Shri. C. Thomas vs The A and N Administration and Others

Prasenjit Mandal, J.—This writ application is for a direction in the nature of mandamus and /or in the nature of certiorari and/or in the nature of revision and/ or in other appropriate writ or orders, direction/ directions and also for setting aside different orders passed against the petitioner and to grant him promotion to with effect from 2002.

The petitioner was initially appointed Salesman in the year 1970 and he was subsequently promoted to the post of Inspector, Consumer Cooperative Stores Ltd, Port Blair. A disciplinary proceeding was started against him and he was found guilty. Subsequently, he was directed to make a deposit of a sum of Rs. 2,39,040/-(Rupees two lakhs thirty nine thousand and forty only) to the said Cooperative Society. The petitioner preferred an appeal. His appeal was dismissed. Then he filed a writ petition bearing W.P. No. 004 of 2006 under Article 226 of the Constitution of India and this Hon''ble Court Circuit Bench directed that during the pendency of the disciplinary proceeding, his promotion should be kept in a sealed cover and after the disciplinary proceeding was over, his promotion should be considered in accordance with law. The disciplinary proceeding started against the petitioner was ultimately set aside by this Hon''ble Court and the disciplinary authority was directed to hold a disciplinary proceeding afresh. Ultimately, the petitioner was exonerated from the said proceeding. In the meantime, one Mr. R. Madhavan, a junior to the petitioner in service promoted to the post of Deputy Manager. Since Mr. Madhavan was junior to him in service, after the disposal of the disciplinary proceeding acquitting him of the charge leveled against him, he prayed for restoration of his position just before the name of Mr. R. Madhavan, his junior. He has prayed for such relief because in the meantime, he had retired from service on superannuation on April 30, 2008.

The respondent authorities and respondent nos. 2, 3, 4, 7 and 8 are contesting the writ application separately contending inter-alia that the disciplinary proceeding was started against him in the matter of irregularities in the supply of empty drums. He was found guilty and directed to pay the said amount. The petitioner preferred an appeal and the appellate authority confirmed the order of the disciplinary authority. However, the Hon''ble Circuit Bench set aside the impugned order directing a fresh enquiry. Accordingly, a fresh enquiry was started and it was concluded on February 25, 2008 exonerating the petitioner of the charges. His promotion was held up under the above circumstances and his promotion matter was cleared on March 26, 2008. His allegation that Mr. R. Madhavan was promoted to the post of Deputy Manager with effect from October 11, 2002 was untrue. Mr. R. Madhavan was in fact never worked as Deputy Manager. The claim of the petitioner is malafide and so the writ petition is liable to be dismissed.

Therefore, the only question that arises for decision is whether the petitioner is entitled to get promotion to the post of Deputy Manager as claimed by him with effect from 11.10.2002

Upon hearing the learned counsel for the parties and on going through the materials on record, I find that there is no dispute that the petitioner was appointed Salesman in the year 1970 in the Consumer Cooperative Stores Limited, Port Blair. There is no dispute that subsequently, he was promoted of the post of Inspector, Consumer Cooperative Stores Ltd and then on March 21, 2002 to the post of Deputy Manager. His promotion to the post of Deputy Manager was made in adhoc and temporary basis and subject to the approval of RCS, for a period of six months only with effect from April 01, 2002.

It may be noted herein that a disciplinary proceeding was started in the meantime and he was found guilty and the appellate authority confirmed the order of the disciplinary authority. But the Hon''ble Circuit Bench of Calcutta High Court at Port Blair set aside the order of the appellate authority with direction to start a fresh disciplinary proceeding against the petitioner. Accordingly, a fresh disciplinary proceeding was started against the petitioner. The said proceeding was concluded on February 25, 2008 with the following observations:-

In view of the above Shri C. Thomas cannot be held accused for liability shortage as stated in the audit report of the year 1991-92. Hence he is personally not guilty of the above said charges as mentioned above.

It may be noted herein, before such order, by the order dated March 07, 2007 in W.P.No, 004 of 2006, a single Judge had passed orders that the case of the petitioner for promotion should be kept in a sealed cover, in case the petitioner was selected for such promotion and after the disciplinary proceeding was over, the sealed cover report should be taken into consideration and appropriate steps should be taken.

Mrs. Anjili Nag, learned counsel for the petitioner has submitted that since the petitioner was exonerated from the disciplinary proceeding, the report kept in a sealed cover in respect of the writ petitioner should be considered and she has prayed for passing appropriate orders accordingly. She has also contended that since the writ petitioner had retired from service on superannuation with effect from April 30, 2008 and Mr. R. Madhavan, junior to him in service, had been promoted to the post of Deputy Manager, his position should be made above position of Mr. R. Madhavan. In respect of the promotion, she has also pointed out that the writ petitioner was appointed on June 27, 1970, whereas Mr. R. Madhavan was appointed on January 01, 1974 and as such his position should be above. Mr. R. Madhavan and he should be dealt with according to the situation.

So far as the promotion is concerned, from the copy of the order dated March 21, 2002 appearing as Annexure P-2 at page 21, it reveals that the promotion of the writ petitioner to the post of Deputy Manager was made purely on adhoc and temporary basis and subject to the approval of RCS. Such promotion was given for a period of six months only. There is no indication that the recommendation of the promotion beyond the period of six months was considered and granted by the appropriate authority. There is no indication that his promotion was approved by the RCS. Save and accept, the order of promotion dated March 21, 2002, the writ petitioner has no other paper to show that his case for further extension was considered.

The respondent authority has clearly indicated Mr. R. Madhavan was never posted as Deputy Manager. In fact, the petitioner also could not show that Mr. R. Madhavan was actually promoted to the post of Deputy Manager with effect from October 11, 2002.

Anyway, from the materials on record, it appears that the petitioner was promoted to the post of Deputy Manager with effect from April 29, 2008 i.e. one day prior to the date of his retirement on superannuation on April 30, 2008.

In that view of the matter, I am of the opinion that the prayer of the petitioner to the effect that his position should be above the position of R. Madhavan cannot be considered at all. This application has no merits at all. As a result, the petitioner is not entitled to get any benefits as claimed in his writ application.

Accordingly, the writ application is dismissed. However, considering the circumstances, there will be no order as to costs.

Urgent Xerox certified copy of this judgement, be supplied to the parties, if applied for, after observing all required formalities.