Title- Virendra Jain v. UOI & Ors
Decided on: October 11, 2023
+ W.P.(C) 9827/2003, CM APPL. 13940/2005
Introduction-
The petition was filed to challenge an order of the Tribunal relating to the promotion of the medical officer and Non-Payment of Salary and how the Annual Confidential Report plays an important role in the determination of merit for promotion. The Court observed the Judgement given in the case of P. Sivanandi v. Rajeev Kumar and Ors. and P. Sivanandi v. State of Tamil Nadu & Ors., Civil Appeal Nos. 4822- 4826/2007 and said that the law as stated in the judgment that Delay in writing and review of ACR won’t act as a disadvantage for the Medical Officer is unquestionable but given the particular circumstances of this case and the fact that the officer in question was on several unauthorized leaves, it’s inapplicable. They also highlighted the importance of Section 114 of the Evidence Act read with Section 27 of the General Clauses Act, which draws a presumption that the letter has been delivered to the addressee, especially when the letter has not been received back undelivered.
Facts of the case-
The present petition is for challenging the order dated September 9, 2003, given by Central Administrative Tribunal’s Principal Bench, New Delhi in 0A 59/2003
Where the tribunal had rejected the OA filed by the petitioner by stating that it lacked merit.
The background of the case is that the petitioner, Virendra Jain, In October 1987, was appointed under the Ministry of Health and Family Welfare in the position of Medical Officer Grade-1, Junior Scale in Central Health Services. Later on, the next year after his appointment, in 1988 he was chosen for appointment to a new post under the Special Protection Group of the Cabinet Secretariat. But in October of the same year, he got suspended because he had been arrested for punishable offenses under section 304 (b), 498(a) [Dowry Death] in IPC. Three years later in 1991, he was acquitted.
The petitioner claimed that he had informed his department about the acquittal in 1991 itself but they revoked his suspension 4 years later in June 1995 and then he joined the services again. He claimed that he had not been paid from the date of his acquittal to June 1995 when he rejoined. He also contended that his promotion had not been considered and claimed that his rights were being denied on the grounds of subsequent confidential reports.
Whereas Respondents contended that during his suspension Virendra Jain was provided with subsistence allowance. Later, in 1995 despite the order of reinstatement, he didn’t join duties. He was fully paid for the periods that he worked and they also allowed him to prove, why the entire period of suspension shouldn’t be treated as Dices- Non [The period which should not be counted for legal purposes].
Respondents argued that by taking into account his previous conduct of unauthorized leaves, he is not fit for promotion.
Key points here are that, On July 24, 2001, the Tribunal examined a matter earlier filed by the petitioner, OA No. 648/2000. The Tribunal’s ruling directed the respondent(s) to make an order by FR 54(B)(1) and (B)(3) guidelines. The Tribunal further ordered the respondent(s) to evaluate the petitioner’s claim while accounting for the decision made by the Supreme Court in the 1991 (2) SCALE 4 case of K.V. Janakiraman v. Union of India.
Abiding by the tribunal’s order the respondents released an order on May 23, 2002, based on CHS Rules, 1982.
Due to the absence of an annual confidential report in the petitioners’ case, which is important to proceed with the promotion, and guidelines for assessing cases without records, the DPC examined Dr Jain’s performance in subsequent years, that is his post-suspension and after reinstatement performance. They observed that he was absent for the periods, 31 Jan 1992 to 5 June 1995 and again for 19 June 1995 to 20th November 1999 onward, and considered the period for Dies-non. And looking at his performance from 1996-1997 also from 11 April 1999 to Dec 16, 1999, and considering the Annual confidentiality report for the said periods they found Dr Jain unfit for promotion because of several unauthorized leaves.
In another case, the Tribunal in OA 59/ 2003 after looking at the inquiry done by DPC concluded that it was a unique situation where the applicant was first appointed in 1987, served his term for 1 year till 1988, and faced criminal charges right after one year of tenure and during that time no confidentiality records were generated, hence relying on the Government of India’s Department of Personnel and training’s instructions dated 20th of June, 1989 which highlights that in situations where no confidentiality reports were generated for a said period, DPC can then consider reports for the preceding years. They also observed that the case of K.V. Janakiraman won’t apply in this scenario, as preceding years as per that case should have been the period for which Virendra Jain was arrested but then again due to the non-availability of CR, the same procedure laid in the said case cannot be followed, hence DPC is correct in observing his ACR for the period’s post-suspension.
The tribunal also found that Virendra’s claim that he received the letter for reinstatement in June 1995 was also false, as a letter dated 28th of April 1995 was sent to him for joining immediately at a correct address and hence under section 114 of the Indian Evidence Act read with Section 27 of general clauses act, the letter is deemed received, so not joining the duty till June 1995 even when the letter was sent on April 1995 was his fault and hence the period cannot be eligible for payment of salary, and one order was also passed by the name of the president of India about revocation in 1992 itself, so the court decided that the claim of Virendra Jain that he had not received the revocation order or any notice till June, 1995 was entirely unconvincing, the court also highlighted that if Dr. Jain genuinely didn’t receive any order or notice and had an issue with it he would have taken any legal action a lot earlier and not approached the court 5 years later in 2000.
Hence, they decided that Dr, Virendra Jain’s case lacked merit and another application O.A 59/2003 was also dismissed.
Courts Judgement and Analysis-
Looking at all the previous contentions of the Petitioner and the Respondents and the orders given in O.A. No. 648/2000 and O.A. 59/2003
Additionally, the Court also heard the Arguments made by the Counsel for Petitioner who had relied on the case of P. Sivanandi v. Rajeev Kumar and Others and P. Sivanandi v. State of Tamil Nadu & Ors., Civil Appeal Numbers 4822-4826/2007
The said case upheld that-
“Sivanandi cannot be at a disadvantage because his ACR was drafted and approved by higher authorities after a protracted period. He had no control over the writing or review of his ACR, and we do not see any justification for Sivanandi to suffer a disadvantage just because his senior officers neglected to carry out their duties.”
Court then analyzed the condition and said that, given that the available ACRs cover the years 1996–1997, 1997–98, 1998–1999, and April 1, 1999, to December 16, 1999, and that he was unauthorizedly absent twice, both of which were deemed to be dies–non, and that he was also absent from November 20, 1999, to May 23, 2022, there is some justification for his non-promotion.
They also said that the Judgement in P. Sivanandi’s case is a valid one however looking at the facts of this case and knowing that the petitioner has been on Unauthorized leave a lot of times makes the facts different in this case. Additionally, they added that they had been informed that Dr. Jain already resigned in 2005, so the case of promotion doesn’t stand here, regarding the payment for the period of 1992 to 1995, the court upheld the Tribunal’s decision and highlighted the application of Section 114 of the Evidence Act read with Section 27 of the General Clauses Act, which draws a presumption that the letter has been delivered to the addressee, especially when the letter has not been received back undelivered. Hence the court dismissed the writ application.
“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into the category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”
Written by- Aditi
