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2011 DIGILAW 215 (MAD)

V. Varadharajan v. The Board of Directors

2011-01-18

R.BANUMATHI

body2011
Judgment :- 1. Challenging the orders of respondents 2 and 3 in the impugned proceedings in RS.No.E7/33173/85 dated 27.9.1985, Proc.No.E7/1548/2003 dated 21.1.2003 and Na.Ka.No.E2/6089/85 dated 28.4.1994, and to direct the respondents to keep the petitioner in the panel for promotion to the post of Superintendent for the year 1985 as on 1.4.1985 and regularise him in that post with effect from the date of promotion given to his juniors, the petitioner has filed this writ petition. 2. The brief facts are that the petitioner was promoted as Superintendent on temporary basis by the proceedings dated 20.3.1985 along with others before the regular panel of Superintendents was drawn for the year 1985. The petitioner also joined as Superintendent on 24.3.1985. At the time of drawal of the panel of Superintendents for the year 1985, the Regional Manager, Salem has reported that the petitioner was placed under suspension from 2.6.1985 and regular charges are being framed against him for the alleged shortages of 76.708 M.Ts of paddy when he was Double Lock Officer, Salem. Hence, orders had been issued to revert him as Assistant from 2.6.1985 and also ordered not to include the name of the petitioner in the panel of Superintendents for the year 1985. The petitioner was reverted as Assistant by Head Office proceedings dated 27.9.1985. The petitioner's name was not included in the panel of Superintendents for the year 1985. 3. The Regional Manager, Salem had initiated disciplinary action against the petitioner and finalised the proceedings in File No.E2/6029/85 dated 12.7.1990. It was held that the reversion from the cadre of Superintendent to Assistant itself is a grave punishment besides the mental agony experienced by the petitioner during the suspension period is enough and that he need not be punished further considering the maximum punishment awarded already. However, the disciplinary proceeding had been reviewed and ordered to be remanded back for fresh enquiry by the proceedings of the 2nd respondent E7/20958/93 dated 16.9.1993. In response to the said order, the 3rd respondent Regional Manager, Salem had re-considered the matter and passed revised orders awarding punishment of stoppage of increment for six months with cumulative effect besides regularising the period of suspension as leave by proceedings E2/6029/85 dated 28.4.1994. The petitioner has preferred an appeal against the said order. In response to the said order, the 3rd respondent Regional Manager, Salem had re-considered the matter and passed revised orders awarding punishment of stoppage of increment for six months with cumulative effect besides regularising the period of suspension as leave by proceedings E2/6029/85 dated 28.4.1994. The petitioner has preferred an appeal against the said order. By the order in G1/85654/94 dated 19.6.1995, the appellate authority had finalised the same stating that the explanation to the charges framed is not convincing. The Appellate Authority held that the punishment inflicted to the individual is correct as the petitioner had not put forth any valid points for consideration. While rejecting the appeal, by confirming the punishment of stoppage of increment for six months with cumulative effect, the appellate authority modified the suspension period by treating it as 'leave' as 'duty'. 4. In his petition dated 7.3.1991, the petitioner has preferred a petition representing that he may be given retrospective promotion with effect from 13.7.1990 with due seniority. The petitioner's request was examined and he was informed by proceedings dated 5.8.1991 that the criminal case filed against him is pending trial and hence his request will be considered after disposal of the criminal case pending against him. The criminal case pending against the petitioner in C.C.No.86 of 1990 ended in acquittal. Thereafter the petitioner has again made a representation to give promotion retrospectively with effect from 13.7.1990 with due seniority. The crucial date for the Superintendent panel for the year 1985 was 1.4.1985. The panel was drawn on 27.9.1985. At the time of drawal of panel, the individual was under suspension and major charges were pending and subsequently awarded punishment of stoppage of increment for six months with cumulative effect. According to the Department, the bar on promotion was upto 27.4.1995 till the criminal case ended. As the bar for promotion continued upto 27.4.1995, his request in the panel of Superintendent for 1985 could not be complied with and accordingly his appeal petition dated 19.8.1996 was rejected as devoid of merits. 5. By the Head Office proceedings in E.7/69975/97 dated 12.1.1998 the panel of Superintendents for the year 1985 was published with a provision for appeal by the aggrieved persons. The petitioner's name was included in the panel of Superintendents for the year 1998. 5. By the Head Office proceedings in E.7/69975/97 dated 12.1.1998 the panel of Superintendents for the year 1985 was published with a provision for appeal by the aggrieved persons. The petitioner's name was included in the panel of Superintendents for the year 1998. He has preferred an appeal vide petition dated 5.3.1998 seeking retrospective promotion and inclusion in the panel of Superintendents for 1985. As such, his seniority in the cadre of Superintendent was fixed in Serial No.1 of the final list of Superintendents for the year 1997. The Appeal petition was received by the Head Office on 30.12.2002 and by the impugned order dated 21.1.2003, the same was rejected. The Board felt that the petitioner's reversion as Assistant consequent on the suspension before the drawal of panel of Superintendents for the year 1985 was in order and therefore rejected the appeal of the individual for retrospective promotion as Superintendent with effect from 1985. Challenging the said order, the petitioner has preferred this writ petition. 6. Learned counsel for petitioner Mr.R.Singaravelan contended that the crucial date for the drawal of panel for promotion to the post of Superintendent is 1st of April every year and accordingly, in the year 1985, the panel should have been notified on 1.4.1985, but the same was drawn only on 27.9.1985 and the petitioner was promoted as Superintendent temporarily by order dated 20.3.1985 and petitioner also joined as Superintendent on 27.4.1985, and while so, after suspension, the reversion from the post of Superintendent to Assistant was like a punishment. It was further contended that the petitioner was promoted even before the suspension and framing of charges and that he ought not to have been reverted as Assistant though he was promoted temporary. The case of petitioner is that others, who are promoted along with him temporarily including his juniors, were not at all reverted and that only the petitioner was reverted on the basis of subsequent allegations. The learned counsel for petitioner would further contend that subsequent charges of suspension cannot be allowed to effect promotion given to the petitioner even six months before the drawal of panel and as such the revision would amount to punishment of reduction in rank, which could be passed only after enquiry. 7. As pointed out earlier, the petitioner was temporarily promoted as Superintendent on 20.3.1985 along with others. 7. As pointed out earlier, the petitioner was temporarily promoted as Superintendent on 20.3.1985 along with others. Before the drawal of regular panel of Superintendent for the year 1985, at the time of drawal of panel of Superintendents for the year 1985, the Regional Manager, Salem has reported about the suspension and framing of charges against the petitioner for the alleged shortage of paddy when he was Double Lock Officer, Salem. For the alleged irregularities involving financial implications of Rs.3,44,239/-, the petitioner was reverted as Assistant by the proceedings dated 27.9.1985. Placing reliance upon the proceedings in File No.E2/6029/85 dated 12.7.1990, the learned counsel for petitioner contended that in the said proceedings it was clearly observed that reversion from the cadre of Superintendent to Assistant itself was a grave punishment and that the petitioner need not be punished further considering the maximum punishment awarded already. 8. According to the Department, the Regional Manager, Salem reported that the petitioner was placed under suspension with effect from 2.6.1985 and charges were framed against him. Since charges were framed and disciplinary proceedings were contemplated against the petitioner, the petitioner's name was not included in the regular panel on 27.9.1985. Since the petitioner was given only temporary promotion with effect from 20.3.1985 in anticipation of the inclusion of his name in the regular panel for the year 1985, the petitioner was subsequently reverted. The petitioner now cannot contend that such reversion itself was a major punishment to him, more so, when the petitioner has not chosen to challenge his reversion at the relevant time. 9. By the order dated 12.7.1990 it was observed that the punishment of reversion itself would be sufficient and that the petitioner need not be punished further. However, thereafter the disciplinary proceedings had been reviewed and after the matter was remanded for fresh enquiry, the stoppage of increment for six months with cumulative effect was imposed and the period of suspension was also regularised. 10. Even though now the petitioner challenges the reversion contending that the reversion itself was punishment, it is pertinent to note that the petitioner has not challenged the order of remanding back disciplinary proceedings for fresh consideration. The Petitioner has not also made any contemporary challenge either to the order of remand or the subsequent punishment imposed upon him. 11. 10. Even though now the petitioner challenges the reversion contending that the reversion itself was punishment, it is pertinent to note that the petitioner has not challenged the order of remanding back disciplinary proceedings for fresh consideration. The Petitioner has not also made any contemporary challenge either to the order of remand or the subsequent punishment imposed upon him. 11. The further contention of the petitioner is that when the disciplinary action was completed and finalised in File No.E2/6029/85 dated 12.7.1990 holding that the reversion from the cadre of Superintendent to Assistant itself is a grave punishment and that he need not be punished further the petitioner ought to have been given promotion with effect from 13.7.1990 with due seniority. To this effect, the petitioner has also preferred petition dated 7.3.1991 representing that he may be given retrospective promotion with effect from 13.7.1990. By the proceedings E7/24964/91 dated 5.8.1991, the petitioner was informed that the criminal case filed against him is pending and hence his request will be considered after the dismissal of the criminal case pending against him. Here again the petitioner has not chosen to challenge the said proceedings dated 5.8.1991. 12. By the proceedings dated 5.8.1991, even though the petitioner was informed that his request will be considered after the disposal of the criminal case and even after the criminal case ended in acquittal, the petitioner's name was included in the panel of the Superintendents for the year 1997. Of course, it took long time. The punishment of stoppage of increment for six months with cumulative effect was imposed by the proceedings dated 28.4.1994. The currency of the punishment was over by 27.10.1994. Subsequently, when the criminal case ended in acquittal, the petitioner should have been considered for promotion with retrospective effect after the period of punishment was over i.e., 28.10.1994. This Court is of the view that after the criminal case ended in acquittal, the petitioner should have been given promotion with retrospective effect from 28.10.1994 after the currency of period of punishment was over. 13. The case of petitioner is that when the appellate authority finalised the appeal by the proceedings dated 19.6.1995 confirming the punishment of increment for six months with cumulative effect and when the appellate authority modified the suspension period as leave as duty, the petitioner ought not to have been promoted with retrospective effect from 1.4.1985. 13. The case of petitioner is that when the appellate authority finalised the appeal by the proceedings dated 19.6.1995 confirming the punishment of increment for six months with cumulative effect and when the appellate authority modified the suspension period as leave as duty, the petitioner ought not to have been promoted with retrospective effect from 1.4.1985. As pointed out earlier, the petitioner has not made any contemporary challenge, but chosen to challenge only after he got promotion in the year 1998. At no point of time, the petitioner raised any grievance about the long pendency of the disciplinary proceedings, which came to be concluded on 28.4.1994, which was affirmed by the appellate authority on 19.6.1995. While so, the petitioner cannot now contend that he ought to have been given promotion with retrospective effect from 1.4.1985. As pointed out earlier, after the criminal case ended in acquittal, stigma attached to him having been prosecuted in a criminal case should have been treated as disappeared. In my considered view, the petitioner ought to have been given promotion with retrospective effect from 28.10.1994 after the period of punishment was over. 14. For the fore-going discussion, the impugned orders of respondents 2 and 3 RS.No.E7/33173/85 dated 27.9.1985 Proc.No.E7/1548/2003 dated 21.1.2003 and Na.Ka.No.E2/6089/85 dated 28.4.1994 are set aside and it is ordered that the petitioner shall be given promotion as Superintendent with retrospective effect from 28.10.1994. As the petitioner already retired from service, the petitioner would be entitled to all the monetary benefits from the said date. The writ petition is ordered accordingly. However, there is no order as to costs.