1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1549 OF 1999 Sarosh Engineer. ...Petitioner vs. Air India Ltd. ...Respondent. ---- Mr.M.B.Singh, for Petitioner. Mr.S.K.Talsania, Sr. Advocate with Abhay Kulkarni i/b. Bhasin & Co., for Respondents. --- CORAM: D.K.DESHMUKH & R.G.KETKAR, JJ. DATED: 10th August,2009. P.C.:- 1. By this petition, the petitioner challenges firstly imposition of punishment of withholding of one increment and also denial of promotion in January,1998 2 because of that punishment. So far as the aspect of punishment is concerned, the learned Counsel appearing for petitioner submits that imposition of punishment is in breach of principles of natural justice because copy of the inquiry report which was submitted by the Inquiry officer was not supplied to him. Perusal of the record, however, shows that the charge against the petitioner was that he was guilty of delay in tendering money that he had received on flights on three occasions. Perusal of the explanation submitted by the petitioner shows that he admitted that there was delay, which he could not explain, in tendering money which he received on flight on two occasions. In our opinion, therefore, even assuming that the petitioner was entitled to a copy of the inquiry report, in view of the admission of the petitioner we cannot set aside the order imposing minor punishment of withholding increment for that reason. 2. So far as the other aspect is concerned, the learned Counsel submits that the petitioner should have been promoted under the time bound promotion 3 scheme in January,1998. He submits, relying on the judgment of the Supreme Court in the case Ashok Shankar Guha Vs. Air India Ltd., in Civil Appeal no. 1916 of 2008, order dated 11.3.2008, that punishment of withholding of increment was imposed in the January,1996, and that punishment cannot be made basis for denial of promotion after expiry of one year from January,1997. But the case of the petitioner in the petition is that he should have been promoted with effect from 1.1.1998. Perusal of the policy of the employer dated 5.6.1997 in relation to the promotion shows that there is a note which states that the first exercise was carried out in July,1997 and 100% persons who were found eligible for promotion were promoted. However, so far as the exercise to be carried out after January,1998 is concerned, only 90% of the persons who are found eligible are to be promoted. The petitioner in the petition does not claim that he should have been promoted with effect from July,1997, but he claims that he should be promoted from January, 1998. Thus, according to the petitioner, he is entitled for promotion from January,1998 onward and 4 even accepting the case of the petitioner at its best that he should have been considered in the January, 1998 for promotion and given promotion, then because 90% of the eligible persons were promoted, one person who has been given promotion out of 90% eligible persons will have to be directed to be denied promotion from the list of the persons who have been given promotion in the January,1998. Not a single person who has been given promotion has been joined as party to the petition. The policy of the Corporation, so far as the period from January,1998 is concerned, is that only 90% of the persons who have been found eligible are to be given promotion. According to the record 108 persons were found to be eligible for promotion and in 90% quota 97 persons were promoted. If we direct the Corporation to give promotion to the petitioner from January,1998 without directing the Corporation to deny promotion to one of the persons who has actually been given promotion in January,1998, then we will be directing the Corporation to commit breach of its own policy which is not challenged before us. In other words, the person who has wrongly 5 been given promotion because he was junior to the petitioner, is a necessary party to the present petition and in his absence no effective direction can be given. In our opinion, in the absence of the necessary party, the petitioner cannot be granted relief even assuming that a junior person to the petitioner was given promotion wrongly during the period from January,1998. We want further to bring on record that the policy shows that promotion was not to be given automatically and suitability of a person for promotion was also to be seen. Even assuming that once the period for which the increment was withheld is over, it becomes irrelevant for the purpose of promotion, in our opinion, while judging the suitability, the fact that the person was found guilty of misconduct would continue to be relevant though that will have to be considered alongwith his other record. However, it does appear from the judgment of the Supreme Court in the case Ashok Shankar Guha referred to above that the Supreme Court has directed that for the purpose of time bound promotion once the period for which increment is withheld is over, that 6 becomes irrelevant for the purpose of promotion. It was also contended that denial of promotion to the petitioner in January,1998 is arbitrary and is also in violation of Article 14 of the Constitution of India. Even assuming that to be so, as observed above, in the absence of necessary party being joined no relief can be granted to the petitioner. 3. Taking overall view of the matter therefore, in our opinion, the petition has no substance. It fails and is dismissed. No order as to costs. (D.K.DESHMUKH, J.) (R.G.KETKAR, J.)