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2021 DIGILAW 641 (GAU)

Pradip Timung v. State of Assam

2021-10-29

SANJAY KUMAR MEDHI

body2021
ORDER : Sanjay Kumar Medhi, J. 1. Heard Shri UK Nair, learned Senior Counsel for the petitioner. Also heard Shri SS Roy, learned State Counsel, Assam for the official respondents. 2. Considering the subject matter and also the fact that pleadings have been exchanged, this writ petition is taken up for disposal at the admission stage. 3. The petitioner is aggrieved by not promoting him to the rank of ACS Senior Grade-II w.e.f. 31.12.2015 and to the subsequent higher grades with effect from the date when his contemporaries/juniors were promoted and also by the notification dated 22.01.2020 whereby he has been given promotion to the cadre of ACS Senior Grade-II with prospective effect. 4. The petitioner is an ACS Officer. While discharging his duty, the petitioner was arraigned as an accused in Diphu PS Case No. 119/2015 whereupon the petitioner was placed under suspension w.e.f. 02.07.2015. After completion of the investigation, a final report was submitted in which the petitioner was discharged. As regards the disciplinary proceeding, after the development in the investigation and the criminal case, the charges levelled against him in the disciplinary proceedings were also dropped and the period of suspension was treated to be on duty for all purpose and accordingly, the petitioner was reinstated in service. 5. In the meantime, the promotional exercise was conducted in which the contemporaries and juniors of the petitioner were considered and promoted to the rank of ACS Senior Grade-II and to subsequent higher posts. However, due to the pendency of the criminal case as well as disciplinary proceeding, the case of the petitioner was put in a 'Sealed Cover'. After the aforesaid development wherein the petitioner was exonerated of all the charges, both in the criminal case as well as in the departmental proceeding, the case of the petitioner was taken up for consideration and it was found that the Karbi Anglong Autonomous Council (KAAC) under which the petitioner was serving did not submit the Annual Confidential Reports (ACR) for the period 2011-12, 2012-13, 2013-14 and 2014-15 and it is for that reason that the promotion could not be granted. Subsequently, vide a notification dated 22.01.2020, the petitioner has been promoted to the rank of ACS Senior Grade-II, however, with prospective effect only. Subsequently, vide a notification dated 22.01.2020, the petitioner has been promoted to the rank of ACS Senior Grade-II, however, with prospective effect only. The petitioner contends that because of no fault of his, he has been denied his promotion from the date when his contemporaries/juniors were promoted to the higher rank and consequently to the other promotional exercise carried out thereafter. 6. The learned Senior Counsel, Shri Nair has contended that it is not a case where the petitioner has been acquitted on the benefit of doubt after the trial and the records would reveal that even materials could not be gathered to frame a charge against the petitioner in the investigation itself. The disciplinary proceedings were also dropped and the petitioner was exonerated of all the allegations. Under such facts and circumstances, to deny the petitioner the benefit of promotion from the initial date would amount to grave injustice. 7. In support of his submissions, Shri Nair has relied upon a decision of the Hon'ble Supreme Court in the case of Union of India Vs. Jankiraman, reported in AIR 1991 SC 2010 . The learned Senior Counsel has submitted that the Hon'ble Supreme Court in an unequivocal terms has laid down that when an employee is completely exonerated 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 other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. The Hon'ble Supreme Court has, however, given a caveat that the cases would be different where the delay in the disciplinary or criminal case is at the instance of the employee or the acquittal in the criminal proceeding is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee. The learned Senior Counsel submits that the facts of the present case are squarely covered by the ratio laid down by the Hon'ble Supreme Court in the aforesaid case of Jankiraman (supra). 8. Shri SS Roy, learned State Counsel, however, submits that keeping the case of the petitioner under sealed cover is the prescribed procedure in a situation when a criminal case or a disciplinary proceeding is contemplated against the petitioner. 8. Shri SS Roy, learned State Counsel, however, submits that keeping the case of the petitioner under sealed cover is the prescribed procedure in a situation when a criminal case or a disciplinary proceeding is contemplated against the petitioner. The learned State Counsel, however, fairly submits that non-consideration for promotion of the petitioner on the ground of non-furnishing of the ACRs by the appropriate authority, namely, KAAC would be a factor for which the petitioner cannot be faulted with. Shri Roy, learned State Counsel, however, submits that the petitioner would be at best entitled for a direction for giving the notional benefits to the promotion made vide the notification dated 22.01.2020 to be given retrospective effect from the date when such promotion to Senior Grade-II was given effect to i.e., 31.12.2015. The learned State Counsel submits that only on exceptional cases, the employee would be entitled to the salary and the case of Jankiraman (supra) of the Hon'ble Supreme Court has to be read along with the facts of the said case. 9. At this stage, it could be relevant to refer to the case of Jankiraman (supra) wherein the Hon'ble Supreme Court had laid down the following: "We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases. 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 concerned authorities 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 from 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 (i) of paragraph 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 concerned authority 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." To this extent we set aside the conclusion of the Tribunal on the said point." 10. After considering the rival submissions, this Court is of the unhesitant opinion that the primary contention of the petitioner to give retrospective effect to the promotion given vide the notification dated 22.01.2020 to the rank of ACS Senior Grade-II w.e.f. 31.12.2015 appears to be reasonable. After considering the rival submissions, this Court is of the unhesitant opinion that the primary contention of the petitioner to give retrospective effect to the promotion given vide the notification dated 22.01.2020 to the rank of ACS Senior Grade-II w.e.f. 31.12.2015 appears to be reasonable. The further contention that once such promotion is given effect to from 31.12.2015, the petitioner would also be entitled to be considered for promotion to the next higher grades with effect from the date when his contemporaries/juniors were promoted is also accepted by this Court. As regards the claim for salaries, this Court is of the opinion that the broad parameters laid down by the Hon'ble Supreme Court in the case of Jankiraman (supra) are apparently met by the petitioner in the present case. Therefore, with regard to the said aspect for payment of the salaries for the said period, this Court directs the authorities to consider the said prayer of the petitioner in the lines of the guidelines and parameters laid down by the Hon'ble Supreme Court in the case of Jankiraman (supra). 11. To facilitate such consideration, the petitioner may file adequate representation claiming the salaries for the aforesaid period which would be considered by the authorities by due application of mind and by passing a speaking order within a period of 45 days from the date of receipt of the representation. 12. It is made clear that the directions regarding giving retrospective benefits to the promotion of the petitioner to the rank of ACS Senior Grade-II and subsequent higher posts be completed within the aforesaid period of 45 days.