Writ Petition filed by Union of India challenging CAT Bombay order granting promotion to respondent despite prior final penalty.
The order of the Tribunal allowing the Original Application and granting promotion to Junior Administrative Grade is set aside.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF AUGUST, 2021
PRESENT
THE HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.2873/2021 (S-CAT)
BETWEEN UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF COMMUNICATION AND INFORMATION TECHNOLOGY, DEPT. OF TELECOMMUNICATION, NO. 815, SANCHAR BHAVAN, NO. 20, ASHOKA ROAD, NEW DELHI- 110 001 (BY SRI MADANAN PILLAI R., CGC) AND:
... PETITIONER
SHRI ANIL KUMAR WAGH S/O. V.S. WAGH, DIRECTOR,TERM, DEPT. OF TELECOMMUNCIAION, BANGALORE, R.AT NO. 15, SBI STAFF HOUSE COLONY, BASAVESWARANAGAR, BANGALORE – 560 079 ... RESPONDENT (BY SRI.A.S.GUPTA, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 11.03.2019 PASSED BY THE TRIBUNAL IN O.A.NO.170/00713/2017 IN ANNEXURE-A AND ETC.
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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, SATISH CHANDRA SHARMA, J., MADE THE FOLLOWING:
ORDER
The petitioner-Union of India has filed the present writ petition being aggrieved by the order dated 11.03.2019 passed by the Central Administrative Tribunal, Bangalore Bench, in O.A. No.170/00713/2017 (Anil Kumar Wagh Vs. Union of India).
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before the Tribunal, the matter was argued at length. The learned Counsel for respondent-employee (applicant before the Tribunal) withdrew the original application i.e. O.A. No.349/2010 on 20.01.2012. The order dated 20.01.2012 passed in the aforesaid original application is reproduced as under:
" After the matter was heard in detail, learned Counsel for the applicant submits that he wants to withdraw the OA without any liberty to pursue the matter anywhere again. But seeing the situation of the case, I discussed the matter with both the counsel and have finally come to the decision that while withdrawal will be allowed and the OA is dismissed, it will be dismissed with a costs of Rs.100/- to be payable to the respondents."
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"4. At this point of time Shri A.S.Gupta, the learned counsel now appearing in the RA would say that after dismissal of the case he had consulted several advocates in the interregnum period of 6 years and all of them have advised him not to go for any other matter. That may be so. They may have given a wise advise after looking into the records. But, apparently, Shri A.S.Gupta has advised him that he can file an RA. It is his privilege. We do not want to question this. It exposes the mind set of a person that he knew that the order was against him all these 6 years back and after all these time, we do not think that it is proper for us to condone this delay. No proper ground exists for condonation of delay.
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No.12157/2018 and the Division Bench of this Court has dismissed the aforesaid writ petition by an order dated 21.06.2018. Paragraph 4 of the order passed in the aforesaid writ petition read as under:
"4. We have examined the matter and perused the record. The petitioner's original application before the Tribunal was withdrawn and it was sought to be reviewed by the petitioner after six long years. The Tribunal has dismissed the review application both on the ground of delay and on merits. We find no ground to interfere with the order dated 17.01.2018 impugned herein, in exercise of the extraordinary jurisdiction of this court under Article 227 of the Constitution of India. The writ petition is accordingly dismissed.
Petition dismissed."
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original application afresh i.e. O.A. No.170/00713/2017 and the Tribunal by an order dated 11.03.2019 has allowed the original application. The petitioner-Union of India did raise the grounds of resjudicata and the same has been brushed aside by the Tribunal. The order passed by the Tribunal in paragraphs 5 to 7 in respect of the original application i.e. O.A. No.170/00713/2017, read as under:
"5. We have heard the Learned Counsel for both the parties and perused the materials placed on record. The applicant had originally asked for three reliefs viz. (1) to hold that the order dtd.25.6.2008 passed by the respondent bearing No.8/49/2000/Vig.ii, as Annexure-A1 is arbitrary and without sanction of law as there was no finding given in the order to the alleged allegations and to quash the same (2) to hold that the respondent's denial to the applicant regular promotion to Junior Administrative Grade(JAG) in the year 1998 and subsequent promotion to Senior Administrative Grade (SAG) along with batchmate of 1986 batch is arbitrary, illegal and without sanction of law (3) to grant regular promotion of JAG and subsequent promotion to SAG along with batch mates of 1986/87 recruitment, instead of 1995 batch mate, without loss of seniority and to extend all the
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consequential benefits. However, in view of the earlier applications filled by him vide OA No.349/2010 decided on 20.1.2012 and RA No.1/2018 ordered on 17.1.2018 and W.P.No.12157/2018 (S-CAT) which was filed before the Hon'ble High Court of Karnataka and dismissed on 21.6.2018, the applicant in his written submission has requested for not pressing the relief No.1 relating to the penalty imposed on him. He has made out a case for the other two reliefs relating to regular promotion to the JAG along with his juniors and to restore the rightful promotion due to him. The respondents have also admitted that a DPC for regular promotion to JAG of ITS Group-A against the vacancy years 199899, 1999-2000, 2000-01 and 2001-02 was convened in November-December 2002. The applicant was eligible to be considered against 1998-99. However, he could not be assessed against 1998-99 as sufficient number of officers with prescribed bench marks were already available. The respondents also state that the applicant was considered and recommended for promotion to JAG for the year 1999-2000. They also state that the recommendation in respect of the applicant was placed in the sealed cover as a prosecution case became pending against him. The same position continued till the issue of punishment orders in 2008. The crucial point to
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be noted is that when the DPC met on 26.12.2002, it was considering the vacancies for the previous years from 1998-99 onwards. Therefore, when the applicant was found suitable for the year 1999-2000 based on his eligibility and the availability of the officers suitable for promotion etc. there were no charges pending against him with respect to that particular year, even though on the date of the meeting of the DPC i.e. 26.12.2002 a charge sheet had already been issued. The contention of the respondent that the recommendation regarding the applicant for the year 1999-2000 was placed in the deemed sealed cover as a prosecution case became pending against him cannot be accepted and only the charge sheet issued to him just before the date of DPC on 26.12.2002 can be taken into consideration. As rightly contended by the applicant, his case is exactly similar to the OA No.358/HR/2008 ordered by the Hon'ble CAT, Chandigarh Bench of this Tribunal vide its order dtd. 27.08.2010 wherein the Tribunal in para-16 stated as follows:
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fell within the zone of consideration against the vacancies for the years 1999-2000 and 20002001 onwards have to be considered with regard to the record available on that relevant date or year and not with reference to an event which has taken place later in 2001 i.e. issuance of chargesheet to the applicant. It is not disputed that the applicant was eligible for the vacancy for the year 1998-99. He was promoted in 1997 itself, though on ad-hoc basis. Thus, the initiation of departmental proceedings in 2001 would not have any adverse impact on his claim for promotion against the vacancies for the years 1998-99 or 1999-2000.
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relating to him in sealed cover for the year 19992000. We also note that the final orders issued against the applicant resulted in a minor penalty.
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punishment. The respondent-employee even on the second round of litigation withdrew his prayer for quashment of the punishment order. Once the punishment order has attained finality, the question of the grant of retrospective promotion to the respondent-employee does not arise. The Apex Court in the case of UNION OF INDIA ANDOTHERS VS. K.V.
JANAKIRAMAN AND OTHERS reported in (1991)4 SCC 109 has considered issue of the grant of promotion in case, the employee is under cloud and in case the employee is facing enquiry as well as the other contingencies.
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praying for quashment of the punishment order and also for grant of the consequential benefits including promotion flowing out of the quashment of the punishment order. The second original application was not maintainable in view the plea of resjudicata. Even otherwise, the respondentemployee is not entitled for the relief, keeping in view the punishment order dated 25.06.2008. The respondentemployee has been subsequently promoted after expiry of currency penalty to the post of Junior Administrative Grade of ITS Group-A w.e.f. 01.07.2009. He has also been granted Non Functional Upgradation in Senior Administrative Grade w.e.f. 17.03.2016 and therefore, this Court is of the opinion that the order of the Tribunal deserves to be set aside and accordingly, it is set aside.
SD/JUDGE
SD/JUDGE
Cs
3 issues framed by the court
Whether a deceased employee claiming consequential benefits of quashed punishment order despite final penalty is barred by res judicata and estoppel.
Whether the Tribunal correctly allowed a fresh original application seeking regular promotion when the employee had already been promoted post-penalty.
Whether the writ petition challenging the Tribunal's order allowing promotion is maintainable under Article 226.
Colour shows how this judgement treated each authority
Union of India and Others vs. K.V. Janakiraman and OthersApplied¶48
(1991)4 SCC 109 · Who else cites this
Gajraj SinghFollowed¶38
Gajraj Singh (supra)
2 provisions across 1 enactments
Union of India
Shri Anil Kumar Wagh
Satish Chandra Sharma
Sachin Shankar Magadum
As recorded by the court registry
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