• Regarding my promotion

I was charge sheeted in Oct 2013 and my junior promoted to the next post in December 2013 ignoring me due to charge sheet. In oct 2015 in the decesion department stopped my three annual increments with future effect and not stooped my promotion. I filed an appeal against the decision which is disallowed on 17/05/2017. During the pendency of the appeal they have promoted three more employees junior to me by saying that your promotion cant be given as you are not enough numbers to qualify for the promotion. Actually i need 13 nos out of 20( last 5 years annual reports) and they are deducting 6 nos due to stoppege of three annual increments and i got 17 nos. Now after my appeal is disallowed i asked them to promote me deem date i.e dec,2014 when my junior was promoted well before the decesion of stoppage of my three increments in oct 2015. Kindly tell i am entitled for deem date promotion or not.
Sanjeev kumar
Shift chemist
Punjab state power corporation ltd.
Asked 7 years ago in Civil Law

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4 Answers

the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge- memo/charge-sheet has already been issued to the employee.

2) in your case charge sheet has been filed in oct 2013

3) In the decision reported as (1991) 4 SCC 109 Union of India & Ors v K.V.Jankiraman & Ors a three-Judge Bench of the Supreme Court examined the legality of the Office Memorandum dated January 30, 1982 and some other aspects connected thereto. Amongst others one question which had arisen before the Court was:„what is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee?? which question was answered in the following words:-

"16. On the first question, viz., as to when for the purposes of sealed cover procedure the disciplinary/criminal proceeding can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the appellant-authorities that when there are serious allegations and it takes time to collect evidence to prepare and issue charge-memo/charge- sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities are thus not without a remedy. It was then contended on behalf of the authorities that conclusions Nos.1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. These conclusions are as follows: "(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official (2) ....

(3) ....

(4) the sealed cover procedure can be resorted to only after a charge memo is serviced on the concerned official or the charge-sheet is filed before the criminal court and not before.

17. There is no doubt that there is seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No.1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge- memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions.

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

You are entitled to deem date promotion

2) you had enough numbers to qualify for promotion

3) you needed13 out of 20 numbers but you had 17 numbers

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

When the department decided to stop only three annual increments as a punishment on the charge sheet, but have not stopped the promotion, it is well understood that you are eligible for the time scale [promotion as per promotion police of the organisation.

Moreover since you have stated that you qualify for the promotion as per the annual report which requires only 13 points whereas you already have 17 points against your credit in the five annual reports, the department ought to have considered your representation instead of disallowing it.

In a similar case decided by supreme it was held that

"On careful consideration of the facts of the case, we are of the view that the impugned order Annexure P-1 is stigmatic and punitive in nature and therefore, it deserves to be quashed in the light of the observations made.

Therefore if this matter is taken before high court by filing a writ you may get the desired relief.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

9 now my appeal dated 14/12015 disallowed by the board on 17/05/2017.

10 now i requested the pspcl to give me deem date promotion wef from December 2014 when my junior is promoted well before the decision on october 2015 of stopping my increments only not promotion.

10 my query is whether i am entitled for deem date promotion or not.

It is well settled in law that by disallowing the appeal and not considering the promotion when ther is no disciplinary action pending or there is no order to stop the promotion, the order of stopping the promotion is nothing but a punishment. It also not casts a stigma. This incorporation or otherwise the rejection is a stigma is attached to the order of denying promotion, it would be treated as an order of punishment, falling in a different compartment altogether losing its features under the Rules or Regulations under which he is not being promoted despite having requisite qualification for the promotion.

The evidence available with the corporation for denying the due promotion is not admissible or relevant. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision to deny the promotion, which can be considered as a decision against natural justice too.

In my opinion, you are eligible for promotion and you can win the case if you file a writ petition against the employer before high court.

There are various settled law in this regard to support your position, namely:

Union of India & Ors v K.V.Jankiraman & Ors reported as as (1991) 4 SCC 109

Consult a local advocate and discuss the issue at length before proceeding further.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

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