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2010 DIGILAW 145 (ORI)

UNION OF INDIA (UOI) v. JUGAL KISHORE SAMAL

2010-03-05

B.K.PATEL, L.MOHAPATRA

body2010
JUDGMENT : L. Mohapatra, J. - Union of India represented through its Chief General Manager (Telecom), BSNL and another are the Petitioners before this Court questioning the legality of the order dated 6th November, 2008 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 637 of 2005. 2. The opposite party had filed the Original Application before the Tribunal praying for quashing the order dated 19th February, 2005 granting him the benefit of OTBP with effect from 31.12.2004 and BCR with effect from 1.1.2005 as well as the order dated 1st July, 2005 rejecting the representation which were annexed as Annexures A/6 and A/9 to the Original Application. The opposite party joined as Telephone Operator at Rourkela under the Orissa Telecom Circle on 20.3.1965. While continuing as such, One Time Bound Promotion (OTBP) Scheme was introduced by the Department of Telecommunication providing therein that the employees who have completed 16 years of regular service in the grade are entitled to the benefit of the scheme with effect from 30.11.1983. Even though the opposite party had completed 16 years of regular service, he was not extended the benefit of the scheme and accordingly, he made several representations. One such representation dated 24.5.1987 addressed to the then Director General and Secretary, Telecommunications having been rejected by order dated 3.7.1990, he approached the Tribunal in O.A. No. 382 of 1990. The said Original Application was allowed in favour of the opposite party and the Department filed a review challenging the said judgment passed in the Original Application. The review was also dismissed and the matter was carried to the Hon'ble Supreme Court. The Civil Appeal filed by the Department was disposed of by the Hon'ble Supreme Court on 1.4.2003 quashing both the orders of the Tribunal passed in the Original Application as well as in the review petition. It appears that a contempt petition was filed by the opposite party before the Tribunal vide C.P. No. 56 of 2003 and during pendency of the said contempt petition, D.P.C. was convened. The recommendation of the D.P.C. was kept in the sealed cover considering the fact that the disciplinary proceeding started against the opposite party had resulted in major penalty of stoppage of promotion for a period of one year with immediate effect imposed by order dated 31.12.2003. The recommendation of the D.P.C. was kept in the sealed cover considering the fact that the disciplinary proceeding started against the opposite party had resulted in major penalty of stoppage of promotion for a period of one year with immediate effect imposed by order dated 31.12.2003. Challenging the said order of punishment, the opposite party again moved the Tribunal in O.A. No. 259 of 2004. The opposite party having not preferred an appeal against the order of punishment, the said Original Application was disposed of on 9.6.2004 permitting the opposite party to prefer an appeal by the end of June, 2004. However, because of certain observations made by the Tribunal in C.P. No. 56 of 2003, the opposite party again moved the Tribunal in O.A. No. 283 of 2004 for a direction to the Department to communicate the findings of the D.P.C. During pendency of O.A. No. 283 of 2004, the Department opened the sealed cover and by letter dated 20.5.2004 communicated the findings of the D.P.C. which had recommended that the opposite party is entitled to get the benefits under the OTBP Scheme with effect from 30.11.1983 and BCR Scheme with effect from 1.7.1991. In view of the above, O.A. No. 283 of 2004 was disposed of by the Tribunal on 16.6.2004 directing the Department to release the consequential benefits arising out of the D.P.C. recommendations in favour of the opposite party. The opposite party therefore on the basis of the orders passed by the Tribunal in the said Original Application and the findings of the D.P.C. in the present Original Application claimed that he is entitled for the benefit of promotion under the OTBP Scheme and under the BCR Scheme with effect from 30.11.1983 and 1.7.1991 respectively and not from 31.12.2004 and 1.1.2005 as have been allowed by order dated 19th February, 2005. The ground taken by the opposite party before the Tribunal was that the D.P.C. had considered the disciplinary action taken against him as well as the punishment and in view of such recommendation made by the D.P.C., he is entitled for such benefits. 3. The Petitioners, who were Respondents before the Tribunal resisted the petition. The ground taken by the opposite party before the Tribunal was that the D.P.C. had considered the disciplinary action taken against him as well as the punishment and in view of such recommendation made by the D.P.C., he is entitled for such benefits. 3. The Petitioners, who were Respondents before the Tribunal resisted the petition. It appears from the counter affidavit filed before the Tribunal that the sole ground taken before the Tribunal in the counter affidavit was that during currency of the punishment the opposite party could not have been given the benefits recommended by the D.P.C. The Tribunal in the impugned order found that when the D.P.C. considered the opposite party for promotion the proceeding had culminated, the recommendation of the D.P.C. had been kept in sealed cover. The D.P.C. having recommended for the benefits under both the Schemes with effect from 31.11.1983 and 1.7.1991 respectively, the opposite party is entitled to the same and could not have been extended the benefits as has been done by order dated 19th February, 2005 extending such benefits from 31.12.2004 and 1.1.2005 respectively. 4. Challenging the said order, the sole contention made before this Court by Shri P.N. Mohapatra, the learned Counsel appearing for the Petitioners is that by the time the opposite party was considered by the D.P.C, the departmental proceeding had culminated. In view of the above, recommendation of the D.P.C. was kept in sealed cover. After the disciplinary proceeding culminated, the opposite party was imposed punishment of stoppage of promotion for a period of one year with effect from 31.12.2003. Therefore, during currency of this punishment, the opposite party could not have been given the benefits as per recommendation of the D.P.C. The opposite party having been extended the benefits in terms of the recommendation of the D.P.C., after he suffered the punishment, he could not have any grievance and, therefore, the order of the Tribunal setting aside the order of the Divisional Engineer (P & A) dated 19th February, 2005 granting the benefits of OTBP with effect from 31.12.2004 and BCR with effect from 1.1.2005 is not sustainable. Shri Tripathy, the learned Counsel appearing for the opposite party submitted that in the earlier Original Application the Tribunal having directed to grant the benefits to the opposite party in terms of the recommendation of the D.P.C and the same having not been challenged, it is no more open for the Petitioners to say that the recommendation of the D.P.C. could be given effect to only after the period of punishment is over. 5. Undisputedly the opposite party had completed the required years of service for grant of benefits under both the Schemes. However, by the time his case was considered by the D.P.C, he has suffering the punishment in a disciplinary proceeding. Therefore, the recommendation of the D.P.C. was kept in sealed cover. In the departmental proceeding the opposite party was found guilty of the charges and the punishment of stoppage of promotion for a period of one year was passed as per order dated 31.12.2003. In view of the above, it was contended by Shri Mohapatra, the learned Counsel appearing for the Petitioners that during currency of the punishment such benefits recommended by the D.P.C. could not have been extended to opposite party No. 1. However, it appears that the opposite party had filed O.A. No. 283 of 2004 seeking for a direction to the present Petitioners to communicate the findings of the D.P.C. and during pendency of the said Original Application, the Department opened the sealed cover and vide letter dated 20.5.20004 communicated the findings of the D.P.C. indicating therein that the opposite party was entitled to get the benefits under the O.T.B.P. Scheme with effect from 30.11.1983 and under the B.C.R. Scheme with effect from 1.7.1991. The said Original Application was disposed of by the Tribunal on 16.6.2004 with direction to the Department Authorities to release the consequential financial benefits arising out of the D.P.C. recommendation in favour of the opposite party. This order of the Tribunal was challenged by the Department in Review Application No. 5 of 2004. The Tribunal having found that the opposite party had been granted the benefit under the OTBP Scheme with effect from 31.12.2004 and the benefit under the BCR Scheme with effect from 1.1.2005 following to the termination of the disciplinary proceeding, dropped the review application and observed that it is for the claimant-opposite party to work out the remedies by approaching the Tribunal again. For this observation made in the review application, the opposite party approached the Tribunal in the present Original Application claiming the benefits under the OTBP Scheme with effect from 30.11.1983 and under the BCR Scheme with effect from 1.7.1991 as recommended by the D.P.C. Therefore, the sole question before this Court is that whether during currency of the punishment, the opposite party is entitled to the benefits under the Schemes as recommended by the D.P.C. which had been kept in sealed cover. Reference in this connection is made to a decision to the Hon'ble Supreme Court in the case of Union of India Vs. K.V. Jankiraman, etc. etc., In paragraph 8 of the judgment the Court laid down the following point: It cannot be said 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. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. The officer cannot be rewarded by promotion as a matter of course even if penalty is other than that of the reduction in rank. An employee has no right to 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 clear and efficient administration and to protect the public interests. An employee found guilty of misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is 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 penalized in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date 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. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date 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 promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. The learned Counsel for the opposite party referred to two decisions of the Hon'ble Supreme Court in this connection. In the case of Bank of India and Another Vs. Degala Suryanarayana, the fact is completely different. In the said case when the D.P.C. considered the case of the Respondent therein, no departmental proceeding or criminal proceeding was pending against him. Therefore, the Court held that under such circumstances, the sealed cover procedure could not have been followed. The other decision relied upon by the learned Counsel is the case of Union of India and Another Vs. R.S. Sharma. In the said case the Court have only laid down the law where sealed cover procedure can be followed and we are of the view that it has no relevance for the purpose of this case considering the fact that by the time the D.P.C. considered the case of the opposite party, he had been punished in a departmental proceeding and, therefore, the present case is covered by the decision rendered by the Supreme Court in the case of Union of India v. K.V. Jankiram (supra). 6. Admittedly in the present case when the D.P.C. considered the opposite party for extension of benefits under the OTBP and BCR Schemes, the departmental proceeding had culminated and for the said reason, the recommendation of the D.P.C. had been kept in sealed cover. 6. Admittedly in the present case when the D.P.C. considered the opposite party for extension of benefits under the OTBP and BCR Schemes, the departmental proceeding had culminated and for the said reason, the recommendation of the D.P.C. had been kept in sealed cover. The Petitioner having been found guilty of the charge in the said disciplinary proceeding and punishment having been imposed, we are of the view that during currency of the punishment at least he is not entitled to the benefits under both the schemes even if he has been found fit by the D.P.C. for getting such benefits. The Department therefore rightly extended the benefits under both the schemes to the opposite party with effect from 31.12.2004 and 1.1.2005 respectively. 7. We, therefore, allow the writ application and set aside the impugned order. Final Result : Allowed