Calcutta High Court (Appellete Side)
Asis Kanjilal vs Naba Kumar Burman & Anr on 6 May, 2016
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 016 W.P. 4125 (W) of 2015 With C.P.A.N. 1916 of 2015 Asis Kanjilal
-Vs-
Naba Kumar Burman & Anr.
Mr. Jay Chakraborty ... for the Petitioner.
Mr. Ayan Banerjee, Ms. Debasree Dhamali ... for the alleged contemnor .
The contemnor has filed a further affidavit pursuant to the order dated April 15, 2016.
There is no dispute that the money that the petitioner was entitled to receive in terms of the order dated February 26, 2015 upon the order of punishment being annulled, has been received by the petitioner. The petitioner's grievance pertains to the petitioner being denied the promotion that the petitioner ought to have obtained by now.
It is submitted by the alleged contemnor that since the petitioner was in the post of driver, there was no scope for any routine promotion. However, according to the contemnor, applications are invited at times from drivers and the applicants are considered for promotion. According to the alleged contemnor, applications were invited from drivers to participate in the promotion process in August, 2015 but the petitioner did not respond thereto or make any application. The petitioner says that since the promotion is based on seniority-cum-merit, the petitioner should have been promoted ahead of the petitioner's juniors who 2 have been promoted in 2015. To this, it is submitted by the alleged contemnor that not all drivers are interested in obtaining promotion and only such of those who applied were considered therefor. It is the further submission on behalf of the alleged contemnor that if all drivers, irrespective of whether they had applied, were to be considered for promotion, the petitioner would not be in the zone of consideration.
It is evident from the order dated February 26, 2015 that the order of punishment passed against the petitioner was set aside and the employer was not given the leave to proceed afresh against the petitioner since the charges pertained to the year 2008 and were considered to be stale. The order also left the petitioner eligible to receive all his benefits, including promotion, as if the order of punishment had never been made.
However, it was only after the order dated February 26, 2015 had been made could the petitioner have been considered for promotion since the order of punishment remained in the records prior to February 26, 2015. Upon the punishment being set aside, the contemnor claims to have invited applications from drivers interested in obtaining promotion and the petitioner did not apply. In such circumstances, it cannot be said that there has been any deliberate or willful violation of the order dated February 26, 2015 by the contemnor. The petitioner did not apply for the promotion in August, 2015 and, in any event, there were several seniors of the petitioner in the same post who had not been considered for promotion merely because they had not applied. 3 In view of the above, there does not appear to be any deliberate or willful violation of the order dated February 26, 2015 by the contemnor. CPAN 1916 of 2015 is dropped.
It will be open to the petitioner to apply for promotion when the next invitation is made. At any rate, since the petitioner is desirous of obtaining promotion, the contemnor is directed to ensure that the petitioner's name is considered for promotion upon the next departmental promotional committee being constituted for such purpose.
There will be no order as to costs.
( Sanjib Banerjee, J.)