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2025 DIGILAW 191 (KER)

UNION OF INDIA v. K. ACHUTHAN NAIR ((died))

2025-02-05

AMIT RAWAL, K.V.JAYAKUMAR

body2025
JUDGMENT : K.V.JAYAKUMA R, J. The present O.P.(CAT) is preferred against the order of the Central Administrative Tribunal in O.A.No.90/2013 dated 25.08.2016, whereby the claim of the respondents-applicants was allowed. 2. The facts necessary for disposal of the controversy are enumerated hereunder: First respondent – applicant was an employee of the Central Excise Department. During the pendency of the Original Application, the original applicant, K.Achuthan Nayar died and his legal heirs were impleaded in the party array, as per the order in the Miscellaneous Application No.937/2016. K.Achuthan Nair, the first applicant, approached the tribunal for a declaration that, he is entitled to get notional promotion with effect from the date on which his juniors were promoted to the grade of Assistant Commissioner and then to Joint Commissioner and also sought for a direction to grant arrears of salary in the higher post. 3. K.Achuthan Nayar was promoted as Appraiser on 30.01.1985 and regularized with effect from 01.04.1989. The applicant was granted ACP in 2001 with effect from 09.08.1999 and promoted as Appraiser on 30.01.1985. On completion of eight years, the applicant became eligible to be promoted as Assistant Commissioner. His juniors Sri.Phalgunan and Chandramouli were promoted as Assistant Commissioners in the year 1997. Chandramouli was again promoted as Joint Commissioner in 2007. 4. There were a disciplinary proceedings and Rule 27(2) proceedings under the Central Civil Services (Classification, Control & Appeal) Rules, 1965 against the deceased applicant, and thus, he was not considered for promotion till the matter was culminated by Annexure A8 order passed by the Central Administrative Tribunal on 15.11.2011. The applicant contended that after completion of the disciplinary proceedings, the department was bound to follow sealed cover procedure, and after the culmination of the inquiry, the applicant was entitled to be promoted. 5. The petitioners/respondents resisted the claim of the 1 st applicant contending that, disciplinary proceedings were initiated against late Achuthan Nayar while he was working as an Appraiser. The allegation against him was that, he attempted to plant a non- existing informer with a malafide intention of appropriating the reward amount of Rs.87,00,000/-, which would have been disbursed to the non-existing informer. Further allegation was that, he exceeded the jurisdiction of his official work and actively engaged in anti smuggling work, like patrolling in the sea. It was found by the Inquiry Officer that charge No.1 was proved against the 1 st applicant. Further allegation was that, he exceeded the jurisdiction of his official work and actively engaged in anti smuggling work, like patrolling in the sea. It was found by the Inquiry Officer that charge No.1 was proved against the 1 st applicant. Thereafter the disciplinary authority imposed a penalty of reduction of pay from Rs.8100/- to 6500/- in the pay of Rs.6500-200-10500 for a period of one year, with a further direction that, he will not earn any increment of pay during the said period. When appeal was preferred by the original applicant, the appellate authority imposed a penalty of dismissal from service. 6. The 1 st applicant challenged the before the tribunal and also before this Court. 7. This Court vide judgment dated 20.12.2006 in W.P.(C)No.25841 of 2006, upheld the order of the tribunal, with a direction to complete the proceedings within a period of four months. As per the order of this Court, the penalty of reduction in pay for a period of one year was set aside by the appellate authority. 8. After several rounds of litigation between the parties, in O.A.No.852 of 2011, the Central Administrative Tribunal set aside all the proceedings and restored the original minor penalty which was imposed on 09.05.2001. 9. On 18.05.2012, the deceased – applicant submitted a representation requesting to revise all his service benefits. Vide Annexure A20 order passed by the petitioners/respondents on 28.02.2013, the deceased applicant was re-instated into service with a direction that the applicant shall be paid full pay and allowances for the period from 15.05.2005 to 18.06.2007 and from 07.05.2008 to 22.03.2010, for which he would have been entitled had he not been dismissed from the service. As per Annexure A20 order, the period of his absence from duty due to the dismissal was considered as his duty and has also been granted the benefit of ACP Scheme. 10. The Central Administrative Tribunal, noticing the rival contentions of the parties, disposed of all the original applications with a direction to grant notional promotion to the deceased applicant, as if he was in service on the date when his immediate junior was granted promotion as Assistant Commissioner and later as Joint Commissioner. 11. The learned counsel for the first applicant supported the order of the Central Administrative Tribunal. 12. 11. The learned counsel for the first applicant supported the order of the Central Administrative Tribunal. 12. On the other hand, learned Central Government Counsel, Sri.T.V.Vinu, submitted that the impugned order of the tribunal is patently illegal and unsustainable. Learned Central Government Counsel submitted that the tribunal has failed to appreciate that as per DoPT O.M. No.22011/5/86 (D) dated 10.04.1989, while promotions will be made in the order of the consolidated list, such promotion will have only prospective effect even in cases where the vacancies relate to earlier years. 13. We have heard the rival contentions of the learned counsel for the parties and appraised the paper books. 14. The tribunal noticing the prolonged legal battle between the deceased applicant and the department with respect to the initiation of the disciplinary proceedings, his dismissal from service for more than two occasions and subsequent reinstatements, also considering the fact that his juniors were promoted to the posts of Assistant Commissioner and Joint Commissioner, held that the deceased applicant was also entitled to get notional promotion, as if he was in service, when his immediate junior was granted promotion. The relevant paragraphs of the order in the Original Application are extracted hereinbelow: “7. If the applicant was under cloud of doubt at the relevant time when DPC was convened then sealed cover procedure should have been followed. There is no case for the respondents that there was any other legal inhibition granting promotion to the applicant. See also Annexure A8 order passed by this Tribunal on 5.11.2011. It was only because the applicant had chosen to file appeal against the order passed/penalty initially imposed on the applicant. Therefore, the penalty initially imposed by the disciplinary authority awarding reduction to the minimum of the pay scale for a period of one year was restored. When that is the position, as has been said even in Annexure A20, the deceased applicant must be deemed to have been in service and the period shown therein should be treated as period spent on duty and accordingly the deceased applicant was entitled to get promotion to the next higher post, as was given to his two immediate juniors. 8. It is not disputed that applicant was promoted as Appraiser on 30.1.1985. On completion of eight years of service, he was eligible to be promoted as Assistant Commissioner. 8. It is not disputed that applicant was promoted as Appraiser on 30.1.1985. On completion of eight years of service, he was eligible to be promoted as Assistant Commissioner. Shri Chandramouli was junior to the deceased applicant in the cadre of Appraiser who was promoted as Assistant Commissioner in 1997. That Chandamouli was again promoted as Joint Commissioner in 2007. It was only due to the pendency of the disciplinary proceedings and proceedings under Rule 27(2) of CCS (CCA) Rules, the deceased applicant was not considered for promotion till the matter was culminated by Annexure A8 order of this Tribunal. Therefore, the deceased applicant was entitled to get notional promotion with effect from the date on which his junior in the grade of Appraiser; namely Shri Chandramouli was promoted. Consequently the deceased applicant would be entitled to get further promotion as Joint Commissioner in the next hierarchical scale as pleaded by the deceased applicant. 9. If a penalty is imposed on a government servant based on disciplinary proceedings, the sealed cover procedure has to be adopted. After the penalty period the sealed cover is to be opened and acted upon as per the rules. His case for promotion is to be considered by the next DPC in the normal course and having regard to the penalty imposed on him. Since the deceased applicant Achuthan Nair was found guilty in the inquiry and was imposed a penalty of reduction in pay for one year and that stood restored as per the order passed by the Tribunal in Annexure A8, the deceased applicant was very much available to be considered for promotion. It is contended that in view of the order passed under Annexure A8 the deceased applicant accepted the original minor penalty imposed by the respondents authority. Since even as per Annexure A20 the applicant was granted all other benefits, it has to be held that the applicant was for all practical purposes entitled to get promotion to the next higher post when his immediate junior Shri Chandramouli in the list was promoted as Assistant Commissioner and later as Joint Commissioner. 10. Since even as per Annexure A20 the applicant was granted all other benefits, it has to be held that the applicant was for all practical purposes entitled to get promotion to the next higher post when his immediate junior Shri Chandramouli in the list was promoted as Assistant Commissioner and later as Joint Commissioner. 10. Since the penalty initially imposed by the disciplinary authority is restored on completion of the period of one year, he should be restored to the original position and as such the deceased applicant was entitled to be considered for promotion on the dates when his immediate junior was considered and granted promotion as Assistant Commissioner and later as Joint Commissioner. But it is made clear that the applicants 2 to 4 are not entitled to get any arrears of pay consequent to the notional promotion of the deceased applicant, but the applicants 2 to 4 would be entitled to get only notional fixation benefit which will have a bearing on the computation of retiral benefits/pension applicable to the deceased applicant. The pension payment order has to be revised accordingly. 11. In the result this OA is disposed of directing the respondents to grant notional promotion to the deceased applicant as if he was in service as on the date when his immediate junior was granted promotion as Assistant Commissioner and later as Joint Commissioner. It is made clear that the deceased applicant would not have been entitled to get arrears of salary had he been alive and consequently the additional applicants 2 to 4 will not be entitled to get arrears of pay/salary because of the notional fixation ordered to be done. The aforesaid notional promotion and fixation of pay will be counted for re-fixing the pension/retiral benefits due to the deceased applicant Achuthan Nair. Since Achuthan Nair died subsequently the family pension would also have proportionate change in tune with the pension amount to be consequently fixed. The aforesaid direction shall be complied with within a period of two months from the date of receipt of a copy of this order. No order as to costs.” Upon hearing the submissions of the counsel for the parties and on perusal of the paper books, we do not find any illegality or perversity, much less fallacy in the order of the Central Administrative Tribunal. We are in agreement with the reasoning of the Central Administrative Tribunal. No order as to costs.” Upon hearing the submissions of the counsel for the parties and on perusal of the paper books, we do not find any illegality or perversity, much less fallacy in the order of the Central Administrative Tribunal. We are in agreement with the reasoning of the Central Administrative Tribunal. No good ground for interference is made out. O.P.(CAT) fails and thus dismissed.