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2016 DIGILAW 884 (ORI)

Jagannath Patra v. United Bank of India

2016-09-28

S.N.PRASAD

body2016
JUDGMENT : S.N. Prasad, J. The petitioner being aggrieved with the decision as taken under Annexure-3 dated 7.10.1997 whereby and where under the decision taken by the Departmental Promotion Committee has not been acted upon on the ground of penalty having been imposed upon him in consequence of conclusion of the departmental proceeding. 2. Fact of the case is that the petitioner while working as Junior Management Grade Scale-I Officer he was subjected to Departmental Promotion Committee for consideration of his promotion from Scale-I to Scale-II Officer. The meeting of the Departmental Promotion Committee was held in the month of December, 1993 but one memorandum of charge was served upon him on 16.3.1993 with respect to commission of some irregularities in discharging official duty. The D.P.C. has considered the case of the petitioner and kept the decision in sealed cover awaiting final outcome of the departmental proceeding and the departmental proceeding has ended in imposing punishment of reduction of basic pay by one stage lower in the existing scale of pay for one year as per the Annexure-2 annexed to the writ petition, the competent authority after considering the fact that the departmental proceeding has ended in punishment, decision taken by the Departmental Promotion Committee has not been acted upon. 3. According to the learned counsel for the petitioner, the decision taken by the authority in not acting upon the decision taken by the Departmental Promotion Committee (in short “D.P.C.”) is absolutely illegal, improper and unreasonable for the reason that the petitioner is subjected to double jeopardy, since he has been punished twice by reduction in pay scale by one stage lower in the departmental proceeding and another by depriving him from the benefit of promotion which is not permissible under the law. 4. Learned counsel representing the opposite party-Bank has submitted that the opposite parties have not committed any illegality rather they have acted in consonance with the legal proposition since the purpose of the sealed cover is to wait for the outcome of the departmental proceeding and if someone is found guilty either in departmental or judicial proceeding, the decision taken by the D.P.C. cannot be acted upon otherwise the whole purpose of the sealed cover will be frustrated. 5. 5. He further submits that no purpose will be served keeping the decision of D.P.C. pending, the purpose is to wait for the outcome of the departmental proceeding so that in the case of exoneration in the departmental proceeding or acquittal in the judicial proceeding, an employee may not be deprived from consideration of his case by the D.P.C., but however simultaneously the other purpose is also that in case of guilt having been proved either in departmental or judicial proceeding, the decision taken by the D.P.C. cannot be acted upon. He submits that there is no question of double jeopardy because not acting upon the decision of the D.P.C. cannot be said to be double jeopardy. 6. Having heard the learned counsel for the parties and from perusal of the material available on record, undisputed fact is that the petitioner while working as Junior Management Grade Scale-I was charged on 15.06.1993 for commission and omission in course of discharging official duty for which memorandum of charge has been served upon him. The petitioner has participated in the departmental proceeding and in course thereof since the petitioner has found to be eligible to get promotion from Junior Management Grade Scale-I officer to Middle Management Grade Scale-II, hence he has been allowed to appear in the departmental Promotion Committee for consideration of his case for promotion. The D.P.C. has kept the decision of promotion of the petitioner in sealed cover on the ground of pendency of a departmental proceeding. 7. The departmental proceeding has been culminated and concluded against the petitioner in which charge has been found to be proved which has been accepted by the disciplinary authority, the order of punishment has been passed to the effect that reduction of basic pay by one stage lower in the existing scale of pay for one year as per the Annexure-2 annexed to the writ petition. 8. The opposite party-Bank has not acted upon the decision of the D.P.C. kept in the sealed cover which has been communicated to him vide Annexure-3 which is impugned in this writ petition. 9. So far as legal proposition is concerned, the concept “sealed cover” for the first time has elaborately discussed by the Hon’ble Supreme Court in the case of Union of India vrs. 9. So far as legal proposition is concerned, the concept “sealed cover” for the first time has elaborately discussed by the Hon’ble Supreme Court in the case of Union of India vrs. K.V. Janakiraman whereby and where under the Hon’ble Supreme Court while deciding the issue considering the fact that in case of any departmental proceeding or judicial proceeding ended in exoneration or acquittal, then the concerned employee may not suffer the concerned employee even though senior to other employees may not be made to suffer from his juniors, as such the concept of sealed cover has been given in that judgment whereby and where under it has been directed that since the right to consideration for promotion to higher post is a Fundamental Right and as such it cannot be taken away who is eligible to be considered for promotion to the higher post and only on the ground of pendency of departmental or judicial proceeding has to be considered that decision of the D.P.C. is to be kept in the sealed cover and the moment the concerned employee will be exonerated in the departmental proceeding or acquitted in the judicial proceeding, the decision kept in sealed cover vide decision of D.P.C. will have to be implemented w.e.f. the date when the other persons have been granted promotion by the said decision so that the concerned employee may not suffer from the other whose case has been considered along with him. 10. The other purpose for keeping the decision in sealed cover that in case the concerned employee is found to be guilty either in the departmental or judicial proceeding, the disciplinary authority will not act upon the decision of the D.P.C. Elaborate discussion has been made by the Hon’ble Supreme Court in the case of Union of India vrs. K.V. Jankiraman reported in AIR 1991 SC 2010 at para-6, 7, and 8, which is being reproduced herein below for ready reference:- “6.. xxx xxx it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. 7. xxx xxx it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. 7. when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post. 8. xxx xxx the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for 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 clean and efficient administration and to protect the public interest. An employee found guilty of a 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 penalised 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. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a 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.” After considering the ratio laid down by the Hon’ble Supreme Court which still holds good, the case of the petitioner is to be considered in the light of the said legal proposition and there is no dispute about the fact that the petitioner was charge-sheeted on 15.03.1993, the D.P.C. was held in the month of December, 1993, hence as on date of commencing of the Departmental Promotion Committee, a departmental proceeding was initiated against the petitioner which has ended in punishment. 11. Accordingly, the opposite party-Bank has passed the order as contained in Annexure-3 communicating the petitioner that decision of the D.P.C. is not subjected to be acted upon for the reason that he has already been punished in the departmental proceeding. 12. After discussing in detail the ratio laid down as above, in my considered view there is no infirmity in the decision taken by the opposite party-Bank. 13. So far as the contention of the learned counsel for the petitioner that it is a case of double jeopardy, the same has got no force for the reasons that not acting upon the recommendations of the D.P.C. is necessary consequence of the conduct as to while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, however, the promoting authority can take into consideration the penalties or penalty award while considering the promotion and takes his promotion on the ground that it will be irrational to hold that it cannot take penalty into consideration when it is imposed at later date because of pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. Taking into consideration, there is no question of applicability of principle of double jeopardy. Accordingly, the writ petition is dismissed.