Allowed

Joseph, S/O.Chinnappa Pillai, v. the Deputy Inspector General

Madras HC22 Aug 2013WP(MD)/6295/2011

Case brief

AI extract

What is this about?

A Single Judge in the Madras High Court held that the currency period of a one-year punishment for postponement of increment commences from the date of the order imposing punishment, not the date of the next increment. Consequently, the respondent order excluding the petitioner from promotion despite his service being cleared of punishment was quashed.

What did the court decide?

Writ petition allowed; order of respondent dismissed; name included in 'C' list for promotion; notional promotion granted with monetary benefits within six weeks.

Joseph, S/O.Chinnappa Pillai, Vs the Deputy… — Pension and Retirement Benefits | Madras HC (2013)

¶1

¶2

Joseph

¶3

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.08.2013 CORAM

¶4

THE HONOURABLE MR.JUSTICE S.TAMILVANAN W.P.(MD)No.6295 of 2011

¶5

... Petitioner

¶6

Vs.

¶7

The Deputy Inspector General of Police Trichirappalli Range, Trichirappalli.

¶8

The Superintendent of Police Pudukkottai District, Pudukkottai. ... Respondents

¶9

Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the records from 1st Respondent in C.No.A1/3359/11 dated 31-03-2011 and quash the same with a direction to include the petitioner's name in "C" list of Head Constable fit for promotion as a Sub-Inspector of Police for the year 2008-2009 published by the 1st Respondent in his proceedings in C.No.A1/1302/2009 dated 05-03-2009 with a further direction to disburse all monetary benefits in the time scale of pay attached to the post of Sub Inspector of Police.

¶10

For Petitioner ... Mr.N.Balakrishnan For Respondents ... Mr. B.Pugalendhi Spl. G.P (W)

¶11

ORDER

¶12

This writ petition has been filed under Article 226 of the Constitution of India, seeking an order in the nature of certiorarified mandamus, calling for the records pertaining to the order passed in C.No.A.1/3359/11, dated 31.03.2011 on the file of the first respondent and quash the same with a direction to include the petitioner's name in "C" list of Head Constables fit for promotion as Sub-Inspector of Police for the year 2008-2009 published by the first respondent in his proceeding in C.No.A1/1302/2009, dated 05.03.2009 and to disburse all monetary benefits to the petitioner in the time scale of pay attached to the post of Sub-Inspector of Police.

¶13

The petitioner was appointed as Grade II Police constable on 10.01.1974 and promoted as Head Constable in the year 1988. He has submitted that he served in the capacity as Head Constable till 2009, conferred with 15 awards and completed 35 years of unblemished service. When he was working as Head Constable, Namanasamuthiram police station, Pudukkottai District, a disciplinary proceeding was initiated by the second respondent herein under rule 3(b) of Tamil Nadu Police https://hcservices.ecourts.gov.in/hcservices/ Subordinate Service (B&A) Rule 1955, (herein after referred to as the Rules), in connection with an alleged incident, dated 06.11.2006. Pursuant to the report of the enquiry officer, the second respondent

¶14

¶15

passed an order, dated 25.12.2007, imposing punishment for reduction of time scale of pay for three years at three stages.

¶16

The petitioner preferred appeal before the first respondent against the order passed by the second respondent. The first respondent, modified the order passed by the second respondent, whereby instead of reduction of scale of pay for three years, it was reduced to one year reduction in the time scale of pay to the petitioner, by order, dated 25.02.2008. The said punishment imposed by the first respondent had expired on 25.02.2009, hence, there was no currency of punishment from 26.02.2009 for considering the promotion of the petitioner. However, the petitioner was not considered for promotion, as per the Rules.

¶17

It is submitted by the petitioner, that the first respondent prepared a list of Head Constables, fit for promotion to the cadre of Sub-Inspector for the year 2008-2009, which contained the names of 21 Head Constables, wherein the petitioner's name found at the 14^th place, however, de-listed from the said "C"-List, specifying certain reasons in Column number 6 thereto against law.

¶18

Learned counsel appearing for the petitioner submits that the punishment imposed by the first respondent in P.R.3/07 under Section 3 (b), dated 25.02.2008 was for the currency of one year period and the currency of punishment expired on 20.05.2009. According to the learned counsel for the petitioner, even after currency of punishment, his name was left out, when the first respondent prepared C-List for Head Constables fit for promotion for the year 2008-2009. The office of the second respondent has made it clear in the certificate, dated 25.09.2009, that no charges were pending against the petitioner at the time of his retirement on 25.09.2009 in C.No.F1/ Pen.26/2009.

¶19

The petitioner has further stated that he made several representations to the respondents, however, they neglected to consider the request of the petitioner. Hence, he filed a writ petition before this Court in W.P.No.1739 of 2011, seeking an order in the nature of writ of mandamus, directing the respondents to promote the petitioner, which was disposed of on 10.03.2011, directing the respondents to consider the representation made by the petitioner, dated 20.11.2001 on merits and in accordance with law within six weeks. However, the representation of the petitioner was rejected by the first respondent by his proceedings in C.No.A.1/3359/11, dated 31.03.2011, holding that the punishment of postponement of increment for one year without cumulative effect was under currency, on the date of the list prepared for promotion.

¶20

Learned counsel appearing for the petitioner submitted that the rejection of the request of the petitioner by the first respondent, stating that the period of one year punishment, expired on 31.12.2009 is against law and not sustainable. It is further submitted that on earlier occasions, the respondents accorded promotion to the eligible candidates from the cadre of Head Constable to the next cadre after their retirement. On the aforesaid circumstances, the petitioner herein has https://hcservices.ecourts.gov.in/hcservices/ filed the writ petition, seeking the relief in nature of an order of certiorarified mandamus.

¶21

¶22

The counter filed by the second respondent was adopted by the first respondent. According to the respondents, the petitioner is not entitled to the relief sought for in the writ petition. In the counter, the respondents have admitted that the petitioner was appointed as Gr.II police constable on 10.01.1974 and he was upgraded as Gr.I police constable on 18.02.1993. After completing 5 years of service as Gr.I police constable, he was upgraded as Head Constable on 25.01.1998. It is also not in dispute that the petitioner had served for about 35 years in the police department and earned 10 rewards. In the counter, the respondents have stated that the petitioner was also suffered two punishments, for which no supporting materials was produced by the respondents herein. It is also admitted that the petitioner was allowed to retire from service on 31.05.2009. It is further stated by the respondents that the petitioner, while serving at Thirumayam police station, Pudukottai District, he had to face a departmental action, under rule 3 (b) of Tamil Nadu Police Subordinate Services (Discipline & Appeal) Rules, 1995, for which he was served with a charge memo in PR 3/2007. After the enquiry, the petitioner was imposed a punishment of reduction in time scale of pay at 3 stages for 3 years with cumulative effect by the second respondent herein. Hence, the petitioner preferred appeal before the first respondent.

¶23

The first respondent, by his order, modified the punishment of postponement of next increment for one year to be spent on duty. The period of postponement shall not affect his future increments, as per the proceedings No.B2/Appeal-03/2008, dated 25.02.2008. The petitioner was promoted as Head Constable on 25.01.1998 and hence, he is eligible to get his annual increment on the 1^st January of every year and that the punishment already imposed on the petitioner was modified to one year. It is not in dispute that the currency of punishment was one year from the date of the order passed by the first respondent.

¶24

On the side of the respondents, it was argued that the petitioner was promoted as Head Constable on 25.01.1998, hence, he was eligible to get annual increment on the 1^st January of every year and therefore, as per the order passed by the first respondent, dated 25.02.2008, considering the annual increment due on 01.01.2009, the increment was postponed for one year and accordingly, the punishment of the currency period would be completed on 31.12.2009. Hence, the name of the petitioner was not included in the "C" List of eligible Head Constables (Local) fit for promotion as Sub-Inspector of Police (Local) for the year 2008-2009. It is further stated that the petitioner was also informed about the reason as to why he was not included in the "C" List for the said year.

¶25

The short point involved in this writ petition is whether one year currency period of punishment commences from 25.02.2008, based on the date of the order passed by the first respondent or from 01.01.2009, based on the next increment due for the petitioner.

¶26

Learned Special Government Pleader submitted that the petitioner was given increment on 01.01.2008 and the next increment was due only on https://hcservices.ecourts.gov.in/hcservices/ 01.01.2009, hence, from that said date onwards, the currency period has to be decided and accordingly, the petitioner was not held eligible till

¶27

¶28

31.12.2009 to be considered for including his name in the "C" List of eligible Head Constables for promotion. However, the learned Special Government Pleader has not disputed that on 25.02.2008 itself, the punishment has commenced, as per the order of the first respondent and therefore the currency period of punishment of one year could normally from 25.02.2008 to 24.02.2009.

¶29

Learned counsel appearing for the petitioner submitted that so far as the postponement of increment is concerned, since the petitioner had already received his increment for the year 2008 on 01.01.2008, the same could be given effect for one year, from the date of his next increment. However, in all other aspects, it has to be construed that the one year period has commenced from 25.02.2008, the date on which the punishment was imposed by the first respondent and therefore, after completing one year on 24.02.2009, the petitioner was eligible to be considered for including his name in the panel of Head constables, eligible for promotion.

¶30

In support of his contention, the learned counsel appearing for the petitioner relied on the following decisions :

¶31

The DIG of Police, Thanjavur Range v. V.Rani, 2011 (3) CTC 129

¶32

An unreported Judgment, N.Selvarajan v. The Secretary to Government in W.P.(MD).No.3886 of 2010 and 2606 of 2010, dated 24.03.2010

¶33

In Subramanian v. Govt. of Tamil Nadu , reported in (2008) 5 MLJ 350 , a Division Bench of this Court ( Elipe Dharma Rao & S.Tamilvanan, JJ ) held that when an employee is imposed of a punishment of stoppage of increment for two years, without cumulative effect, that could be construed only as a minor punishment and he could not be denied further promotion, solely based on the date of increment, if he is otherwise fit for promotion.

¶34

In the unreported Judgment N.Selvarajan v. The Secretary to Government in W.P.(MD).No.3886 of 2010 and 2606 of 2010, dated 24.03.2010 , this Court ( P.Jyothimani,J ) in a similar case, based on a Government letter, when the name of Inspectors of Local Fund Audit Department were not included, on the ground that the stoppage of increment was for a period of one year without cumulative effect, wherein it was decided that the currency of punishment was not from the date of increment, but from the date of punishment. Accordingly, this Court quashed that order in the aforesaid writ petition and directed the authorities to include the name of the Inspectors of Local Fund Audit Department in the panel for promotion, on the ground that the currency of stoppage of increment of one year was over, commencing from the date of punishment and not from the date of increment. In this regard, it has been held as follows :

¶35

"5. Applying the dictum laid down by the Division Bench in Subramanian's case cited supra, there is absolutely no difficulty to conclude on the facts and circumstances of the present cases that the petitioners having suffered the minor punishment https://hcservices.ecourts.gov.in/hcservices/ of stoppage of increment for one year without cumulative effect, which has already come to an end as early as on 31.03.2009, I am of the

¶36

¶37

considered view that the respondents, being under the legal obligation, should include the names of the petitioners for promotion to the post of Assistant Directors for the year 2009-2010."

¶38

In DIG of Police v. V.Ran i, reported in 2011 (3) CTC 129 , a Full Bench of this Court held as follows :

¶39

"During the period of currency of minor punishment, en employee cannot claim as a matter of right to be promoted to the next category merely on the basis that he is otherwise fit for promotion and to that extent, the finding of the Division Bench in Subramanian v. Government of Tamil Nadu, rep. by its Secretary, Chennai and others, 2008 (5) MLJ 350, stands overruled. It is needles to state after the currency of punishment period, the Government servant is entitled to be considered for promotion to the next post, if otherwise eligible."

¶40

In Union of India and others v. K.V.Janakiraman and others, 1991 (4) SCC 109 and in Union of India v. A.N.Mohanan, 2007 (3) CTC 621 (SC) , it was held that penalty of censure is also a blameworthy factor and cannot give right to a person to be considered for promotion in that year. The Supreme Court in A.N.Mohanan's case ( cited supra ) has held thus :

¶41

"11. Awarding of censure, therefore, is a blameworthy factor. A bare reading of Para 3.1 as noted above makes the position clear that where any penalty has been imposed the findings of the sealed cover are not to be acted upon and the case for promotion may be considered by the next DPC in the normal course."

¶42

The Supreme Court has clarified that the principle of double jeopardy will not apply in case of imposing punishment in disciplinary proceedings and for withholding of promotion, on account of currency of punishment and that does not offend either Article 14 or 21 of the Constitution of India.

¶43

Full Bench of this Court in the decision referred to above, has clarified the scope of "check period" for consideration of promotion, referring the Government Letter No.248, Personnel and Administrative Reforms Department, dated 20.10.1997. In the Government Letter No.18824/S/2005-2, Personnel and Administrative Reforms (S) Department, dated 7.10.2005, in respect of promotion guidelines, has ruled that an employee, who had undergone punishment for period of one year in case of penalty of censure and five years in cases of minor penalties shall not be considered for promotion, has no legal basis, and that the prosecution of "check period", as per the Government Letter is bad in law, on the ground that the direction given by the letter could not supersede the Statutory Rules.

¶44

https://hcservices.ecourts.gov.in/hcservices/ 21. In the instant case, it is an admitted fact that the first respondent had modified the punishment imposed on the petitioner, only for one year, from 25.02.2008, the date of the order passed by the first

¶45

¶46

respondent and hence, the currency period expired on 24.02.2009. On 25.02.2009, the petitioner would be competent, if otherwise eligible for the promotion, since the currency period of one year was over on 24.02.2009. The date of increment is nothing to do with the currency of punishment of one year, for including his name in the panel, after the expiry of the currency period of punishment. The said period of punishment cannot be extended, on the ground of his date of increment.

¶47

It cannot be disputed that for stoppage of increment or postponement of increment, the respondents have to decide the period from the date of increment. However, the currency period of punishment cannot be expanded, based on the date of increment.

¶48

In the instant case, on 25.02.2008, the petitioner was given increment with effect from 01.01.2008 and hence, his next increment would fall on 01.01.2009, that could not be disputed, as it is relevant for deciding the monetary benefit given to the petitioner, based on the increment. So far as the promotion of the petitioner is concerned, the currency period of punishment of one year commences from the date of the order passed by the first respondent, which is 25.02.2008. Merely because there was no possibility for stoppage of increment, prior to 01.01.2009, based on the date of increment of the petitioner, the currency period of punishment cannot be extended by the respondents, unreasonably till 31.12.2009.

¶49

As it has been admitted that the punishment of postponement of increment for one year was imposed, by order, dated 25.02.2008, which expired expired on 24.02.2009, the respondents cannot expand the punishment period to 31.12.2009 on the ground that the next increment of the petitioner fell on 01.01.2009.

¶50

In the instant case, on the date of preparing the panel for Head Constables, fit for promotion, the currency period of punishment was over. Hence, the respondents could have included the name of the petitioner in the panel of Head Constable eligible for promotion, as there was no other reason for not including his name in the said panel.

¶51

Learned counsel appearing for the petitioner submits that the petitioner's proposal for voluntary retirement on 28.05.2009 is not a ground to deny his promotion as on 05.03.2009, the date of preparing the panel and the promotion date was prior to the date of his retirement.

¶52

In the aforesaid circumstances, in the light of the decisions rendered by the Hon'ble Supreme Court and this Court, I am of the view that the writ petition has to be allowed, to meet the ends of justice.

¶53

In the result, this writ petition is allowed and the proceedings of the first respondent in C.No.A1/3359/11, dated 31.03.2011 is quashed and the respondents are directed to include the petitioner's name in the "C" list of Head Constables fit for promotion as SubInspector of Police for the year 2008-2009 published by the first respondent in his proceeding in C.No.A1/1302/2009, dated 05.03.2009 and https://hcservices.ecourts.gov.in/hcservices/ the respondents are directed to provide notional promotion to the petitioner, on par with his immediate junior and he is also entitled to

¶54

¶55

get monetary benefits accordingly, as per Rules. The respondents shall comply with the direction given in this order, within a period of six weeks from the date of receipt of a copy of this order. No costs.

¶56

Sd/Assistant Registrar(CO)

¶57

/True Copy/

¶58

Sub Assistant Registrar

¶59

¶60