BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/4/2007 CORAM : THE HON'BLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA and THE HON'BLE Mr.JUSTICE K.VEERARAGHAVAN Rev.Appl.Nos.45,46 of 2006 in W.A.(MD)Nos.81,82 of 2006 The Special Officer, Pudukkottai District Central Co.operative Bank Limited, Pudukkottai. .. Petitioner in both Review Applications Vs 1. R.Devendram .. Respondents in Rev.Appl.No.45 of 2006 2. SP.AM.Sundaram .. Respondents in Rev.Appl.No.46 of 2006 3. The Registrar of Co-operative Societies, Kilpauk, Chennai-10. .. Respondents in both Review applications Prayer in R.A.No.45 of 2006: Review petition filed under Order 47 Rule-1 Code of Civil Procedure against the order dated 15.11.2006 passed in W.A. No.81 of 2006. Prayer in R.A.No.46 of 2006: Review petition filed under Order 47 Rule-1 Code of Civil Procedure against the order dated 15.11.2006 passed in W.A. No.82 of 2006. !For Petitioner : Mr.K.Jayaraman ^For RR 1 in both applications) : Mr.AR.L.Sundaresan, Senior Counsel For RR 2 : Mr.R.Janakiramalu :ORDER
Order of the court was made by F.M.IBRAHIM KALIFULLA, J.
These review petitions have been preferred by the second respondent in the
writ appeals.
2. Mr.K.Jayaraman, the learned counsel for the second respondent submitted
that on the date of hearing namely 15.11.2006, the counsel could not be present
and therefore, certain vital legal questions involved in the writ appeals could
not be placed before the Division Bench but for which the order in the writ
appeals would not have been passed.
3. The review petitioner has raised three contentions namely, that in the
light of the Full Bench decision of this Court reported in 2006(4) CTC 689
(K.Marappan V. The Deputy Registrar of Co-operative Societies, Namakkal), the
writ petition itself was not maintainable and consequently, no relief could have
been granted in the writ appeal. Secondly, it was contended that the issue
relates to non grant of promotion to the writ appellants on the ground that they
suffered the punishment of censure which was in operation during the relevant
period namely immediately preceding three years from the date when the selection
promotion was made.
4. According to the learned counsel for the review petitioner as per the
bye-laws of the society when censure has been listed out as one of the
punishments, having regard to the dictum of the Honourable Supreme Court
reported in 1998 SCC (L & S) 1121 (State of M.P. V. I.A.Qureshi), the same would
operate as a bar for considering the writ appellants for promotion. Lastly, it
was contended that irrespective of the clause in the bye-laws listing out the
penalties as between the candidates who were considered for promotion, one who
suffered a punishment of censure or any other punishment cannot be equated to
another employee who served the petitioner society without any blemish and
therefore, on this ground as well the claim of the writ appellants was not
justified and therefore, no interference was called for to the order of the
learned Single Judge.
5. As against the above submissions, Mr.AR.L.Sundarasan, learned senior
counsel appearing for the writ appellants at the out set contended that the case
of the writ appellants would fall within the criteria laid down in paragraph
21(i) of the Full Bench decision and therefore, the writ petition was
maintainable. The learned counsel then contended that the Division Bench having
examined the question whether censure would constitute the punishment and has
taken a view that the same can only be treated as warning or a minor penalty and
not a full fledged punishment, no interference is called for in a review
petition. According to the learned senior counsel, the writ appellants having
served the society for a quite long time cannot be deprived of their promotion
merely because of the censure administered on them. Apart from the respective
submissions, it is also stated that both the writ appellants were promoted after
the prohibitive period of three years which was an impediment for considering
them for further promotion to the post of Assistant Manager.
6. In the above said background, when we considered the respective
submissions of the learned counsel, as far as the contention regarding the
maintainability of the writ petition is concerned, a perusal of clause (i) of
paragraph 21 of the Full Bench decision it comes to light that if a particular
Co-operative Society can be characterised as a ‘State’ within the meaning of
Article 12 of the Constitution (applying the tests evolved by the Supreme
Court), it would also be, ‘an authority’ within the meaning and for the purpose
of Article 226 of the Constitution and that in such a situation, even an order
passed by a society in violation of the bye-laws can be corrected by way of Writ
Petition. As far as the tests are concerned the same have been set out in
paragraph 7 of the decision of the Full Bench. The tests as laid down in the
Ajay Hasia Case of the Honourable Supreme Court have been reproduced in the said
paragraph. The tests laid down therein broadly set out states that if the entire
share capital is held by the Government or where the financial assistance of the
State is so much as to meet almost entire expenditure that would afford an
indication of the Co-operative Society being impregnated with governmental
character. With that tests laid down by the Honourable Supreme Court in mind
when we considered the submission of learned counsel for the writ appellants, it
was stated that substantial shareholdings of the review petitioners society is
that of the State Government. That apart, the said issue was not very much in
controversy both in the writ petition as well as in the writ appeals.
7. We are therefore of the view on that ground there is no scope to
countenance the contention of the review petitioner to interdict with our order
passed in the writ appeal. As far as the contention placed on bye-laws 6, its
proviso and the explanation attached to it, the question is whether the
expression “any punishment” would take within its fold ‘censure’ awarded to the
writ appellants. Under bye-law 19 of the review petitioner’s bye-laws, it is
stated as under
“The following penalties may, for ‘good and sufficient’ reasons or for
“misconduct” be imposed upon on employee:- (i) Censure”
A reading of bye-law 19 is quite explicit and there is no reason for doubt
that ‘censure’ is one of the penalties prescribed under the bye-laws of the
society. In this context, the decision of the Supreme Court reported in 1998 SCC
(L & S) 1121 (cited supra) relied upon by the learned counsel for the review
petitioner assumes significance. In paragraphs 7 & 8 of the said decision, the
Honourable Supreme Court has stated the legal position in the following words:
“7.The submission of Shri khanduja is that “censure” is only a recorded warning
and does not constitute punishment and, therefore, the directions contained in
the circular in relation to imposition of minor penalty would not apply and the
Tribunal was justified in giving the directions for opening of the sealed cover
and for giving effect to the recommendations of the DPC.
8. We are unable to accept the said contention of the Shri.Khanduja. “Censure”
cannot be equated with a warning since under Rule 10 of the M.P. Civil Services
(Classification, Control and Appeal) Rules, 1966, “censure” is one of the minor
penalties that can be imposed on a government servant. It cannot, therefore, be
said that the penalty of censure which was imposed on the respondent in the
departmental proceedings was not a penalty as contemplated in the circular dated
2.5.1990. Once it is held that a minor penalty has been imposed on the
respondent in the departmental proceedings, the direction given in the said
circular would be applicable and the sealed cover containing recommendations of
the DPC could not be opened and the recommendations of the DPC could not be
given effect because the respondent has not been fully exonerated and a minor
penalty has been imposed. The respondent can only be considered for promotion on
prospective basis from a date after the conclusion of the departmental
proceedings.”
(Emphasis added)
8. As per the law laid down by the Honourable Supreme Court, even a
censure which has been prescribed as a ‘penalty’ under the rules would certainly
operate as an embargo for considering the case of an employee for promotion. In
other words, a reading of bye-law 19 along with the explanation to clause 6 of
the bye-laws leads us to hold that even the punishment of censure would come
within the mischief word “any punishment” described in the explanation to bye-
law 6 and consequently, the award of such punishment to an employee would
deprive such an employee’s promotion for a period of three years from the date
of imposition of such punishment. Once such a conclusion is in-escapable by
applying the ratio of the Honourable Supreme Court, we have to necessarily
review our order dated 15.11.2006 and state that even the punishment of censure
should be construed as one covered by clause 6 of the bye-laws of the review
petitioners society.
9. Once such a position is ascertained and the same is applied to the case
on hand, we find that both the appellants suffered the punishment of censure on
06.03.2003 and 26.09.2003 respectively. Since the panel was drawn on 6.12.2004,
the punishment of censure did act as an impediment for being considered for
further promotion to the post of Assistant Manager.
10. In view of the said conclusion, no fault can be found on the action of
the review petitioners in not considering the case of both the writ appellants
while effecting promotions in December 2004. Having regard to our conclusion in
these review petitions, our order dated 15.11.2006 in setting aside the order of
the learned Single Judge stands reviewed and the order of the learned Single
Judge is confirmed. For the reasons set out in this order, the review petitions
are allowed and the writ appeals stand dismissed.
11. The cost awarded by the learned Single Judge alone is set aside in
view of the fact that both the writ appellants are employees and there were
substantial questions of law involved in the writ petition as well as in the
writ appeals.
12. It is reported that both the writ appellants were subsequently
promoted in the normal course in the year 2006. The Review Petitioner in their
order dated 8.3.2007 have stated that the promotions of the writ petitioner
would be subject to the result of the review petitions. Since we have allowed
both the review petitions, the promotions accorded to the writ appellants shall
not in any way be affected by these proceedings. No costs.
sgl
To
The Registrar of Co-operative Societies,
Kilpauk,
Chennai-10.