Union of India and Another vs P.K. Sharma

Pradeep Nandrajog, J.—Law declared by the Supreme Court in the decision reported as Union of India Vs. K.V. Jankiraman, etc. etc., , clearly holds that if a Government servant is deprived promotion on account of disciplinary proceedings pending against him in which he is finally acquitted, not only promotion should be granted with retrospective date but additionally it should be with back wages. Applying the law, vide the impugned decision dated March 02, 2012, the Tribunal has held that the respondent would be entitled to back wages with effect from the date person junior to the respondent was promoted as a UDC.

The respondent was alleged to have incited members of the staff to lodge frivolous and fictitious complaints against senior officers and for which, a major penalty proceeding was initiated when a chargesheet was issued on October 06, 1993. The respondent denied the writings attributed to him and the department was relying upon the report of a handwriting expert to establish to the contrary. In spite of requests made to summon, for purposes of cross-examination, the handwriting expert, none was summoned by the Inquiry Officer. The enquiry initiated in the year 1993 lasted for 11 years and concluded only in the year 2004. Penalty of dismissal from service was inflicted by the disciplinary authority, which was converted to one of compulsory retirement by the Appellate Authority.

The respondent filed O.A. No. 20/2007, which was allowed on June 03, 2008. The Tribunal noted that firstly by not calling the handwriting expert and permitting him to be cross-examined, a valuable right of the respondent had been violated. The Tribunal further noted that during the prolonged inquiry period, the complainant had died and thus a prejudice was caused to the respondent who could not subject the complainant to a cross examination.

Though not relevant for the earlier decision taken by the Tribunal on June 03, 2008, but relevant for our present decision would be to note that with reference to the record of the enquiry, the Tribunal categorically noted that the same lingered on due to the Inquiry Officer being changed from time to time and each Inquiry Officer evidencing hardly any interest to proceed ahead with the enquiry.

On June 03, 2008, O.A. No. 20/2007 was allowed. The respondent was directed to be reinstated in service with all consequential benefits.

Reinstating the respondent, the issue of his promotion cropped up. He had to litigate a second time when promotion was denied. O.A. No. 1387/2010 filed by him was allowed on December 24, 2010, directing that he be given benefit at par with the person immediately junior to him i.e. respondent be promoted from said date. But whether the benefits of promotion had to be with a retrospective date was left open, to be decided by the competent authority.

It is in this backdrop that the competent authority had to re-decide the matter pertaining to back wages. The competent authority decided that the respondent would be entitled to notional benefits of fixation of pay but without any back wages. Why were the back wages denied has not been made good by the competent authority, but we understand the reason to be that nobody should be paid wages for a post of which work was not handled or to put it differently, a person would be entitled to wages pertaining to a post from the date he assumes charge of the post.

Not only for the reason, the law declared by the Supreme Court in K.V. Jankiraman''s case (supra) entitles the respondent to back wages because he was ultimately found not guilty, we could have understood if at the remanded stage the disciplinary authority, with reference to the record held that the respondent was guilty for the delay in conduct of the enquiry. We would have appreciated if the disciplinary authority gave reasons that on the basis of allegations and prima facie material available, a case was made out to proceed against the respondent at the departmental enquiry and the fact that the department could not ultimately sustain the charge was no reason by itself to give the back wages. We would have appreciated if the disciplinary authority would have followed the line of reasoning that merely because a charge fails does not mean that the decision to issue the charge sheet was wrong.

The reason is obvious. The reason is the one recorded by the Tribunal when O.A. No. 20/2007 was allowed on June 02, 2008. The reason is that the department was responsible for delaying the enquiry and as a result relevant evidence got lost i.e. the complainant died. Further, as a result of the delayed enquiry, the department probably could not even locate the handwriting expert who had given a report against the respondent. Further, the Inquiry Officers had to be changed repeatedly inasmuch as none evidenced interest to proceed ahead with the enquiry.

Whereas a Government servant is certainly accountable for the wrongs which he does while discharging duties but at the same time it is to be kept in mind that the disciplinary enquiry proceedings cannot be a test of his patience. His probity is to be tested and not the patience. A balance has to be struck. If the department is at fault and delays enquiry proceedings, the Government servant has not to be penalized if at the enquiry he is ultimately exonerated. Likewise, if a Government servant delays conduct of enquiry, notwithstanding he being exonerated, back wages could be denied if promotion has to be effected, for his conduct in delaying the disciplinary proceedings. Noting as above and the law declared by the Supreme Court, we dismiss the instant Writ Petition but without any order as to costs.

C.M. No. 6855/2012 (Stay)

Dismissed as infructuous.