BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/01/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.(MD)No. 9364 of 2006 & M.P.(MD) Nos. 1 of 2006 and 1 of 2008 R. Muthukrishnan ... Petitioner Vs. 1. The Registrar of Cooperative Societies, Chennai - 10. 2. Joint Registrar of Cooperative Societies, Madurai Region, Madurai. 3. Deputy Registrar of Cooperative Societies, Madurai Circle, Madurai. ... Respondents Prayer Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records of the first respondent in proceeding Rc.No. 39355/2005/EM.I(2) dated 4.10.2006 and quash the same and pass such further or other orders as this Court may deem fit and proper in the circumstances of the case. !For Petitioner ... Mr. R. Vijayakumar ^For Respondent ... Mr. D. Sasikumar Government Advocate :ORDER
The petitioner has filed the present Writ Petition seeking the relief of
Certiorari to call for the records of the first respondent in proceeding Rc.No.
39355/2005/EM.I(2) dated 4.10.2006 and to quash the same.
2. The petitioner has been appointed as Junior Assistant on 02.08.1976
through Tamil Nadu Public Service Commission. Subsequently, he has been promoted
as Junior Inspector during the year 1980 and further promoted as Senior
Inspector in the year 1983. He has been served with a Charge Memo on 22.7.1992
alleging that the petitioner was engaged in private trade of selling tiles. A
domestic enquiry has been conducted and an enquiry report on 28.4.1994 has been
submitted in and by which, it is held that the charge levelled against the
petitioner has been found to be proved and consequently, a punishment of
withholding of increment for a period of three months without cumulative effect
has been imposed on the petitioner.
3. According to the learned counsel for the petitioner, on 30.12.1993, a
panel has been prepared for promotion to the post of Co-operative Sub
Registrar by the first respondent and he has been placed at serial No. 132 as
per the panel. On 24.2.1994, the Joint Registrar of Cooperative Societies issued
orders of promotion, promoting the petitioner as a Co-operative Sub Registrar.
He joined as Co-operative Sub Registrar on 23.12.1995.Currently, the petitioner
is working as a Cooperative Sub Registrar (Package) in the office of the third
respondent.
4. On 4.10.2006, the First Respondent/Registrar of Cooperative Societies,
Chennai, passed the impugned order cancelling the petitioner’s promotion order
dated 24.2.1994 and reverted the petitioner as Senior Inspector alleging that
his promotion effected in the year 1994 has been an erroneous one. Also, the
impugned order of the first respondent dated 4.10.2006 proceeds on the footing
that the petitioner’s name should not have been included in the promotion panel,
when the disciplinary proceedings have been pending.
5. The contention of the learned counsel for the petitioner is that the
punishment imposed on the petitioner dated 28.04.1994 stopping the increment for
a period of three months without cumulative effect got expired on 28.07.1994 and
as a matter of fact, the petitioner has become eligible to be considered for
promotion on cessation of punishment namely, viz. on 28.7.1994 itself and even
if the petitioner has been promoted after the punishment period, then he would
have been promoted in the year 1994 itself and as on date, he is eligible to
function as Co-operative Sub Registrar.
6. The learned counsel for the petitioner submits that the petitioner has
been promoted during the year 1994 and the said promotion cannot be cancelled
after an expiry of twelve years. Added further, since the petitioner has already
completed punishment in the year 1994 itself, his promotion cannot be cancelled
in the year 2006 quoting the pending disciplinary proceedings, when promotion
has been granted.
7. Advancing his arguments, it is the contention of the learned counsel
for the petitioner that the first respondent has failed to appreciate an
important fact that after the year 1994 more than 300 persons, who are juniors
to the petitioner, have been promoted and the petitioner, who is eligible to be
promoted in the year 1994 itself, cannot be demoted in the year 2006.
8. The learned counsel for the petitioner urges before this Court that the
petitioner has already undergone the punishment and as such, he cannot be
punished for the second time by demoting him after a lapse of twelve years. In
short, the contention of the learned counsel for the petitioner is that the
order of the first respondent dated 4.10.2006 is contrary to law and illegal
one.
9. The learned counsel for the petitioner cites decision of the Hon’ble
Supreme Court in M.A. Hameed Vs. State of A.P. and another reported in 2001 (9)
SCC page 261, wherein it is laid down as follows:
“The reversion of the appellant after he held the higher post for more than a
decade was wholly unjustified. If his appointment was temporary or irregular in
any manner he should have been reverted within a reasonable period. Even after
the reversion order was passed the appellant continued to hold the post till
1985 under the stay order granted by the Tribunal. So the reversion of the
appellant from the post of District Inspector of Local Funds (Accounts) after a
period of 11 years has done more harm than good”.
10. He also relies on the decision of the Hon’ble Supreme Court in Shekhar
Ghosh Vs. Union of India and another reported in 2007(1) SCC 331 at page 333,
wherein it is held thus:
“In this case, the respondents accept that the appellant was entitled to a
hearing. All the necessary ingredients of principles of natural justice were
thus required to be complied with. The appellant had not been given adequate
opportunity of hearing inasmuch as: (i) the hearing was sought to be given was
a post-decisional one, which is bad in law; (ii) a copy of the complaint was not
supplied to the appellant at furtherance if not proposed that a mistake was
sought to be rectified; (iii) no charges were framed; (iv) no witness was
examined; and (v) no inquiry officer arrived at any finding that the appellant
was guilty of the charges levelled against him”.
11. The learned counsel for the petitioner brings it to the notice of this
Court the decision of this Court, in S.Ganapathy Vs. Commissioner of Commercial
Taxes, Chennai and others reported in 2006(3) MLJ 532 at page 533, wherein it
is held that “settled law that once employee is conferred benefit of promotion
and pay scale, authority cannot penalize such employee after several years, on
ground of mistake committed by authority”.
12. Conversely, it is the submission of the learned Government Advocate
appearing for the respondent Nos. 1 to 3 that a charge as per Rule 17(b) of the
Tamil Nadu Civil Services (Discipline and Appeal) Rules has been framed against
the petitioner on 22.07.1992 itself in regard to the misconduct involving
violation of the Tamil Nadu Government Servants Conduct Rules and at the time of
consideration of the panel, a charge under Rule 17(b) of the Tamil Nadu Civil
Services (Discipline and Appeal) Rules is pending and as per the instructions
contained in G.O. Ms. No.368 Personnel and Administrative Reforms Department,
dated 18.10.1993 pendency of charge under Rule 17(b) of Tamil Nadu Civil
Services (Discipline and Appeal) Rules will be a bar for the promotion at the
time of consideration of the promotion panel.
13. Proceeding further, the learned Government Advocate appearing for the
respondents contends that the petitioner has been awarded with a punishment of
stoppage of increment for three months and as per G.O. Ms. No. 756, Public
(Ser.K) Department dated 22.4.1964 an erroneous order of promotion may be
cancelled by the competent authority straightaway without providing any show
cause notice to the affected individual concerned and the first respondent has
acted in terms of the instruction of the Government referred to above and as a
matter of fact, an erroneous promotion can only be set-right by cancelling
promotion.
13. Apart from the above, the learned Government Advocate appearing for
the respondent Nos. 1 to 3 submits that the petitioner will be considered for
promotion for Co-operative Sub Registrar with actual seniority as he claims, but
it can be implemented only after reverting him to Senior Inspector post by
canceling the erroneous promotion. In short, the action of the respondents is
sustainable in law.
14. In effect, the learned Government Advocate appearing for the
respondent Nos. 1 to 3 contends that the Writ Petition is devoid of merits and
the same is liable to be dismissed.
15. A perusal of the impugned order dated 4.10.2006 of the first
respondent in Rc.No. 39355/2005/EM.I(2) shows that the petitioner as Senior
Inspector of Co-operative Societies has been included at serial No. 132 and he
has been promoted as Co-operative Sub Registrar and allotted to Villupuram
Region as per proceedings of Joint Registrar(Intensive Agricultural Area
Programme) proceedings Rc.3976/94/EM.1 dated 24.2.1994 and that when the panel
has been approved by the Registrar of Co-operative Societies, charges under Rule
17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules have been
pending against him. Also, a scrutiny of the impugned order dated 4.10.2006 of
the first respondent inherently points out that the inclusion of the
petitioner’s name in the panel of Cooperative Sub Registrar as on 1.5.1993 is
against the instruction issued in the G.O.Ms.No.368, Personnel and
Administrative Department dated 18.10.1993 and his promotion as Cooperative Sub
Registrar is an erroneous one. As a matter of fact, as per G.O. Ms. No. 756,
Public (Ser.K) Department dated 22.4.1964, the order of promotion may be
cancelled by the competent authority straight away without providing any show
cause notice to the concerned individual. Moreover, in pursuance of the
directions of the Government, the name of the petitioner has been cancelled in
the approved panel of Senior Inspectors fit for promotion as the Cooperative Sub
Registrar as on 1.5.1993 communicated in the proceedings of the Registrar dated
30.12.1993.
16. Continuing further, the order of the Joint Registrar (Intensive
Agricultural Area Programme) proceedings dated 24.2.1994 promoting the
petitioner as Cooperative Sub Registrar has been cancelled and he has been
reverted as Senior Inspector with effect from the date he joined as Cooperative
Sub Registrar. Consequent upon the cancellation of the petitioner’s name in the
panel of Senior Inspector fit for promotion as Cooperative Sub Registrar as on
1.5.1993 and on reversion as Senior Inspector, the petitioner has been allotted
to Theni Region.
17. In short, the impugned order of the first respondent dated 4.10.2006
refers to the petitioner’s pay being in the category of the Senior Inspector of
Cooperative Societies. As far as the present case is concerned, it is not known
as to how the petitioner’s name has been included in the panel for promotion as
Cooperative Sub Registrar, when a charge under Rule 17(b) of Tamil Nadu Civil
Services (Discipline and Appeal) Rules is pending. The charge levelled against
the petitioner as per Rule 17(b) of Tamil Nadu Civil Services (Discipline and
Appeal) Rules in regard to his conduct/act in indulging himself in private trade
of selling tiles is a serious one and the said charge is a major one. The
petitioner is not responsible for he was promoted as Cooperative Sub Registrar
and he has not suppressed any information in this regard. It is for the
Employer/Appropriate Authority to consider the petitioner for including his name
in a panel for promotion. Though a plea is raised on behalf of the respondents
that cancelling of erroneous promotion in respect of the petitioner is not
equivalent to any punishment and period of limitation does not have any effect
on the proceedings of the first respondent dated 4.10.2006, this Court is of the
considered view that such plea cannot be countenanced in the eye of law.
18. Admittedly, the petitioner has been promoted as Cooperative Sub
Registrar on 24.2.1994 and he has joined in the promoted post on 23.12.1995. He
has been recruited as Junior Assistant on 2.8.1976 through Tamil Nadu Public
Service Commission. Subsequently, during the year 1980, he has been promoted as
Senior Inspector and later in the year 1983, he has been promoted as Senior
Inspector. Undoubtedly, the petitioner is governed by the Tamil Nadu Civil
Services (Discipline and Appeal) Rules and also the fundamental Rules, it passed
beyond once apprehension when the petitioner has been issued with the Charge
Memo dated 22.7.1992 with allegation that he has been engaged in private trade
of selling tiles. After conducting domestic enquiry, enquiry report has been
submitted on 28.4.1994 whereby and whereunder, the charge levelled against the
petitioner has been held to be proved and punishment of stoppage of increment
without cumulative effect for three months, has been ordered, then how his name
has been included in the panel for promotion as Cooperative Sub Registrar
without looking into the Rules and regulations governing promotion at a time
when the petitioner has been promoted.
19. In M.P. No. 1 of 2006 in W.P. No. 9463 of 2006 this Court on
12.10.2006 has passed an order of interim stay and by means of an order dated
1.12.2009 in M.P.(MD) No. 1 of 2006 this Court has made the interim stay granted
in M.P.(MD) No. 1 of 2006 as an absolute one.
20. It is a well accepted principle in law that if an individual’s
promotion is an erroneous one or not a proper one, by not following rules and
regulations that are in force, then certainly, the first respondent or concerned
authority, as the case may be, ought to have reverted the petitioner within a
reasonable period. However, in the instant case, the petitioner has been
promoted as Cooperative Sub Registrar on 24.9.1994 and the impugned order of
reversion has been passed by the first respondent on 4.10.2006 after a lapse of
nearly twelve years.
21. Added further, the petitioner’s punishment period has also come to an
end. Soon after the reversion order passed by the first respondent on 4.10.2006,
the petitioner has approached this Court on 10.10.2006 and has obtained an
interim stay earlier in M.P. No. 1 of 2006 on 12.10.2006 and subsequently, the
stay order has been made absolute in M.P. No. 1 of 2006 by this Court on
1.12.2009. The reversion of the petitioner from the post of Co-operative Sub
Registrar to the level of Senior Inspector of Cooperative Societies after a
period of twelve years, has caused more harm than good, in the considered
opinion of this Court. Even though the reversion order has been passed by the
first respondent on 4.10.2006, the petitioner has continued to hold the post of
Cooperative Sub Registrar till date under the stay order granted initially by
this Court in M.P. No. 1 of 2006 dated 12.10.2006 and consequently, made
absolute in M.P. No. 1 of 2006 as per the order dated 1.12.2009.
22. Therefore, this Court is of the considered view that since the
reversion of the petitioner from the post of Co-operative Sub Registrar to the
post of Senior Inspector is after a lapse of twelve years, it has caused more
harm than good.
23. Accordingly, in the light of detailed discussions and on an overall
assessment of the facts and circumstances of the case, which float on surface in
an integral fashion, this Court allows the Writ Petition leaving the parties to
bear their own costs and sets aside the order of reversion in Rc.No.
39355/2005/EM.I(2) dated 4.10.2006 Consequently, connected M.Ps are also closed.
No costs.
ses
To,
1. The Registrar of Co-operative
Societies, Chennai – 10.
2. Joint Registrar of Cooperative Societies,
Madurai Region, Madurai.
3. Deputy Registrar of Cooperative Societies,
Madurai Circle, Madurai.