IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 18054 of 1999(Y)
1. CHUNDAVILAKOM HWCS LTD.
... Petitioner
Vs
1. DIRECTOR OF HANDLOOMS
... Respondent
For Petitioner :SRI.T.R.RAMACHANDRAN NAIR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :15/01/2007
O R D E R
S.SIRI JAGAN,J
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O.P.NO.18054 OF 1999
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DATED THIS THE 15TH DAY OF JANUARY,2007
JUDGMENT
The petitioner while he was in service was the senior most
Deputy Commissioner of the Sales Tax and Agriculture Income
Tax Department. On 1.5.1997, there occurred a vacancy of the
next promotion post of Joint Commissioner. However, for
reasons best known to the respondents 1 to 3, the post was not
filled up. In the meanwhile disciplinary proceedings were
initiated against him on the basis of a complaint made by one
member of the Legislative Assembly to the effect that the
petitioner misbehaved with him. The petitioner was placed under
suspension. He challenged the disciplinary proceedings before
this court. This court by Ext.P10 judgment directed that the
enquiry be completed within a specified period, (which ended on
11.8.1998) failing which he was directed to be reinstated in
service. The respondents 1 to 3 did not complete the
proceedings before 11.8.1998. Therefore, he was reinstated in
O.P.NO.18054 OF 1999 :2:
service on 11.8.1998. However, five days prior to that date his
immediate junior was promoted to the post of Joint
Commissioner which remained vacant from 1.5.1998 onwards on
the ground that the petitioner was under suspension. The
petitioner made several representations seeking promotion in the
place of his immediate junior who is the fourth respondent
herein. However, instead of favourably considering the
petitioner’s claim again disciplinary proceedings were initiated in
respect of an incident which allegedly happened sometime in
1986. The petitioner challenged the same before this court. The
same culminated in Ext.P24 judgment of a Division Bench of this
court. The Division Bench in that decision held that the memo of
charges dated 18.10.2000 was ill-motivated and due to
extraneous reasons. Accordingly that memo of charges was
quashed. That judgment was on 24.11.2000. Even then the
petitioner had a few more months to retire. In spite of the same
the petitioner’s claim for promotion as Joint Commissioner was
not considered. Thereafter, the petitioner retired from service on
31.3.2001. Originally in the Writ Petition the petitioner sought a
direction to promote him to the post occupied by the fourth
O.P.NO.18054 OF 1999 :3:
respondent. However, in view of the fact that he has
subsequently retired from service, he now limits his claim for a
direction that he should be deemed to have been promoted with
effect from 6.8.1995 on which date the fourth respondent was
promoted as Joint Commissioner and to give him service benefits
on that basis.
2. The learned Government Pleader opposes the
contentions of the petitioner. According to the learned
Government Pleader although by Ext.P24 judgment second
disciplinary proceedings were quashed, since in the first
disciplinary proceedings, the petitioner was actually imposed with
a punishment of warning, he cannot now claim that he should
have been promoted to the post occupied by the fourth
respondent. I have considered the rival contentions in detail.
The punishment order Ext.P23 is the one relied on by the learned
Government Pleader. The findings therein is as stated in
para.4 of Ext.P23. From the same I am not satisfied that even
the Government was of the opinion that the petitioner could have
been found guilty of the charges levelled against him. It appears
that to save face they just decided to say that he is let off with
O.P.NO.18054 OF 1999 :4:
a warning to be more careful in future. I am not satisfied that
Ext.P23 order could be considered as a bar or disqualification for
the petitioner to be considered for promotion to the post of Joint
Commissioner. Moreover the very wording of Ext.P23 would go
to show that warning was not imposed as a punishment at all
after finding him guilty of any misconduct but was only a warning
to be more careful in future. Further even assuming it to be a
punishment, the punishment of warning cannot be considered as
disqualification for consideration for promotion to a higher post.
In this connection Ext.P24 judgment which dealt with that
question also had come to the conclusion that there was some
improper motive on the part of respondent 1 to 3 in initiating
these proceedings against the petitioner. As such I have no
hesitation to hold that consideration of the petitioner for
promotion to the post to which the fourth respondent was
promoted on 6.8.1998 cannot be a bonafide action. However,
since the petitioner has already retired from service, I am
inclined to grant the relief to which the petitioner is entitled to,
as follows:
O.P.NO.18054 OF 1999 :5:
For the purpose of pensionary benefits the petitioner should
be deemed to have been promoted on 6.8.1998 on which date
his immediate junior namely, the fourth respondent was
promoted as Joint Commissioner. However, he would not be
entitled to any monetary benefits of such promotion except, of
course, pensionary benefits based on the fixation of pay in the
post of Joint Commissioner as if he was promoted with effect
from 6.8.1998. Accordingly there would be a direction to
respondents 1 to 3 to refix the pension due to the petitioner in
accordance with the direction contained herein and disburse him
the arrears due on such recalculation of pensionary benefits
within a period of three months from the date of receipt of a copy
of this judgment. However, since the fourth respondent also
retired from service this judgment shall not be taken to be one
affecting the fourth respondent in any manner.
S.SIRI JAGAN,JUDGE
dvs