VINAY KUMAR V. THE COMMISSIONER, KENDRIYA VIDYALAYA SANGHATHAN and ORS.

WP(C)/4819/2012

AI Insights

The case involves a Trained Graduate Teacher (TGT) in Mathematics at Kendriya Vidyalaya, who was initially dismissed following a disciplinary proceeding. The dismissal was challenged and led to a series of legal battles through various judicial forums, including the Central Administrative Tribunal, Delhi High Court, and the Supreme Court of India. The core issues revolved around the fairness of the disciplinary proceedings, the supply of necessary documents to the petitioner, and the repeated inquiries into the same charges. Ultimately, the Delhi High Court found that the disciplinary proceedings, which had been ongoing since 2001, needed to be re-evaluated to determine if they constituted undue harassment to the petitioner, especially considering his impending retirement.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 691083 (HC-DELHI)
• Appeal Type: Others
• Pronouncement Date: 10-08-2012
• Assessment Year: misc
• Other Referred Cases: Managing Director, ECIL Vs. B. Karunakaran, State of Tripura Vs. Sanatan Talukdar, Union of India Vs. Tulsiram Patel, New Bank of India Vs. NP Sehgal, State of MP Vs. RN Mishra, P.D. Agarwal Vs. State Bank of India, Lal Audhraj Singh Vs. State of Madhya Pradesh, Collector of Customs Vs. Rebati Mohan Chatterjee, State of Punjab Vs. Dewan Chuni Lal
• Laws Referred To: Central Administrative Tribunal Act, 1985
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Keywords: Disciplinary Proceeding; Harassment; Natural Justice; Public interest; Reinstatement
• Section: 22(3)(c)

Judgement Text

"WP(C) 4819/2012 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI HON’BLE MR. JUSTICE P. K. MUSAHARY The petitioner, while serving as a Trained Graduate Teacher (TGT) in Mat hematics, in Kendriya Vidyalaya, was served with a charge sheet, on 29.06.2001, drawing a disciplinary proceeding against him. This enquiry ended, on 19.04.2004 , in dismissal of the petitioner. The petitioner challenged his dismissal by fil ing an Original Application (in short, ’OA’) No. 2461 of 2005, in the Central Ad ministrative Tribunal (in short, ’the Tribunal’), New Delhi. In the OA, so filed , one of the grounds taken by the applicant was that the applicant, i.e., the pe titioner herein, had not been furnished some important documents, which ought to have been furnished to him. Having accepted the contention of the petitioner, the learned Tribunal allowed, on 04.12.2006, the OA and directed reinstatement o f the petitioner with consequential relief and with further direction that the e nquiry, in question, shall proceed after furnishing, to the petitioner, copies o f the requisite documents. (ii) Dissatisfied with the direction, so given, the respondents herein carried t he matter, by way of a writ petition, to the Delhi High Court. The writ petition came to be registered as WP (C) No. 2296 of 2007. The said writ petition was di smissed by order, dated 17.04.2007, with liberty to the respondents herein to re sume the proceeding from the stage of supply of the requisite documents to the p etitioner herein. (iii) Still aggrieved, the respondents herein carried the matter, by way of Spec ial Leave Petition, to the Supreme Court, which gave rise to SLP (C) No. 10289 o f 2007. By its order, dated 03.11.2009, the Supreme Court dismissed the SLP dire cting that the enquiry, in terms of the impugned order, shall be completed withi n a period of three months from the date of passing of the order. (iv) Before, however, the Supreme Court dismissed the SLP, as indicated above, t he petitioner, pursuant to the order, dated 17.04.2007, aforementioned, came to be reinstated and he accordingly rejoined service on 01.04.2009. (v) Thereafter, in terms with the direction, given in the SLP, by the Supreme Co urt, the respondents herein decided, on 17.11.2009, to proceed with the enquiry against the petitioner afresh on the basis of the charges, which had already bee n served, on 26.09.2001, to the petitioner. This enquiry was completed, on 29.01 .2010, i.e., within the period as had been directed by the Supreme Court, while dismissing the SLP, filed by the respondents herein. (vi) Thereafter, the petitioner challenged his dismissal, by way of another Orig inal Application, namely, OA No. 48 of 2010, in the Central Administrative Tribu nal, Guwahati Bench. During the pendency of this OA, documents, which had been s ought for by the petitioner, were furnished to him by the respondents. (vii) While the OA No. 48 of 2010 was still pending, the respondents decided to proceed with the enquiry, once again, and issued, in this regard, the order, dat ed 31.03.2010. Aggrieved by the order, dated 31.03.2010, the petitioner herein f iled OA No. 164 of 2010, which has been dismissed by the learned Tribunal, on 10 .08.2010. By filing an application under Article 226 of the Constitution of Indi a, the petitioner has put to challenge the order, dated 10.08.2010, whereby the OA No. 164 of 2010 has been dismissed by the learned Tribunal. 2. We have heard Ms. P. Chakraborty, learned counsel, appearing for the pet itioner, and Mr. S. c. Biswas, learned counsel, assisted by Ms. S. D. Choudhury, learned counsel, and Ms. K. L. R. Yangthang, learned counsel, appearing for the respondents. 3. While considering the present writ petition, it may be noted that, broad ly speaking, there are three grounds on which the order, dated 10.08.2012, afore mentioned stands challenged, namely, (i) taking of indefinite perio d of time for enquiry is impermissible in law and, hence, the enquiry, initiated against the petitioner, as indicated hereinbefore, is illegal and deserved to b e interfered with; (ii) by their letter, dated 31.08.2001, the petitioner had al ready been exonerated earlier by dropping of the charge, which had been framed a gainst him by the respondents; and (iii) repeated enquiry, in the manner as has been conducted by the respondents, is harassment of the petitioner inasmuch as t he petitioner is going to attain the age of superannuation on 06.10.2013 and thi s is unjust, unfair and illegal. 4. Before proceeding any further, we need to clarify that the enquiry, whic h is sought to be conducted, now, by the respondents, is not really a fresh enqu iry; rather, the enquiry, in question, is a continuation of the enquiry, which h ad been started as far back as on 29.06.2001. The submission, therefore, made on behalf of the petitioner, that the petitioner is being made to face enquiry thr ee times is not sustainable in law. 5. With regard to the above, it needs to be noted that when findings of an enquiry are set aside on account of failure to observe the principles of natural justice, such as, imposition of penalty without furnishing a copy of the enquir y report to the delinquent or without furnishing copies of the documents, which become the basis of the charge against a delinquent, the disciplinary proceeding cannot evaporate; rather, the appropriate course for the State would be to rein state the employee with liberty to proceed with the enquiry by placing the emplo yee under suspension, if so required, and the question as to whether the employe e shall be entitled to the back wages and other benefits from the date of dismis sal to the date of his reinstatement are invariably left to be decided by the au thority concerned according to law on culmination of the disciplinary proceeding and depending upon the final outcome thereof. (See Managing Director, ECIL Vs. B. Karunakaran, reported in (1993) 4 SCC 727). 6. As regards the question as to whether the respondents had dropped the ch arge(s), which had been framed against the petitioner by their letter, dated 31. 08.2001, is not a question, which is beyond controversy inasmuch as the responde nts have vehemently denied issuance of the letter, dated 31.08.2001, aforementio ned. Hence, the determination of this disputed question of facts would obviously require holding of a roving enquiry and this would necessitate recording of evi dence, which would be neither desirable nor appropriate and permissible in the c ontext of the facts of the present case. 7. Coupled with the above, an enquiry, against a public servant, is initiat ed in public interest and no charge, framed against a public servant, can be dro pped by any authority except in public interest; or else, howsoever serious the charge of misconduct may be against a government servant, the same would be drop ped in denial of public interest. We may, in this regard, refer to State of Trip ura Vs. Sanatan Talukdar, reported in 2010 (4) GLT 955, wherein a Division Bench of this Court, to which one of us (I. A. Ansari, J), was a party, has observed thus: 52. Under ordinary law of master and servant, once an employee’s misconduct, which could have, otherwise, justified his dismissal or some other penalty is c ondoned, the employer cannot, after condoning such misconduct, turn back and ass ert his right to punish the servant. The question is: Whether the doctrine of c ondonation of misconduct, as obtainable under the ordinary law of master and ser vant, can be pressed into service, when an employee is governed by statutory rul es? 53. While considering the question posed above, it may be noted that in the beginning, when there is an offer by the Government for making an appointment an d acceptance of such an offer by a person, the relationship between the person, who is given the offer, and the Government, may be contractual, but, once an emp loyee is appointed, he acquires a status and his status is governed by the condi tion of service, which may be regulated by the statutory rules or legislative pr ovisions, as the case may be. (See Union of India Vs. Tulsiram Patel (AIR 1985 S C 1416). Under the law, the Government is not justified in excluding an employe e from being considered for promotion, if he, otherwise, falls within the zone o f consideration, merely on the ground that certain disciplinary proceeding is ei ther contemplated or pending against him. A reference, in this regard, may be ma de to the case of New Bank of India Vs. NP Sehgal (AIR 1991 SCW 565), wherein th e Supreme Court has observed: 6. ... the mere fact that disciplinary proceedings are contemplated or are unde r consideration against an employee does not constitute a good ground for not co nsidering the employee concerned for promotion if he is in the zone of considera tion nor would it constitute a good ground for denying the promotion if the empl oyee is considered otherwise fit for promotion. 54. The position of law, as discussed above, is clearly reflected from the S upreme Court’s decision, in State of MP Vs. RN Mishra, reported in (1997) 7 SCC 644, too, wherein, having considered the difference between the ordinary law of master and servant, on the one hand, and the law, which governs, on the other ha nd, a Government employee’s right to be considered for promotion during penden cy of a disciplinary proceeding against him, the Court laid down as under: The substance of the decisions cited above is that under ordinary law of master and servant, once an employer has condoned any misconduct attributed to a emplo yee, which would have, otherwise, justified his dismissal or punishment, the emp loyer cannot after such condonation go back upon his election to condone and ass ert a right to punish the servant. But, the question that arises for considerati on in the instant case is, whether the doctine of condonation of misconduct unde r ordinary law of master and servant can be pressed into service, where an emplo yee is governed by statutory rules, and under law the employer is required to co nsider the case of an employee for promotion against whom a preliminary enquiry is pending. To begin with when there is an offer and acceptance of an appointmen t, the relationship between the employee and Government may be contractual, but once an employee is appointed, he acquires a status, as his conditions of servic e are regulated by statutory rules or provisions of an Act. Under law, Governmen t is not justified in excluding an employee from the field of consideration for promotion merely on the ground that certain disciplinary proceedings are contemp lated or some preliminary inquiry to inquire into the misconduct attributed to t hat employee are pending. In New Bank of India v. N. P. Sehgal, (1991) 1 JT 499 : (1991 AIR SCW 565), it was held by this Court, thus : . . . the mere fact that disciplinary proceedings are contemplated or under con sideration against an employee does not constitute a good ground for not conside ring the employee concerned for promotion if he is in the zone of consideration nor would it constitute a good ground for denying the promotion if the employee is considered otherwise fit for promotion. In B. C. Chaturvedi v. Union of India, (1995) 6 SCC 749 at page 757 : (1995 AIR SCW 4374 at p. 4377) this Court held as follows : it is true that pending disciplinary proceeding, the appellant was promoted as Assistant Commissioner of Income-tax. Two courses in this behalf are open to the competent authority, viz. , sealed cover procedure which is usually followed, o r promotion, subject to the result of pending disciplinary action. Obviously, th e appropriate authority adopted the latter course and gave the benefit of promot ion to the appellant. Such an action would not stand as an impediment to take pe nding disciplinary action to its logical conclusion. The advantage or promotion gained by the delinquent officer would be no impediment to take appropriate deci sion and to pass an order consistent with the finding of proved misconduct. 7. In the present case, misconduct attributed to the respondent came to light in the year 1976 when a preliminary inquiry was ordered and while the inquiry was continuing, the State Government was required to consider the case of the respon dent for promotion to the post of Assistant Conservator of Forests. Under law, t he State Government had no option but to consider the case of the respondent for promotion. The State Government could not have excluded the respondent from the zone of consideration merely on the ground that a preliminary inquiry to enquir e into the allegations of misconduct attributed to him was pending. In such a si tuation, the doctrine of condonation of misconduct cannot be applied as to wash off the acts of misconduct which was the subject-matter of preliminary enquiry. We are, therefore, of the opinion that the promotion of the respondent to the po st of Assistant Conservator of Forests would not amount to condonation of miscon duct alleged against him which was the subject-matter of preliminary inquiry. Co nsequently, the punishment imposed on the respondent by the State Government was valid and legal. The decision relied upon by the Tribunal as well as by the lea rned counsel for the respondent in Lal Audhraj Singh v. State of M.P. is not app licable to the facts of the present case, as in that case, the employer had a ch oice to inflict punishment on the employee but the employer did not choose to p unish the employee and in that context, it was held by the High Court that the m isconduct attributable to the employee was condoned. (Emphasis is a dded) 55. Relying upon the above decision of R.N. Mishra (supra), the Supreme Cour t, in its later decision, in P.D. Agarwal Vs. State Bank of India, reported in ( 2006) 8 SCC 776, observed: 25. However, for the purpose of holding that misconduct was condoned by the emp loyer the court must come to a definite finding as regards the conduct of the em ployer. It must be held that either expressly or by necessary implication that t he employer had knowledge of the misconduct of the employee. It is one thing tha t despite such knowledge, the delinquent officer is promoted to which he would n ot have been otherwise entitled to or if the disciplinary proceeding had been in itiated as if the misconduct was not committed for and it is another thing to sa y that such a misconduct was not required to be taken into consideration as by r eason of the service rule, promotion was to be granted on the basis of seniority alone, and, thus, the question of condonation of misconduct on the part of the employer would not arise. 56. What emerges from the above discussion is that an employee cannot be de nied his right of being considered for promotion merely on the ground that a dis ciplinary proceeding is either pending against him or is contemplated. The autho rities concerned may either choose the sealed cover procedure as discussed above and act upon the recommendations, if any, for promotion and depending upon what the result of the disciplinary proceeding is. The Government may also choose to promote an employee during the pendency of a disciplinary proceeding if he is, otherwise, found fit for promotion. Such promotion would be governed by the resu lt of the disciplinary proceeding. In the present case, therefore, the mere fact that the respondent was promoted twice cannot, in the facts and attending circu mstances of the present case, be extended to mean that the misconduct, which the respondent has allegedly committed, stands condoned. 57. We, now, turn to the decisions, which Mr. Sinha relies upon in order to sustain the impugned orders of the learned Tribunal. 58. In the case of Lal Audhraj Singh Vs. State of Madhya Pradesh (AIR 1967 M P 284), the writ petitioner, Lal Audhraj Singh, was served with a charge-sheet, on 27.01.1954, when he was holding the post of Range Officer alleging negligence in discharge of his duties. The writ petitioner gave his reply thereto, on 04.0 3.1954, denying the allegations of negligence. Nothing happened thereafter till 15.04.1963, when a notice was issued to him by the Government asking him to show cause as to why his two increments, in his scale of pay, as Assistant Conservat or of Forests, should not be withheld for the negligence, which had formed the s ubject-matter of the notice issued to him on 27.01.1954. The writ petitioner gav e his explanation and, thereafter, an order was passed, on 27.12.1965, withholdi ng, with cumulative effect, one increment, in the scale of pay of the writ petit ioner, as Assistant Conservator of Forests. In the intervening period of nine ye ars, commencing from 27.01.1954, when the charge-sheet was served on the writ pe titioner, and the imposition of penalty by order, dated 27.12.1965, the writ pet itioner was promoted, in the year 1965, to the post of Assistant Conservator of Forests and, upon his promotion, he continued to receive his increments and was also allowed to cross the efficiency bar. Dealing with the case, a Division Ben ch of the Madhya Pradesh High Court, in Lal Audhraj Singh (supra), held as unde r: 4. In our judgment, the contentions advanced on behalf of the petitioner must b e given effect to. It is well settled that a master cannot impose any punishment on a servant for a misconduct which he has condoned. The subject of condonation has been discussed at length in a number of English cases (see Horton v. Mcmurt ry, (1860)2 LT 297 Phillips v Fosall, 1872-7 QB 666; Boston Deep Sea Fishing and Ice Co. v. Ansell. 1888-89 Chd 339 at p. 858, Battie T. Parmmenter 1889-5 TLR 3 96; Federal Supply etc. v. Angehrn and Piel, 1910-80 LJPC 1, 8; London General O mnibus Co. Ltd v. Holloway 1912-2 KB 72; Hanley v. Pease and Partners Ltd. . 191 5-1 KB 698 at p 706. The principle that merges from these cases has long been ad opted in India, see L. W. Middleton v. H. Playfair; AIR 1925 Cal 87 and District Council, Amraoti v. Vithal Vinayak Bapat, AIR 1941 Nag 125 ). In the Nagpur cas e, Bose, J. said once a master has condoned any misconduct which would have jus tified dismissal or a fine, he cannot, after such condonation, go back upon his election and claim a right to dismiss or to impose a fine or any other punishmen t in respect of the offence which has been condoned. Here, the negligence, whic h formed the basis of the notice issued to the petitioner on 27th January 1954 a sking him to show cause why he should not be dismissed or given one of the lesse r punishments detailed in Rule (1) Para 3. of Part I Serial No. 13 of the Book C ircular of the Madhya Pradesh Government, was clearly condoned by the Government when no action of any kind was, for over a period of nine years, taken against the petitioner on the charge of negligence and when, on the other hand, he was p romoted in 1956 to the post of Assistant Conservator of Forests and also receive d after promotion annual increments and was allowed to cross the Efficiency Bar The promotion given to the applicant, the annual increments allowed to him as we ll as the crossing of the Efficiency Bar can only be explained on the basis that the negligence, for which the petitioner was charged in 1954 and which tht Gove rnment thought serious enough to entail his dismissal, was condoned by the Gover nment. It is not as if the Government was not aware of the fact that the applica nt had been charged with negligence, and that a notice had been issued to him to show cause why he should not be dismissed from service. The notice dated the 27 th January 1964 was issued to the applicant by a responsible officer, namely, th e Divisional Forest Officer, Mandla Division. It is not also the case of the opp onent that the petitioner was promoted to the post of Assistant Conservator of F orests in ignorance of the notice issued to him by the Divisional Forest Officer on 27th January 1954. We are far from saying that once a person is promoted, th en there is a condonation of the lapses or misconduct on his part prior to his p romotion. But if the lapse or misconduct is one which is known to the authority before the person is promoted and not one which comes to light subsequent to the promotion, and If the authority concerned knowing of this lapse or misconduct p romotes the civil servant without any reservation, then it must be taken that th e lapse or misconduct has been condoned. In our opinion, having regard to the ci rcumstances in which the petitioner was promoted to the post of Assistant Conser vator of Forests and given annual increments and allowed to cross the Efficiency Bar, it must be held that the negligence, which formed the basis of the notice issued to the petitioner on 27th January 1954, was condoned by the Government. T he negligence having been condoned could not clearly be used subsequently for aw arding any punishment to the petitioner. (Empha sis is added) 59. While considering the observations made above, it needs to be noted that the decisions, which have been referred to, and relied upon, in Lal Audhraj Sin gh (supra), relate to largely cases arising out of ordinary law of master and se rvant and not the relationship between Government and its employee, which is, th ough, ordinarily, contractual, in nature, in the beginning, becomes more of a qu estion of status than contract and is governed by the relevant rules and not by the ordinary law, which, otherwise, governs the relationship between the master and servant. Even in District Council, Amraoti, Vs. Vithal Vinayak Bapat (AIR 19 41 Nag 124), which the Division Bench has referred to in Lal Audhraj Singh (supr a), is a case, when we were governed by the Government of India Act, 1935, and n ot by the present Constitution. The Constitution Bench, in Roshan Lal Tandonkunj Behari (supra), has succinctly described the distinction between the ordinary l aw, governing the relationship of master and servant, and the law, which governs the relationship between the Government and its employee, which we have already discussed above. 60. Thus, none of the English cases, which have been referred to, and relied upon, in Lal Audhraj Singh (supra), arose out of the relationship between the G overnment and its employee, which fall in public domain. This apart, even while allowing the writ petition, the Court made it clear, in Lal Audhraj Singh (supra ), that it was not laying down a law of universal application, when it observed & & &.We are far from saying that once a person is promoted, then, there is a co donation of the lapses or misconduct on his part prior to his promotion. 61. Thus, the Court gave its decision, in Lal Audhraj Singh (supra), on the basis of the facts of the given case and did not, as a proposition of law, lay d own that promotion, in itself, would, always and without exception, amount to co ndoning a Government servant’s misconduct. Even on merit, the Court found, in La l Audhraj Singh (supra), that punishment of withholding of the increment had bee n imposed without any opportunity having been given to the writ petitioner to ha ve his say in the matter. Thus, the decision, in Lal Audhraj Singh (supra), does not lay down a law of general proposition and cannot be made a basis for holdin g, in the light of the decisions, in BC Chaturvedi (supra) and RN Mishra (supra) , that granting of promotion would necessarily amount, in all cases and invariab ly, as an act of condonation of the misconduct. 62. Turning to the case of Collector of Customs Vs. Rebati Mohan Chatterjee, reported in 1976 (2) SLR 897, which has also been relied upon by Mr. Sinha, it needs to be noted that the respondent was served with a notice to show cause, in the year 1964, by the Collector of Customs. On the reply being given by the res pondent, the Collector was satisfied that no case against the respondent could b e made out and accordingly dropped the proceeding. Subsequently, however, a noti ce on more or less the same grounds, which were contained in the notice served o n the respondent in the year 1964, was issued to the respondent on 14.08.1970 an d the latter notice came to be challenged by the respondent. As the impugned not ice, dated 14.08.1970, was quashed, the matter was carried, in appeal, by the Co llector. The Court found that when the Collector, having considered the explanat ion given by the respondent, had already concluded that there was no case agains t the respondent and, as such, dropped the proceeding, the respondent could not have been proceeded, again, on identical grounds by a second show cause notice. However, after the writ petition was filed, the respondent was promoted on the r ecommendation of the DPC. The Division Bench of the Calcutta High Court held tha t no application was made by the appellant, in the appeal, for any order that th e promotion of the respondent be stayed pending disposal of the appeal or that t he promotion should be abided by the result of the appeal. With greatest respect , the conclusion, so reached, in Rebati Mohan Chatterjee (supra), does not appea r to be, in the light of the decision, in BC Chaturvedi (supra), correct inasmuc h as granting of promotion cannot, by itself, do away with a misconduct and, hen ce, the mere fact that during pendency of the writ petition, the respondent had been promoted, could not have been a ground for quashing the impugned notice. Th is does not, however, mean, we must hasten to add, that the impugned notice coul d not have been quashed; more so, when the decision, in Rebati Mohan Chatterjee , shows that the notice, in the year 1964, had been issued on a report given by the Central Bureau of Investigation and the Collector of Customs, having given a n elaborate analysis on the various allegations made against the respondent and the report of the CBI Officer, had already concluded that in the circumstances, the report of the CBI has no legs to stand . Thereafter, nothing happened till 16.04.1970, when the second show cause notice was given at the instance of the C entral Vigilance Commission. In such factual scenario, the decision, in Rebati M ohan Chatterjee (supra), was rendered. This decision too, therefore, cannot be s aid to have laid down a law of general proposition that during the pendency of a disciplinary proceeding, when an employee is promoted, his misconduct must be t aken to have condoned, particularly, when the decisions, in BC Chaturvedi (supra ) and R.N. Misra (supra), which we have already dealt with above, lay down other wise. 63. While examining the decision, in State of Punjab Vs. Dewan Chuni Lal, re ported in (1970) 1 SCC 479, which Mr. Sinha relies upon, we deem it appropriate to extract from the decision itself the material facts, which were taken into ac count by the Supreme Court in deciding the appeal. The relevant facts are, there fore, reproduced below: By this appeal, the State of Punjab challenges the judgment and order of the Pu njab High Court upholding the decree of the Subordinate Judge, Gurgaon, declarin g that the dismissal of the respondent from service was illegal and inoperative. The respondent, a Sub-Inspector of Police, was called upon to answer a charge f ramed on October 12, 1949, setting forth extracts from his confidential characte r roll showing his inefficiency and lack of probity while in service from 1941 t o 1948 and to submit his answer to the prima facie charge of inefficiency as env isaged, in para 16.25(2) of the Punjab Police Rules. 2. The respondent had joined the police service and had served as a Sub-Inspecto r in various places, which are now in Pakistan, before he was posted to Gurgaon in the year 1949. It appears that the view taken of his conduct and reputation b y his superior officers over the years was not consistent. In some years, he got what is known as a ’B’ certificate and in others an ’A’ certificate. According to Rule 13.17 of the Punjab Police Rules, Superintendents of Police had to prepa re personally and submit annually to the Deputy-Inspector-General of Police conf idential reports in the form prescribed on the working of all Assistant Sub-Insp ectors and Sub-Inspectors serving under them. The reports were to be of two kind s ’A’ and ’B’, and to be marked as such. An ’A’ report was for recommending that incremental promotions should not be withheld, while a ’B’ report was to contai n a recommendation, for reasons to be fully stated, that incremental promotions should be withheld. The Rule further shows that the purport of all ’B’ reports w as to be formally communicated to the officer concerned and his written acknowle dgment to be taken. It also prescribed that the submission of two successive ’B’ reports regarding an officer would result, automatically, in the institution of departmental proceedings against him with a view to stoppage of increment. 3. *** *** *** 4. *** *** *** 5. The confidential reports, extracts whereof, were contained in the charge-shee t make it clear that the respondent was being accused of laziness and ineffectiv eness and as having a doubtful reputation as to his honesty. Excepting for the y ear 1948, wherein a specific instance of corruption was charged against him the other reports only contained generally adverse remarks. For instance the remarks against him for the year 1941 were to the effect that he was lazy and inaffect ive and that he had been warned for dishonesty, laziness and lack of control . I n the year 1942, when he was posted, at Dera Gazi Khan, his annual confidential report showed that although there were no definite complaints, he had not shown any outstanding ability or energy. The Superintendent of Police was not certain about his honesty but had no special complaints against him. The respondent was not allowed to cross the efficiency bar in that year in view of his past reports . 6. It is the common case of the parties that the respondent was allowed to cross the efficiency bar in 1944. In 1945, he was transferred to Montgomery and got a ’B’ report and his honesty was characterised as doubtful. He got another warnin g in that year. In 1946, the Superintendent of Police remarked that he was a fai lure as a Station House Officer and was slow to carry out orders and had no grip on his staff. The Deputy-Inspector-General of Police Multan Range summed up his 16 years’ service with the note: From all accounts, he is one of the worst Sub-Inspectors in the Range and the d epartment will be well rid of him, if action under Rule 16.25(2) can be successf ully taken against him. Action under Rule 16-25 cannot succeed at present, but h is past record is such that any further complaint should warrant his dismissal. In the confidential reports of the year 1946, the Superintendent of Police, Muza ffargarh, stated that he was not honest and was very poor on parade. The Deputy- Inspector-General Multan Range gave him a third warning. The Superintendent of P olice, Muzaffargarh, however, remarked that although his previous record was uns atisfactory he appeared to be trying to mend himself. In the year 1948 he got a ’C’ report and the Superintendent of Police described him as thoroughly corrupt . The SP further remarked that: This officer fell to unheard of depths of moral degradation in corrupt practice s while posted to City Rewari inasmuch as he changed the opium recovered by him earlier with Resaunt for Rs 1000 bribe and then made over the opium for sale in the black market. He was known to have mixed up with bad characters, gamblers an d Rishawatdalals. According to the charge-sheet, the attested copies of these reports were to be u sed as evidence against him. 7. *** *** *** 8. The respondent pleaded not guilty to the charge and filed a list of 68 witnes ses whom he sought to examine in his defence. He also gave a summary of the fact s about which each of the witnesses was to depose. The enquiry officer allowed h im to examine 21 witnesses in defence. No witness was examined on behalf of the department. On 25th May, 1950, Bishambar Das, Superintendent of Police, made a r eport that the charge had been fully brought home to the respondent and it was s uggested that he should be dismissed. The Deputy-Inspector-General asked him to show cause why he should not be dismissed from service. After receipt of a writt en representation made by the respondent and recording his statement the Deputy Inspector-General passed an order dismissing the respondent from service. (Emphasis is added) 64. Aggrieved by his dismissal, the respondent, in Dewan Chuni Lal (supra), instituted a suit. In the setting of the facts, as extracted above, it was urged , before the Supreme Court, that by allowing him to cross the efficiency bar, th e Government must be regarded to have given the respondent him a clean chit up t o that date and in view of this, the reports of 1941 and 1942 should not have be en taken into consideration against him. While dealing with this submission, the Supreme Court pointed out: 7. In regard to the year 1948 and the charge abovementioned, it is enough to sa y that an enquiry was held against him and he was held entitled to an honourable acquittal. 65. On an analysis of the facts, the Supreme Court observed: 14. In our view, reports, earlier than 1942, should not have been considered at all inasmuch as he was allowed to cross the efficiency bar in that year. It is unthinkable that if the authorities took any serious view of the charge of disho nesty and inefficiency contained in the confidential reports of 1941 and 1942 th ey could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944. It will be noted that there was no specific complaint in either of the two years and at best there was only room f or suspicion regarding his behaviour. 15. *** *** *** 16. There can be no doubt that the 1948 report was a very damaging one and if th e allegations contained therein had any substratum of truth, the respondent coul d be dismissed from service on the strength of the charges based on those allega tions alone. But, as already noted, the respondent was cleared of this charge. (Emphasis is added) 66. In Dewan Chuni Lal (supra), the respondent had, in the year 1941 as well as 1942, received two adverse remarks in his confidential report. While dismiss ing him from service, the authorities concerned had considered these two reports too. Though the Supreme Court had noted that the 1942 report against the respon dent was a very damaging one and if the allegations contained therein had been p roved, the respondent could have been dismissed from service, yet, as the respon dent had been exonerated of the charge, which rested on the said report, the que stion arose as to whether the previous adverse remarks could have been taken int o account by the authorities concerned for the purpose of dismissing the respond ent from service. The two aspects of the matter, which attracted the attention o f the Supreme Court, were (i) the respondent had been allowed to cross the effic iency bar, in the year 1944, despite the adverse remarks, which he had received in his confidential report in the year 1941 and 1942; and (ii) since the respond ent had been allowed to cross the efficiency bar notwithstanding the said advers e remarks in the two confidential reports given in the year 1941 and 1942, the a dverse remarks could not have been taken into account as the authorities concern ed must be taken to have not taken into account seriously the adverse remarks of dishonesty and inefficiency made in the two confidential reports aforementioned . 67. What is, now, of utmost importance to note is that it is the specific fi nding of the Supreme Court, in Dewan Chuni Lal (supra), at para 14, that there was no specific complaint in either of the two years and, at best, there was onl y room for suspicion regarding his behaviour. Thus, not merely because of the f act that the respondent had been allowed to cross the efficiency bar, in the yea r 1944, that the Supreme Court treated the two adverse remarks, which the respon dent had received in his two confidential reports to have been condoned, but bec ause of the reason that the adverse remarks were based only on suspicion and not on any specific material inasmuch as observed the Supreme Court, if we may, onc e again, point out, there was no specific complaint in either of the two years and, at best, there was only room for suspicion regarding his behaviour. 68. From a bare reading of the observations made, in Dewan Chuni Lal (supra) , it becomes clear that the decision, in Dewan Chuni Lal (supra), has been rende red on the facts of the case and did not, as a matter of general proposition, la y down that whenever a person is allowed to cross efficiency bar, his misconduct , if any, shall be taken to have been condoned. The situation in hand is quite d ifferent in the sense that the case of the respondent is not a case, where there are adverse remarks or entries in the annual confidential report; rather, ther e was a disciplinary proceeding drawn against the respondent and the said procee ding resulted into imposition of penalty. However, the penalty was interfered wi th by the learned Tribunal not on merit, but on account of non-observance of the principles of natural justice. In such circumstances, when the respondent came to be promoted on the ground that the period of penalty, imposed on him, had ela psed by efflux of time, the decision, in Dewan Chuni Lal (supra), cannot be appl ied to the facts of the present case. 69. Coupled with the above, it is also worth noticing that at no point of ti me, initiation or maintainability of the disciplinary proceeding, drawn against the respondent, was ever questioned or adversely commented upon in any judicial proceeding. Thus, drawing of the disciplinary proceeding cannot, at this point of time, be said to be illegal or without substance. 70. Coupled with the above, what cannot be ignored and must be taken note of is that the Supreme Court, in Badrinath Vs. Govt. of Tamil Nadu and others, report ed in (2000) 8 SCC 395, on survey and analysis of a large number of decisions in relation to the question, as to when adverse entries/remarks may have a bearing on the promotion of a Government employee, laid down as under: 58. From the above judgments, the following principles can be summarised: (1) Under Article 16 of the Constitution, right to be considered for promotion is a fundamental right. It is not the mere consideration for promotion that i s important but the consideration must be fair according to established pri ciples governing service jurisprudence. (2) Courts will not interfere with assessment made by Departmental Promotion Com mittees unless the aggrieved officer establishes that the non-promotion was bad according to Wednesbury principles or it was mala fides. (3) Adverse remarks of an officer for the entire period of service can be taken into consideration while promoting an officer or while passing an order of compu lsory retirement. But the weight which must be attached to the adverse remarks d epends upon certain sound principles of fairness. (4) If the adverse remarks relate to a distant past and relate to remarks such a s his not putting his maximum effort or so on, then those remarks cannot be give n weight after a long distance of time, particularly if there are no such remark s during the period before his promotion. This is the position even in cases of compulsory retirement. (5) If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject howeve r to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogeth er. (6) Uncommunicated adverse remarks could be relied upon even if no opportunity w as given to represent against them before an order of compulsory retirement is p assed. 71. From the law laid down, in Badrinath (supra), what surfaces prominently is that when adverse remarks were made prior to an earlier promotion, such adver se remarks must be treated to have lost their value subject, of course, to a rid er (and this is important) that if the remarks relate to dishonesty or lack of i ntegrity, they can be considered to have not lost their strength fully so as not to be ignored completely meaning thereby that an adverse remark, with regard to dishonesty or lack of integrity, in the service record of an employee, who may have been promoted, despite such a remark would not loose its complete value, wh en the question of next promotion of such an employee arises. The mere fact, th erefore, that notwithstanding an adverse remark relating to dishonesty or lack o f integrity, when an employee is promoted, it cannot be said that adverse remark has lost all its weight and must be treated to have been fully condoned and can never ever be considered. In the case at hand, neither it is contended nor has it come on record that there was any conscious decision, on the part of the Gove rnment, not to proceed further with the disciplinary proceeding drawn against th e respondent. Merely because of the fact that the learned Tribunal had set aside the penalty due to the failure of the disciplinary authority and the enquiry of ficer to observe the principles of natural justice, and the Government had issue d the redundant and superfluous order, dated 22.05.2002, it can be inferred, far less confidently concluded, and held unhesistantly, that the misconduct, if any , of the respondent had been condoned by the Government. 72. The last but not the least important question, which we, now, face is th is: Is it permissible, under the scheme of our Constitutional governance, to ’co ndone’ an employee’s misconduct merely because of the fact that the Government h as decided not to take action on allegations of misconduct of the employee or th at the Government, having initiated a disciplinary proceeding against the employ ee, chooses, for some unknown and strange reasons, to ’abandon’ the disciplinary proceeding and ’condone’ the misconduct, if any? 73. Our quest for an answer to the above question brings us to our Constitut ion. It is important to note and emphasise that every action of the Government, under our scheme of Constitutional governance, has to be in public interest. Eve n when an act is done by the Government by taking into account the welfare of an employee, such an act, in order to survive, must be in public interest, for, it is in the interest of the public and the society that the Government acts, whil e dealing with its employees, as a model employer, and takes welfare of its empl oyees into account, while taking an action or while omitting to take an action. Thus, when an employee’s transfer is modified by the Government, because of some personal difficulty of the employee, such an action, on the part of the Governm ent, has to be in public interest, because the relationship of employer and empl oyee between the Government and its employee is not a private affair, but an aff air, wherein interest of the public is involved and it is here that there is a p aradigm shift, in the vision of the State, between what its (State’s) vision use d to be, when we were ruled, as subject of the British empire, and the vision of the State after the Constitution adopted by us, ’We, the people of India’, has started governing all of us. The paradigm shift is clearly visible in the deci sion of the Constitution Bench, in Roshan Lal Tandonkunj Behari Vs. Union of Ind ia (AIR 1967 SC 1889), wherein, while distinguishing the nature of jural relatio nship between master and servant, on the one hand, and the relationship between the Government and its employees, on the other, Ramaswamy, J., speaking for the Constitution Bench, pithily puts thus: It is ’true that the origin of government service is contractual. There is an o ffer and acceptance in every case. But once appointed to his post or office the government servant acquires a status and his rights and obligations are no longe r determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the government. In other words, the l egal position of a government servant is more one of status than of contract. Th e hall-mark of status is the attachment to a legal relationship of rights and du ties imposed by the public ’law and not by mere agreement of the parties. The em olument of the government servant and his terms of service are governed by statu te or statutory rules which may be unilaterally altered by the government withou t the consent of the employee. It is true that Art. 311 imposes constitutional r estrictions upon the power of removal granted to the President and the Governor under Art. 310. But it is obvious that the relationship between the government a nd its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in th e nature of status. It is much more than a purely contractual relationship volun tarily entered into between the parties. The duties of status are fixed by the l aw and in the enforcement of these duties society has an interest. In the langua ge of jurisprudence status is a condition of membership of a group of which powe rs and duties are exclusively determined by law and not by agreement between the parties concerned. The matter is clearly stated by Salmond and Williams on Cont racts as follows: ‘so we may find both contractual and status obligations produc ed by the same transaction. The one transaction may result in the creation not o nly of obligations defined by the parties and so pertaining to the sphere of con tract but also and concurrently of obligations defined by the law, itself, and s o pertaining to the sphere of status. A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contr act, pertains also to that of status so far as the law itself has seen fit to at tach to this relation compulsory incidents, such as liability to pay compensatio n for accidents. The extent to which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous author ity of the parties themselves, or thinks fit to bring the matter within the sphe re of status by determining for itself the contents of the relationship, is a ma tter depending on considerations of public policy. In such contracts, as those o f service, the tendency, in modem times, is to withdraw the matter more and more from the domain of contract into that of status. (Emphasis is added ) 74. From the above observations, made in Roshan Lal Tandonkunj Behari (supr a), what becomes transparent is that the duties of a Government servant are fixe d by law and in the enforcement of these duties, society has an interest. The di scharge of his duties by a Government servant is really a discharge of his oblig ation towards the society. Similarly, the powers of a Government employee given by law is held by the Government servant as a trustee of such powers and he, the refore, has the responsibility of discharging such powers in public interest and not otherwise. The interest of the Government or of the State is not, and canno t be, different from public interest. Mr. Deb is, therefore, correct in contendi ng that there cannot be a conflict of interest between public interest and the i nterest of the State. When a power is given to the State under the Constitution, the State becomes repository of the power given to it by the people of India an d, as a trustee of such powers, the State has to exercise its powers, where the exercise of such powers is called for; otherwise, public interest would be defea ted and the rule of law would be a casualty. The right of the Government to proc eed against an erring employee casts, in reality, an obligation, on the Governme nt, to ensure that it, ordinarily, takes action against its erring employee. The Government cannot, therefore, arbitrarily exercise its power either to punish a n employee or to ’condone’ the misconduct of the employee. Every action of the G overnment has to be tested on the anvil of its Constitutional obligations and if its action fails to satisfy such a test, the action cannot be sustained. 75. We may turn to yet another important, rather most important, asp ect of law, which the present writ petitions have raised. We have already notice d that the Constitution Bench, in Roshan Lal Tandonkunj Behari Vs. Union of Indi a (AIR 1967 SC 1889), while distinguishing the nature of the relationship betwee n the ordinary master and servant, on the one hand, and the Government and the G overnment servant, on the other, held, in no uncertain words, that the duties of status, which a Government servant acquires, are really fixed by law and in the enforcement of these duties, society has an interest. 76. While considering the statement of law made by the Constitution Bench, i n Roshan Lal Tandonkunj Behari (supra), that the duties of status of a Governmen t servant are fixed by law and, in the enforcement of these duties, society has an interest, it needs to be also noted that though a decision cannot be read as a statute, the fact of the matter remains that we cannot ignore, and must be awa re of, the fact that though the system of governance, as was envisaged for this country, under the Government of India Act, 1935, has, to some extent, continued , the vision, the focus of attention and the spirit of governance has prominentl y changed and materially shifted from being merely a part of the administered ar ea of the British Empire to a democratic republic. The Government of India Act, 1935, obliged the elected representatives and also its executives to be faithful and bear true allegiance to His Majesty. No wonder, therefore, that the oath of office, be he a legislature or executive was to be faithful, and bear true alle giance to, His Majesty. In fact, the oath prescribed read, in substance, I, A.B ., having been elected [or nominated or appointed] a member of this Council [or assembly], do solemnly swear [or affirm] that I will be faithful and bear true a llegiance to His Majesty the King, Emperor to India, His heirs and successors, a nd that I will faithfully discharge the duty upon which I am about to enter. 77. Thus, under the Government of India Act, it was the faithfulness and all egiance to His Majesty, which was material. The people of India did not occupy a ny place, far less eminent space, in the vision of the governance. The vision wa s to remain faithful, and hold allegiance, to His Majesty. However, the people o f India occupy, now, the central stage in the scheme of governance under the Con stitution of India. Every action, therefore, of the legislature, the executive a nd the judiciary has to be in the interest of the people of India. As a corollar y, the Government cannot, merely because it so pleases, ’condone’ a public serva nt’s misconduct unless the act of ’condoning’ the public servant’s misconduct is in public interest. 8. In the case at hand, this Court cannot look at the facts of the present case from the point of the petitioner alone. What we have to look for is public policy and public interest. When an employee commits misconduct by reasons of in subordination, such an allegation cannot be simply pushed under the carpet. It i s the obligation of the State, under the scheme of constitutional governance, th at a disciplinary proceeding, if initiated for misconduct, is taken to its logic al conclusion unless the State, for valid reasons, decide that it would be again st public policy and public interest to continue with the disciplinary proceedin g, because of the delay in effectively concluding the disciplinary proceeding. 9. Turning to the question of harassment of the petitioner, because of the fact that the disciplinary proceeding had been continued since June, 2001, suffi ce it to point out that from the directions, which have been given by the learne d Tribunal, it appears, in the face of the impugned order, that the controversy, regarding dismissal of the petitioner, has not yet been concluded. 10. Considering the fact that a decision by this Court on the above aspect o f the case would necessitate recording of evidence, which is, in the context of the facts of the present case, is neither desirable nor permissible inasmuch as it is the learned Central Administrative Tribunal, which is the appropriate auth ority to decide the disputed questions of fact of a given case in accordance wit h the law, as contained in Clause (c) of Sub-Section (3) of Section 22 of the Ce ntral Administrative Tribunal Act, 1985, it is the learned Tribunal, which stand s empowered to receive evidence on affidavit and, obviously, when evidence is re ceived on affidavit, the right of cross-examination shall follow inasmuch as evi dence cannot be considered against a party without giving the other party an opp ortunity of testing the correctness and veracity of the evidence by way of cross -examination of the deponent. 11. Because of what have been discussed and pointed out above, we are of the considered view that the matter needs to be remanded to the learned Tribunal fo r its adjudication, in accordance with law, on the question as to whether the co ntinuation of the disciplinary proceeding against the petitioner would be harass ment to such a degree that it would warrant setting aside and quashing the disci plinary proceeding itself. While considering this aspect of the matter, the lear ned Tribunal has to bear in mind that though the disciplinary proceeding was ini tiated as far back as on 29.06.2001, the fact remains that the decision of the S upreme Court came, in the SLP, as late as on 03.11.2009 and the period during wh ich the matter remained pending for adjudication in judicial proceedings, has to be excluded. In other words, the period, which had been consumed in the legal p roceedings, would, ordinarily, be excluded, while construing the delay in the co mpletion of the enquiry. In order to decide this aspect of the matter, the party shall have the right to give evidence and, upon recording of evidence and cross -examination, if any, the learned Tribunal would be at liberty to take its own d ecision in the matter. 12. In the result and for the reason discussed above, the impugned order, da ted 10.08.2012, passed, in OA No. 164 of 2010, by the learned Tribunal is hereby set aside and the proceeding is remanded to the learned Tribunal for its adjudi cation, in accordance with law, on the question as to whether the disciplinary p roceeding warrants interference, bearing, however, in mind the observations made in the preceding paragraphs of this judgment and order. 13. No order as to costs. "