (Lata Baswaraj Patne)
Member (A) Member (J)
04.01.2024
AS