Korak Baran Choudhury vs The State of Tripura and Others

Utpalendu Bikas Saha, J.—1. The petitioner, Sri Korak Baran Choudhury was appointed to the post of TCS Gr-II as direct recruit in the year 1990 and while he was serving as Dy. Resident Commissioner, Tripura Bhavan, Chennai a minor disciplinary proceeding was drawn up vide memorandum dated 08.01.2002. Thereafter, the disciplinary authority appointed one inquiry officer to inquire into the charges leveled against him and on completion of the inquiry, the inquiry officer submitted his report on 31st May, 2004 to the disciplinary authority holding the charges leveled against the petitioner proved. On receipt of the inquiry report, the disciplinary authority inflicted penalty of withholding two increments with cumulative effect, against the petitioner on 11.08.2005.

Feeling aggrieved, the petitioner preferred an appeal before the appellate authority and the appellate authority dismissed the appeal preferred by the petitioner. In contemplation of a further disciplinary proceeding, while the petitioner was posted as Deputy Director, Land Records & Settlement, Government of Tripura, the petitioner was placed under suspension on 26.09.2002 and thereafter the said suspension order was revoked. On 22.06.2002 for the second time, another disciplinary proceeding was initiated against the petitioner. He submitted his written statement of defence and after receipt of the same the disciplinary authority appointed an inquiry officer to inquire into the charge. The petitioner submitted a representation on 11.10.2004 in connection with the second disciplinary proceeding. On 02.11.2004 the inquiry officer submitted his report concluding that the charges against the petitioner were not proved. As the disciplinary authority disagreed with the findings of the inquiry officer, it directed the petitioner to assign reasons for such disagreement and accordingly, the petitioner submitted his representation to the show cause notice on 08.10.2007. The disciplinary authority without assigning any cogent reason held the petitioner guilty for the charge leveled against him and proposed for imposition of minor penalty of withholding of two increments without cumulative effect and ultimately imposed the penalty of censure.

A Departmental Promotion Committee (DPC) was constituted on 11.06.2004 for promotion 22 TCS Gr-II, for the post of TCS Grade-I, and the DPC recommended the names, including the name of the petitioner, for consideration thereof. A further DPC was constituted on 05.12.2005 for consideration of promotion of 40 TCS Gr-II officers to the post of TCS Gr-I. As the disciplinary proceedings against the petitioner were not disposed of finally and vigilance clearance was not given, the case of the petitioner was kept in a sealed cover. Another DPC was held on 18.03.2010 for finalizing the case of the petitioner for promotion to the post of TCS Gr-I and the said DPC recommended the name of the petitioner for appointment to the post of TCS-I, with retrospective effect from 21.03.2009, i.e. the date of imposition of penalty of "censure" on the petitioner.

Accordingly, vide Notification dated 30.06.2010 (Annexure-P/14) the petitioner was promoted to the post of TCS Gr-I w.e.f. 21.03.2007. The grievance of the petitioner is that he was to be promoted to the post of TCS Gr-I w.e.f. the date when his juniors were promoted to TCS Gr-I, i.e. 19.12.2005. Aggrieved by the aforesaid order of promotion, the petitioner has filed the instant writ petition.

When the matter is taken up for hearing, Mr. Deb learned counsel for the petitioner submits that the simple question which arises for decision before this Court is whether "censure" itself is a ground to deny promotion to the petitioner. He also submits that the instant writ petition can be disposed of by directing the petitioner to file a detailed representation before the authority to consider his case for promotion to the post of TCS Gr-I w.e.f. the date when his name was recommended along with others.

On the other hand, Mr. Chakraborty, learned Addl. GA submits that Censure is a minor penalty and an employee can be declared unfit for promotion on that count itself but he has no objection if the writ petition is disposed of by a simple direction to the petitioner for filing a representation before the appropriate authority raising all his grievances as mentioned in the instant petition.

The State respondents, by way of filing counter affidavit, admitted the fact so far as the recommendations of the DPCs are concerned. It is also contended that the promotion order of the petitioner was rightly passed from the date of imposition of penalty of "censure". In the DPC meeting held in the year 2005, when promotion of the petitioner was considered, it was held that the petitioner would be promoted if he is fully exonerated from the proceedings pending against him. It is the further case of the respondents that from 2006 to 2008 there was no DPC meeting. The disciplinary proceeding against the petitioner was pending till 21.03.2009 when finally punishment of censure was imposed upon him by the disciplinary authority. So when the next DPC was held on 18.04.2010 the case of the petitioner was again considered and he was promoted w.e.f. 21.03.2009, i.e. the date on which his punishment order was passed.

As Mr. Deb submitted for disposal of the writ petition with a simple direction to the petitioner to file a detailed representation, it is not necessary for this Court to express any opinion on merit. Mr. Deb referred to the decision of the Kerala High Court in S. Mukundan Menon v. State of Kerala and Ors. reported in , 1970 LAB I.C. 897wherein the Kerala High Court has held that "censure by itself is not a ground for overlooking seniority in the matter of promotion". At the same time, the Delhi High Court in the case of Commissioner of Police v. Rajender Singh in WP(C) 1385 of 2007 held that Censure is a punishment and the same cannot be overlooked by the DPC while considering the promotion of an employee.

In view of the above, it cannot be said that censure itself is not a punishment but at the same time this Court is of considered opinion that censure cannot be a ground for denying consideration of promotion of an employee. In the instant case, fact remains that the petitioner was subsequently promoted even after awarding punishment of censure. Question is whether he should be given promotion from a date prior to censure or not. As submitted by the learned counsel for the parties that the petitioner be directed to file a representation, this Court is not expressing any opinion on merit as it would not be proper to say anything more about the case of the petitioner.

Accordingly, the petitioner is directed to submit a detailed representation before the respondent No. 2, Secretary, General Administration (AR) Department, Govt. of Tripura within a period of six weeks from today and the respondent No. 2 shall dispose of the representation of the petitioner, if any filed, within two months from the date of receipt of the same, by a speaking order.

With the aforesaid direction, the instant writ petition is disposed of. No costs.