Union of India vs Pushpandadan Naik

Doabia, J.—The respondent/writpetitioner was visited with an order of punishment. Severe reprimand was administered to him. An order to

this effect was passed on 12091995. This punishment was awarded because the respondent/writpetitioner was found guilty of disobeying the

command given to him by his Superior Officer on 07091995. He was also found using threatening language towards his officer. This incident is

said to have taken place on 08091995. The further fact is that the petitioner was promoted as Havaldar. This was w.e.f. 01091995. HQ Signal

No. C2307 was issued on 24081995. However, before a formal order of promotion can be issued the aforementioned punishment was awarded

to him. His promotion was withheld.

2 The respondent/writpetitioner challenged this action of the appellant. The writ petition stands allowed. The Union of India has come in appeal.

The writpetition was allowed interalia on the grounds:

i) The promotion of the respondent/writpetitioner having bee cleared by the Departmental Promotion Committee w.e.f. 01091995 any disability or

disqualification incurred by him can have only prospective effect; ii) If the order of promotion was to be withheld it would virtually amount to

reduction in rank. This was to e done then it was incumbent upon the appellant and its officers to hold some inquiry in the matter;

In addition to the aforementioned reasoning, while allowing the writpetition it was also observed that if promotion order was to be withheld then

it was incumbent upon the authorities to comply with the procedure indicated in Rule 43 of the Border Security Force Rules. As no inquiry was

conducted, the order withholding the promotion was found to be bad. It is this order which is subject matter of challenge in this appeal.

Learned counsel appearing for the Union of India submits that as promotion order was not actually issued and as before the promotion order

was conveyed to him the respondent/writpetitioner was punished, therefore, the Union of India was competent to withhold the promotion. For this

reliance is being placed on a Circular issued by the Ministry of Personnel, public grievances and Pensions Department of Personnel & Training on

14091992. In this Circular the scope of the decision given by the Supreme Court in Union of India Vs. K.V. Jankiraman (AIR 1991 SC 2010)

was considered.

Learned counsel for the Union of India submits that as per the aforementioned circular, the writ petitioner is not entitled to any benefit as this

circular is based on the decision of the Supreme Court of India. It would be apt to notice the decision given by the Supreme Court.

5 In the aforementioned case the scope of sealed cover procedure was being examined. Number of case were dealt with. In some cases

disciplinary proceedings were pending when the Departmental Promotion Committee met and in other cases promotion orders were made earlier

and disciplinary proceedings were taken later on. Two appeals which were decided alongwith other appeals dealt with the same situation as has

arisen in this case. Thus in Civil Appeal No. 3021 of 1987 in para 11 of the judgment (supra) the facts were noticed: Para 11 is relevant and is

being reproduced below: ""11. In this case, the DPC did not consider the case of the respondentemployee for crossing efficiency bar w.e.f. 14th

Sept. 1983 on the ground that disciplinary proceedings were contemplated against him. We are, therefore of the view that the Tribunal's direction

that the DPC should be convened to consider the case of the respondent for crossing the efficiency bar w.e.f. 14th Sept. 1983 on the basis of his

confidential record at the relevant date and without reference to the contemplated disciplinary proceedings is both proper and valid. In this case

also the Tribunal has given the said direction without prejudice to the right of the appellantauthorities to take any disciplinary action as might have

been contemplated. This order also does not require any interference from this court. Hence, the appeal stands dismissed. In the circumstances of

the case, however, there will be no order as to costs.

Again while dealing with Civil Appeal No. 4379/90 the view expressed was that if no disciplinary proceedings are pending on the date when DPC

meets then the sealed cover can be opened and the fate of the concerned employee would depend upon the view expressed by the D.P.C. Para

13 is relevant and is being reproduced below:

In this case, the respondentemployee was not recommended for promotion by the DPC in its meeting held on February 01,1988. Instead the

DPC had kept the result in a sealed cover because of the pending disciplinary proceedings. Admittedly, no chargememo was served on the

employee till the date the DPC met on Feb. 01,1988. It was issued only on March 2, 1989. The Tribunal has, therefore, rightly directed the

authorities to open the sealed cover. We are, however, unable to understand the direction of the Tribunal to convene a Review DPC for

considering the employee's case as on Feb. 01, 1988. If the DPC had considered the case of the employee on Feb. 01, 1988 and withheld the

result because of the pending disciplinary proceedings, the proper direction would have been to ask the appellantauthority to open the sealed cover

and if the employee was found fit for promotion to direct the authority to promote him from the date on which his immediate junior was promoted

as a result of the recommendation of the DPC on Feb. 01, 1988. In case he is so found fit, he would be entitled to the benefits of seniority etc. on

a notional basis. However, whether he would be entitled to the arrears of salary for the intervening period and to what extent will have to be

decided by the appellate authority in the light of what we have stated above. In case the authority denies to the employee the salary in full or in

part, it will, of course, record its reasons for doing so. The appeal is, therefore, allowed partly as above with no order as to costs.

A perusal of paras 11 & 13 quoted above, makes it apparent that if on the dates when the claims of an employee were considered for

promotion and there is no disciplinary proceedings pending against him then he is entitled to the benefit of the result of the consideration. In this

case the petitioner was ordered to be promoted. A signal was issued. This was not given effect to because of latter action with regard to incidents

said to have taken place on 7th and 8th of September, 1995. For these two lapses the respondent/writpetitioner was punished with severe

reprimand. If his promotion was to be withheld then this could be done after holding of enquiry but this was not actually done. Therefore, the view

expressed by the learned Single Judge that the effect of reprimand would be prospective and it cannot take away the benefit which had already

been conferred upon the writ petitioner, is the only view which can be taken on the issue. Even otherwise after having punished the writpetitioner

with reprimand inflicting of punishment i.e. with holding the promotion would be putting him to double jeopardy for the same misconduct. This

would be contrary to the spirit beyond the concept contained in Article 20 of the Constitution. Thus looking from any point of view this appeal is

liable to be dismissed. This appeal is accordingly dismissed.