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Union Of India And Others v. A.N Mohanan .
Factual and Procedural Background
The respondent was subjected to a departmental enquiry initiated on 3-8-1999. A Departmental Promotion Committee (DPC) convened on 1-11-1999 found him fit for promotion, but because disciplinary proceedings were pending, the “sealed cover” procedure was invoked. On 13-9-2001 the enquiry concluded with the imposition of the penalty of censure. The respondent was thereafter promoted on 26-11-2001.
Dissatisfied, he approached the Central Administrative Tribunal (CAT), Ernakulam Bench, seeking promotion with retrospective effect from 1-11-1999. CAT, by order dated 18-6-2004, directed the authorities to give him that earlier date, holding that censure was not a bar. The Union of India challenged this order in the Kerala High Court, which dismissed their writ petition and upheld CAT’s decision. The Union then appealed to the Supreme Court, leading to the present judgment.
Legal Issues Presented
- Whether a penalty of censure attracts paragraph 3.1 of the Office Memorandum dated 14-9-1992 (governing promotions during pending proceedings) so as to forbid acting upon a sealed-cover recommendation and defer consideration to the next DPC.
- Consequently, whether the respondent was entitled to promotion retrospectively from 1-11-1999 despite the censure, or only from 26-11-2001 when he was actually promoted.
Arguments of the Parties
Appellants’ Arguments (Union of India)
- Paragraph 3.1 of the 14-9-1992 Office Memorandum explicitly states that if any penalty is imposed, sealed-cover findings “shall not be acted upon”; the employee’s case must be placed before the next DPC.
- Because a penalty of censure was imposed, the respondent could only be considered by the subsequent DPC, not granted promotion from the earlier date.
Respondent’s Arguments
- The censure was not, in substance, a disqualifying penalty for promotion.
- His right to promotion from 1-11-1999 also stemmed from the alleged exhaustion of the previous promotion panel, independent of the censure issue.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Union of India v. K.V. Jankiraman, (1991) 4 SCC 109; AIR 1991 SC 2010 | Clarified that an employee “completely exonerated” and “not visited with the penalty even of censure” is entitled to benefits from the date he would have been promoted. | Used to emphasise that censure is indeed a penalty; therefore, the respondent was not “completely exonerated,” bringing his case squarely within para 3.1 of the Office Memorandum. |
Court's Reasoning and Analysis
The Supreme Court first examined paragraph 3.1 of the 14-9-1992 Office Memorandum, which provides that when any penalty is imposed, the sealed-cover findings “shall not be acted upon” and the employee’s promotion is to be considered only by the next DPC.
Addressing the respondent’s contention that censure is not a penalty, the Court cited Union of India v. K.V. Jankiraman to reaffirm that even censure constitutes a blameworthy outcome, distinguishing employees who are “completely exonerated” from those who are merely censured. Therefore, paragraph 3.1 squarely applied.
Because the respondent received a penalty, the sealed-cover recommendations from 1-11-1999 could not be implemented. The department was correct in granting him promotion only on 26-11-2001 after the conclusion of disciplinary proceedings. Consequently, both CAT and the High Court misdirected themselves in overlooking the mandatory language of paragraph 3.1.
Holding and Implications
APPEAL ALLOWED. The orders of the CAT and the Kerala High Court granting the respondent promotion with effect from 1-11-1999 are set aside.
Implications: The judgment affirms that a censure is a penalty for purposes of the sealed-cover procedure, reinforcing strict adherence to paragraph 3.1 of the 1992 Office Memorandum. The respondent’s promotion stands only from 26-11-2001; no broader precedent was created beyond reiterating existing principles.
Dr. Arijit Pasayat, J.— Leave granted.
2. Challenge in this appeal is to the judgment of the Division Bench of the Kerala High Court dismissing the writ petition filed by the appellants. In the writ petition challenge was made to the order passed by the Central Administrative Tribunal, Ernakulam Bench (in short “CAT”) in OA No. 203 of 2002.
3. The controversy lies within a very narrow compass.
4. Departmental enquiry was started against the respondent on 3-8-1999. The Departmental Promotion Committee (in short “DPC”) made the selection on 1-11-1999. Since the enquiry was pending against the respondent, sealed cover procedure was adopted. On 13-9-2001 the penalty of censure was awarded. Promotion was granted to the respondent on 26-11-2001. However, he claimed that promotion should have been given to him with effect from 1-11-1999. He moved the CAT seeking for such direction. CAT by its order dated 18-6-2004 held that penalty of censure is not a bar for promotion and though the sealed cover procedure was adopted, the sealed cover should have been opened and the recommendation of DPC should have been given effect to by giving the respondent promotional benefit with effect from 1-11-1999.
5. The order of CAT was challenged before the High Court by filing a writ petition. The High Court noted that awarding of penalty of censure would not affect the promotion of the respondent and the department was not right in contending that the awarding of penalty (censure) would stand in the way of promotion. Accordingly the writ petition was dismissed.
6. Learned counsel for the appellants submitted that the effect of Para 3.1 of the office memorandum relating to promotion of government servants dated 14-9-1992 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, has been lost sight of. According to him, Para 3.1 clearly postulates that where penalty has been imposed, findings of the sealed cover/covers are not to be acted upon and the case of promotion can be considered by the next DPC in the normal course.
7. Learned counsel for the respondent on the other hand submitted that the awarding of penalty i.e censure was not the sole ground for seeking promotion with effect from 1-11-1999, and it was because of the conclusion that the validity of previous panel had been exhausted.
8. Few rules as contained in the office memorandum need to be noted.
9. Paras 3 and 3.1 read as follows:
“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 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 juniormost officiating person. He may be promoted notionally with reference to the date of promotion of 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 proceedings/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. It is not possible to anticipate and enumerate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary. 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., these are only some of the circumstances where such denial can be justified.
3.1. If any penalty is imposed on the government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the finding of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him.”
10. Though learned counsel for the respondent submitted that awarding of censure does not amount to awarding of penalty, the same is clearly untenable. In Union of India v. K.V Jankiraman (1991) 4 SCC 109, (1993) 23 ATC 322, AIR 1991 SC 2010, AIR at pp. 2017-18 it was held as follows:
“26. 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 visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with 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 authorities concerned 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 rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of para 3 of the said memorandum viz. ‘but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion’, we direct that in place of the said sentence the following sentence be read in the memorandum:
‘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 authority concerned 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.’ ”
11. Awarding of censure, therefore, is a blameworthy factor. A bare reading of Para 3.1 as noted above makes the position clear that where any penalty has been imposed the findings of the sealed cover are not to be acted upon and the case for promotion may be considered by the next DPC in the normal course.
12. Having regard to the penalty imposed on him, undisputedly the respondent has been given promotion with effect from 26-11-2001. His claim for promotion with effect from 1-11-1999 was clearly unacceptable and, therefore, the CAT and the High Court were not justified in holding that he was entitled to be promoted with effect from 1-11-1999. The order of the High Court affirming the view taken by the CAT cannot be sustained and is, therefore, set aside.
13. The appeal is allowed without any orders as to costs.
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