Appeal No 1240 of 1993
From the Judgment and Order dated 2721992 of the Delhi High Court in CWP No 877 of 1991
Arun Jaitley Ms Ayesha Khatri and Ms Indu Malhotra NP for the Appellant
PP Khurana and Arun K Sinha for the Respondent
The Judgment of the Court was delivered by VERMA J
The respondent HC Khurana was employed as Execu 1037 tive Engineer in the Delhi Development Authority DDA
A preliminary memo was served on the respondent on 6111985 alleging some irregularities by him in the construction works and they were being investigated
A chargesheet was framed on 1171990 against the respondent on the basis of irregularities in the constructions made in a housing colony
On 1371990 the chargesheet was despatched for being served on the respondent
However the respondent proceeded on two months  medical leave and therefore on 1771990 another Executive Engineer RK Sood working in the same Wing as the respondent received it and gave the intimation that the respondent was on leave adding that the same would be handed over to the respondent on his return from leave
On 28111990 the Departmental Promotion Committee DPC met and in view of the earlier decision to initiate disciplinary proceedings against the respondent it followed the sealed cover procedure  in the case of respondent
It appears that the effort to effect personal service of the chargesheet on the respondent on account of his non availability continued and the same could be served personally on the respondent only on 2511991
As a result of the selection made by the DPC certain persons were promoted to the post of Superintending Engineer while the respondent s matter was kept in obeyance to await the outcome of the disciplinary proceedings
In these circumstances the respondent filed Writ Petition No 877 of 1991 in the Delhi High Court claiming a mandamus directing the DDA to promote him as Superintending Engineer with effect from the date on which his juniors had been promoted to the post of Superintending Engineer on the basis of selection made by the DPC
The High Court has allowed that writ petition taking the view that the framing of charge would carry with it the duty to issue and serve the same on the employee there was no justification for the respondent to follow the sealed cover procedure in this case on 28111991 when the Departmental Promotion Committee met  since actual service of the chargesheet on the respondent was made only after the date on which the DPC met
According to the High Court issuance of the chargesheet to the employee means its actual service on him and this should be complete before following the sealed cover procedure
The High Court has read Union of India and Others vs
KV Jankiraman and Others   to this effect for taking the view that on these facts the disciplinary proceedings cannot be said to have been initiated prior to 29111990 when the DPC followed the sealed cover procedure
Accordingly the High Court has directed the DDA to 1038 open the sealed cover to promote the respondent as Superintending Engineer if he has been otherwise found suitable by the DPC and in that event lo give him seniority with all consequential benefits from the date on which his juniors were so promoted
The judgment of the High Court is challenged by special leave in this appeal
The short question for consideration is Whether in the present case the High Court has correctly applied the decision in Jankiraman Learned counsel for the appellant contended that Jankiraman cannot be read to hold in a case like the present where the disciplinary proceedings had been initiated by framing the chargesheet and despatching the same that the chargesheet had not been issued and therefore the sealed cover procedure  could not be followed by the DPC on 28111990
On the other hand learned counsel for the respondent strenuously urged that Jankiraman holds that without effective service of the chargesheet on the employee the disciplinary proceedings cannot be said to have been initiated against him
Learned counsel for the respondent referred to the Office Memorandum No 22O 11491 Estt
A dated 1491992 of the Department of Personnel  Training Ministry of Personnel Public Grievances and Pensions Government of India issued in supersession of the earlier
Office Memorandum No 220 11286 Estt
A dated 1211988 consequent upon the judgment in Jankiraman to support his submission that even though mere issuance or despatch of a chargesheet without the further requirement of its actual service on the employee would now be sufficient according to the OM dated 1491992 for following the sealed cover procedure yet the same was not sufficient earlier according to the OM dated 1211988 which required actual service and not mere issuance of the chargesheet for initiating the disciplinary proceedings
Admittedly the guidelines in the OM dated 1211988 were in force in the present case
The subject of the two memoranda containing the guidelines is the same as under Promotion of Government servants against whom disciplinarycourt proceedings are pending or whose Conduct is under investigation Procedure and guidelines to be followed emphasis supplied 1039 Para 2 is the relevant portion in these memoranda
In 0M dated 1211988 para 2 is as under  Cases of Government Servants to whom Sealed Cover Procedure will be applicable
2At the time of consideration of the cases of Government servants for promotion details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee  i Government servants under suspension iiGovernment servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings iiiGovernment servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution
ivGovernment servants against whom an investigation on serious allegations of corruption bribery or similar grave misconduct is in progress either by the CBI
or any other agency departmental or otherwise emphasis supplied The substituted clause ii in para 2 in OM dated 1491992 is as under  ii Government servants in respect of whom a Chargesheet has been issued and the disciplinary proceedings are pending and emphasis supplied It is the change made in clause ii of para 2 in the OM dated 1491992 from which learned counsel for the respondent tried to find 1040 support for his submission
Before we refer to Jankiraman we may advert to clause ii of para 2 of OM dated 1211988 which was the guideline applicable at the material time in the present case and is as under  a Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings emphasis supplied These words clearly indicate that the sealed cover procedure was applicable in cases where the disciplinary proceedings are pending  in respect of the government servant or a decision has been taken to initiate disciplinary proceedings 
Thus on a decision being taken to initiate disciplinary proceedings the guidelines attract the sealed cover procedure
The reason is obvious
Where a decision has been taken to initiate the disciplinary proceedings against a government servant his promotion even if he is found otherwise suitable would be incongruous because a government servant under such a cloud should not be promoted till he is cleared of the allegations against him into which an inquiry has to be made according to the decision taken
In such a situation the correctness of the allegation being dependent on the final outcome of the disciplinary proceedings it would not be fair to exclude him from consideration for promotion till conclusion of the disciplinary proceedings even though it would be improper to promote him if found otherwise suitable unless exonerated
To reconcile these conflicting interests of the government servant and public administration the only fair and just course is to consider his case for promotion and to determine if he is otherwise suitable for promotion and keep the result in abeyance in sealed cover to be implemented on conclusion of the disciplinary proceedings and in case he is exonerated therein to promote him with all consequential benefits if found otherwise suitable by the Selection Committee
On the other hand giving him promotion after taking the decision to initiate disciplinary proceedings would be incongruous and against public policy and principles of good administration
This is the rationale behind the guideline to follow the sealed cover procedure in such cases to prevent the possibility of any injustice or arbitrariness
1041 The question now is What is the stage when it can be said that a decision has been taken to initiate disciplinary proceedings  We have no doubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the chargesheet since issue of the chargesheet is a consequence of the decision to initiate disciplinary proceedings
Framing the chargesheet is the first step taken for holding the enquiry into the allegations on the decision taken to initiate disciplinary proceedings
The chargesheet is framed on the basis of the allegations made against the government servant the chargesheet is then served on him to enable him to give his explanation if the explanation is satisfactory the proceedings are closed otherwise an enquiry is held into the charges  if the charges are not proved the proceedings are closed and the government servant exonerated but if the charges are proved the penalty follows
Thus the service of the chargesheet on the government servant follows the decision to initiate disciplinary proceedings and it does not precede or coincide with that decision
The delay if any in service of the chargesheet to the government servant after it has been framed and despatched does not have the effect of delaying initiation of the disciplinary proceedings inasmuch as information to the government servant of the charges framed against him by service of the chargesheet is not a part of the decision making process of the authorities for initiating the disciplinary proceedings
This plain meaning of the expression used in clause ii of para 2 of OM dated 1211988 also promotes the object of the provision
The expression refers merely to the decision of the authority and knowledge of the government servant thereof does not form a part of that decision
The change made in clause ii of para 2 in OM dated 1491992 merely clarifies this position by using the expression chargesheet has been issued  to indicate that service of chargesheet is not necessary and issue of the chargesheet by its despatch indicates beyond doubt that the decision to initiate disciplinary proceedings was taken
In our opinion Jankiraman takes the same view and it is not possible to read that decision otherwise in the manner suggested by learned counsel for the respondent
The decision in Jankiraman is based inter alia on OM dated 1211988
The facts of the cases dealt with in the decision in Jankiraman do not indicate that the Court took the view that even though the chargesheet against the government servant was framed and direction given to despatch the same to the government servant as a result of the decision to 1042 initiate disciplinary proceedings taken prior to the meeting of the DPC that was not sufficient to attract the sealed cover procedure merely because service of the chargesheet was effected subsequent to the meeting of the DPC Moreover in Jankiraman itself it was stated thus  14
To bring the record up to date it may be pointed out that in view of the decision of this Court in Union of India vs Tejinder Singh  decided on September 26 1986 the Government of India in the Deptt
of Personnel and Training issued another Office Memorandum No22011286
A dated January 12 1988 in supersession of all the earlier instructions on the subject including the Office Memorandum dated January 301982 
A further guideline contained in this Memorandum is that the same sealed cover procedure is to be applied where a government servant is recommended for promotion by the DPC but before he is actually promoted he is either placed under suspension or disciplinary proceedings are taken against him or a decision has been taken to initiate the proceedings or criminal prosecution is launched or sanction for such prosecution has been issued or decision to accord such sanction is taken
10These differences in the two Memoranda have no bearing on the questions to be answered
 emphasis supplied PP
117 118 Thereafter in Jankiraman the conclusions of the Full Bench of the Tribunal under consideration were quoted and then while restating that the conclusions of the Tribunal could be reconciled it was further stated thus 17
There is no doubt that there is a 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 No1 should be read to mean that the promotion etc
cannot be withheld merely because some disciplinarycriminal proceedings are pending against the employee
To deny the said benefit they must be at the relevant time pending at the stage when charge memolcharge sheet has 1043 already been issued to the employee
Thus read there is no inconsistency in the two conclusions  emphasis supplied PP
119 It will be seen that in Jankiraman also emphasis is on the stage when a decision has been taken to initiate the disciplinary proceedings  and it was further said that to deny the said benefit of promotion they must be at the relevant time pending at the stage when charge memocharge sheet has already been issued to the employee 
The word issued  used in this context in Jankiraman it is urged by learned counsel for the respondent means service on the employee
We are unable to read Jankiraman in this manner
The context in which the word issued  has been used merely means that the decision to initiate disciplinary proceedings is taken and translated into action by despatch of the chargesheet leaving no doubt that the decision had been taken
The contrary view would defeat the object by enabling the government servant if so inclined to evade service and thereby frustrate the decision and get promotion in spite of that decision
Obviously the contrary view cannot be taken Issue  of the chargesheet in the context of a decision taken to initiate the disciplinary proceedings must mean as it does the framing of the chargesheet and taking of the necessary action to despatch the chargesheet to the employee to inform him of the charges framed against him requiring his explanation and not also the further fact of service of the chargesheet on the employee
It is so because knowledge to the employee of the charges framed against him on the basis of the decision taken to initiate disciplinary proceedings does not form a part of the decision making process of the authorities to initiate the disciplinary proceedings even if framing the charges forms a part of that process in certain situations
The conclusions of the Tribunal quoted at the end of para 16 of the decision in Jankiraman which have been accepted thereafter in para 17 in the manner indicated above do use the word served  in conclusion No4 but the fact of issue  of the chargesheet to the employee is emphasised in para 17 of the decision
Conclusion No4 of the Tribunal has to be deemed to be accepted in Jankiraman only in this manner
The meaning of the word issued  on which considerable stress was laid by learned counsel for the respondent has to be gathered from the 1044 context in which it is used
Meanings of the word issue  given in the Shorter Oxford English Dictionary include to give exit to to send forth or allow to pass out to let out  to give or send out authoritatively or officially to send forth or deal out formally or publicly  to emit put into circulation 
The issue of a chargesheet therefore means its despatch to the government servant and this act is complete the moment steps are taken for the purpose by framing the chargesheet and despatching it to the government servant the further fact of its actual service on the government servant not being a necessary part of its requirement
This is the sense in which the word issue  was used in the expression chargesheet has already been issued to the employee  in para 17 of the decision in Jankiraman
In view of the above we are unable to accept the respondent s contention which found favour with the High Court that the decision in Jankiramnan on the facts in the present case supports the view that the decision to initate the disciplinary proceedings had not been taken or the chargesheet had not been issued to the respondent prior to 28111990 when the DPC adopted the sealed cover procedure merely because service of the chargesheet framed and issued earlier could be effected on the respondent after 28111990 on account of his absence
Consequently the appeal is allowed and the judgment of the High Court is set aside with the result that the writ petition of the respondent stands dismissed
No costs
NVK Appeal allowed


Summary:
Some tax payers of the appellant Municipality filed a writ petition in the High Court challenging the validity of the rules made by it for the levy of consolidated property tax on lands and buildings and also the assessment list prepared and authenticated by the Municipality for the year 1967 68 1968 69 and 1969 70
It was contented before the High Court that Rules 27 4 and 5 of the Rules of the consolidated property tax on the lands and buildings were ultra vires section 991 i and the proviso e to it read with section 21 of the Act and that the assessment lists for the years 1967 68 1968 69 and 1969 70 were invalid since they were prepared without following the procedure laid down in Sections 105 to 112 of the Act
The High Court upheld the validity of Rules 27 and 4 and struck down the validity of Rule 5
It also declared that the tax collected by the 803 804 Municipality for the assessment years 1968 69 and 1969 70 in excess of the amounts which may be determined in accordance with the principles laid down was without the authority of law and struck down the assessment list for the year 1967 68 on the ground that it was not prepared in compliance with the procedure I aid down in Sections 105 to 112 of the Act
Being aggrieved by the High Court s decision the appellants preferred the present appeals
Allowing the appeals this Court HELD 1
It is not the value of occupation of the property to the tenant but the rental income from it to the owner which is to be taken into consideration while estimating the reasonable return that a landlord can expect from his property
While estimating or calculating the annual rent which might reasonably be expected from such property the provisions of such legislation have to be taken into consideration
Different rent restriction legislations have described the maximum rent recoverable under them differently such as standard rent fair rent etc
Hence the annual letting value of the building or land or both to which the rent restriction legislation is applicable cannot exceed the annual standard or fair rent
It is the annual standardfair rent which alone therefore can form the basis of the assessment of the property tax by the local authority
809 E G 12
Since there is no non obstante clause in the Gujarat Municipalities Act 1963 this Court refrains from going into the question of non obstante clause in the provisions of the Act levying property tax
810 C 13
If the expression annual letting value  in rule 4 is read as the annual letting value as determined by the outer limit prescribed by the standard or fair rent under the rent restriction legislation applicable to the premises which in the present cast is the Bombay Rents Hotel and Lodging House Rates Control Act 1947 the validity of the said rule cannot be assailed
811 B 14
Rule 5 mandates the actual rent received to be taken into consideration for fixation of the annual letting value even if it is in excess of the standard rent fixed under the rent restriction legislation which is contrary to the interpretation placed by this Court on the expression annual letting value
The correct mode of getting over the difficulty is to 805 amend Rule 5 itself suitably to take care of such properties Instead of keeping it on the rule book as it is
There is nothing to prevent the Municipality from introducing a new rule in place of the said rule
812B E 15
Even without Rule 5 and on the basis of Rule 4 as it is the annual letting value can be calculated on the basis of the standard rent where the rent restriction legislation is applicable
Where it is not applicable nothing prevents the Municipality from assessing the properties on the basis of the actual rent received under the same Rule 4 itself
811 F 16
Rule 5 is to be read as being applicable only to the properties which are not governed by the provisions of the Rent Control Act
As far as the properties which are amenable to the provisions of the Rent Control Act are concerned their annual letting value will be calculated only on the basis of the standard rent determined or determinable under tile said Act
Where the standard rent is determined by the Civil Court of course under the rent restriction legislation the annual letting value will be determined on the basis of such standard rent
The rule however goes further and says that in other cases viz 1 where the standard rent is not determined and 2 even if it is determined where actual rent charged is in excess of the standard rent it is the actual rent which will be taken as the basis for calculating the annual letting value
The latter two situations do not make distinction between the properties to which the rent restriction legislation is applicable and the properties to which it is not applicable
In other words under the rule even where the rent restriction legislation is in force it is the actual rent which will be taken as the basis for calculating the annual letting value if the standard rent is not determined by the Court
817 D 818 E F 17
Rule 5 to the extent it enables the authorities to take the actual rent as the basis for calculating the annual letting value will apply to the properties to which the rent restriction legislation
which in the present case is the Bombay Rent Hotel and Lodging Housing Rates Control Act 1947 does not apply
819 B The Corporation of Calcutta vs Smt
Padma Debi and Others   Corporation of Calcutta vs Life Insurance Corporation of India   Guntur Municipal Council vs Guntur Town Rate Payers 806 Association  and Dewan Daulat Rai Kapoor and Others vs New Delhi Municipal Committee  Others   relied on
Municipal Corporation Indore vs Smt
Ratnaprabha and Others   referred to
809 D 2
Section 112 in the context in which it appears is both directory and enabling in nature insofar as it requires the Municipality to authenticate the list before 31st July of the official year
That the provisions are no more than directory is clear from the fact that they provide that if the Municipality fails to do its duty the State Government way complete the work by appointing persons to do it
This is as it should be since the various provisions of the Act show that the revenue and the expenditure of the Municipality among others is controlled and regulated by the State Government Further the Section requires that the Municipality should complete the authentication of the assessment list before a particular date which in the present case happens to be 31st July of the year
It was necessary to incorporate in the section the said provision to give enough time to the State Government to step in and authenticate the list before the end of the official year
The official year is the same for the Municipality as well as the State Government and for the purposes of budgeting the provision that the assessment list should be authenticated by the particular date was necessary to be incorporated
In any case neither the Municipality is prevented from authenticating it beyond 31st July nor is the person or persons appointed by the State Government prevented from doing so beyond 31st March of the official year
816 E G