{"id":120314,"date":"1995-11-08T00:00:00","date_gmt":"1995-11-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-sudha-shrivastava-vs-the-comptroller-and-auditor-on-8-november-1995"},"modified":"2016-06-09T08:31:08","modified_gmt":"2016-06-09T03:01:08","slug":"smt-sudha-shrivastava-vs-the-comptroller-and-auditor-on-8-november-1995","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-sudha-shrivastava-vs-the-comptroller-and-auditor-on-8-november-1995","title":{"rendered":"Smt. Sudha Shrivastava vs The Comptroller And Auditor … on 8 November, 1995"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Smt. Sudha Shrivastava vs The Comptroller And Auditor … on 8 November, 1995<\/div>\n
Equivalent citations: 1996 AIR 571, \t\t 1996 SCC (1)\t 63<\/div>\n
Author: K B.N.<\/div>\n
Bench: Kirpal B.N. (J)<\/div>\n
           PETITIONER:\nSMT. SUDHA SHRIVASTAVA\n\n\tVs.\n\nRESPONDENT:\nTHE COMPTROLLER AND AUDITOR GENERAL OF INDIA\n\nDATE OF JUDGMENT08\/11\/1995\n\nBENCH:\nKIRPAL B.N. (J)\nBENCH:\nKIRPAL B.N. (J)\nKULDIP SINGH (J)\nAHMAD SAGHIR S. (J)\n\nCITATION:\n 1996 AIR  571\t\t  1996 SCC  (1)\t 63\n JT 1995 (9)   358\t  1995 SCALE  (6)449\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nKirpal.J.\n<\/p>\n
     Leave granted.\n<\/p>\n
     The only  question which  arises for  consideration  in
\nthis appeal  is whether\t the heir of a civil servant who was
\nprosecuted in  a court\tof law but was ultimately acquitted,
\nthough by  that time  he  had  died,  can  be  permitted  to
\ncontinue the  proceedings before  the court  and  claim\t the
\ngrant of  retrospective promotion  to the  deceased and\t the
\nconsequential monetary benefits.\n<\/p>\n
     The husband  of the  appellant, S.S.  Shrivastava was a
\nmember of  the Indian Audit and Accounts Services (Class-I).
\nDuring the  period 1964-69,  he was  working as\t a Financial
\nAdviser to  the River  Valley Project  Department under\t the
\nState of  Bihar. After\tthe general  elections\tof  1969,  a
\nCommission of Enquiry was set-up to enquire into the alleged
\nmisdeeds  of   some  of\t  the  Ministers  in  the  erstwhile
\nGovernment. After  the receipt\tof the report, the said S.S.
\nShrivastava along  with the concerned minister and the Chief
\nAdministrator of  the River  Valley Project  was  prosecuted
\nunder the  Prevention of  Corruption Act.  The Special Judge
\nconvicted S.S.\tShrivastava  and  sentenced  him  to  simple
\nimprisonment of\t two years  and a  fine of  Rs.10,000\/-.  An
\nappeal was  preferred by  S.S. Shrivastava,  but during\t the
\npendency of  the appeal\t before the  High Court of Patna, he
\nexpired. On an application being made, the appellant as late
\nShri S.S. Shrivastava’s heir was permitted to be substituted
\nin the proceedings. Ultimately, by judgment dated 13.4.1983,
\nthe said  appeal was allowed and the conviction and sentence
\nwere setaside.\n<\/p>\n
     The appellant,  thereafter sent  representations to the
\nState claiming\tretrospective  promotion  and  consequential
\nbenefits to  her husband,  but by order dated 10.7.1987, the
\nsaid claims were rejected.\n<\/p>\n
     The appellant,  thereafter filed proceedings before the
\ncentral Administrative\tTribunal, Patna\t Bench,\t Patna.\t The
\ncase of\t the appellant\twas that  her husband  was  due\t for
\npromotion to  the post\tof Accountant  General (Grade-II) in
\nOctober, 1973 and to that of Accountant General (Grade-I) in
\nOctober, 1981 and he would have been so promoted but for the
\ncriminal proceedings  and, as  such, it\t is  only  just\t and
\nproper that  such promotions  be sanctioned and the monetary
\nvalue of the same be paid to the appellant.\n<\/p>\n
     The respondent  contested the  application. Apart\tfrom
\nraising the  plea that\tthe said  application was  barred by
\ntime,  it   was\t also\tcontended  that\t the  same  was\t not
\nmaintainable as\t the claim of service was purely personal to
\nthe appellant’s\t husband and  no sum  could be\tpaid on\t the
\nbasis of  deemed promotion  to\tthe  appellant.\t During\t the
\npendency of the proceedings, the respondent had agreed to an
\norder  dated   29.6.1984,  being   passed  by\tthe  Central
\nAdministrative Tribunal,  whereby, as  a  special  case,  an
\namount of  Rs.90,000\/- was  allowed to the appellant towards
\nthe expenses incurred by the deceased in connection with the
\ncriminal proceedings.\n<\/p>\n
     With regards  to the  merits of  the claim, the case of
\nthe respondent,\t before the  Tribunal, was that the deceased
\nhad been  considered for promotion to the post of Accountant
\nGeneral (Grade-II)  in October, 1973, but as his conduct was
\nunder investigation  before the court of law, “sealed cover”
\nprocedure was  followed and  if he  had been  alive when the
\njudgment of  acquittal was  pronounced, only  then, he could
\nhave had  the benefit  of the seniority and fixation of pay,
\non notional  basis, but even he would not have been entitled
\nto the\tarrears of  pay. The  other claim with regard to the
\nencashment of  leave was  refuted by the respondent with the
\ncontention that\t no earned  leave was there to the credit of
\nthe appellant’s\t husband and  the leave\t taken\tby  him\t for
\ndefending the criminal proceedings could not be encashed.\n<\/p>\n
     The Tribunal vide its judgment dated 5.10.1989 rejected
\nthe application\t of the\t appellant by holding that the right
\nfor enforcement\t of promotion  accrued only on the acquittal
\nof the\tappellant’s husband  and as before such acquittal he
\nhad  died,  then  this\tpersonal  right\t of  enforcement  of
\npromotion did  not actually  accrue and,  therefore, nothing
\nsurvived to  his legal\theirs. In coming to this conclusion,
\nthe Tribunal  was of the view that a civil servant could not
\nclaim promotion as of right and any benefit which would have
\narisen as  a result of the promotion could only have accrued
\nto the officer himself and not to his legal heirs, if he had
\ndied before  the judgment  for acquittal  was delivered. The
\nTribunal also  came to\tthe conclusion\tthat the application
\nwas barred  by limitation. It found that after the acquittal
\nof  appellant’s\t  husband,  a  representation  claiming\t the
\nbenefits was  submitted by  the appellant  in January,\t1984
\nwhich was  followed by\ta reminder  in April,  1984  but  by
\nletter dated 29.6.1984, the representation was rejected. The
\nmere  fact  that  the  appellant  received  a  letter  dated
\n10.7.1987 rejecting  her fresh\tapplication  dated  4.3.1987
\ncould not,  it was held, give her a resh cause of action and
\nthe period  of limitation had to be reckoned from 29.6.1984.
\nTherefore,  the\t application  which  was  filed\t before\t the
\nTribunal in May, 1988 was barred by limitation as well.\n<\/p>\n
     During the\t hearing of this appeal, the only contention
\nwhich has  been raised\twas with regard to the admissibility
\nof the\tclaim of  the appellant\t on merits and no contention
\nwas raised  and the  case proceeded  on the  basis that\t the
\napplication filed  before the  Tribunal by the appellant was
\nwithin limitation.  We, therefore,  proceed to\texamine\t the
\nrival contentions on the merits of the claim.\n<\/p>\n
     According to  the appellant,  her husband\twas due\t for
\npromotion to  the post\tof Accountant  General (Grade-II) in
\nthe  pay-scale\t of   Rs.2,250-2,500   in   October,   1973.
\nAdmittedly, a  “sealed cover”  procedure in  respect thereof
\nwas followed.  Thereafter according  to the  appellant,\t her
\nhusband would  have become entitled to promotion to the post
\nof Accountant  General (Grade-I)  in October, 1981 which was
\nin the\tpay-scale of  Rs.2,500-2,750\/-. The  husband of\t the
\nappellant died\tin October, 1981 and her submission was that
\nhis service  record and\t Confidential Reports were very good
\nand, but for the criminal proceedings which were pending, he
\nwould have been promoted in his turn. This Court in Union of
\nIndia v. K.V. Jankiraman,<\/a> (1991)4 SCC 109 has held that when
\nthe “sealed  cover” procedure  is followed  and\t the  sealed
\ncover is  opened on the complete exoneration of the employee
\nfrom all the charges, then notional promotion is to be given
\nto him from the date when his juniors were promoted. Arrears
\nof salary  could be  granted from  the date  of the notional
\npromotion having regard to the circumstances of the case. In
\nthis connection, it was observed as follows:\n<\/p>\n
     “We are,  therefore,  broadly  in\tagreement  with\t the
\n     finding of\t the  Tribunal\tthat  when  an\temployee  is
\n     completely exonerated  meaning thereby  that he  is not
\n     found blameworthy\tin the least and is not visited with
\n     the penalty  even of  censure, he\thas to\tbe given the
\n     benefit of the salary of the higher post along with the
\n     other benefits  from the  date on\twhich he  would have
\n     normally\t  been\t    promoted\t but\t for\t the
\n     disciplinary\/criminal proceedings.\t However, there\t may
\n     be cases where the proceedings, whether disciplinary or
\n     criminal, are,  for example, delayed at the instance of
\n     the  employee  or\tthe  clearnce  in  the\tdisciplinary
\n     proceedings or acquittal in the criminal proceedings is
\n     with benefit of doubt or on account of non-availability
\n     of\t evidence  due\tto  the\t acts  attributable  to\t the
\n     employee etc.  In\tsuch  circumstances,  the  concerned
\n     authorities must  be vested  with the  power to  decide
\n     whether the employee at all deserves any salary for the
\n     intervening period\t and if he does, the extent to which
\n     he deserves it. Life being complete, it is not possible
\n     to\t anticipate   and  enumerate  exhaustively  all\t the
\n     circumstances under which such consideration may become
\n     necessary. To  ignore, however, such circumstances when
\n     they exist and lay down an inflexible rule that n every
\n     case   when    an\t  employee    is    exonerated\t  in
\n     disciplinary\/criminal proceedings he should be entitled
\n     to\t all   salary  for  the\t intervening  period  is  to
\n     undermine\tdiscipline   in\t  the\tadministration\t and
\n     jeopardize public\tinterest. We  are, therefore, unable
\n     to agree  with the\t Tribunal that to deny the salary to
\n     an employee  would in  all\t circumstances\tbe  illegal.
\n     While, therefore,\twe do  not approve  of the said last
\n     sentence in  the first sub-paragraph after clause (iii)
\n     of paragraph  3 of\t the said  Memorandum, viz., “but no
\n     arrears of\t pay shall  be payable to him for the period
\n     of notional  promotion preceding  the  date  of  actual
\n     promotion”,  we  direct  that  in\tplace  of  the\tsaid
\n     sentence  the   following\tsentence   be  read  in\t the
\n     Memorandum:\n<\/p><\/blockquote>\n
\t  “However, whether  the officers  concerned will be
\n     entitled to  any arrears  of  pay\tfor  the  period  of
\n     notional  promotion   preceding  the   date  of  actual
\n     promotion, and if so to what extent, will be decided by
\n     the concerned  authority by  taking into  consideration
\n     all the  facts and\t circumstances of  the\tdisciplinary
\n     proceeding\/criminal prosecution.  Where  the  authority
\n     denies arrears  of salary or part of it, it will record
\n     its reasons for doing so.”<\/p><\/blockquote>\n
     The claim of the appellant was rejected by the Tribunal
\nprimarily on  the ground  that the  right to promotion was a
\npersonal right\tand the\t heirs of the deceased have no right
\nto make\t only claim  in regard thereto. The Tribunal fell in
\nerror inasmuch\tas the\tprocess for promotion to the post of
\nAccountant   General   (Grade-II),   regarding\t late\tS.S.
\nShrivastava had\t already been  undertaken  and\tthe  “sealed
\ncover” procedure  followed. Whatever the rights the deceased
\nhad, as a result of this “sealed cover” the procedure having
\nbeen followed, stood established as on that date. Along with
\nthe right  to work  in the  higher post,  if he\t was  to  be
\npromoted, he  would have  also got  a right to salary in the
\nhigher scale. The effect of the acquittal of the appellant’s
\nhusband\t must\tbe  regarded  as  if  he  had  been  wrongly
\nconvicted. He,\ttherefore, would  have had  a right  to have
\nbeen placed  in the  higher scale  of pay,  if he  had\tbeen
\nselected for  promotion and  this is  a\t right\twhich  would
\ndevolve on  the legal  heirs, if  during the pendency of the
\nproceedings, the said employee expired.\n<\/p>\n
     It will  be useful\t at this  stage to refer to the case
\nRameshwar Manjhi  v.  Management  of  Sangramgarh  Colliery,<\/a>
\n(1994)1 SCC  292. In  that case,  during the adjudication of
\ndispute relating  to the  termination of a workman, the said
\nworkman died  and a  question arose  whether the  heirs\t and
\nlegal representatives  of the deceased workman were entitled
\nto continue  with the  proceedings for\tadjudication.  While
\nupholding the  right of\t the heirs and legal representatives
\nto continue  with the  proceedings for\tadjudication, it was
\nobserved as follows:\n<\/p>\n
     “It is thus obvious that the applicability of the maxim
\n     `action personalize  moritur cum  persona’ depends upon
\n     the `relief claimed’ and the facts of each case. By and
\n     large the\tindustrial disputes under Section 2-A of the
\n     Act relate\t to  the  termination  of  services  of\t the
\n     concerned workman.\t In the\t event of  the death  of the
\n     workman during  pendency of the proceedings, the relief
\n     of reinstatement, obviously, cannot be granted. But the
\n     final determination  of  the  issues  involved  in\t the
\n     reference may be relevant for regulating the conditions
\n     of service\t of  the  other\t workmen  in  the  industry.
\n     Primary object of the Act is to bring industrial peace.
\n     The Tribunals  and Labour\tCourts under the Act are the
\n     instruments for  achieving the  same objective.  It is,
\n     therefore, in  conformity with  the scheme\t of the\t Act
\n     that the  proceedings in  such cases should continue at
\n     the instance  of the legal heirs\/representatives of the
\n     deceased workman.\tEven otherwise\tthere may be a claim
\n     for back  wages or\t for monetary  relief in  any  other
\n     form. The\tdeath of  the workman during pendency of the
\n     proceedings cannot\t deprive  the  heirs  or  the  legal
\n     representations  of   their  right\t  to  continue\t the
\n     proceedings and claim the benefits as successors to the
\n     deceased workman.”<\/p><\/blockquote>\n
     Just as  a legal  representatives of  the workman could
\nclaim back  wages or  any other\t monetary relief which would
\nhad ensued  to\tthe  deceased  workman,\t similarly,  in\t the
\npresent case,  the right  to get  the benefits,\t which would
\nhave been  due to the appellant’s husband as a result of the
\n“sealed cover”\tprocedure, would  devolve on  the appellant.
\nThe sealed cover will have to be opened and if it transpires
\nthat he\t was fit  for promotion, then, he is to be deemed to
\nhave been promoted to the post of Accountant General (Grade-
\nII) in the pay scale of Rs.2,250-2,500\/- and, thereafter, he
\nis also\t have to  be considered for promotion to the post of
\nAccountant  General   (Grade-I)\t in   the  higher  scale  of
\nRs.2,500-2,750. It  is not  in dispute\tthat this  procedure
\nwould have  had\t to  be\t followed  if  the  husband  of\t the
\nappellant had  been alive  when the High Court delivered the
\njudgment, setting-aside the conviction.\n<\/p>\n
     Even otherwise, if the husband of the appellant was not
\nto be  promoted, he  would certainly  be entitled to receive
\nsalary in  the lower  poor till\t the date  of his  death  in
\nOctober, 1981. In Jankiraman’s case (supra), it was observed
\nby this\t Court that  when an employee is completely * and is
\nnot visited  with penalty,  then he  has  to  be  given\t the
\nbenefit of  salary of  the higher  post along with the other
\nbenefit on  the date  on which\the would  normally have been
\npromoted  but  for  the\t disciplinary\/criminal\tproceedings.
\nMoreover, this\tis not\ta case\twhere the  acquittal of\t the
\ndeceased was  as a  result of his being given the benefit of
\ndoubt or  on account of non-availability of evidence. In the
\ninstant case,  the High\t Court has  held, while allowing the
\ncriminal appeal\t and setting-aside  the conviction that “one
\ncannot but  hold that  late S.S.  Shrivastava had  not\tdone
\nanything, which would justify a charge of corruption against
\nhim, much lese a charge of conspiracy”.\n<\/p>\n
     For the  aforesaid reasons, this appeal is accordingly,
\nallowed. The  order dated  5.10.1989, passed  by the Central
\nAdministrative Tribunal, Patna Bench, Patna is set-aside and
\nthe respondent\tis directed  to open the sealed cover and to
\ngive to\t the appellant\tall the benefits in the light of the
\nobservations made  in the  judgment. The  needful should  be
\ndone within  three months  from the  date of this order. The
\nappellant will also be entitled to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Smt. Sudha Shrivastava vs The Comptroller And Auditor … on 8 November, 1995 Equivalent citations: 1996 AIR 571, 1996 SCC (1) 63 Author: K B.N. Bench: Kirpal B.N. (J) 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-120314","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSmt. 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