JUDGMENT
S. Narayan, Vice-chairman
1. This O.A. is directed against an office order dated 1.12.1998 (Annexure-1) issued by Administrative Officer, ILRI, Namkum, Ranchi (respondent no. 5), which is sought to be quashed. By this order, the applicant has been informed of the grounds for which the Departmental Promotion Committee did not recommend his name for promotion/upgradation from the post of Senior Clerk to the post of Assistant. The applicant has been also strictly warned by this order to improve his conduct towards his duties and not to repeat grave mistakes in future. This order was issued with the approval of the Director, ILRI, Namkum, Ranchi (respondent no. 4). The applicant has also prayed for quashing of the order dated 15.3.1999 (Annexure-5) of the respondent no. 5, whereby his representation was rejected. A relief by way of direction upon the respondents to consider the applicant’s case for promotion to the post of Assistant with
effect from 6.11.1998, that is, from the date his juniors had been promoted, has also been sought for.
2. The relevant facts are that the applicant was appointed to the post of Laboratory Assistant in the month of January 1963 and later, was promoted to the post of Junior Clerk in January 1970. He was subsequently promoted to the post of Senior Clerk in the year 1978 and he was still working as such. He had completed 21 years of service on the post in question. Be it also recorded here that he has been serving on the post in the Indian Lac Research Institute, Ranchi (for short “ILRI, Ranchi”). which is a unit of Indian Council of Agricultural Research (ICAR), New Delhi, The ICAR is governed by its own rules and bylaws for its functioning and it is a registered Society under Societies Registration Act, 1860, and is fully funded by Govt. of India.
3. In the backdrop of the above facts, it was further admitted that the ICAR, vide its letter No.15-8/98-Estt,I dated 2.9.1998, issued instructions for upgradation/promotion of every category of administrative staff functioning at I.L.R.I., Ranchi, through Departmental Promotion Committee (for short “DPC”). There was a meeting held by D.P.C. for recommendation of names for promotion/upgradation for Senior Clerk to the post of Assistant, wherein the applicant was also one of the candidates. There is no denial of the assertion made by the applicant that some of his juniors in the rank of Senior Clerks were promoted to the posts of Assistants with effect from 6.11.1998.
4. Since some juniors to the applicant were promoted to the post of Assistant, naturally, he approached the concerned respondent-authority in the matter and, thereupon, he was informed the grounds for not recommending his name for promotion, as contained in the impugned order dated 1.12.1998 (Annexure-1), already referred to above.
5. The primary question which arises for consideration is whether the impugned order dated 1.12.1998 (Annexure-1) was valid and sustainable in law. In case, it is found to be not sustainable in law, the applicant would be naturally entitled to the ultimate relief sought for by way of direction upon the respondents to consider his case for promotion to the post of Assistant from the date his juniors had been promoted.
6. For the sake of convenience, we find it useful to give an extract of the impugned order dated 1.12.1998 (Annexure-1), which is self-explanatory :
“Shri K.L. Chowdhary, Sr. Clerk is hereby informed that the DPC has not considered and recommended his case for promotion to the post of Assistant by upgradation on the following grounds :
1. He has himself involved in wrong and excess of claim of Scientists which has resulted in lodging a Court case by the Sr. Scientist (now retired) for which the Council has taken serious view and issued a letter No. 5/23/86-AU dated 3.7.96 instructing strict action against the person involved in the matter. A committee was constituted to investigate the matter and the committee found the lapses on your part as per their report dated 14.11.96.
2. He has himself involved in a police case under Code 107 and brought a bad name to the Institute.
According to above, his case has not been considered for promotion, and he is strictly warned to improve his conduct towards his duties and not to repeat such grave mistake in future.”
7. In the background of the pleadings, a plain reading of the above order depicts on the
record that the applicant has been denied promotion by way of supersession for two reasons, one being an adverse report dated 14.11.1996 submitted by the Committee investigating into over-payment of salary to one Senior Scientist and the other being, the applicant’s involvement in a police case under Section 107 of Criminal Procedure Code. By the impugned order, the applicant has also been strictly warned against grave mistake in future. Therefore, from any angle of view given to this order, it was apparently a punitive order, passed against the applicant. The punishment inflicted was not only that he has been deprived of promotion by superseding him against his juniors, but also by way of strict warning, more or less in the form of “Censure”.
8. In context of the nature of the impugned order (Annexure-1), as pointed out above, it was very much significant to note that before passing such a punitive order, the applicant had never been asked for through any show cause notice to explain his stand with regard to grounds which have been made basis to pass the order. Admittedly, there was no departmental proceeding initiated against him to defend himself against the so-called allegations levelled against him. This, in our view, would hit at the very root of the impugned order dated 1.12.1998 (Annexure-1).
9. Now, coming to the report dated 14.11.1996 of the Committee (Annexure-R-6), appended to the written statement of the respondents, we find that a Committee consisting three officials investigated into the case relating to drawal of two advance increments .in the salary of one a A.H. Naqvi, Senior Scientist, for the period from 1.1.1986 to 31.7.1995. The Committee examined three documents, for example, (i) personal file of Shri A.H. Naqvi, (ii) Service-Book of Shri A.H. Naqvi, and (iii) Pay Bill Register from the year 1989-90 to 31.7.1996. The investigation by the Committee was not by way of an open inquiry, that is to say, by way of recording evidence of any witness, or giving chance to the applicant or someone else involved in the matter to defend themselves. It appears to be a fact-finding investigation made by the Committee, Be that as it may, even the genuineness of this report dated 14.11.1995 (Annexure-R-6) has been very reasonably challenged on behalf of the applicant. Another photo copy of this report (Annexure-R-6) has been filed along with supplementary affidavit of the applicant. The concluding paras of the two copies available of the same report contradict each other. In order to substantiate the allegation of interpolations, the applicant’s side has drawn our attention to a copy of the said report filed and used by and on behalf of the present respondents, in yet another O. A. filed by above named A.H. Naqvi, which has been registered as O.A. 306/97 of this Tribunal. A copy of the same report filed in O.A. 306/97 tallies with the copy filed by the applicant along with his supplementary affidavit; and both these copies obliquely contradict the concluding para/report which has been filed and sought to be used by the respondents in the instant case.
10. In order to decipher interpolations made, it would be useful to give an extract, what appears on the copy of the report (Annexure-R-6) filed by the respondents in the instant case, which is as follows:-
“The committee considered it a serious lapse on the part of the Assistant who had prepared the Bill but he has already retired w.e.f. 31.7.89. and the present incumbent Sri K.L. Chowdhary, Sr. Clerk,”
Quite contrary to the above, the relevant extract in the other two copies of the same report, referred to above is as follows :
“The committee considered it a serious lapse on the part of the Assistant who had prepared the Bill but he has already retired w.e.f. 31.7.89.”
11. Therefore, it is apparent on the record that an endorsement, by way of interpolations, has been made to trap the direct involvement of the present applicant by super-addition of the words as “and the present incumbent Sri K.L. Chowdhary, Sr. Clerk”. Even if we exclude the super-addition/interpolations, we find that the Committee primarily held responsible for the lapse, the Assistant who had prepared the bill and who had already retired with effect from 31.7.1989. This would exonerate the present applicant, by and large, for the allegations or the lapses noticed by the Committee, as a result of the investigation.
12. Even assuming some part of the fact-finding of the Committee, as contained in Annexure-R-6, to be true one would be led to an impression that the excess billing or overpayment made to Shri A.H. Naqvi, Scientist, at the rate of Rs. 250/- per month, was on account of the fact that on implementation of the new pay-scale on revision, he was not supposed to ad hoc payment of Rs. 250/-per month to which he was earlier entitled to. By mistake, the pay bill for the period April to June 3989 was prepared by one Shri Musafir Singh, Assistant, incorporating ad hoc payment of Rs. 250/- per month. The said Musafir Singh retired from 31.7.1989 and, thereafter the applicant, who probably took charge from him, continued to prepare the bill as it used to have been earlier prepared by Shri Musafir Singh. It was quite probable that the Committee noticed lapse only on the part of Musafir Singh, who initiated the preparation of wrong bill and wanted to exonerate the subsequent incumbent to the post, that is, the applicant. We have noticed above that only by way of super-addition and interpolations, the applicant also has been involved to be responsible. In any view of the matter, this was a point for which sufficient opportunity ought to have been given to the applicant to explain the stand to defend himself, which has been, admittedly, not done in the instant case.
13. For the reasons aforesaid, the first ground for denying promotion to the applicant, as contained in the impugned order (Annexure-1) falls to the ground and the same was not sustainable in law.
14. The next one was the involvement of the. applicant in a police case under Section 107 of the Criminal Procedure Code. It appears that the respondents asked information from Namkum Police Station with regard to this case, in reply to which, the Police Station informed the respondents through Annexure-R-7 simply saying that the proceeding under Sections 107 Cr.P.C. and Section 116 Cr.P.C. bearing No. 36/98 and 52/98 was pending in between the present applicant and one C. Pandey. The respondents were advised by the latter to inquire further details from the Court of S.D.O. The respondents have further not given details with regard to these cases. In any view of the matter, the cases do not relate to any penal offence much less of moral turpitude. As submitted by the applicant, those cases were still pending and those were quite independent of service matter. We have been convinced in this regard that mere pendency of such proceedings, which has no connection with the discharge of official functions of the applicant, should not stand in the way of his career prospect in service.
15. Haying found above that both the grounds, as mentioned in the impugned order (Annexure-1) were not sustainable, we are of the view that those cannot be made grounds to deny promotion to the applicant while superseding his case against his juniors and also to issue strict warning in the form of “censure” as done in the case. In our considered opinion, the dossiers of Annual Confidential remarks of the applicant ought to have been duly considered by the D.P.C. to arrive at a conclusion whether the applicant was fit for promotion to the post of Assistant.
16. In the result, we have arrived at a definite conclusion that the instant case has sufficient merit to stand and, accordingly, this O.A. is allowed. The impugned order dated 1.12.1998 (Annexure-1) and also the order dated 15.3.1999 (Annexure-5) are hereby quashed. The respondent-authorities are directed to reconsider the applicant’s case for promotion to the post of Assistant with effect from the date his juniors had been promoted and, thereupon, to pass an appropriate order with utmost expedition and; preferably, within three months from the date of receipt of a copy of this order. There shall be no order as to costs.