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2011 DIGILAW 341 (MP)

Vijay Prakash Saxena v. State of M. P.

2011-03-14

BRIJ KISHORE DUBE, S.K.GANGELE

body2011
ORDER Heard 1. Appellant has filed this appeal against the order dated 3.11.2009 passed by the learned Single Judge of this Court in Writ Petition No. 2717/08. 2. The appellant-petitioner filed a petition in regard to his promotion w.e.f. 05.09.1998 along with arrears of salary. The appellant-petitioner was appointed to the post of Clerk vide order dated 11.8.1975. He was promoted to the post of Assistant Accountant/Senior Cashier in the pay scale of Rs. 1050-1800 vide order dated 27.3.90. A meeting of the Staff Sub Committee was held on 4.9.1998 in the Chairmanship of President of the Bank, in regard to consideration of cases of employees of the Bank for their promotion. It was decided in the meeting that in the cases of those employees against whom a departmental enquiry is pending or contemplated the procedure of sealed cover be adopted. The Departmental Promotion Committee considered the case of appellant-petitioner for promotion to the post of Manager and he was found fit for promotion, however, against the name of appellant-petitioner a remark was made that a departmental enquiry for decision was pending. No sealed cover procedure was adopted in the case of the petitioner. 3. The appellant-petitioner filed a copy of the note-sheet as Annexure P5. As per the aforesaid note-sheet an enquiry report was forwarded on 1.11.94/1.12.94 and it was pending since 1994 and thereafter it was decided to drop the enquiry. The appellant-petitioner further filed an order dated 27.7.2006, Annexure P-6 passed by the Chief Executive Officer of the Bank. It has been mentioned in the aforesaid order that a show cause notice was issued against the appellant-petitioner on 11.9.1993 with regard to dismissal from service, however, considering the fact of the case a punishment of imposition of stoppage of one increment with cumulative effect was imposed against the appellant petitioner. 4. Against the aforesaid order the appellant-petitioner raised a dispute before the Joint Registrar, Cooperative Societies, Gwalior under section 55(2) of the M.P. Cooperative Societies Act, 1960. The case was registered as Case No. 55 (2) 139/2006. The Joint Registrar vide order dated 12.11.2007 set aside the order of punishment dated 9.9.2006 and thereafter the increment was released to the petitioner vide order dated 3.3.2008, Annexure P-8. The petitioner was also transferred from Gwalior Branch to another Branch of the Bank of Datia. He challenged the aforesaid order of transfer in Writ Petition No. 417/2003. The Joint Registrar vide order dated 12.11.2007 set aside the order of punishment dated 9.9.2006 and thereafter the increment was released to the petitioner vide order dated 3.3.2008, Annexure P-8. The petitioner was also transferred from Gwalior Branch to another Branch of the Bank of Datia. He challenged the aforesaid order of transfer in Writ Petition No. 417/2003. The learned Single Judge of this Court vide order dated 26.6.2006 allowed the writ petition and quashed the order of transfer. 5. On the basis of the aforesaid pleading the appellant prayed before the writ Court that he was entitled to get promotion as per the recommendations and decision of the Staff Sub Committee in its meeting held on 4.9.1998. 6. Respondent-Bank filed an application for dismissing the petition. It has been mentioned by the respondent-Bank in the aforesaid application that the appellant-petitioner has a remedy to file dispute under section 55 (2) of the M.P. Cooperative Societies Act, hence, the petition is not maintainable. It has further been contended by the respondent-Bank that the departmental enquiry was pending against the appellant-petitioner, hence, the appellant-petitioner was not entitled for promotion. It has further been contended that the appellant petitioner has already raised a dispute before the Joint Registrar, hence, the petition is not maintainable. 7. The learned Single Judge of this Court dismissed the writ petition filed by the appellant-petitioner vide impugned order on the ground that the appellant-petitioner has remedy under section 55 (2) of the M.P. Cooperative Societies Act, 1960. 8. From the facts of the case, it is clear that the case of the appellant petitioner was considered by the Staff Sub Committee for promotion in its meeting held on 4.9.1998 and the appellant-petitioner was found fit for promotion. However, he was not granted promotion on account of pendency of a department enquiry and in his case sealed cover procedure was not adopted although the Committee decided to adopt the said procedure, which is evident from the proceedings of the Staff Sub Committee, Annexure P-4 that if any departmental enquiry is contemplated or pending against an employee, then in his case sealed cover procedure shall be adopted. The appellant -petitioner was punished vide order dated 9.9.2006, Annexure P-6 and a punishment of stoppage of one increment with cumulative effect was awarded to the appellant-petitioner. The appellant -petitioner was punished vide order dated 9.9.2006, Annexure P-6 and a punishment of stoppage of one increment with cumulative effect was awarded to the appellant-petitioner. The appellant-petitioner raised a dispute against the aforesaid order of punishment and the Joint Registrar vide order dated 12.11.2007, Annexure P-7 passed in Case No. 55 (2)/139/2006 quashed the order of punishment and the increment of the appellant-petitioner was also released. In such circumstances, the appellant - petitioner was entitled for promotion in pursuance to the proceedings of the Staff Sub Committee dated 4.9.1998. 9. The respondent-Bank submitted an application before the learned Single Judge for dismissal of the petition. Along with aforesaid application copies of show cause notices were filed as Annexure-A. These show cause notices were issued to the appellant-petitioner on 20.11.2008 and 12.8.2006, subsequent to the meeting of the Staff Sub Committee. Admittedly, when the Staff Sub Committee considered the case of the appellant-petitioner for promotion, at that time, only an enquiry which was initiated against him in the year 1993 was pending and in that enquiry initially punishment of stoppage of one increment with cumulative effect was imposed and subsequently that order was set aside by the Joint Registrar. Hence, there was no enquiry against the appellant-petitioner. In such circumstances, it was obligatory on the part of the respondent-Bank to grant benefit of promotion to the appellant - petitioner at par with other employees because the appellant-petitioner was found fit for promotion in the meeting of the Staff Sub Committee held on 4.9.1998. 10. For the writ of certiorari the availability of alternative remedy is no bar as held by the Hon'ble Supreme Court in the case of Harbanslal Sahnia and another v. Indian Oil Corpn. Ltd. and others, (2003) 2 SCC 107 , which is as under: "7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders of proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1 ). The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners, dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings." 11. Looking to the injustice caused to the appellant-petitioner, in our opinion, the petition filed by the appellant-petitioner could not be dismissed on the ground of alternative remedy because a substantial injustice has been caused to the appellant-petitioner. 12. Consequently, the appeal filed by the appellant-petitioner is hereby allowed. The impugned order dated 3.11.2009 passed by the learned Single Judge of this Court in Writ Petition No. 2717/08 is hereby set aside. The petition filed by the appellant -petitioner is hereby allowed. The respondent Bank is directed to grant benefit of promotion to the appellant-petitioner w.e.f. 5.9.1998 in accordance with the decision of the Staff Sub Committee dated 4.9.1998 and he be placed in the seniority list in accordance with his entitlement at par with similar employees. 13. Looking to the facts of the case that an enquiry was pending against the appellant -- petitioner and he was punished initially, but, the Joint Registrar, Cooperative Societies quashed, the order of punishment in our opinion, the appellant - petitioner is entitled the benefit of arrears of salary to the promoted post from 12.11.2007 when the Joint Registrar quashed the order of punishment of the appellant-petitioner. The order be complied with within a period of three months from the date of receipt of a copy of this order. No order as to costs.