PETITIONER: SMT. SUDHA SHRIVASTAVA Vs. RESPONDENT: THE COMPTROLLER AND AUDITOR GENERAL OF INDIA DATE OF JUDGMENT08/11/1995 BENCH: KIRPAL B.N. (J) BENCH: KIRPAL B.N. (J) KULDIP SINGH (J) AHMAD SAGHIR S. (J) CITATION: 1996 AIR 571 1996 SCC (1) 63 JT 1995 (9) 358 1995 SCALE (6)449 ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
Kirpal.J.
Leave granted.
The only question which arises for consideration in
this appeal is whether the heir of a civil servant who was
prosecuted in a court of law but was ultimately acquitted,
though by that time he had died, can be permitted to
continue the proceedings before the court and claim the
grant of retrospective promotion to the deceased and the
consequential monetary benefits.
The husband of the appellant, S.S. Shrivastava was a
member of the Indian Audit and Accounts Services (Class-I).
During the period 1964-69, he was working as a Financial
Adviser to the River Valley Project Department under the
State of Bihar. After the general elections of 1969, a
Commission of Enquiry was set-up to enquire into the alleged
misdeeds of some of the Ministers in the erstwhile
Government. After the receipt of the report, the said S.S.
Shrivastava along with the concerned minister and the Chief
Administrator of the River Valley Project was prosecuted
under the Prevention of Corruption Act. The Special Judge
convicted S.S. Shrivastava and sentenced him to simple
imprisonment of two years and a fine of Rs.10,000/-. An
appeal was preferred by S.S. Shrivastava, but during the
pendency of the appeal before the High Court of Patna, he
expired. On an application being made, the appellant as late
Shri S.S. Shrivastava’s heir was permitted to be substituted
in the proceedings. Ultimately, by judgment dated 13.4.1983,
the said appeal was allowed and the conviction and sentence
were setaside.
The appellant, thereafter sent representations to the
State claiming retrospective promotion and consequential
benefits to her husband, but by order dated 10.7.1987, the
said claims were rejected.
The appellant, thereafter filed proceedings before the
central Administrative Tribunal, Patna Bench, Patna. The
case of the appellant was that her husband was due for
promotion to the post of Accountant General (Grade-II) in
October, 1973 and to that of Accountant General (Grade-I) in
October, 1981 and he would have been so promoted but for the
criminal proceedings and, as such, it is only just and
proper that such promotions be sanctioned and the monetary
value of the same be paid to the appellant.
The respondent contested the application. Apart from
raising the plea that the said application was barred by
time, it was also contended that the same was not
maintainable as the claim of service was purely personal to
the appellant’s husband and no sum could be paid on the
basis of deemed promotion to the appellant. During the
pendency of the proceedings, the respondent had agreed to an
order dated 29.6.1984, being passed by the Central
Administrative Tribunal, whereby, as a special case, an
amount of Rs.90,000/- was allowed to the appellant towards
the expenses incurred by the deceased in connection with the
criminal proceedings.
With regards to the merits of the claim, the case of
the respondent, before the Tribunal, was that the deceased
had been considered for promotion to the post of Accountant
General (Grade-II) in October, 1973, but as his conduct was
under investigation before the court of law, “sealed cover”
procedure was followed and if he had been alive when the
judgment of acquittal was pronounced, only then, he could
have had the benefit of the seniority and fixation of pay,
on notional basis, but even he would not have been entitled
to the arrears of pay. The other claim with regard to the
encashment of leave was refuted by the respondent with the
contention that no earned leave was there to the credit of
the appellant’s husband and the leave taken by him for
defending the criminal proceedings could not be encashed.
The Tribunal vide its judgment dated 5.10.1989 rejected
the application of the appellant by holding that the right
for enforcement of promotion accrued only on the acquittal
of the appellant’s husband and as before such acquittal he
had died, then this personal right of enforcement of
promotion did not actually accrue and, therefore, nothing
survived to his legal heirs. In coming to this conclusion,
the Tribunal was of the view that a civil servant could not
claim promotion as of right and any benefit which would have
arisen as a result of the promotion could only have accrued
to the officer himself and not to his legal heirs, if he had
died before the judgment for acquittal was delivered. The
Tribunal also came to the conclusion that the application
was barred by limitation. It found that after the acquittal
of appellant’s husband, a representation claiming the
benefits was submitted by the appellant in January, 1984
which was followed by a reminder in April, 1984 but by
letter dated 29.6.1984, the representation was rejected. The
mere fact that the appellant received a letter dated
10.7.1987 rejecting her fresh application dated 4.3.1987
could not, it was held, give her a resh cause of action and
the period of limitation had to be reckoned from 29.6.1984.
Therefore, the application which was filed before the
Tribunal in May, 1988 was barred by limitation as well.
During the hearing of this appeal, the only contention
which has been raised was with regard to the admissibility
of the claim of the appellant on merits and no contention
was raised and the case proceeded on the basis that the
application filed before the Tribunal by the appellant was
within limitation. We, therefore, proceed to examine the
rival contentions on the merits of the claim.
According to the appellant, her husband was due for
promotion to the post of Accountant General (Grade-II) in
the pay-scale of Rs.2,250-2,500 in October, 1973.
Admittedly, a “sealed cover” procedure in respect thereof
was followed. Thereafter according to the appellant, her
husband would have become entitled to promotion to the post
of Accountant General (Grade-I) in October, 1981 which was
in the pay-scale of Rs.2,500-2,750/-. The husband of the
appellant died in October, 1981 and her submission was that
his service record and Confidential Reports were very good
and, but for the criminal proceedings which were pending, he
would have been promoted in his turn. This Court in Union of
India v. K.V. Jankiraman, (1991)4 SCC 109 has held that when
the “sealed cover” procedure is followed and the sealed
cover is opened on the complete exoneration of the employee
from all the charges, then notional promotion is to be given
to him from the date when his juniors were promoted. Arrears
of salary could be granted from the date of the notional
promotion having regard to the circumstances of the case. In
this connection, it was observed as follows:
“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 clearnce 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 complete, 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 n every
case when an employee is exonerated in
disciplinary/criminal proceedings he should be entitled
to all salary for the intervening period is to
undermine discipline in the administration and
jeopardize public interest. 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 (iii)
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 officers 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.”
The claim of the appellant was rejected by the Tribunal
primarily on the ground that the right to promotion was a
personal right and the heirs of the deceased have no right
to make only claim in regard thereto. The Tribunal fell in
error inasmuch as the process for promotion to the post of
Accountant General (Grade-II), regarding late S.S.
Shrivastava had already been undertaken and the “sealed
cover” procedure followed. Whatever the rights the deceased
had, as a result of this “sealed cover” the procedure having
been followed, stood established as on that date. Along with
the right to work in the higher post, if he was to be
promoted, he would have also got a right to salary in the
higher scale. The effect of the acquittal of the appellant’s
husband must be regarded as if he had been wrongly
convicted. He, therefore, would have had a right to have
been placed in the higher scale of pay, if he had been
selected for promotion and this is a right which would
devolve on the legal heirs, if during the pendency of the
proceedings, the said employee expired.
It will be useful at this stage to refer to the case
Rameshwar Manjhi v. Management of Sangramgarh Colliery,
(1994)1 SCC 292. In that case, during the adjudication of
dispute relating to the termination of a workman, the said
workman died and a question arose whether the heirs and
legal representatives of the deceased workman were entitled
to continue with the proceedings for adjudication. While
upholding the right of the heirs and legal representatives
to continue with the proceedings for adjudication, it was
observed as follows:
“It is thus obvious that the applicability of the maxim
`action personalize moritur cum persona’ depends upon
the `relief claimed’ and the facts of each case. By and
large the industrial disputes under Section 2-A of the
Act relate to the termination of services of the
concerned workman. In the event of the death of the
workman during pendency of the proceedings, the relief
of reinstatement, obviously, cannot be granted. But the
final determination of the issues involved in the
reference may be relevant for regulating the conditions
of service of the other workmen in the industry.
Primary object of the Act is to bring industrial peace.
The Tribunals and Labour Courts under the Act are the
instruments for achieving the same objective. It is,
therefore, in conformity with the scheme of the Act
that the proceedings in such cases should continue at
the instance of the legal heirs/representatives of the
deceased workman. Even otherwise there may be a claim
for back wages or for monetary relief in any other
form. The death of the workman during pendency of the
proceedings cannot deprive the heirs or the legal
representations of their right to continue the
proceedings and claim the benefits as successors to the
deceased workman.”
Just as a legal representatives of the workman could
claim back wages or any other monetary relief which would
had ensued to the deceased workman, similarly, in the
present case, the right to get the benefits, which would
have been due to the appellant’s husband as a result of the
“sealed cover” procedure, would devolve on the appellant.
The sealed cover will have to be opened and if it transpires
that he was fit for promotion, then, he is to be deemed to
have been promoted to the post of Accountant General (Grade-
II) in the pay scale of Rs.2,250-2,500/- and, thereafter, he
is also have to be considered for promotion to the post of
Accountant General (Grade-I) in the higher scale of
Rs.2,500-2,750. It is not in dispute that this procedure
would have had to be followed if the husband of the
appellant had been alive when the High Court delivered the
judgment, setting-aside the conviction.
Even otherwise, if the husband of the appellant was not
to be promoted, he would certainly be entitled to receive
salary in the lower poor till the date of his death in
October, 1981. In Jankiraman’s case (supra), it was observed
by this Court that when an employee is completely * and is
not visited with penalty, then he has to be given the
benefit of salary of the higher post along with the other
benefit on the date on which he would normally have been
promoted but for the disciplinary/criminal proceedings.
Moreover, this is not a case where the acquittal of the
deceased was as a result of his being given the benefit of
doubt or on account of non-availability of evidence. In the
instant case, the High Court has held, while allowing the
criminal appeal and setting-aside the conviction that “one
cannot but hold that late S.S. Shrivastava had not done
anything, which would justify a charge of corruption against
him, much lese a charge of conspiracy”.
For the aforesaid reasons, this appeal is accordingly,
allowed. The order dated 5.10.1989, passed by the Central
Administrative Tribunal, Patna Bench, Patna is set-aside and
the respondent is directed to open the sealed cover and to
give to the appellant all the benefits in the light of the
observations made in the judgment. The needful should be
done within three months from the date of this order. The
appellant will also be entitled to costs.