Civil Appeals Nos
30 18 21 of 1987
From the Judgment and Orders dated 24487 2387  1487 of the Central Administrative Tribunal Hyderabad in Original Applica 794 tion No 12186 TA Nos
958 180 of 1986 and OA No 140of 1986
WITH CA Nos
301688  51 5590 with CA Nos
3083  4379 of 1990 and SLP C Nos
1094 234490 11680 of 1991
Altar Ahmed Additional Solicitor General VC Mahajan JD Jain CVS Rao Hemant Sharma B Parthasarthy A Subba Rao MN Krishnamani Pravir Choudhary Ms Indu Malhotra Ms Shirin Jain TVSN Chari Ms Suruchi Aggarwal and Ms Manjula Gupta for the appearing parties
The Judgment of the Court was delivered by SAWANT J
Civil Appeals Nos
301987 302087 and 301688 arise out of the judgment dated March 2 1987 deliv ered by the Full Bench of the Central Administrative Tribu nal hereinafter referred to as the Tribunal 
Civil Appeals Nos
301887 and 3021187 arise out of the judgments dated April 24 1987 and April 1 1987 respective ly of the Tribunal Hyderabad Bench
Civil Appeals Nos
308390 and 437990 arise out of the judgments dated March 2 1989 and September 15 1989 of the Madras and Hyderabad Bench of the Tribunal respectively and which are based on the aforesaid decision of the Full Bench of the Tribunal
Civil Appeals Nos
51 55 of 1990 arise out of the deci sion dated July 12 1989 of the Tribunal Chandigarh Bench
Special Leave Petition C No 1094 of 1990 arises out of the decision dated June 29 1989 of the Tribunal Bombay Bench
SpeCial Leave Petition C No 2344 of 1990 arises out of the decision dated 18th September 1989 given by the Tribunal Principal Bench New Delhi
Special Leave Petition C No 11680 of 1991 arises out of the decision dated January 25 1991 given by the Tribu nal Principal Bench New Delhi
2 The common questions involved in all these matters relate to what in service jurisprudence has come to be known as sealed cover procedure
Concisely stated the questions are 1 what is the date from which it can be said that disciplinarycriminal proceedings are 795 pending against an employee 2 What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal 3 To what benefits an employee who is completely or par tially exonerated is entitled to and from which date  The  sealed cover procedure is adopted when an employee is due for promotion increment etc
but disciplinarycriminal proceedings are pending against him at the relevant time and hence the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over 
Hence
the relevance and importance of the questions
The Union of India and the other appellant authori ties have by these appeals challenged the findings recorded by the different Benches of the Tribunal in reply to one or the other  of or all the aforesaid three questions in the decisions impugned therein
While recording its findings the Full Bench of the Tribunal has also struck down two provisions of the Central Government Memorandum of 30th January 1982 on the subject
We may therefore first refer to the said memorandum
The Government of India Deptt of Personnel  Train ing issued an Office Memorandum No 22011179
A dated January 30 1982 on the subject of promotion of offi cers in whose cases the sealed cover procedure had been followed but against whom disciplinarycourt proceedings were pending for a long time
The Memorandum stated that according to the existing instructions cases of officers a who are under suspension or b against whom discipli nary proceedings are pending or a decision has been taken by the competent disciplinary authority to initiate discipli nary proceedings or c against whom prosecution has been launched in a court of law or sanction for prosecution has been issued are considered for promotion by the Departmen tal Promotion Committee hereinafter referred to as the DPC  at the appropriate time but the findings of the Committee are kept in a sealed cover to be opened after the conclusion of the disciplinarycourt proceedings
While the findings are kept in the sealed cover the vacancy which might have gone to the officer concerned is filled only on an officiating basis
If on the conclusion of the departmen talcourt proceedings the officer concerned is completely exonerated and where he is under suspension it is also held that the suspension waswholly unjustified the sealed cover is opened and the recommendations of the DPC are acted upon
If the officer could have been promoted earlier he is promoted to the post which is filled on an officiating basis the officiating arrangement being terminated
On his 796 promotion the officer gets the benefit of seniority and fixation of pay on a notional basis with reference to the date on which he would have been promoted in the normal course but for the pending disciplinary court proceedings
However no arrears of salary are paid in respect of the period
prior to the date of actual promotion
The Memoran dum goes on to state further that it was noticed that some times the cases in the courts or the departmental proceed ings take unduly long time to come to a conclusion and the officers undergo considerable hardship even where it is not intended to deprive them of promotion for Such a long time
The Government therefore in consultation with the Union Public Service Commission examined how the hardship caused to the Government servant in such circumstances can be mitigated and has laid down the following procedure in such cases 3
ia It may be ascertained whether there is any departmental disciplinary proceedings or any case in a court of law pending against the individual under consideration or b there is a prima facie case on the basis of which a decision has been taken to proceed against the official either departmentally or in a court of law  ii The facts may be brought to the notice of the Departmental PromOtion Committee who may then assess the suitability of the officials for promotion to the next gradepost and for the purpose of this assessment the DPC shall not take into consideration the fact of the pending cases against the official
In case an official is found unfit for promo tion  on the basis of his record without taking into consideration the cases pending against him the findings of the DPC shall be recorded in the proceedings
In respect of any other kind of assessment the grading awarded by the DPC may be kept in a sealed cover
iii After the findings are kept in a sealed cover by the Departmental Promotion Committee subsequent DPCs
 if any held after the first DPC during the period the discipli narycourt proceedings may be pending will also consider the officer s case and record their findings
which will again be kept in sealed cover in the above manner
797 In the normal course on the conclu sion of the disciplinarycourt proceedings the sealed cover or covers may be opened and in case the officer is completely exonerated ie no statutory penalty including that of censure is imposed the earliest possible date of his promotion but for the pendency of the disciplinarycourt proceedings against him may be determined with reference to the positions assigned to him in the findings in the sealed covercovers and with reference to the date of promotion of his next junior on the basis of such position
The officer con cerned may then be promoted if necessary by reverting the juniormost officiating person and he may be given a notional promotion from the date he would have been promoted as determined in the manner indicated above
But no arrears of pay shall be payable to him for the period of notional promotion proceeding the date of actual promotion
If any penalty is imposed on the officer as a result of the disciplinary pro ceedings or if he is found guilty in the court proceedings against him the findings in the sealed covercovers shall not be acted upon
The officer s case for promotion may be con sidered in the usual manner by the next DPC which meets in the normal course after the conclusion of the disciplinarycourt proceed ings
The existing instructions provide that in a case where departmental disciplinary proceedings have been held under the relevant disciplinary rules warning should not be issued as a result of such proceedings
If it is found as a result of the proceedings that some blame attaches to the officer then the penalty of censure at least should be imposed
This may be kept in view so that no occasion arises for any doubt on the point whether or not an officer has been completely exonerated in disciplinary proceedings held against him
 Clause iv of Para 3 of the Memorandum then lays down the procedure for ad hoc appointment of the concerned offi cer when the disciplinarycourt proceedings are not con cluded even after the expiry of two years from the date of the DPC which first considered him for promotion and whose findings are kept in the sealed cover provided however that the officer is not under suspension
It is not necessary to reproduce that clause in extenso here
Suffice it to say that the Memorandum urges that in making the ad hoc promo tion in such cases his case should be placed before the DPC which is held after the 798 expiry of the said period of two years and the ad hoc promotion has to be made on the basis of the totality of the record of service etc
Para 4 of the Memorandum states that if the officer concerned is acquitted in the court proceedings on the merits of the case or exonerated in departmental discipli nary proceedings the ad hoc promotion already made may be confirmed and the promotion treated as a regular one from the date of the ad hoc promotion with all attendant bene fits
In such cases the sealed cover may be opened and the official may be assigned his place in the seniority list as he would have got in accordance with the recommendation of the DPC
Paras 5 6 and 7 of the Memorandum then read as follows 5
Where the acquittal in a court case is  not on merits but purely on technical grounds and the Government either proposes to take the matter to a higher court or to pro ceed against the officer departmentally the appointing authority may review whether the ad hoc promotion should be continued
Where the acquittal by court is on technical grounds if the Government does not propose to go in appeal to a higher court or to take further departmental action action should be taken in the same manner as if the officer had been acquitted by the court on merits
If the officer concerned is not acquittedexonerated in the court proceedings or the departmental proceedings the ad hoc promotion already granted should be brought to an end by the issue of the further order contemplated in the order of ad hoc promotion Please see para 3vi above and the officer concerned reverted to the post from which he was promoted on ad hoc basis
After such reversion the officer may be considered for future promotion in the usual course by the next DPC  5
To bring the record uptodate it may be pointed out that in view of the decision of this Court in Union of India  Anr
vs Tajinder Singh   decided on September 26 1986 the Government of India in the Deptt
of Personnel  Training issued another  Office Memorandum No 22011286
A dated January 12 1988 in superses sion of all the earlier instructions on the subject 799 including the Office Memorandum dated 30th January 1982 referred to above
There is no difference in the instruc tions contained in this and the earlier aforesaid Memorandum of January 30 1982 except that this Memorandum provides in paragraph 4 for a six monthly review of the pending proceed ings against the Government servant where the proceedings are still at the stage of investigation and if as a result of the review the appointing authority comes to the conclu sion on the basis Of material and evidence collected in the investigation till that time that there is no prima facie case in initiating disciplinary action or sanctioning prose cution the sealed cover is directed to be opened and the employee is directed to be given his due promotion with reference to the position assigned to him by the the DPC
A further guideline contained in this Memorandum is that the same sealed cover procedure is to be applied where a Govern ment 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 decision has been taken to initiate the proceedings or criminal prosecution is launched or sanction for such prose cution has been issued or decision to accord such sanction is taken
These differences in the two Memoranda have no bearing on the questions to be answered
On the first question viz as to when for the purposes of the sealed cover procedure the disciplinarycriminal proceedings can be said to have com menced the Full Bench of the Tribunal has held that it is only when a charge memo in a disciplinary proceedings or a chargesheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceed ingscriminal prosecution is initiated against the employee
The sealed cover procedure is to be resorted to only after the charge memocharge 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 learned counsel for the appellant authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge memocharge 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 initi ated at the 800 instance of the interested persons they are kept pending deliberately
Many times they never result in the issue of any charge memochargesheet
If the allegations are serious and the authorities are keen in investigating them ordi narily it slould 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 thus are 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
Those 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 crimi nal proceedings against an official  3          4 the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before    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 No 1 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 memocharge sheet has already been issued to the employee
Thus read there is no inconsistency in the two conclusions
We therefore repel the challenge of the appellant authorities to the said finding of the Full Bench of the Tribunal
The Full Bench of the Tribunal while considering the earlier Memorandum dated 30th January
1982 has among other things held that the portion of paragraph 2 of the memoran dum which says but no arrears are allowed in respect of the period prior to the date of the 801 actual promotion is violative of Articles 14 and 16 of the Constitution because withholding of salary of the promotion al post for the perked during which the promotion has been withheld while giving other benefits is discriminatory when compared with other employees  who are not at the verge of promotion when the disciplinary proceedings  were intiated against them
The Tribunal has therefore directed that
on exonera tion
full salary should be paid to such employee which he would have on promotion if he had not been subjected to disciplinary proceedings
We are afraid that the Tribunal s reference to para graph 2 of the Memorandum is incorrect
Paragraph 2 only recites the state of affairs as existed on January 30 1982 and the portion of the Memorandum which deals with the relevant point is the last sentence of the first sub para graph after clause iii of paragraph 3 of the Memorandum which is reproduced above
That sentence reads as follows But no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion
This sentence is preceded by the observation that when the  employee is completely exonerated on the conclusion of the disciplinarycourt proceedings that is when no statu tory penalty including that of censure is imposed he is to be given a notional promotion from the date he would have been promoted as determined by the Departmental Promotion Committee
This direction in the Memorandum has also to be read along with the other direction which follows in the next sub paragraph and which states that if it is found as a result of the proceedings that some blame attaches to the officer then the penalty of censure at least should be imposed
This direction is in supersession of the earlier instructions which provided that in a case where departmen tal disciplinary proceedings have been held warning should not be issued as a result of such proceedings
There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blame worthy in the least he should not be deprived of any benefits includ ing the salary of the promotional post
It was urged on behalf of the appellant authorities in all these cases that a person is not entitled to the salary of the post unless he assumes charge of the same
They relied on FR 171  of the Fundamental 802 Rules and Supplementary Rules which reads as follows FR 171 Subject to any excep tions specifically made in these rules and to the provision of sub rule 2 an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post and shall cease to draw them as soon as he ceases to discharge those duties Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence
 It was further contended on their behalf that the normal rule is no work no pay
Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged
To allow him to do so is against the elemen tary rule that a person is to be paid only for the work he bas done and not for the work he has not done
As against this it was pointed out on behalf of the concerned employ ees that on many occasions even frivolous proceedings are instituted at the instance of interested persons sometimes with a specific object of denying the promotion due and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed Under suspension
When therefore at the end of such sufferings he comes out with a clean bill he has to be restored to all the benefits from which he was kept away unjustly
We are not much impressed by the contentions advanced on behalf of the authorities
The normal rule of no work no pay is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his
This is not a case where the employee remains away from work for his own reasons although the work is offered to him
It is for this reason that FR 171 will also be inapplicable to such cases
We are therefore broadly in agreement with the find ing 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 803 criminal proceedings
However there may be cases  where the pro ceedings whether disciplinary or criminal are for example delayd at the instance of the employee or the clearance 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 complex it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary
To ignorehowever such circumstances when they exist and lay down  an inflexi ble rule that in every case when an employ ee 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 jeopar dise public interests
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 ap prove 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 officer 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 proceedingcriminal prosecution
Where the authority denies arrears of salary or part of it it will record its reasons for doing so
 To this extent we set aside the conclusion of the Tribu nal on the said point 8
The Tribunal has also struck down the following portion in the second sub paragraph after clause iii of paragraph 3 which reads as follows If any penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the court proceed ings against him the findings in the sealed covercovers shall not be acted upon and has directed that if the pro ceedings result in a penalty the person concerned should be considered for promotion in a 804 Review DPC as on the original date in the light of the results of the scaled cover as also the imposition of penal ty and his claim for promotion cannot be deferred for the subsequent DPCs as provided in the instructions
It may be pointed out that the said sub paragraph directs that the officer s case for promotion may be considered in the usual manner by the next DPC which meets in the normal course after the conclusion of the disciplinarycourt proceedings
The Tribunal has given the direction in question on the ground that such deferment of the claim for promotion to the subsequent DPCs amounts to a double penalty
According to the Tribunal  it not only violates Articles 14 and 16 of the Constitution compared with other employees who are not at the verge of promotion when the disciplinary proceedings are Initiated against them but also offends the rule against double leopardy contained in Article 202 of the Constitu tion
The Tribunal has thereforeheld that when an em ployee is visited with a penalty as a result of the disci plinary proceedings there should be a Review DPC us on the date when the sealed cover procedure was followed and the review DPC should consider the findings in the sealed cover as also the penalty imposed
It is not clear to us as to why the Tribunal wants the review DPC to consider the penalty imposed while considering the findings in the sealed cover if according to the Tribunal not giving effect to the findings in the sealed cover even
when a penalty is imposed amounts to double jeopardy
However as we read the findings of the Tribunal it appears that the Tribunal in no case wants the promotion of the officer to be deferred once the officer is visited with a penalty in the disciplinary proceedings and the Tribunal desires that the officer should be given promotion as per the findings in the sealed cover
According to us the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration
In the first instance the penalty short of dismissal will vary from reduction in rank to censure
We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank
On principle for the same reasons the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank
An employee has no right to promotion
He has only a right to be considered for promotion
The promotion to a post and more so to a selection post depends upon several circum stances
To qualify for promotion the least that is expect ed of an employee is to have an 805 unblemished record
That is the minimum expected to ensure a clean and efficient administration and to protect the public interests
An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently
There is therefore no discrimi nation when in the matter of promotion he is treated dif ferently
The least that is expected of any administration is that it does not reward an employee with promotion retro spectively from a date when for his conduct before that date he is penalised in presentii
When an employee is held guilty and penalised and is therefore not promoted at least till the date on which he is penalised he cannot be said to have been subjected to a further penalty on that account
A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct
In fact while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion such denial is not illegal and unjustified
If further the promoting authority can take into consideration the penalty or penal ties awarded to an employee in the past while considering his promotion and deny him promotion on that ground it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings although it is for conduct prior to the date the authority considers the promotion
For these reasons we are of the view that the Tribunal is not right in striking down the said portion of the second sub paragraph after clause iii of paragraph 3 of the said Memorandum
We therefore set aside the said findings of the Tribunal
In the circumstances the conclusions arrived at by the Full Bench of the Tribunal stand modified as above
It is needless to add that the modifications which we have made above will equally apply to the Memorandum of January 121988 9
In the result in Civil Appeals Nos 301987 302087 and 30 1688 which arise out of the decision of the Full Bench the Division Bench of the Tribunal to which the matters are remanded by the Full Bench will dispose of the cases of the employees involved in the appeals in the light of what we have held hereinabove
Civil Appeal No 3018 of 1987 In this case no charge sheet was served on the respon dentemployee when the DPC met to consider the respondent s promotion
806 Yet the sealed cover procedure was adopted
The Tribunal has rightly directed the authorities to open the sealed cover and if the respondent was found fit for promotion by the DPC to give him the promotion from the date his immedi ate junior Shri M Raja Rao was promoted pursuant to the order dated April 30 1986
The Tribunal has also directed the authorities to grant to the respondent all the conse quential benefits
The Tribunal has further stated in the impugned order that its order would not mean that the disci plinary proceedings instituted against the respondent em ployee should not go on
We see no reason to interfere with this order
The appeal therefore stands dismissed
In the circumstances of the case however there will be no order as to costs
Civil Appeal No 302 1 of 1987 In this case the DPC did not consider the case of the respondent employee for crossing efficiency bar wef 14th September 1983 on the ground that disciplinary proceedings were contemplated against him
We are therefore of the view that the Tribunal s direction that the DPC should be convened to consider the case of the respondent for crossing the efficiency bar wef
14th September 1983 on the basis of his confidential record at the relevant date and without reference to the contemplated disciplinary proceedings is both proper and valid
In this case also the Tribunal has given the said direction without prejudice to the right of the appellant authorities to take any disciplinary action as might have been contemplated
This order also does not require any interference from this Court
Hence the appeal stands dismissed
In the circumstances of the case however there will be no order as to costs
Civil Appeal No 3083 of 1990 In this case the respondent employee s case was considered for promotion by the DPC in August 1982
However the result was kept in a sealed cover in view of the pending disciplinary proceedings against him
According to the employee on October 11 1985 the disciplinary proceedings ended in complete exoneration
Thereafter a DPC was again constitut ed in March 1986 which after consideration of the employ ee s case recommended him for promotion wef
July 26 1986
this was obviously contrary even to the instructions contained in the Memorandum
He was entitled to promotion from the date his immediate junior was promoted in or after August 1982 if he was in August 1982 found fit for promotion by the DPC The Tribunal has 807 therefore rightly directed the appellant to open the sealed cover and if the DPC in 1982 had found him fit for promo tion to give him the promotion from the date on which his immediate junior was promoted
However while doing so the Tribunal has  also directed arrears of salary to be paid for intervening period along with all consequential benefits
Since we have held disagreeing with the decision of the Full Bench of the Tribunal that the benefit of the arrears of salary will not flow automatically but will depend upon the circumstances in each case we modify the said order to the extent it directs the payment of arrears of salary and direct the appellant authority to consider whether the employee in the circumstances of the case was entitled to any arrears of salary and to what extent
The authority will of course give reasons for denial of the whole or part of the arrears of salary The appeal is there fore allowed partly with no order as to costs
Civil Appeal No 4379 of 1990 In this case the respondent employee was not recommend ed for promotion by the DPC in its meeting held on February 1 1988 Instead the DPC had kept the results in a sealed cover because of the pending disciplinary proceed ings
Admittedly no charge memo was served
On the employee till the date the DPC met on February 1 1988 it was issued only in March 2 1989
The Tribunal has therefor rightly directed the authorities tO open the sealed cover
We are however unable to understand the direction of the Tribunal to convene a Review DPC for considering the employee s case as on February 1 1988
If the DPC had considered the case of the employee on February 1 1988 and withheld the result because of the pending disciplinary proceedings the proper direction would have been to ask the appellant authority to open the sealed cover and if the employee was found fit for promotion to direct the authority to promote him from the date on which his immediate junior was promoted as a result of the recommendation of the DPC on February 1 1988
In case he is so found fit he would be entitled to the bene fits of seniority etc
on a notional basis
However whether he would be entitled to the arrears of salary for the intervening period and to what extent will have to be decid ed by the appellant authority in the light of what we have state above
In case the authority denies to the employee the salary in full or in part it will of course record its reasons for doing so
The appeal is therefore allowed partly as above with no order as to costs
Civil Appeals Nos
51 55 of 1990 These appeals are filed against five respondent employees
Dis 808 ciplinary proceedings as well as criminal prosecution were launched against each of them for lodging false Leave Travel Concession claims and for using forged documents to support them
The employees were suspended from service on 15th July  1983
They admitted guilt and pleaded revocation of their suspension on depositing the amount of Rs 1600
They were reinstated in service in November 1983
Keeping in view the deposit of the amount voluntarily in October 1983 a lenient view was taken and the criminal
prosecutions against them were dropped by the Administration by an order of January 14 1985
However this was done without prejudice to the departmental proceedings which were subsequently initiated and the formal chargesheet was issued to the employees on December 24 1987
The Departmental Promotion Committee met in July 1986 to consider the cases of the employees for promotion but re sorted to sealed cover procedure in view of the pendency of the disciplinary proceedings against them
There is no dispute that the formal chargesheet was issued either on August or December 24 1987
Conflicting months have been mentioned in the decision of the Tribunal
However we find that the Tribunal has taken a mechani cal view and applied the decision of the Full Bench and directed the promotions to be given to the employees on the basis of the recommendations if any of the DPC of July 1986
We are of the view that in the present case when the DPC met in July 1986 the Committee had before it the record of the refund of the amount by the respondent employ ees and the consequent withdrawal of the prosecutions with out prejudice to the authorities  right to institute depart mental proceedings
In view of the aforesaid peculiar facts of the present case the DPC which met in July 1986 was justified in re sorting to the sealed cover procedure notwithstanding the fact that the charge sheet in the departmental proceedings was issued in AugustDecember 1987
The Tribunal was therefore not justified in mechanically applying the deci sion of the Full Bench to the facts of the present case and also in directing all benefits to be given to the employees including payment of arrears of salary
We are of the view that even if the results in the sealed cover entitle the employees to promotion from the date their immediate juniors were promoted and they are therefore so promoted and given notional benefits of seniority etc the
employees in no case should be given any arrears of salary
The denial of the benefit of salary will of course be in addition to the penaltyif any
imposed on the employees at the end of the disciplinary proceedings
We 809 therefore allow these appeals as above with no order as to costs
SLP Civil No 1094 of 1990 Special leavegranted
The respondent employee in this case was a Sepoy in the Department of Central Excise and Customs
He passed his Departmental examination for the post of Lower Division Clerk against 10 vacancies and by letter of October 14 1981 he was informed about his selection for the said post against the said vacancies reserved for educationally quali fied Group D staff
However he was informed that
his appointment order as LDC would be issued if he was exon erated from the disciplinary proceedings which were then pending against him
In the Departmental Inquiry he was exonerated of all the charges and by an orderof June 6 1985 he was appointed to officiate as Lower Division Clerk
By a subsequent order of July 3 1985 the earlier order of June 6 1985 was made effective from September 25 1981
By yet another order of July 29 1985 his pay was fixed by giving him increment from September 25 1981 but he was denied arrears of pay from that date till June 2 1985
The employee did not challenge the said order denying him ar rears of pay till he made his representation on February 18 1988
To his representation a reply was sent that since he had not worked as LDC during the said period he was not entitled to the arrears of salary
By the impugned decision the Tribunal has directed the authorities to grant to the respondent employee his pay and allowances from September 25 1981 to June 2 1985
In view of what we have held above the appeal is al lowed the impugned order is hereby set aside and instead the appellant authorities are directed to examine the ques tion whether the respondentemployee was entitled to any salary and if so to what extent in the light of the view taken by us
The appellant authorities will of course have to record reasons if the arrears of salary in its entirety or in part are denied to the employee
In the circumstances of the case however there will be no order as to costs
SLP Civil No 11680of1991 Special leave granted 
The order impugned in this appeal is an interim one whereby the Tribunal has directed the appellant Union of India to open the sealed 810 cover and if the result shows that the DPC has found the respondentemployee fit for promotion to the post of Commis sioner of Incometax to give effect to the said recommenda tions
The admitted facts are that the DPC which met in 1988 had considered the respondentemployee s case for promotion to the post of Commissioner of Income tax
However since some departmental proceedings were pending against him he was not given the said promotion
It was for the first time in 1990 that the appellants served on him a memorandum asking his explanation in respect of certain alleged acts of misconduct to which he sent a reply on May 18 1990
Till the date of the impugned order of the Tribunal ie January 1 1991 no charge sheet was served upon the re spondent employee
However 12 persons
junior to him were promoted by an order dated April 16 1990
The Tribunal has as stated above therefore made the impugned order
There is no direction in the order to pay him the arrears of salary for the interregnum
In the circumstances of the case we do not think it necessary to interfere with the impugned order
The appeal therefore stands dismissed
In the circumstances of the case however there will be no Order as to costs
SLP Civil No 2344 of 1990 Special leave granted
The peculiar facts in this case are that at the relevant time the respondent employee was working as Superintending Engineer since July 1986
When earlier he was working as Garrison Engineer in Bikaner Division there was a fire in the Stores in April 1984 and there were also deficiencies in the Stores held by the Store keeper during the period between 1982 and 1985
Hence disciplinary proceedings were commenced in February 1988 and the respondent was served with a charge sheet on February 22 1988
By an order of August 19 1988 a penalty of withholding of increment for one year was imposed on the respondent as a result of the said disciplinary proceedings
On June 3 1988 the DPC met for considering the promo tion to the Selection Grade
Pursuant to this meeting by an order of July 28 1988 some juniors were given the Selection Grade with retrospective effect from July 30 1986
The respondent employee s name was kept in a sealed cover and was therefore not included in the list of the promotee officers
The Tribunal has found fault With the authorities on two 811 grounds
The Tribunal has observed that although when the DPC met in June 1988 the employee was already served with a charge sheet on February 22 1988 and therefore the sealed cover procedure could not be faulted since admittedly his juniors were given promotion with retrospective effect from July 30 1986
the DPC should not have excluded the re spondent s name from consideration when it met on June 3 1988
The second fault which the Tribunal has found is that since the penalty of stoppage of increment was imposed at the end of the disciplinary proceedings it was not open for the authorities to deny the respondent his promotion to the
Selection Grade as that amounted to double penalty
Having taken this view the Tribunal has directed that a Review DPC should consider the respondent s case for promo tion wef
July 1986 when his juniors were given promotion taking into account his performance and confidential records up to 1986
We are afraid the Tribunal has taken an errone ous view of the matter
Admittedly the DPC met in June 1988 when the employee was already served with the charge sheet on February 22 1988
The charge sheet was for misconduct for the period between 1982 and 1985
Admittedly further the employee was punished by an order of August 19 1988 and his one increment was withheld
Although therefore the promotions to his juniors were given with retrospective effect from July 30 1986 the denial of promotion to the employee was not unjustified
The DPC had for the first time
met on June 3 1988 for considering promotion to the Selection Grade
It is in this meeting that his juniors were given Selection Grade with retrospective effect from July 30 1986 and the sealed cover procedure was adopted in his case
If no disciplinary proceedings were pending against him and if he was
otherwise selected by the DPC he Would have got the Selection Grade wef July 30 1986 but in that case the
disciplinary proceedings against him for his misconduct for the earlier period viz between 1982 and 1985 would have been meaningless
If the Tribunal s finding is accepted it would mean that by giving him the Selection Grade wef July 30 1986 he would stand rewarded notwith standing his misconduct for the earlier period for which disciplinary proceedings were pending at the time of the meeting of the DPC and for which again he was visited with a penalty
We therefore allow the appeal and set aside
the finding of the Tribunal
There will however be no order as to costs
Before we part with these appeals we make it clear that if any of the respondent employees in any of the above appeals hashave been given any benefits the same will not be disturbed
GN Appeals disposed of


Summary:
The four storied premises in suit belonging to the appellant were requisitioned by the respondent for the purposes of the Controller of Army Factory Accounts who already had his office in a neighbouring house
The arbitrator to whom the question of compensation was referred awarded compensation of Rs 2581 8 0 according to the rent prevailing in the locality for similar buildings with similar accommodation and amenities
This included an additional award of 10 for the potentialities of the premises consisting of the special value of the premises for the Controller the indefinite period of the requisition and additional burden on the lift
On appeal by the appellant the 923 High Court held the compensation to be Rs 2773 per mensem
It rejected the additional award of 10 for potential value
Held that the High Court was wrong in ignoring the poten tial value of the premises which had been evaluated at 10 by the arbitrator
The principles for the award of compensation are the same under section 19 Defence of India Act as under section 23 Land Acquisition Act and one of them is to evaluate the potentialities of the premises which differ under different circumstances
Such value is to be ascertained by the arbitrator as best as he can from the materials before him
Vyricherla Narayana Gajapatiraju vs The Revenue Divisional Officer 1939 LR 66 IA 104 followed