In Board of Trustee for the Port of Calcutta & Anr. Vs. Samir Patra, The proceeding before the learned Judge arose in the following way. On 5th June, 1987 an order of suspension was passed by the appellant authority against the respondent on the charge of dishonesty and financial irregularities causing huge loss to it. He was suspended from 6th June, 1987 till 10th September, 1991. On 7th October, 1987 a charge-sheet was issued against him. The memorandum of charges was amended on 15th February, 1988. On 15th January, 1991 the enquiry proceeding was completed.
From 1991, it took the appellant authority five years to pronounce the final order in the disciplinary proceedings. This final order was pronounced on 18th September, 1996. The respondent was held guilty. One increment of the respondent was withheld for four years having the effect of postponing future increments. The period of suspension was treated as having been spent on duty by the respondent.
The respondent appealed before the appellate authority. On 1st April, 1997 the authority more or less affirmed the order of the disciplinary authority with the modification that the next increment would be postponed by 4 years but without postponing the future increments. In other words, withholding of increments did not have any cumulative effect. Meanwhile the respondent who was working in the post of a lower division clerk, at the time of suspension, became eligible for promotion to the post of an Upper Division Clerk on 23rd September, 1993. It was a non-selection post. The respondent's promotion was withheld.
On 21st May, 1994 the written test was taken for selection and/or promotion to the post of Calculator, a selection post. On 8th June, 1994, the interview was taken. On 13th June, 1994, a panel of selected candidates for promotion to this post was published. As disciplinary proceedings against the respondent were pending his results were kept in a 'Sealed Cover' to be opened after they were over.
Finally on 9th January, 2001, the respondent was promoted to the post of Upper Division Clerk on completion of the punishment period or the period during which his increment was withheld, i.e. four years. The respondent was aggrieved by this decision. He filed the instant writ application in this Court.
The court held that the root case on the subject is Union of India Vs. K. V. Jankiraman reported in AIR 1991 SC 2010.
The law is this. An employee may be due for promotion when disciplinary proceedings are started or continuing against him. He is not considered for promotion till the conclusion of the disciplinary proceedings. This is so because the law discourages promotion and punishment at the same time. If the employee's promotion is to take place almost automatically, through a non-selection procedure, then that promotion is not granted to him. It is kept in abeyance. If the employee's promotion is through selection then he is allowed to write the written test and take part in the interview but the results are kept in a 'Sealed Cover' till the conclusion of the disciplinary proceedings.
If in the disciplinary proceedings that employee is exonerated on merits, his case for non-selection promotion may be considered right from the time he was due for promotion. In that event, upon promotion he gets the difference of pay for the entire period, that is, for the time he was due for promotion and when he actually gets it. If the candidate succeeds in the selection process, upon opening of the 'Sealed Box' on conclusion of the disciplinary proceedings, examination of the answer scripts and assessment of his interview results, he is similarly considered for promotion.
Then there are cases when the employee may be exonerated on a technical ground. There may be an occasion when he may be exonerated from the heavier charges but found guilty of the lighter ones. Like the case of the respondent here. In that event the promotion committee considers his promotion, judiciously. In those cases, the employee does not get promotion with retrospective effect. Usually, his promotion from the date of conclusion of the disciplinary proceeding or its denial is considered. In the case of Janakiraman it was held that when an employee was held guilty and penalised, at least till the date on which he was penalised his promotion could be withheld. He could not be said to have been subjected to a further penalty or double jeopardy on that account. The Supreme Court felt that denial of promotion was not another penalty but a necessary outcome of the employee's conduct.
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