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Judgment
B. Rajendran, J.—The Writ Appeal arises as against the interim order, granted in M.P.(MD).No. 3 of 2010 in W.P(MD)No.6542 of 2010,
which is the main Writ Petition herein. When the Writ Appeal was taken up, both the Writ Appeal and the Writ Petition were heard together.
In W.P.(MD).No. 6542 of 2010, according to the petitioner, he was working in the second respondent organisation from more than 22 years
without any blemish. He was served with charge memo, on 17.06.2008 and totally framed three charges. Actually, the first charge is split into six
charges, the second charge is split into three charges and also the third charge is split into three charges. The main charge was that as a Manager is
failed to take legal proceedings against the defaulter of the loan and it is only to the delinquent in action which has caused loss to the bank and
allotted the loan to become time barred by his inaction. Similarly, in respect of other loans, the petitioner has not taken any action to recover the
loan in time and even in case of jewelry loan after recovering the amount from the sale of jewelry, has failed to take action for recovery of the
balance. Similarly, various other charges have been framed. He was issued a show cause notice and he has also submitted his explanation and
thereafter, domestic enquiry was conducted by a retired officer of the Co-operative Society land development bank. His main defence was that it
is given by the previous officers and the enquiry officer has only mechanically come to the conclusion that the charges are proved and on the basis
of the enquiry report, he was awarded a punishment of stoppage of increment for one year without cumulative effect, against which, he preferred a
Revision u/s 153 of the Tamil Nadu Co-operative Societies Act and even pending the Revision Petition, he gave a representation, dated
30.01.2010, to the first respondent that there are no outstanding amount and in spite of the same, the order was confirmed by the authorities, viz.,
the first respondent in the Revision Petition. Hence, challenging that order, he has preferred the Writ Petition.
According to the petitioner, the entire charge sheet needs to be quashed on the ground of delay of 10 years in the initiation of disciplinary
proceedings. As the alleged action took place between 1996 and 1997, the charge, which was much later, is liable to be quashed. He would
mainly contend that even from the alleged time barred, it could be referred to arbitration as recovery can be up to 6 years.
According to him, he was in the seniority list of Manager and for the vacancy arose, he was eligible and therefore, he has prayed for to quash
the impugned order of punishment, which was confirmed by the revision authority and consequently, sought for a direction to promote the
petitioner as Assistant General Manager on the vacancy caused in Trichirappalli District Central Co-operative Bank Ltd. Pending the Writ Petition,
he has filed an interim application seeking promotion as the punishment is only a minor punishment awarded to him and that will not disentitled him
for seeking promotion as per the Division Bench Judgment of this Court in Subramanian Vs. Government of Tamil Nadu reported in 2008 5 MLJ
350, wherein it is held that the currency of the minor punishment like that of the stoppage of increment for one year without cumulative effect, is not
a bar for considering an individual for promotion, for considering individual promotion.
The third party, who was affected by the said direction, had filed an Appeal in W.A.(MD).No. 541 of 2011, challenging the order, dated
30.04.2010, to include his name in the promotion list, as any promotion given to the petitioner in the Writ Petition would affect his legal right.
The petitioner in W.P.(MD).No. 6542 of 2010 and the third respondent in W.A.(MD).No. 541 of 2011, has filed a counter affidavit mainly
contending that though the original Division Bench Order was over ruled by the Full Bench decision, subsequent to undergoing the punishment, the
petitioner will be automatically entitled for promotion and there cannot be any further check period for denying the promotion. Therefore, the Writ
Appeal filed by the third party, who was much junior, is liable to be dismissed. He would further contend that as per the interim order granted by
this Court, the punishment has been stopped, that will not affected his legal right.
The management / second respondent, even though did not file any counter affidavit, mainly contended that the Writ Petition is not maintainable
as the matter pertains to the Co-operative Society, in view of the larger Bench decision in K. Marappan Vs. The Deputy Registrar of Co-
operative Societies and The Special Officer, Vattur Co-operative Agricultural Bank, . Secondly, the main contention would be that the question of
attacking the charge will not arise, as already he has submitted to the enquiry proceedings and he has not challenged the enquiry proceedings, the
punishment was imposed. The Revision Petition was also dismissed. As in this Writ Petition, he has only challenged the punishment without
challenging the charge, it is not maintainable.
The petitioner only grievance is that the promotion cannot be denied to him on the ground that after the completion of the period of the
punishment, he will be automatically entitled for promotion, but in this case, even submitted by all the parties, the petitioner has conveniently got a
stay by this Hon''ble Court from the punishment and the said punishment was never undergone and therefore, now he cannot contend that as per
the original order, the punishment period is over and therefore, he should be entitled to consider for promotion. Further, even as per the Full Bench
decision, the cut of period was not given a go by, when there is a specific Bye law. In this case Bye-laws contemplates the three year period.
He would also contend that the petitioner never raised any objection during the course of enquiry. He would mainly contend that the check
period for three years has to be necessarily taken as per the Bye-laws, when the Bye-laws provides, he cannot question the same. Further, there is
an alternative remedy, the Appeal has been filed u/s 152 of the Tamil Nadu Co-operative Societies Act and there is still the revision provided u/s
153 of the Tamil Nadu Co-operative Societies Act. Since as per the stay order, dated 30.04.2010, the punishment was never undergone, the writ
petitioner is not entitled to the relief sought for.
Heard all the parties concerned.
The short point for consideration in the main Writ Petition as well as the Writ Appeal, is whether the petitioner who has undergone the
departmental proceedings and as punished for the charges, whether he can be considered for promotion subsequent to the completion of the
period of punishment. In this case, admittedly, the charge memo was issued on 17.06.2008, the punishment is imposed on 28.09.2009. According
to the Bye-laws, the currency of the punishment is between 01.04.2010 to 01.04.2011, viz., the stoppage of increment for a period of one year.
But this punishment order was stayed by this Hon''ble Court as early as on 30.04.2010, he has never undergone the punishment. As per the Bye-
laws, even if the punishment is over, there is a check period for three years from the cut of date.
The case of the petitioner is that since the punishment is only for a period of 01.04.2010 to 01.04.2011 and it is already over, he should be
considered for promotion for the year 2011-2012. Further he would only contend that since the period of punishment is over, he has to necessarily
be considered for further promotion as per the Full Bench decision of this Hon''ble Court in The The Deputy Inspector General of Police and The
Director General of Police Vs. V. Rani, . There cannot be a further check period on completion of the punishment. Unfortunately, the said
proposition will not apply to the petitioner for the simple reason that he has never undergone the punishment first of all. Consequently, there is a
Bye-laws which prohibits consideration for promotion for a period of three years.
Earlier, the petitioner relied upon the Division Bench Judgment in Subramanian Vs. Government of Tamil Nadu reported in 2008 5 MLJ 350,
for the proposition that even during the currency of the minor punishment, he can still be considered for promotion that has been over ruled in the
Full Bench decision.
Mr. K. Jeyaraman learned counsel appearing for the second respondent relied upon the decision in K. Subramanian Vs. Madras Christian
College Association and others reported in 2010 (1) CWC 934, when the petitioner has not challenged the charge sheet, it is not open for him to
file the present Writ Petition after the punishment has been imposed and after having participated in the enquiry and has also preferred the Appeal
as against the punishment.
Paragraph 10 of the said Judgment is extracted hereunder:-
As we have already elaborated, though the petitioner will be entitled to question the charge memo on the ground that it was made by an officer
who is not competent to issue and equally he will be entitled to question such action to appoint an Enquiry Officer on the ground of want of
jurisdiction, such right should be exercised at the earliest point of time. In the event an employee has allowed the enquiry to proceed and
participated in the same, he cannot later on turn around and question the very initiation of the enquiry proceedings. In the given facts, the entire
enquiry proceedings were conducted and the witnesses were examined to prove the charges. The finding of the Enquiry Officer was submitted to
the disciplinary proceedings which resulted in the impugned order of termination and only thereafter, the petitioner had raised the objection as to
the power of S.W. Kanagaraj to issue the charge memo. In our opinion, the petitioner cannot be allowed to raise such a plea at this stage. --- In
this context, we may also mention that waiver also means intentional relinquishment of a right or claim. It may also be an act of not insisting some
right to which the employee is otherwise entitled to raise. A waiver is essentially an unilateral act of a person that results in surrender of a legal right.
In the event a person knowingly surrenders his right, it must be termed to be one of express waiver. In these circumstances, the contention that
merely because the charges were framed by a person who is otherwise not empowered to frame the charges, the entire enquiry proceedings
should be quashed cannot be accepted.
Our Division Bench has followed the Supreme Court Judgment in H.V. Nirmala Vs. Karnataka State Financial Corporation and Others, .
Therefore, the petitioner having failed in his attempt even to question the charge memo, it is not open to him for challenge the impugned order
herein. In any way of the view of the matter as stated supra, the third party also has rightly brought out that by virtue of the interim order, if the
petitioner was to be considered his right will be affected. Therefore, the writ petitioner has no legal right to question the same. Further, we see from
the existing Bye-laws of the organization under clause 13(v) says clear embargo in a case of promotion to be given to an employee, the promotion
could be considered only after the period of six months in case of censure and fine and in other cases only after a period of three years in respect
of other punishment awarded.
In this case, the punishment awarded is stoppage of increment for one year increment period without cumulative effect. The punishment was given
only on 29.08.2009 and therefore, as per Bye-laws, he has to wait for three years which period ends only on 29.08.2012, till then, he cannot be
considered. But unfortunately, in this case, even for the punishment, he has not undergone and he has also obtained stay and therefore, the Writ
Petition filed by the petitioner is not sustainable or maintainable.
Hence, the Writ Petition is dismissed. The Writ Appeal filed by the third party, who is competent, is eligible for promotion. Hence, the interim
order granted in M.P.(MD).No. 3 of 2010 in W.P(MD)No.6542 of 2010, dated 30.04.2010, is set aside and the Writ Appeal is allowed. No
costs.