N Criminal Appeal No 533of 1991
From the Judgment and Order dated 101
1989 of the Gujarat High Court in Miscellaneous Criminal Application No 32 of 1989
HS Zaveri for the Appellant
Dushayant Dave Ashish Verma and Anip Sachthey
for the Respondents
The Judgment of the Court was delivered by VERMA J
Petitioner s daughter Chhaya Was married to Respondent No 2 Satish on5
12 1984 and they started living together in their marital home at Bagasara
On 138
1986 Chhaya died at Bagasara
The petitioner and his wife got some vague information about their daughter Chhaya and went to Bagasara the same day but were unable to meet or see their daughter who had died
The petitioner suspected that their daughter s death was unnatural resulting from torture by her husband and his relatives
The petitioner filed a criminal complaint against Respondent Nos 2 to 5 who are the husband his parents and sister which was trans ferred to the Court of
Judicial Magistrate First Class at Dhari and registered as Criminal Case No 382 of 1988 for an offence under section 498 A read with section 34 IPC
The petitioner filed an application for committing the case to the Court of Session for trial for an offencepunishable under section 304 B IPC which was inserted in the Indian Penal Code by Act No 43 of 1986 wef
19111986
On 29111988 the Learned Magistrate dismissed the petition er s application holding that this amendment being prospec tive was inapplicable to a death which occurred on 1381986 prior to the amendment
Aggrieved by this order the petitioner moved an application Misc
Criminal Applica tion No 32 of 1989 in the High Court of Gujarat for a direction to commit this case of dowry death to the Court of Session since an offence punish able under section 304 B is triable by the Court of Session  By the impugned order dated January 10 1989 the High Court has dismissed that application
Hence this special leave petition
815 Leave is granted
The point arising for our decision is the applicability of section 304 B of the Indian Penal Code to the present case where the death alleged to be a dowry death occurred prior to insertion of section 304 B in the Indian Penal Code
This is the only ground on which the
appellant claims trial of the case in the Court of Session
The reasongiven by the High Court to support its view is that the offence was committed prior to the date of insertion of section 304 B in the Indian Penal Code on account of which the section can have no application to the present case
None of the courts below
has examined the applicability of any other pre existing more stringent provision even if section 304 B does not apply
As such affirmation of the view that section 304 B does not apply will not preclude the appellant from contending that any other more stringent provision is attracted on the accusa tion made
If that point is raised the courts below will have to decide the same on merits on the basis of accusation made
It is in this background that the point raised by the appellant regarding applicability of section 304 B is decid ed by us
Section 304 B and the cognate provisions are meant for eradication of the social evil of dowry which has been the bane of Indian society and continues unabated in spite of emanicipation of women and the women s liberation movement
This all prevading malady in our society has only a few lucky exception in spite of equal treatment and opportunity to boys and girls for education and career
Society contin ues to perpetuate the difference between them for the pur pose of marriage and it is this distinction which makes the dowry system thrive
Even though for eradication of this social evil effective steps can be taken by the society itself and the social sanctions of the community can be more deterrent yet legal sanctions in the form of its prohibi tion and punishment are some steps in that direction
The was enacted for this purpsoe
The Report of the Joint Committee of Parliament quoted the observations of Jawaharlal Nehru to indicate the role of legislation in dealing with the social evil as under  Legislation cannot by itself normally solve deep rooted social problems One has to ap proach them in other ways too but legislation is necessary and essential so that it may give that push and have that educative factor as well as the legal sanctions behind it which help public opinion to be given a certain shape
 816 The enactment of in its original form was found inadequate
Experience shows that the demand of dowry and the mode of its recovery takes different forms to achieve the same result and various indirect and sophisticated methods are being used to avoid leaving any evidence of the offence
Similarly the conse quences of non fulfilment of the demand of dowry meted out to the unfortunate bride takes different forms to avoid any apparent causal connection between the demand of dowry and its prejudicial effect on the bride
This experience has led to several other legislative measures in the continuing battle to combat this evil
The Criminal Law Second Amendment Act 1983 No 45 of 1983 was an act further to amend the Indian Penal Code the Code of Criminal Procedure 1973 and the 
Section 498 A was inserted in the Indian Penal Code and corresponding amendments were made in the Code of Criminal Procedure which included section 198A therein and also inserted section 113A in the  1872
Thereafter the Dowry Prohibition Amendment Act 1986 No 43 of 1986 was enacted further to amend the Dowry Prohibition Act 1961 and to make certain necessary changes in the Indian Penal Code the Code of Criminal Procedure 1973 and the 
Two of the salient features of the Dowry Prohibition Amendment Act 1986 No 43 of 1986 stated in the State ment of Objects and Reasons of the Bill are as under e Offences under the Act are proposed to be made non bailable g A new offence of dowry death is proposed to be included in the Indian Penal Code and the necessary consequential amend ments in the Code of Criminal Procedure 1973 and in the have also been proposed Accordingly by section 7 of the Amendment Act section 8 of the was amended to make every Offence under this Act non bailable while continuing it to be non compoundable
By sections 10 11 and 12 amendments were made in the Indian Penal Code Code of Criminal Proce dure 1973 and the  as part of the same scheme as follows 817 10
In the Indian Penal Code after section 304 A the following section shall be inserted namely 304 B Dowry death
1 Where the death of a woman is caused by any burns or bodily injury or occurs otherwise then under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harass ment by her husband or any relative of her husband for Or in connection with any demand for dowry such death shall be called dowry death and such husband or relative shall be deemed to have caused her death
Explanation For the purposes of this sub section  dowry
shall have the same meaning as in section 2 of the Dowry Prohibi tion Act 196 1 28 of 1961
2 Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for 11
In the Code of Criminal Proce dure 1973 in the First Schedule after the entries relating to section 304 A the follow ing entries shall be inserted namely Section Offence Punishment COgnizable Bailable or By what or non non bail Court cognizable able tribale 1 2 3 4 5 6 304 B  Dowry Imprison Ditto Non Court of death ment of not bailable  Session lesS  than seven years but which may extend to imprisonment for life  12
In the  after section 818 113 A the following section shall be insert ed namely 113 B Presumption as to dowry death
When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death
such woman has been subjected by such person to cruelty Or harassment for or in connecting with any demand for dowry the Court shall presume that such person had caused the dowry death
Explanation
For the purpose of this section  dowry death shall have the same meaning as in section 304 B of the Indian Penal Code 45 of 1860
 It is clear from the above historical background that the offence of dowry death punishable under section 304 B of the Indian Penal Code is a new offence inserted in the Indian Penal Code with effect from 19111986 when Act No 43 of 1986 came into force
The offence under section 304 B is punishable with a minimum sentence of seven years which may extend to life imprisonment and is triable by Court of Session
The corresponding amendments made in the Code of Criminal Procedure and the relate to the trial and proof of the offence
Section 498A inserted in the Indian Penal Code by the Criminal Law Second AmendmentAct 1983 Act No 46 of 1983 is an offence triable by a Magistrate of the First Class and is punishable with imprisonment for a term which may extend to three years in addition to fine
It is for the offence punishable under section 498 A which was in the statute book on the date of death of Chhaya that the respondents are being tried in the Court of Magistrate of the First Class
The offence punisha ble under section 304 B known as
dowry death was a new offence created with effect from 19111986 by insertion of the provision in the Indian Penal Code providing for a more stringent offence  than section 498 A Section 304 B is a substantive provision creating a new offence and not merely a provision effecting a change in procedure for trial of a pre existing substantive offence
Acceptance of the appel lant s contention would amount to holding that the respond ents can be tried and punished for the offence of dowry death provided in section 304 B of the Indian Penal Code with the minimum sentence of seven years  imprisonment for an act done by them prior to creation of the new offence of dowry death
In our opinion this would clearly deny to them the protection afforded by clause 1 of Article 20 of the Constitution which reads as under 819 20
Protection in respect of con viction for offences
1 No person shall be convicted of any offence except for violation of the law in force at the time of the commis sion of the act charged as an offence nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence    In our opinion 
the protection given by Article 201 is a complete answer to the appellant s contention
The contention of learned counsel for the appellant that section 304 B inserted in the Indian Penal Code does not create a new offence and  contains merely a rule of evidence is untenable
The rule of evidence to prove the offence of dowry death is contained in section 113 B of the providing for presumption as to dowry death which was a simultaneous  amendment made in the for proving the offence of dowry death
The fact that the was so amended simultane ously with the insertion of section 304 B in the Indian Penal  Code by the same Amendment Act is  another pointer in this direction
This contention is therefore rejected
In follows that the view taken by the High Court that the respondents cannot be tried and punished for the offence provided in section 304 B of the Indian Penal Code which is a new offence created subsequent to the commission of the offence attributed to the respondents does not suffer from any infirmity
However as earlier indicated in case the accusation against the respondents discloses commission of any other more stringent pre existing offence by the re spondents than section 498 A of the Indian Penal Code the appellant would be entitled to raise that question and the Court will then consider and decide it on that basis
No such argument having been advanced before us or any of the courts below so far the same does not arise for considera tion in the present proceeding
With these observations the appeal is dismissed
TNA Appeal dis missed


Summary:
When an employee is due for promotion increment etc
but disciplinarycriminal proceedings are pending against him at the relevant time the findings of his entitlement to such benefit are kept in a sealed cover to be opened after the proceedings in question are over
According to this procedure 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 departmentalcourt pro ceedings the officer concerned is completely exonerated and where he is under suspension it is also held that the suspension was wholly 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 Idled on an 791 officiating basis the officiating arrangement being termi nated
On his 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 disciplinarycourt proceedings
However no arrears of salary
are paid in respect of the period prior to the date of actual promotion
Sometimes the cases in the courts or the departmental proceedings take unduly long time to come to a conclusion and the officers undergo considerable hardship even where it was not intended to deprive
them of promotion for such a long time
The Government in consultation with the Union Public Service Commission examined how the hardship caused to the Government servant in such circumstances could be mitigated and laid down certain procedures by an Office Memorandum No 2201111179 Eatt
A dated January 30 1982
In interpreting the Memorandum as to what is the date from which it can be said that disciplinarycriminal pro ceedings are pending against an employee as to what would be the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal and as to what benefits an employee who is completely or partially exonerated is entitled to and from which date different Benches of the Central Adminis trative Tribunal recorded their findings and while doing so the Full Bench of the Tribunal struck down two provisions of the said Memorandum dated January 30 1982 which related to a prohibiton against acting upon the findings contained in the sealed cover in case the officer was imposed penalty as a result of disciplinary proceedings or found guilty in the Court proceedings against him and regarding arrears of pay for the period of notional promotion
Aggrieved by the decisions of the various Benches of the Tribunal the Union of India and other authorities preferred the present appeals and special leave petitions
Disposing of them matters this Court HELD 1
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
The preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons they are kept 792 pending deliberately
Many times they never result in the issue of any charge memocharge 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
If the charges are that serious the authorities have the power to suspend the employees 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
799F H 800A B 2
When an employee is completely exonerated meaning thereby that he is not found blame worthy 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 disciplinarycriminal proceedings
However there may be cases
where the proceed ings whether disciplinary or criminal are delayed at the instance of the employee or the clearance in the discipli nary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of nonavailability 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
being com plex it is not possible to anticipate and enumerate exhaus tively all the circumstances under which such consideration may become necessary
To ignore however such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinarycriminal proceedings he should be entitled to all salary lot the intervening period is to undermine disci pline in the administration and jeopardise public interests
The Tribunal was not right in holding that to deny the salary to an employee would in all circumstances be illegal
802G H 803A D 3
The normal rule of no work no pay is not applicable to cases 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 171will also be inapplicable to such caseS 802F G 4
The Tribunal 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 adminis tration
In the first instance the penalty short of 793 dismissal will vary from reduction in rank to censure
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 the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of reduction in rank
804F G 5
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 circumstances
To qualify for promotion the least that is expected of an employee is to have an 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 misconduct cannot be placed on par with the other employees and his case has to be treated differently
There is therefore no discrimination when in the matter of promotion he is treated differently
804G H 805A 6
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 presenti
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
805B C 7
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 the
promoting authority can take into consideration the penalty or penalties 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
805C D