In this article, Prashanti Nerellapalli, a qualified lawyer discusses whether an employee can be promoted during any pending enquiry against him or not.

Ms. G, a government servant has put in 25 years of service in a Government department. She has to her credit all that is essential for the next promotion: seniority, passing in departmental tests, no adverse remarks in the service register and increments from time to time, best employee award etc. However, her juniors get promoted overriding her in the backdrop of a departmental enquiry pending against her. The enquiry is into an alleged misappropriation of govt funds (with no specific amounts mentioned). The preliminary enquiry report is not served on her but a charge memo comes after a delay of 5 years after the preliminary enquiry.

No witnesses are examined before levelling the charges against her.  The report of the departmental enquiry is not served on her. After a gap of another one and a half year she is called for a second enquiry. She submits her explanation denying the charges. The enquiry officer after an year and a half expresses his inability to file the enquiry report. The higher ups decide to set up a three men enquiry committee to look into the allegations.

In the meanwhile, a seniority list is circulated in the department with her name in the first place among the available candidates. This list was to be placed before Screening Committee for recommendations. Ms. G sends repeated representations to the higher ups to consider her case won\’t yield any response nor they state reasons for denying her legitimate promotion.

The issue is whether the right of an employee to get promoted stand vindicated in the backdrop of a pending departmental enquiry.

In B.George vs. I.G.Police[1] it was held that “withholding of promotion on the ground of pendency of a departmental inquiry would amount to inflicting of punishment that would be contrary to Article 16 of the Constitution.”

In Somaiah vs.Zonal Manager[2], it was held that “when disciplinary proceedings are initiated and when they are yet to be completed there is no knowing the petitioner can be found to be guilty of the charges that may be framed against him and he cant before then be punished through withholding of his promotion or by non-consideration of his case of promotion”.

The Hon’ble Apex court in Omprakash Sharma’s case[3] has held that “juniors could not score a march over erstwhile seniors on any valid principle of seniority. This would unquestionably be denial of equality under Article 16 of the Constitution of India.\”

In A.P.Naidu Vs. S.C.Rly[4] The A.P.High Court has held that withholding of the promotion on the ground of pendency of departmental enquiry would amount to violation of Art 16 of the Constitution.

The distinction between departmental proceeding and a disciplinary proceeding

• A distinction needs to be made between a departmental proceeding and a disciplinary proceeding. A departmental proceeding is initiated by serving a charge memo. Seeking explanation from the employee by serving a questionnaire amounts to preliminary enquiry only.
• On the other hand, a Disciplinary proceeding is said to have initiated if a charge sheet is filed against the delinquent employee. In some cases, the courts have held that candidature can be considered even after an FIR is lodged or when a criminal court has conducted thorough trial on the charges leveled as was held in Omprakash vs. UOI.

There is a clear direction from the Apex court in Premnath Bali’s case[5] that departmental enquiries cant be prolonged beyond 6 months and thereby prejudice the interests of the employee.

In B.T.Dayalan Vs. UOI (6), the Central Administrative Tribunal has citing Supreme Court said that inordinate delay in conducting an enquiry against a delinquent employee after serving the memo for minor charges will vitiate disciplinary proceedings which can be terminated or quashed without waiting for the enquiry to be completed. It was further said that a Government employee has some dignity. If one may lose money much is not lost but if he loses his dignity, he may lose everything.

Dignity of an employee, which is the prime concern, cannot be tampered with, by keeping the enquiry pending for an indefinite period. Normally the charge sheet or show cause notice should not be quashed by any judicial forum, but there were indeed exceptions to the same and delay in initiating or finalising the departmental proceeding was one such exception. There appears to be a ring of truth in the contention raised by the applicant that the enquiries are kept pending against him only with a view to stalling his promotion and to see to it that he retires on his present post in humiliation.\”

A matter that has been substantially enquired into by a criminal court and acquits the employee of the charges leveled, the department is estopped from relitigating the same matter by serving a fresh charge memo. So, also the courts have gone to the rescue of employees under suspension pending enquiry by ruling that they cant be deprived of salary or subsistence allowance during pendency of the enquiry.

In K.R.Deb Vs.Collector of Central Excise(7) it was held by the Apex court that ordering a fresh/denovo enquiry just because the disciplinary authority is not satisfied with the findings of the Enquiry officer is illegal.

Relying on the ratio of the decisions of various courts, it can be conveniently deduced that the pending enquiry is not a bar to consider an employee\’s candidature for promotion.

The sealed cover procedure, wherein the eligibility of the candidate is kept in a sealed cover till the outcome of the enquiry is known can be adapted. If the Departmental Promotion Committee/ Screening Committee finds the candidate eligible for promotion, he should be promoted with all consequential benefits after he is absolved of all the charges.

An employer can\’t blow hot and cold in the same breath. In the Illustrative case mentioned above, the employer is at fault in first not considering the case of the employee inspite of her name featuring in the seniority list, not considering her representations and has grossly violated her right to equality by showing preferential treatment to her juniors who were very much juniors to her in terms of seniority, date of appointment and age.

[1] (1973) 2 Ser L.R. 131

[2] (1979) Ser L.R. 50

[3] Omprakash Sharma Vs. Union of India AIR 1985 SC 1276.

[4] 1983 ILJ 151 A.P

5.Premnath Bali vs.Registrar High Court Delhi

6 B.T.Dayalan 13July2010

7. K.R.Deb Vs. Collector of Central Excise AIR 1974 SC1447