W.P.No.7784 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.11.2022
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
W.P.No.7784 of 2022
and WMP Nos.7807 and 7810 of 2022
V.Sivaraj ... Petitioner
Versus
The Principal Secretary to Government,
Commissioner of Labour,
Chennai-600 006 .,.. Respondent
Prayer:-Petition filed under Article 226 of the Constitution of India praying
this Court to issue a writ of Certiorarifid Mandamus to call for the records of
the respondent in connection with the impugned order passed by him in
Proceedings E2/5202/2022-1 dated 14.03.2022 and quash the same and direct
the respondent to consider the claim of the petitioner for promotion as Deputy
Inspector of Labour in the panel year 2021-2022 within a stipulated time,
without reference to the punishment imposed on the petitioner in Proceedings
F1/10323/2017 dated 23.11.2018 and promote him as Deputy Inspector of
Labour and grant him all consequential service and monetary benefits.
For Petitioner : Mr.K.Venkatramani
Senior Counsel for
Mr.M.Muthappan
For Respondent : Mr.G.Nanmaran
Spl.Govt.Pleader
https://www.mhc.tn.gov.in/judis
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W.P.No.7784 of 2022
ORDER
This writ petition has been filed challenging the rejection of the
petitioner's claim for promotion on the ground that the petitioner has suffered a
punishment of stoppage of increment without cumulative effect dated
23.11.2018 within a period of five years from the crucial date for panel
selection.
2. The case of the petitioner is that he entered into service as Typist
on 07.12.1994 in the office of the Deputy Chief Inspector of Factories
Coimbatore through a selection conducted by Tamil Nadu Public Service
Commission. He was promoted as Assistant Inspector of Labour on 04.02.2011.
3. According to the petitioner, no disciplinary proceedings were
initiated by the respondent against him during his tenure from 26.11.2013 to
30.09.2015. According to the petitioner, while working as Assistant Inspector
of Labour, III Circle, Chennai-79, he made an inspection on 17.06.2014 at M/s
Pandiyas Hotel, Thiruvottiyur High Road, Chennai-79 and the Proprietor of the
Hotel violated all the Acts and Rules, for which, show cause notice was issued
to M/s Pandiyas Hotel and a fine was imposed on them. According to the
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petitioner, as a vindictive measure, M/s Pandiyas Hotel lodged a complaint
against the petitioner and pursuant to the same, a charge memo came to be
issued by the Assistant Commissioner of Labour-I, Chennai dated 23.12.2016
which was received by the petitioner on 20.01.2017. Thereafter, disciplinary
proceedings has been initiated against the petitioner by the department under
Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules. Based
on the enquiry report, the petitioner was imposed punishment of stoppage of
increment for one year without cumulative effect on 23.11.2018. According to
the petitioner, he received the punishment order dated 23.11.2018 only on
06.12.2018.
4. According to the petitioner, on 01.07.2019, the said punishment
has been given effect to from the date of annual increment. The said
punishment should have been effected from 01.01.2019 to 31.12.2019.
However, according to him, the respondent has taken one year period of
stoppage of increment without cumulative effect from 01.07.2019 to
30.06.2020. According to the petitioner on 01.07.2020, after completion of the
punishment, he became eligible to receive the annual increment. The crucial
date of promotion panel is 01.05.2021, which is not disputed by the respondent.
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5. According to the petitioner, five years period shall be reckoned
from the date of incident and not from the date of punishment. The crucial date
of panel is 01.05.2021 and the five years period prior to the said date is from
01.05.2016 to 30.04.2021. According to the petitioner, since there is no
currency of punishment either on the crucial date viz., 01.05.2021 or on the
date of consideration i.e., on 14.03.2022, the petitioner ought to have been
promoted. The petitioner claims that he attained sufficient seniority and merit
for consideration of his claim for promotion as Deputy Inspector of Labour for
the panel year 2021-2022 for which the crucial date is 1 st May of every year.
However, the respondent published the panel for promotion to the post of
Deputy Inspector of Labour for the period 2021-2022 on 14.03.2022, in which,
the petitioner's name has been deferred. The petitioner thereafter, sent
representation on 08.03.2022 seeking to include him in the promotional panel
for the year 2021-2022. However, under the impugned communication dated
14.03.2022 which has been received by the petitioner on 17.03.2022, he has
been informed that his request for inclusion of his name in the promotional
panel has been rejected as he has suffered punishment of stoppage of increment
of one year without cumulative effect dated 23.11.2018 which ended only on
30.03.2022.
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6. The petitioner has challenged the impugned rejection order on the
ground that the alleged occurrence took place on 17.06.2014 which was the
subject matter of disciplinary proceedings initiated against the petitioner on
23.12.2016, which is five years prior to the crucial date for preparation of the
panel for the year 2021-2022 and the crucial date is 01.05.2021. Hence in view
of the guidelines issued in the Tamil Nadu Government Servants (Conditions of
Services) Act 2016, Section 7(1) with Annexure XI (11)(13) states that “If a
member of service is imposed with punishment of irregularities or
delinquencies that were committed five years prior to the crucial date, his
name shall be considered for promotion or appointment to a post, if the
member of service is not undergoing such punishment on the crucial date or on
the date of consideration for actual promotion”. Hence, according to the
petitioner, his claim for promotion in the panel year cannot be deferred and the
action of the respondent to defer the claim for the year 2021-2022 as per the
impugned order dated 14.03.2022 cannot be sustained and the same is liable to
be quashed.
7. A counter affidavit has been filed by the respondent and their main
contention is that the name of the petitioner was not considered for promotion
only due to the currency of punishment preceding five years of the crucial date https://www.mhc.tn.gov.in/judis 5/14 W.P.No.7784 of 2022
which falls on 01.05.2021. The relevant contentions of the respondent in the
counter affidavit are found in paragraph Nos.9, 10 and 11, which are extracted
hereunder:-
“ I submit that as per para-11 in Part-A(II) in Schedule-XI under Section 7(1) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, any punishment (other than “Censure”) imposed on a member of service within a period of five years prior to the crucial date and punishment of “Censure” imposed within a period of one year prior to the crucial date shall be held against the member of service and his name shall not be considered for inclusion in the approved list. Any punishment, including “Censure” imposed on a member of service after the crucial date, but before actual promotion or appointment shall be held against the member of service and he shall not be given promotion or appointment. The petitioner was imposed punishment of stoppage of increment for one year without cumulative effect vide Proceedings dated 23.11.2018 and the punishment period from 01.07.2019 and ended on 30.06.2020 which is within the period of five years prior to the crucial date of 01.05.2021.
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10. I submit that as per seniority, the petitioner is to be considered for promotion for the panel year 2021-2022 only and as per the Para-11 in Part-
A(II) in Schedule-XI under Section 7(1) o the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, the name of the petitioner was not considered for promotion, due to the currency of punishment preceding five years.
11. I submit that with regard to the averments made in para 5 of the Affidavit, it is submitted that the petitioner was awarded stoppage of increment for one year without cumulative effect vide Proceedings No.F1/10323/2017, dated 23.11.2018 of the Commissioner of Labour. The currency of punishment ended on 30.06.2020. It is submitted that as per seniority, the petitioner is to be considered for promotion for the panel year 2021- 2022 only and due to adverse remarks in the preceding five years and as per the para-11 in Part-A(II)in Schedule-XI under Section 7(1) of the Tamil Nadu Government Servants (Conditions of Service)Act, 2016, the name of the petitioner was not considered for promotion.”
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8. Heard Mr.K.Venkataramani, learned Senior Counsel for the
petitioner and Mr.G.Nanmaran, learned Special Government Pleader appearing
for the respondent.
9. Learned Senior Counsel appearing for the petitioner drew the
attention of this Court to clauses 11,12 and 13 of Schedule XI to Tamil Nadu
Government Servants (Conditions of Service) Act, 2016. He would submit that
Clauses 12 and 13 are exceptions to Clause-11. Since the petitioner was not
undergoing any punishment on the crucial date or on the date of consideration
of the actual promotion, by applying clause-13, the petitioner ought to have
been promoted for the panel year 2021-2022. In support of his contention, he
relied on a judgment of the learned Single Judge of this Court dated 23.12.2021
passed in W.P.No.31326 of 2017 in the case of “ P.Vasuhi vs The Principal
Secretary to Government, Co-operation, Food and Consumer Protection
Department and others” and would point out that in identical circumstances, it
was held that “ If a member of service is imposed with punishment of
irregularities or delinquencies that were committed five years prior to the
crucial date, his name shall be considered for promotion or appointment to a
post, if the member of service is not undergoing such punishment on the crucial
date or on the date of consideration for actual promotion”. https://www.mhc.tn.gov.in/judis 8/14 W.P.No.7784 of 2022
10. Learned Senior counsel would submit that clause-13 was applied
in that case and promotion was granted to the said petitioner also. Learned
Senior Counsel also drew the attention of this Court to another order dated
08.01.2020 passed by another learned Single Judge of this Court in WP
No.32269 of 2012 in the case of “ V.Kandaswami vs The Principal Secretary
to Government and another” and in particular, paragraph-10, where also, it
was held that, “If a member of service is imposed with punishment of
irregularities or delinquencies that were committed five years prior to the
crucial date, his name shall be considered for promotion or appointment to a
post, if the member of service is not undergoing such punishment on the crucial
date or on the date of consideration for actual promotion”.
11. Per contra, learned Special Government Pleader appearing for
the respondent would reiterate the contents of the counter affidavit filed by the
respondent before this Court and would submit that rightly the impugned order
has been passed rejecting the petitioner's request for promotion for the panel
year 2021-2022, as the punishment period was in existence five years before
the crucial date. According to the learned Special Government Pleader, clause-
13 of Schedule XI to the Tamil Nadu Government Servants (Conditions of https://www.mhc.tn.gov.in/judis 9/14 W.P.No.7784 of 2022
Service) Act, 2016 will not apply to the case of the petitioner as the case of the
petitioner was not deferred earlier and his name for promotion was considered
only for the first time in the year 2021-2022. He would further submit that the
punishment imposed on the petitioner has attained finality since he has not
challenged the same before any Court.
12. Admittedly, the charges were framed against the petitioner in the
disciplinary proceedings initiated by the respondent on 23.12.2016 i.e., five
years prior to the crucial date for promotion i.e., on 01.05.2021. The
punishment in the disciplinary proceedings viz., stoppage of increment for one
year without cumulative effect was imposed by the disciplinary authority on
23.11.2018. The said punishment has also been given effect to and the one year
period of stoppage of increment without cumulative effect was completed on
30.06.2020. Admittedly, on the crucial date for promotion panel i.e., on
01.05.2021 and on the date of consideration for promotion panel i.e, on
14.03.2022, the currency of punishment has already come to an end. Clauses
11,12 and 13 to Schedule XI of to the Tamil Nadu Government Servants
(Conditions of Service) Act, 2016 read as follows:
“ 11. Any punishment (other than “Censure”) imposed on a member of service within a period of five
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years prior to the crucial date and a punishment of “Censure” imposed within a period of one year prior to the crucial date shall be held against the member of service and his name shall not be considered for inclusion in the approved list. Any punishment, including “Censure” imposed on a member of service after the crucial date, but before actual promotion or appointment shall be held against the member of service and he shall not be given promotion or appointment.”
(12) A member of service whose name has not been included in the approved list for a punishment shall not be overlooked in the subsequent years' list for the same punishment or punishments, provided the member of service is not undergoing any punishment on the crucial date for preparation of approved list.
(13) If a member of service is imposed with punishment for irregularities or delinquencies that were committed five years prior to the crucial date, his name shall be considered for promotion or appointment to a post, if the member of service is not undergoing such punishment on the crucial date or on the date of consideration for actual promotion.”
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13. As seen from the aforesaid clauses, Clauses 12 and 13 are
exceptions to Clause 11. Learned Senior Counsel for the petitioner relied upon
Clause 13 to substantiate the claim of the petitioner. As seen from Clause-13, if
the member of service is not undergoing such punishment on the crucial date or
on the date of consideration for actual promotion, he ought to have been
promoted. The petitioner's case also falls in the said category. The petitioner's
punishment as per the order of the disciplinary authority came to an end on
30.06.2020 as one year period of stoppage of increment without cumulative
effect came to an end on that date. Admittedly, on the crucial date of panel
selection ie., on 01.05.2021 and on the date of consideration for promotion on
14.03.2022, the petitioner was not undergoing any punishment. Applying
Clause-13 of Schedule XI to Tamil Nadu Government Servants (Conditions of
Service) Act, 2016, the respondent ought to have promoted the petitioner for
the panel year 2021-2022 as Deputy Inspector of Labour. However, by total non
application of mind to Clause-13 of Schedule XI of Tamil Nadu Government
Servants (Conditions of Service) Act, 2016, the petitioner's promotion was
deferred. In the impugned order also, the respondent has rejected the
petitioner's representation by erroneously applying Clause-11 of Schedule XI of
Tamil Nadu Government Servants (Conditions of Service) Act, 2016 instead
they ought to have applied Clause-13, referred to supra. https://www.mhc.tn.gov.in/judis 12/14 W.P.No.7784 of 2022
14. Clause-13 is an exception to clauses 11 and 12 and it makes it
clear that if the petitioner was not undergoing punishment on the crucial date
for promotion or on the date of consideration for actual promotion, his name
shall be considered for promotion. By total non application of mind, the
respondent has rejected the petitioner's request for promotion.
15. The decisions relied upon by the learned Senior Counsel for the
petitioner referred to supra also support the case of the petitioner, wherein, it
has been consistently held that if a member of service is imposed with
punishment for irregularities or delinquencies that were committed five years
prior to the crucial date, his name shall be considered for promotion or
appointment to a post, if the member of service is not undergoing such
punishment on the crucial date or on the date of consideration for actual
promotion.
16. For the foregoing reasons, the impugned order dated 14.03.2022
passed by the respondent has to be quashed and the writ petition will have to be
allowed.
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ABDUL QUDDHOSE,J.
sr
17. Accordingly, the impugned order dated 14.03.2022 passed by the
respondent is quashed and the writ petition is allowed. The respondent is
directed to consider the claim of the petitioner for promotion as Deputy
Inspector of Labour in the panel year 2021-2022 if he is otherwise eligible
within a period of six weeks from the date of receipt of a copy of this order
without reference to the punishment imposed on the petitioner in Proceedings
F1/10323/2017 dated 23.11.2018 and promote him as Deputy Inspector of
Labour and grant him with consequential service and monetary benefits. No
costs. Consequently, connected miscellaneous petitions are closed.
01.11.2022 sr Index: Yes/No Speaking Order/Non-Speaking Order
To
The Principal Secretary to Government, Commissioner of Labour, Chennai-600 006
W.P.No.7784 of 2022
https://www.mhc.tn.gov.in/judis 14/14
