Om Prakash Sharma vs Indian Airlines Corporation And ...
1995 Latest Caselaw 636 Del

JUDGMENT

Usha Mehra, J.

(1) Shri O.P.Sharma, the petitioner, has challenged the with holing of his promotion and at the same time imposition of penalty of reduction of his salary? According to him this withholding of promotion and inflicting of penalty amount to double jeopardy?

(2) Supreme Court in the case of Union of India Vs. K.Krishnan, observed that denial of promotion during the currency of the penalty is merely a consequential result thereof. A Government servant for the reason that he is suffering a penalty or a disciplinary proceedings cannot at the same time be promoted to a higher cadre is a logical one and no exception can be taken. This does not subject a Government servant concerned to double jeopardy. The reason for arriving at this conclusion is based on sound principles that on one hand, to punish a servant and at the same time to promote him during the currency of the punishment may justifiably be termed as self- contradictory.

(3) Applying the above principle of law to the facts of this case, we have to see whether the withholding of promotion of the petitioner amounted to double jeopardy

(4) Briefly the facts of the case are that the petitioner joined Indian Airlines Corporation as Traffic Assistant in 1968. On 16th August,1981 a relation of the petitioner namely Sunil Dutt Sharma was defamed by the Customs Authorities. Contraband and other items were recovered from him. Upon interrogation, the said Sunil Dutt Sharma and Surinder Pal Sharma falsely implicated the petitioner as accomplice. Custom authorities raided his premises but nothing was found. The petitioner was taken into custody on 19th August,1981. He was produced before the Acmm, Delhi but was released on bail. At the same time, the Delhi Administration started preventive detention drive against him. He was detained under Cofeposa on 23rd May, 1982 Along with Sunil Dutt Sharma and Surinder Pal Sharma. Petitioner's wife on 26th May,1982, informed the respondent about petitioner's detention under COFEPOSA. On receipt of this information, the respondent placed the petitioner under suspension vide letter dated 2nd June,1982. The suspension was to be effective from 25th May,1982. While the petitioner was under detention, he qualified for promotion to the post of Traffic Officer. As per the rules of the respondent, after qualifying the written test for the said post, the petitioner was to participate in group discussion and interview which was to be held for promotion to the post of Traffic Officer. But the petitioner was neither informed of the same nor called for the interview. He was released from detention on 24th May, 1983. Since no challan was filed by the custom authorities before the Acmm, therefore, on the expiry of the period of limitatioin, petitioner's bail bond was cancelled and the petitioner was set free.

(5) That the petitioner was served with a charge sheet on 2nd June,1983. The charges levelled against him Were that he was arrested by the Custom Authorities on account of his involvement in smuggling, removing and concealing the electric goods valued Rs.56,590.00 on 19th August,1981 at Delhi. It was further alleged that he was arrested by Custom Authorities on 25th May,1982 and detained under Cofeposa and was released on 24th May, 1983 pending finalisation of his case. He submitted reply to the said charges. Sh.B.K.Nanda was appointed as Enquiry Officer on 3rd/8th September, 1983. On 12th September,1983 petitioner became qualified for promotion to the post of Traffic Superintendent in the grade 7/8. On 29th 0ctober,1983, without any cause the respondent unilaterally changed the Enquiry Officer and in his place appointed Sh.S.K.Sharma. Petitioner lodged protest for being ignored for promotion particularly when his junior had been promoted. On 9th January,1984 he received an information that his name was borne on the panel of Traffic Superintendent, however, his promotion was withheld due to the disciplinary case pending against him. It was further communicated that the question of promotion would be considered depending upon the outcome of the disciplinary proceedings. Enquiry Officer was again changed arbitrarily ana unilaterally on 29th August,1984. Sh.G.P.Arora was appointed as the Enquiry Officer. On 27th August,1984, enquiry proceedings started. The Petitioner participated in the same He filed his affidavit by way of evidence and contested the case. Enquiry proceedings were concluded and the Enquiry Officer on 7th February,1985 submitted the report to the appropriate authority. Copy of the enquiry report was not supplied to the petitioner. Petitioner alleged discrimination vide his representation dated 11th February,1988. He furnished the instances of those persons who had been favored by promotion despite criminal cases pending against them. Additional Collector of Custom passed ex-parte order against the petitioner. The said order was never communicated to the petitioner nor he was served with any such summons. On 15th December,1988, petitioner became entitled to promotion to the post of Traffic Superintendent (Promotional Quota) being No.1 on the panel. But he was not called for the interview which was held on 25th December,1988. Collector of Customs wrote to the Vigilance Department of the respondent about the alleged adjudication. Petitioner vide letter dated 25th November,1991 pointed out that some exparte order had been passed by the Custom authorities against him which was illegal in the eye of law and reiterated that he should be promoted. He pointed out that S/Sh.P.C.Jain, R.N.Negi, Balbir Singh, V.K.Malhotra and R.S.Verma were similarly facing criminal charges but were promoted without awaiting the final outcome of those criminal cases. On 2nd/9th0ctober.1991 show cause notice was served upon the petitioner as to why punishment of "reduction of basic salary by two stages in the present scale of pay with cumulative effect he not imposed upon him". He contested the same. Respondents without affording any opportunity confirmed the proposed penalty vide its letter dated 17th/ 24th December,1991. Being aggreived, present writ petition has been filed.

(6) Respondent on the other hand denied that double punishment has been inflicted or that the promotion has been wrongly withheld. The allegation of discrimination has been. denied. The promotion of respondents 4 to 9 who were facing criminal charge has been explained and justified. The delay in taking the decision on Enquiry Officer's report was due to petitioner's willfully misinforming the authorities and hiding the facts of adjudication by the Custom Authorities. Part of the delay could be attributed due to the Custom Department in not replying to the respondent's query asking about the fate of the adjudication. Petitioner also did not inform the respondent after 1988 that there was an order of adjudication by the custom authorities, nor did he inform the Enquiry Officer that custom proceedings were pending. The petitioner was selected for the post of Traffic Superintendent on 21st May,1990. He was accordingly put on panel. But promotion could not be given due to the pendency of the departmental proceedings.

(7) Keeping in view the rival contentions of the parties, we have to see what are the rules for promotions during the pendency of the disciplinary proceedings pertaining to the service conditions of the petitioner. My attention has been drawn to the circular issued by the respondent under the heading "Recruitment and Promotion - Grant of Fitness Certificate", which is reproduced as under,:

RECRUITMENT& Promotion-Grant of Fitness Certificate

PLEASE refer to our letter No.HQ/GA-X/X- G/8 dated the 21st October, 1965, in which it was advised that Fitness Certificate should not be issued in favor of an employee while a disciplinary case was in progress against him. It may be clarified, that there will be no bar to such a person being considered for promotion Along with others, but in case the promotion or appointment to the higher post, if selected on the basis of his previous records, will not be implemented until the disciplinary case is decided and the person is acquitted honourably. The Recruitment Board should record in such a case if the person is otherwise considered suitable for promotion/ appointment that a disciplinary case is pending against him and he is not to be promoted/ appointed unless and until the disciplinary case is decided and the person concerned is acquitted honourably. In such an event it will be necessary to protect the seniority of the employee in the higher grade.

(8) Bare reading of this circular shows that the promotion to the higher post cannot be implemented until the disciplinary case is decided. Disciplinary proceedings in this case were concluded and the report of the Enquiry Officer was submitted on 7th February,1985. If the Department or the employer does not take decision on the Enquiry Officer's report for years together then the employee cannot be made to suffer for such delay and latches on the part of the employer. In umpteen number of cases the Supreme Court has held that whenever there is delay in holding the enquiry then such proceedings are liable to be vitiated. Applying that principle one can say that delay in taking the decision after the report of the Enquiry Officer was submitted would vitiate the action. However, even if it is presumed that action did not vitiate still the decision by the appropriate authority ought to have been taken within a reasonable time. Had it been taken in 1985 itself then the currency of punishment would have come to an end in 1987 or near about. From 1988 the petitioner would have become entitled to promotion as he was otherwise found fit to be promoted.

(9) Initially there appears to be unnecessary long delay in holding the enquiry. subsequently there was delay in taking the decision particularly after the Enquiry Officer submitted his report in February,1985. Till December,1991, no decision was taken. The Enquiry Officer, Sh.G.P.Arora vide his report dated 7th February,1984 concluded that so far as charges of arrest and detention under Cofeposa is concerned that stood proved. As regards the charge of involving in smuggling activities it could not be established. After the submission of this report if the respondent did not take any action then the petitioner cannot be made to suffer for the delay on the part of the respondent and/or of the Custom Authorities. Pendency of departmental proceedings, as per respondent's own circular, did not deprive the petitioner of his being considered for promotion. His name had to be considered by the Dpc by adopting sealed cover procedure. In this case instead of following the procedure the respondent refused to call him for the interview. Petitioner became eligible and qualified for the post of Traffic Officer and subsequently as Traffic Superintendent. Once the petitioner was impaneled and the enquiry report being in his favor, there was no justification for the respondent to withhold his promotion. He ought to have been promoted as Traffic Officer in 1988 or thereafter. The report by the Enquiry Officer was submitted in February,1985, if the decision of imposing the impugned penalty had been taken within a reasonable time, then the currency of petitioner's punishment would have come to an end in early 1987. Any promotion made during that time, the petitioner would have become entitled to the same. The petitioner has been illegally deprived of the same. Similarly, having impaneled him for the post of Traffic Superintendent and being No.1 on panel, he ought to have been promoted as Senior Traffic Superintendent from May, 1990. The petitioner cannot be deprived of his promotion simply because respondent took eight years in taking decision on the report of the Enquiry Officer nor the explanation of the respondent that Custom Department did not respond to its letter cut any ice. On the ground of silence on the part of the Custom Authorities, petitioner cannot be made to suffer. It is the respondents own case that the petitioner was called for interview for the post of Traffic Superintendent in the pay scale of Rs-1555-2405 vide letter dated 21st May,1990 and he was found suitable. The reason for not giving him the post of Traffic Superintendent was that he was facing disciplinary case. This, to my mind, is contrary to the record. There was no disciplinary proceedings pending against the petitioner as on 21st May,1990. The enquiry had already been completed and the Enquiry Officer had submitted his report exonerating the petitioner of the charge of smuggling. There was no justification for the respondent to withhold the decision. As per Supreme Court decision in Union of India & ors. (supra) petitioner could not have been promoted during the currency of the punishment. But that does not give a handle to the respondent to unnecessarily prolong and delay the decision making process. This would mean the petitioner suffered deprivation of promotion for eight years because of non-action of the respondent and then for two years because of the currency of the penalty. This action of the respondent cannot be justified by any canon of justice. As per Supreme Court Judgment quoted above the currency of punishment of two years had it been imposed at the appropriate time would have come to an end in 1987. Hence from 1988 the petitioner became entitled to promotion to the post of Traffic Officer and all consequential promotions up to the post of Senior Traffic Superintendent. Delay in taking the decision on the basis of the Enquiry Report cannot be attributed to the petitioner nor under that pretext, the petitioner can be deprived of his rightful due promotion particularly when he was found suitable for the same. Ms.Kitty Kumaramangalam's contention that in December,1990 the petitioner was not promoted because of pendency of disciplinary proceedings, to my mind, this argument has no force. Prolong and unnecessary delay in decision making by no stretch of imagination would mean pendency of disciplinary proceedings. Non taking of decision for eight years deprived the petitioner of his rightful due i.e. promotion. If what Ms.Kitty Kumarmanglam urges is accepted then the Management with ulterior motive and with a malafide intention would drag the decision on one pretext or the other even after the Enquiry Officer submits the report and thus deprive an individual of his right of promotion particularly when he is otherwise found fit. This can never be justified rather it would be against the service jurisprudence nor can it be inferred from the rules governing the service conditions of the petitioner. The petitioner, to my mind, has been illegally deprived of his promotion. The currency of punishment in this case cannot be for ten years. From 1988 the respondent had no justification to withhold the promotion of the petitioner. Of course prior to 1988, the non-promotion of the petitioner to some extent can be justified, because till February,1985 disciplinary proceedings were pending. And after the report was submitted some reasonable time was required by the respondent to take decision on the same. Had that decision been taken in 1985 itself and the impugned penalty imposed in that case the period of two years would have come to an end in 1987. Hence during the currency of the punishment respondent could have justifiably pleaded that the promotion was tightly withheld but not thereafter. Petitioner cannot be made to suffer for the inaction of the respondent.

(10) Reliance on the judgment of the Supreme Court in the case of Union of India Vs. K.V.Jankiraman is misplaced. Rather it supports the case of the petitioner. When the petitioner was exonerated of the charge of embezzlement and smuggling, he could not have been deprived of the benefit of promotional post. Since the decision making was not delayed at the instance of the petitioner hence he could not have been deprived of the promotion. The delay was squarely due to the acts of the respondent, initially the Enquiry Officer was not appointed and subsequently the Enquiry Officer was changed from time to time unilaterally. Thus for nearly two years the enquiry proceedings could not commence due to the inaction of the respondent. Finally when enquiry proceedings concluded and report submitted, the respondent did not take decision on the pretext that adjudication was pending. This does not justify the action of the respondent nor entitled the respondent to sleep over the matter for nearly eight years. For all these breaches and acts of omission of the respondent, the petitioner suffered. There cannot be any justification in withholding his promotion as Traffic Superintendent in May,1990 when he was otherwise found suitable. He ought to have been promoted on the basis of the interview held on 21st May,1990 as Senior Traffic Superintendent. As regards his promotion to the post of Traffic Officer and all subsequent promotions he would become entitled to the same from 1988 onwards.

(11) MR.ARUN Jaitley, Senior Advocate appearing for the petitioner alleged discrimination against the petitioner and in this regard drew the attention of this Court to the cases of Respondents No.4,5,6,7,8 & 9. Respondent No.4 was facing custom case whereas respondent No.5 was detained under COFEPOSA. They were not charge sheeted instead promoted with ail benefits. . Similarly, respondents 6, 7, 8 & 9 were facing criminal cases for violation of Customs Act, still they were promoted to the next higher rank. Some of these respondents were booked for foreign currency violation and were facing criminal cases, still they were let free by simply giving a letter of warning. No disciplinary proceedings were initiated against them for violation of foreign currency rules. Inspite of committing violation of Custom Act they were promoted as Senior Traffic Assistant and Accounts Superintendent respectively. Whereas in the case of the petitioner even though Enquiry report was submitted to the appropriate authority in February,1985 thereby exonerating the petitioner of the charge of smuggling still he was not promoted. Once the report was submitted to the authorities, the respondent could not sleep over the same. Respondent ought to have taken decision either exonerating him or punishing him. Had the decision been taken within reasonable time of the receipt of the enquiry report, the petitioner would have got his promotion without any further delay. The petitioner became entitled to promotion immediately after the Enquiry Officer found him not guilty. Respondent deliberately kept the decision pending and thereby deprived him of his right of promotion. I find force in these submissions of Mr.Jaitley.

(12) For the reasons stated above, it is considered to be a fit case where direction should be issued to the respondents to promote the petitioner as Senior Traffic Superintendent from May, 1990. He shall be promoted as Traffic Officer w.e.f. 1988 and all consequential promotions thereafter.