Madras High Court
M.Ganesan vs The Managing Director on 31 March, 2022
W.P.(MD)No.4748 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.03.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.4748 of 2016
and
W.M.P(MD)Nos.4285 of 2016 & 12590 of 2017
M.Ganesan ... Petitioner
vs
1. The Managing Director,
Tamil Nadu Civil Supplies Corporation, 12
Thambu Samy Road, Keelpauk, Chennai 10.
2. The General Manager, (Administration)
Tamil Nadu Civil Supplies Corporation, 12
Thambu Samy Road, Keelpauk, Chennai 10.
3. The Regional Manager,
Tamil Nadu Civil Supplies Corporation,
Regional Office, Thoothukudi.
4. V. Kirubakaran, Superintendent
Tamil Nadu Civil Supplies Corporation,
Regional Office, Thoothukudi. ... Respondents
1/15
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W.P.(MD)No.4748 of 2016
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, to call for the records connected
with the Impugned Order passed by the 1st respondent in his Proceedings
Se.Mu.A.No.AD 4/87676/14 dated 02.11.2015 and quash the same and
consequently direct the 1st respondent to promote the petitioner as
Superintendent in the existing vacancy, the date on which the petitioner's Junior
V. Kirubakaran got promoted on 30.01.2014 with all other attendant monetary
and other consequential service benefits.
For Petitioner : Mr.S.Govindan
For Respondents : Mr.R.Saravanan
for Mr.P.Seetharaman
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus, to quash the impugned order dated 02.11.2015 and consequently
direct the respondents to promote the petitioner as Superintendent in the existing
vacancy, the date on which the petitioner's junior V.Kirubakaran got promotion on
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W.P.(MD)No.4748 of 2016
30.01.2014 with all other attendant monetary and other consequential service
benefits.
2. The brief facts of the case are that the petitioner was appointed as Bill
Clerk on 01.06.2001 on compassionate grounds due to the death of his father,
who was working as Watchman. Initially the petitioner was appointed as Bill
Clerk in Amutham Retail Shop at Vallanadu, then promoted as Junior Assistant on
16.09.2008 and then transferred to Regional Office at Thoothukudi.
Subsequently, the petitioner was promoted as Assistant on 08.10.2010. The next
promotion to the petitioner is Superintendent and the crucial date for promotion is
first September every year. The respondent published seniority list of Assistant
on 01.09.2013 for the year 2013. The petitioner's name was in Sl.No.3 and the
petitioner's seniors namely N.Selvaraj and B.Shenbahavalli were in Serial No. 1
& 2 and were promoted subsequently. The petitioner's name ought to be
considered for the next promotion. In the meantime, the second respondent issued
a show cause notice on 21.10.2013 after the crucial date for preparation of
seniority list dated 01.09.2013. The allegation against the petitioner is that one V.
Murugan, Junior Assistant of the same office had made a complaint against the
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W.P.(MD)No.4748 of 2016
petitioner stating that the petitioner has not inspected the Fair Price Shops as
ordered by the third respondent along with K.Skathivel, Junior Assistant and the
petitioner has given a wrong statement as if the petitioner has inspected the Fair
Price Shops and other 10 charges.
3. The contention of the petitioner is that the third respondent had ordered
to inspect the Amutham Retail Shop on 22.12.2012 and 24.12.2012 along with
K.Sakthivel. The petitioner had inspected the said Shop on the said two days
along with the Sakthivel and has submitted a report about the irregularities
committed by one Senthil Kumar, who was in-charge of the Retail Shop. Based
on the inspection report, Rs.17,293/- was recovered from the individual, namely,
Senthil Kumar who is responsible for the loss caused to the Amutham Retail
Shop. Therefore, the allegation against the petitioner is that he has not inspected
the Shop as ordered by the third respondent and issued a show cause notice dated
21.10.2013 was vehemently opposed by the petitioner. Based on the show cause
notice, the petitioner was deferred for the promotion for the year 2013. The third
respondent appointed one G. Nagaraj, Superintendent to conduct a preliminary
enquiry and the enquiry has ended up in dropping the proceedings. In the
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W.P.(MD)No.4748 of 2016
meanwhile, the first respondent by an order dated 22.01.2014 released the panel
for the promotion of Superintendent, where the petitioner's name was deferred
alleging major charges pending against the petitioner. In the meanwhile, the
Review Authority as Suo Motu reviewed the entire proceedings and imposed the
punishment of stoppage of increment for six months without cumulative effect,
vide order, dated 02.11.2015. According to the petitioner there was not charges
pending against the petitioner on the crucial dated i.e., 01.09.2013 and on the date
of crucial date, a Charge Memo was not issued, therefore, the petitioner should be
considered for the promotion. Hence the present writ petition.
4. The third respondent has filed a counter affidavit stating that the
promotional panel for the Superintendent for the year 2013 was published on
22.01.2014, wherein the petitioner's name was deferred since charge memo dated
21.10.2013 was issued to the petitioner. In the subsequent promotion list for the
year 2014 dated 21.01.2015, the petitioner's name was not included. As per the
Board proceedings, vide RC.No.R2/26811/93 dated 15.07.1993 in the Circular
Para 3, it has been stated that,
“If charges are framed subsequent to the crucial date and still pending
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W.P.(MD)No.4748 of 2016
disposal till the panel is drawn, the following guidelines have to be
adopted.
a) If charges are pending under Major penalty such cases should not be
considered.”
5. The contention of the respondent is that in a recent judgment of Division
Bench, it has been held that, if a charge is pending on the date of consideration,
then the promotion cannot be granted. The disciplinary proceedings were
initiated properly and the Enquiry Officer found that all the charges are proved
against the delinquent officer but the disciplinary authority, the predecessor in
office, dropped the proceedings inspite of the findings of the Enquiry Officer that
the charges are proved. A show cause notice dated 23.12.2014 was issued to
initiate Suo Moto review proceedings as per the Regulation 8 Chapter 5 as per
200th Board meeting held on 09.03.1992 under item no.37 and as per reference
number 11962/91 G2 dated 21.05.1992 with effect from 01.06.1992. It is stated in
Para 12 as under:
“Notwithstanding anything contain in this regulation the
board (or) the Managing Director shall either suo-motto (or)
otherwise at any stage of disciplinary proceedings may call
for the filed and give any direction as deemed just and
equitable provided such direction shall not a breached the
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W.P.(MD)No.4748 of 2016
procedure for imposing penalty”.
6. Therefore, the show cause notice dated 23.12.2014 was issued, to show
cause why the order of dropping of proceedings dated 17.09.2014 should not be
reviewed. The petitioner was directed a submit an explanation and the petitioner
submitted explanation dated 12.02.2015 and subsequent letter in October 2015.
The impugned order dated 02.11.2015 was issued after considering the
explanation, thereby set aside the order dated 17.09.2014 and a punishment of
stoppage of increment for six months without cumulative effect was issued. The
petitioner has referred 17(b) of the Tamil Nadu Subordinate Service Rules, but the
service of the delinquent is governed by the Tamil Nadu Civil Supplies
Corporation Employees Service Rules and Wages settlement is arrived before
appropriate before the Labour Commissioner under section 12(3) of Industrial
Dispute Act 1947. The petitioner ought to raise an Industrial Dispute before the
appropriate Labour Court instead of approaching this Court. Therefore, the
respondents prayed to dismiss the writ petition.
7. Heard Mr.Govindan, learned Counsel appearing for the petitioner and
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W.P.(MD)No.4748 of 2016
Mr.R.Saravanan, learned Counsel appearing for the respondents.
8. The respondents have circulated a Circular dated 15.07.1993 in Sub-
Clause 3 it has been held as under:
“3) If charges are framed subsequent to the crucial date and
still pending disposal till the panel is drawn, the following
guidelines have to be adopted.
a) If charges are pending under major penalty such
cases should not be considered.
b) If charges are pending under minor punishment, the
competent authority should exercise discretion to decide the
case on merit.
4) If the delinquent has not been exonerated from the charges
and awarded the punishment by way of “Censure” such a
punishment will have a bar for Six months from the date of
issue of orders.
5) Stoppage of increment without cumulative effect
irrespective of the period will have a bar for promotion for
one year from the date of passing orders.
6) Stoppage of increment with cumulative effect irrespective of
the period will have a bar for promotion for Two years from
the date of Final orders.
7) Suspension period treated as substantive punishment will
render the persons concerned, ineligible for promotion for a
period of Two Years from the date of Final orders.
8) Recover proceedings issued in respect of the following
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W.P.(MD)No.4748 of 2016
cases will have a bar for a period of One Year from the date of
orders.
a) Misappropriation of funds.
(Direct involvement)
b) Recovery ordered on account of direct involvement in
monetary loss to the TNCSC Limited”.
9. It is seen from the records that the petitioner is eligible to be considered
for the post of Superintendent from 09.10.2012 onwards. The petitioner's name
was in seniority panel is in Serial No.3 and Serial No.1 & 2 were already granted
promotion. The crucial date for promotion is 01.09.2013 and the show cause
notice was issued on 21.10.2013. Therefore, this Court is of the considered
opinion that the petitioner is eligible during the period from 01.09.2013 to
20.10.2013 and the respondent's bounden duty is to consider the petitioner's name
during that period.
10. It is seen that the enquiry report dated 17.04.2014 was submitted and
the disciplinary proceedings was dropped on 17.09.2014 and the petitioner is
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W.P.(MD)No.4748 of 2016
entitled to include his name on the crucial date 01.09.2014. The petitioner
submitted a representation dated 07.10.2014 and the 3rd respondent through
proceeding dated 30.09.2014 recommended to include the petitioner’s name to
the 1st respondent. However, the 1st respondent different from the disciplinary
authority and issued show cause notice dated 23.12.2014 invoking the reviewing
power and petitioner submitted explanation on 11.03.2015 and the Review
Authority imposed punishment dated 02.11.2015 of stoppage of increment for six
months without cumulative effect. Therefore for the year 2014 the petitioner is
eligible for promotion from 01.09.2014 since the disciplinary proceedings was
dropped through order dated 17.09.2014, but the Review Authority declined the
chance by issuing show cause notice 23.12.2014 to review the order. However the
petitioner is eligible from 01.09.2014 to 23.12.2014, therefore this Court is of the
considered opinion to the petitioner is eligible from 01.09.2014 to 23.12.2014.
11. The contention of the respondents are that as per Circular dated
15.07.1993, if there is any pending disciplinary proceeding then the petitioner is
not entitled to consider for promotion. But the circular states, if charge is pending
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W.P.(MD)No.4748 of 2016
under major penalty, such cases cannot be considered. If there is minor penalty
then the respondent shall consider the delinquent for promotion by exercising the
discretionary power. Since in the present case the respondents ought to have
invoked the discretionary power and considered the claim of promotion. But the
respondents submitted even if minor punishment is imposed, then the petitioner is
not entitled to promotion for further one year as per clause 5, wherein it states,
stoppage of increment without cumulative effect irrespective of the period will
have a bar for promotion for one year from the date of passing orders. This
clause comes under the concept of “check period” and this Court has held in
Deputy Inspector General of Police Vs V. Rani reported in 2011 (3) CTC 129, that
check period is alien to service jurisprudence and has quashed the relevant G.O.
and Circulars. Therefore this Court is of the considered view that check period is
like imposing punishment twice for the same cause of action and the respondents
cannot invoke Clause 5 as per Rani case stated supra and the petitioner is eligible
for promotion from the date of dropping of proceedings i.e. from 17.09.2014 and
he should be included in the seniority list dated 01.09.2014. The disciplinary
authority had also recommended through proceedings dated 30.09.2014 placing
the petitioner in Serial No. 1.
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W.P.(MD)No.4748 of 2016
12. In the present case, it is only a minor penalty and the respondents
should have exercised the discretion to decide the case on merits, but the
respondents failed to do so. The petitioner is entitled to consider for promotion in
the place of his junior namely V.Kirubakaran. The respondents are directed to
grant promotion to the petitioner with all attendant benefits and monetary benefits
from the date on which the petitioner’s junior V.Kirubakaran was promoted. The
petitioner has not worked in that place, but the respondents have deliberately not
granted the promotion. Therefore, in order to meet the ends of justice, the
petitioner is entitled to 50% of the monetary benefits and 50% notional monetary
benefits. The learned Counsel for the petitioner also consented for the 50% of
backwages and 50% of notional monetary benefits.
13. Based on the above discussions the respondents are directed to grant
promotion to the petitioner in the post of Superintendent from the date on which
his junior V.Kirbakaran was promoted and grant 50% of monetary benefits and
50% notional monetary benefits. With the above observation, the Writ Petition is
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W.P.(MD)No.4748 of 2016
allowed. No costs. Consequently, connected miscellaneous petitions are closed.
31.03.2022
Index : Yes / No
Internet : Yes
jbr
Note:
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the Advocate/litigant
concerned.
To
1. The Managing Director,
Tamil Nadu Civil Supplies Corporation, 12
Thambu Samy Road, Keelpauk, Chennai 10.
2. The General Manager,(Admn.)
Tamil Nadu Civil Supplies Corporation, 12
Thambu Samy Road, Keelpauk, Chennai 10.
3. The Regional Manager,
Tamil Nadu Civil Supplies Corporation,
Regional Office, Thoothukudi.
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W.P.(MD)No.4748 of 2016
4. V. Kirubakaran, Superintendent
Tamil Nadu Civil Supplies Corporation,
Regional Office, Thoothukudi.
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W.P.(MD)No.4748 of 2016
S.SRIMATHY, J
jbr
Order made in
W.P.(MD)No.4748 of 2016
31.03.2022
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