JUDGMENT

SANJEEV KUMAR, J. –

1. This intra-Court appeal is directed against an order and judgment dated 04.05.2022 passed by a learned Single Judge of this Court [“the Writ Court”] in SWP No. 862/2009 titled “V.P.Saini vs Chairman, Airport Authority of India and others” whereby the Writ Court has allowed the petition of the writ petitioner [„the respondent?] and by a writ of certiorari quashed the proceedings initiated by the appellants which resulted into penalty of “censure” dated 31.11.2001 against the respondent. The appellants have also been directed by the Writ Court to grant the benefit of next higher scale of DGM (ATC) to the respondent w.e.f 01.10.1999 along with consequential benefits.

2. Before we advert to the grounds of challenge urged by Mr. Vishal Sharma learned DSGI appearing for the appellants, we deem it appropriate to set out few facts germane to the disposal of this appeal.

3. In the year 1983, the respondent was temporarily promoted as Aerodrome Officer vide DGCA letter No. 32013/12/83 dated 29.11.1983. However, his services as Aerodrome Officer were regularized w.e.f 02.10.1989 by the National Airport Authority of India vide order dated 26.02.1990. In the year 1991, a draft seniority list of Aerodrome Officers was issued wherein the respondent was shown at S.No. 122 while placing the direct recruits (Aerodrome Officers) appointed in March 1986 and February 1987 over and above the respondent and other Departmental candidates. The said seniority list became subject matter of challenge in SWP No. 532/1992. The said writ petition came to be disposed of vide order dated 26.08.1993 directing the appellants herein to dispose of the representation of the respondent in accordance with the rules. The appellants vide order dated 31.08.1992 disposed of the representation by rejecting the claim of the respondent. Consequently, the respondent continued to figure at S.No. 122 in the draft seniority list which was later on finalized.

4. Feeling aggrieved by the rejection of his representation, the respondent filed SWP No. 835/1992 which was disposed by a Single Bench of this Court on 21.04.1995. The final seniority list impugned therein was quashed and the respondent was directed to be placed over and above the private respondents in the said writ petition from S.No. 4 to 43. The National Airport Authority of India and the Union of India filed LPA No. 175/1995 challenging the judgment of the Single Bench dated 21.04.1995. The LPA was dismissed by the Division Bench vide order dated 07.9.1995. An SLP filed against the order of the Division Bench too came to be dismissed thereby confirming the judgment of the Writ Court as upheld by the Division Bench. This happened before the Supreme Court on 17.12.2002.

5. In the meanwhile, the respondent superannuated from service on 31.10.2001. Consequent upon dismissal of the SLP by the Supreme Court, the judgment of the Writ Court was complied with and the respondent was promoted as Sr. Aerodrome Officer w.e.f 12.06.1995, but, was not given the promotion on the basis of his seniority which was due to him w.e.f 23.09.1993 when his juniors were promoted. Later on, the respondent was granted the benefit of first promotion w.e.f 23.09.1993 as Sr. Aerodrome Officer. The immediate junior to the respondents Mr. V.K.Dutta was given a further promotion as DGM w.e.f 01.10.1999, but the said promotion was denied to the respondent.

6. On attaining the superannuation, the respondent, who was facing two Departmental enquiries, was not released the due pensionary benefits. The respondent again came up before this Court by way of SWP No. 893/2005 and sought, inter alia, a direction to the appellants herein to grant him the benefit of next higher scale of DGM w.e.f 01.10.1999 and the consequential benefits including arrears of emoluments and post retiral benefits. The writ petition was disposed by a Single Bench of this Court vide order dated 23.12.2008 by directing the appellants herein to examine the claim of the respondent for retiral benefits in accordance with the rules occupying the field. It was observed by the Single Bench that the controversy raised in the writ petition centered around retiral benefits of the respondent relating to the period w.e.f 01.10.1999 till his retirement. The issue with regard to the entitlement or otherwise of the respondent to the promotion in the next higher scale of DGM was not examined. The matter was considered by the appellants and in view of the fact that in one of the enquiries the respondent had been visited with a minor penalty of “censure”, he was not held entitled to the benefit of promotion to the post of DGM w.e.f 01.10.1999 i.e the date with effect from which his immediate junior V.K.Dutta had been so promoted.

7. This made the respondent to knock the doors of this Court yet again. He filed SWP No. 862/2009 seeking, inter alia, a writ of certiorari quashing the departmental proceedings initiated by the appellants against the respondent which resulted into a penalty of “censure” dated 31.10.2001. The respondent also prayed for promotion to the post of DGM w.e.f 01.10.1999 with all consequential benefits. The writ petition was contested by the appellants and in their reply affidavit, they took a plea that since, in one of the enquiries, which was initiated against the respondent during his service career, the respondent was inflicted with a minor penalty of “censure” before his superannuation, as such, he was not held entitled to promotion to the post of DGM.

8. The writ petition was considered by the Writ Court in light of the rival stand of the parties and the material on record. The Writ Court came to the conclusion that by delaying the Departmental enquiry by six months, the appellants had acted unfairly and deprived the respondent of his right to speedy conclusion of enquiry proceedings. The writ Court also opined that imposition of a minor penalty of “censure” is not an impediment for grant of promotion. Without returning any finding as to the legality or otherwise of the enquiry proceedings culminating into issuance of order of “censure”, the writ Court quashed the proceedings as well as the order of minor penalty impugned in the writ petition. Vide order and judgment impugned, the writ Court directed the appellants to grant the respondent promotion to the post of DGM w.e.f 01.10.1999 with all consequential benefits. It is this judgment of the Writ Court which is called in question before us by the Airport Authority of India and others.

9. The impugned judgment is assailed by the appellants primarily on the ground that the writ Court ought not to have quashed the departmental enquiry culminating into passing of order of a minor penalty of “censure” against the respondent without first recording a finding that the enquiry as well as the consequential order of minor penalty was vitiated in law. It is argued by Mr. Vishal Sharma learned DSGI that the Writ Court has committed a serious error in holding that the “censure” being a minor penalty cannot be an impediment in the grant of promotion. He relies upon two judgments of the Supreme Court rendered in cases titled ‘State Bank of India vs. C.K.Karunakaran, 2022 (1) SLR 406 and Union of India and ors vs. A.N.Mohanan, 2007 (5) SCC 425.

10. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the judgment passed by the writ Court is not sustainable in law.

11. It is true that in his writ petition, the respondent had specifically challenged the Departmental proceedings initiated by the appellants as also an order of censure dated 31.10.2001 passed against him by the appellants. The Writ Court has not returned any finding with regard to the legality or otherwise of the departmental proceedings and the “order of censure” dated 31.10.2001 passed against the respondent. From the judgment impugned, it is nowhere discernible that the Departmental proceedings were initiated by a person not competent to do so or were otherwise vitiated for any other procedural irregularity. There is also no allegation of mala fide raised by the respondent against the Enquiry Officer. In the absence of any specific challenge made to the departmental proceedings and the order of censure dated 31.10.2001 by reference to any legal violation or procedural irregularities, it was not available to the Writ Court to declare the Departmental proceedings vitiated in law and quash the “order of censure” dated 31.10.2001 passed by the appellants against the respondents. As a matter of fact, the respondent was well aware of the Departmental proceedings as also passing of order of censure against him by the appellants in the year 2001, yet he chose not to challenge the same when he filed SWP No. 893/2005 in this Court. The respondent only prayed for his promotion to the post of DGM w.e.f 01.10.1999 with all consequential benefits, but did not raise any challenge either to the departmental proceedings or to the order of censure passed against him. In these circumstances, the principles underlying the provisions of Order II Rule 2 of CPC would be attracted. When the respondent filed SWP No. 893/2005, it was available to the respondent to challenge the departmental proceedings as well as the order of censure, but he chose not to challenge the same. In these circumstances, the relief which was claimed by the respondent in SWP No. 862/2009 in respect of enquiry and the order of censure shall be deemed to have been abandoned by the respondent. The respondent was, thus, estopped from filing another petition to claim the relief which he with his eyes wide open had abandoned when he filed SWP No. 893/2005.

12. That apart, the respondent is otherwise not entitled to the promotion in the face of penalty of “censure” awarded to him by the Disciplinary Authority vide order dated 31.10.2001. The observation of the Writ Court, that the “penalty of censure” being a minor penalty cannot be an impediment in the grant of promotion, is not supported by any law, rather the legal position in this regard is well settled. The awarding of censure, which may be a minor penalty, is a blameworthy factor and is a reason good enough to deny promotion to an employee. The penalty, whether it is minor or major, is inflicted upon an employee for committing misconduct and an employee, who is found guilty of misconduct, is not entitled to be promoted. Writ Court appears to have swayed away by the observations of Madhya Pradesh High Court in the case of Jagjit Singh vs. Secretary (writ petition No. 3273/2005,decided on 03.04.2017) that delay in conclusion of the departmental proceedings cannot act to the prejudice of the delinquent employee and, in such eventuality, the delinquent employee cannot be deprived of the benefit of promotion on the ground that ultimately after seven years, such employee is visited with penalty of censure. The judgment relied upon by the writ Court is distinguishable on facts. In the instant case, the enquiry was admittedly concluded against the respondent within a period of one and a half year which, by no stretch of reasoning, can be said to be an inordinate delay in completing the same.

13. For the foregoing reasons, the appeal filed by the appellants is accepted and the judgment of the writ Court is set aside. Disposed of accordingly.

Order accordingly.

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