HYDERABAD: As the right to consideration for promotion is recognised as a fundamental right of an employee, the court or the tribunal cannot ignore the arbitrary action of the employer in denying such right to any employee. Aggrieved by the order of AP Administrative Tribunal dismissing an application filed with regard to his promotion, the petitioner employee moved the HC.
As for the case details, the state government framed several charges against the petitioner who worked in the municipal administration department. The enquiry officer, after holding a detailed enquiry, submitted a report exonerating the petitioner of all the charges framed against him. Not satisfied with the enquiry report, the government appointed another officer for conducting further enquiry. On the ground that the disciplinary proceedings were pending against him, the petitioner was not promoted to a higher post. He then approached the tribunal.
The tribunal dismissed his application on the ground that it is for the departmental promotion committee (DPC) to consider or not to consider a candidate for promotion and that the tribunal cannot interfere with the promotion process before the DPC takes a decision.
The tribunal has also rendered a finding that the government has got the power and privilege to order fresh enquiry into the allegations against the petitioner. Aggrieved, he approached the High Court.
A division bench, comprising justices CV Nagarjuna Reddy and G Shyam Prasad, opined that the view of the tribunal that the employer had an unfettered right to order a fresh enquiry if it was not satisfied with the enquiry report was based on a thorough misconception of law.
“Under Rule 21(1) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, if the disciplinary authority is not satisfied with the enquiry, it may, for the reasons to be recorded in writing, remit the case to the inquiring authority for further enquiry and report.
Under sub-rule (2) thereof, if the disciplinary authority does not agree with the findings of the inquiring authority, it can record its own tentative reasons for disagreement on any article of charge, requiring the government servant to submit, if he so desires, his written representation or submission to the disciplinary authority within 15 days, irrespective of whether the report is favourable or not to the government servant. This being the position in law, the state government is not vested with the power to appoint a fresh enquiry officer.
Be that as it may, the right to consideration for promotion is recognised as a fundamental right”, the bench observed. In the present case, as the enquiry officer exonerated the petitioner employee of all the charges and denial of consideration of promotion to him affected his fundamental right. The tribunal committed a serious error in rejecting the relief to the petitioner, it opined.
The bench allowed the plea by directing the authorities to consider the case of the petitioner for promotion to the post concerned without reference to the pendency of the disciplinary proceedings.
It, however, made it clear that the promotion, if any, given to the petitioner shall be subject to the result of the disciplinary proceedings.
Legal view
The Bench, however, made it clear that the promotion, if any, given to the petitioner shall be subject to the result of the disciplinary proceedings