Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
27. 03.2013 CORAM THE HONOURABLE MR.JUSTICE S.TAMILVANAN W.P. No.9705 of 2006 K.Sivaprakasam .. Petitioner versus 1. Tamil Nadu Civil Supplies Corporation Limited, represented by its Chairman and Managing Director No.42, Thambuswamy Road, Kilpauk, Chennai-10 2. The Regional Manager, Tamil Nadu Civil Supplies Corporation, Nilgris .. Respondents Writ Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of certiorarified mandamus calling for the records of the respondent Corporation in connection with the proceedings in E7/79075/2001 dated 12.11.2002 issued by the first respondent Corporation and quash the same and direct the respondents' Corporation to accord promotion to the petitioner on par with his immediate juniors, in the subsequent cadres, with effect from the date on which his immediate juniors were promoted. For petitioner : Mr. V.Prakash, Senior Counsel for Mr.S.S.Vasudevan For respondents : Mr. C.Selvaraj ORDER The writ petition has been filed under Article 226 of the Constitution of India seeking an order in the nature of certiorarified mandamus calling for the records pertaining to the order dated 12.11.2002 made in the proceedings in E7/79075/2001 on the file of the first respondent Corporation and quash the same, consequently direct the respondents' Corporation to accord promotion to the petitioner on par with his immediate juniors, in the subsequent cadres, with effect from the date on which his immediate juniors were promoted.
2. The petitioner herein has stated that the respondents' Corporation has not honoured the Memorandum of Understanding dated 10.08.1999 entered into between the Tamil Nadu Civil Supplies Corporation Employees' Union on behalf of the petitioner and the Management of the said Corporation, in respect of the terms of petitioner's reinstatement, seniority, promotion etc.
3. It is not in dispute that the petitioner had joined service in the respondents' Corporation as Bill Clerk on 14.10.1974, the same was subsequently re-designated as Junior Assistant. However, he was terminated from service on 13.06.1979. Against the termination, the petitioner raised an Industrial Dispute, challenging the validity of the order of removal of the petitioner from service before the Labour Court, Coimbatore in I.D. No.206 of 1988. During the pendency of the industrial dispute before the Labour Court, being a recognised union, the Tamil Nadu Civil Supplies Corporation Employees' Union intervened on behalf of the petitioner and it was negotiated by the respondents' Corporation and the Employees union, which resulted in entering into a Memorandum of Understanding dated 16.08.1989. As per the Minutes of Memorandum of Understanding, the petitioner should be re-instated in service and it was agreed between the parties that after the petitioner being re-instated as Junior Assistant, he would be promoted as Assistant, as and when he qualifies himself for the post of Assistant. It was also agreed between the parties that the name of the petitioner as an employee, would be included in the panel for Superintendent which was to be drawn up immediately after promoting him as Assistant, subject to Board's approval.
5. Mr. V.Prakash, learned Senior Counsel appearing for the petitioner submitted that as per the Memorandum of Understanding, the petitioner herein was re-instated in service and was given promotion with backwages, as per order dated 04.08.1992 passed by the Regional Manager, Tamil Nadu Civil Supplies Corporation Ltd., Nilgiris District. However, in spite of the fact that the petitioner is entitled to continuity of service, he was not given seniority by the respondents. A copy of the letter in RC.not U1/56719/91, dated 10.04.1992 reads that the representation of the Employees union was examined and it was informed that the word 're-instatement' rather than 'reappointment' being used be taken in favour of the petitioner K.Sivaprakasam with continuity of service given to the extent of adding previous service but period of break has to be treated as non-duty. The proceedings of Senior Regional Manager, Nilgiris, dated 29.04.1999 reads that the petitioner had been removed from service with effect from 13.06.1979 and subsequently in accordance with the settlement made between the Management and the Employees union, the petitioner was re-instated as Junior Assistant and he joined duty as Junior Assistant on 18.04.1990 and his name was placed in Sl.No.1 in the seniority list published as on 01.11.1990, 01.11.1991 and 01.11.1992 in the cadre of Junior Assistant and as per the settlement, he would be promoted as Assistant, when he acquires the qualification prescribed for the post of Assistant. Accordingly, as per the settlement, the petitioner was promoted as Assistant with effect from 21.05.1993, the day on which he qualified for the post of Assistant by passing D.O.M. Test held on 20.05.1993.
6. Learned standing counsel for the respondents argued that the petitioner had completed the required period of four years in the cadre of Assistant only as on 19.05.1997 and would be eligible for promotion as Superintendent with effect from 20.05.1997, though he had passed the prescribed D.O.M. Test and Commercial Book-keeping Test during May 1993. However, the proceeding of the Senior Regional Manager, dated 29.04.1999, further reads that one G.Barnabas had been appointed as Packer Grade-II @ Rs.150/- per month a consolidated pay in the same appointment order of the Senior Regional Manager, Coimbatore, he joined duty as Packer on 14.10.1974 and on the date, the petitioner had also joined duty as Bill Clerk, subsequently the said Barnabas was promoted as Junior Assistant with effect from 01.10.1980 and as Assistant with effect from 08.11.1994 and he was promoted as Superintendent on 02.03.1992 as per proceedings in E7/124925/91(i). Hence, the petitioner herein be considered for promotion as Superintendent with effect from 02.03.1992, on the said date of promotion of G.Barnabas.
7. Learned senior counsel relying on the letter dated 29.04.1999 sent by Senior Regional Manager to the Manager Administration-I, Chennai, argued that the petitioner is entitled to get promotion as Superintendent with effect from 02.03.1992 on par with Barnabas, a similarly placed employee of the respondents' corporation and a recommendation was also made in the letter by the said Senior Regional Manager to the Manager, Administration-I, T.N.C.S.C., Ltd., Chennai.
8. Per contra, the learned Standing Counsel appearing for respondents submitted that the petitioner is not entitled to claim promotion as Superintendent with effect from 02.03.1992, as the Chairman and Managing Director of Tamil Nadu Civil Supplies Corporation by his proceedings dated 12.11.2002, rejected the claim made by the petitioner. Learned Standing Counsel appearing for the first respondent drew the attention of this Court to the order passed by the first respondent herein. However, as per the memorandum of understanding, the petitioner herein was re-instated in service with back wages, continuity of service and other monetary benefits, which is not in dispute.
9. Learned senior counsel appearing for the petitioner drew the attention of this Court to the order dated 12.11.2002 passed by the Chairman and Managing Director first respondent herein. It has been stated in the said order that there was personal enquiry by the Regional Manager, which resulted in the termination of service of the petitioner. According to the learned counsel for the petitioner, the alleged personal enquiry was conducted against principles of natural justice and hence, the finding of the enquiry report is legally not sustainable and there was no other evidence for the allegations and charges levelled against the petitioner. On the aforesaid circumstances, the punishment imposed on the petitioner, terminating him from service has to be construed as unsustainable in law.
10. On the said circumstances, the industrial dispute raised by the petitioner before the Labour Court was withdrawn, based on the Memorandum of Understanding, that came into effect on 05.09.1989. According to the learned Senior counsel, the respondents herein cannot give a go-by to the memorandum of understanding, arrived at between both the parties and they have admitted the validity of the memorandum of understanding. As per the letter, dated 29.04.1999, sent by Senior Regional Manager to the Manager Administration-I, T.N.S.C.S Ltd., Chennai, it has been categorically stated that the petitioner could have been considered for promotion as Superintendent with effect from 02.03.1992 on par with G.Barnabas, who was also appointed on the same date and the letter, dated 29.04.1999 reveals that the Regional Manager, Nilgris has admitted that the name of the petitioner might be considered for promotion as Superintendent with effect from 02.03.1992, as that of Barnabas, who was already promoted.
11. It is admitted by both the learned counsel that as per memorandum of understanding between the Union and the Management, it was agreed to re-instate the petitioner as Junior Assistant and also to promote him as Assistant, when he gets qualified himself for the post of Assistant and his name would be included in the panel for the post of Superintendent, which was to be drawn up immediately after promoting him as Assistant, subject to Board's approval. The contention raised by the learned counsel appearing for the respondents is that the board has to approve and that was not approved. In support of his contention, learned counsel appearing for the respondents relied on the decision in Shiv Dass vs Union of India and others reported in 2007 (9) SCC 274.wherein the Hon'ble Supreme Court has held that if there is any negligence or omission on the part of the writ petitioner to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party, the High Court may refuse to entertain the writ petition. In the said decision, the Hon'ble Apex Court has held further that even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports, reported i”
1. SCC 18.and that the discretion has to be exercised judicially and reasonably and not arbitrarily.
12. In Maharashtra SRTC v. Balwant Regular Motor Service reported in AIR 196.SC 329.the Hon'ble Apex Court has held as follows: "Now the doctrine of laches in courts of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy." 13. It has been made crystal clear by the Hon'ble Apex Court that if a petition is filed beyond reasonable period, the Court can decide it against the petitioner on the ground of laches, however it would depend upon the facts of each case. It cannot be said that the present writ petition was filed belatedly, hence, the ground laches is not applicable to this writ petition.
14. A Division Bench of this Court (Elipe Dharma Rao, and K.K.Sasidharan, JJ) in W.A. Nos.1190, 1490, 1491, 1535, 1551, 1685 of 2009, dated 08.11.2010 had permitted the writ petitioner to implead the necessary party, in order to render proper justice.
15. Mr.V.Prakash, learned Senior counsel for the petitioner submitted that the aforesaid decisions referred to on the side of the respondents are not relevant on the facts and circumstances of the case, as there was no laches on the part of the petitioner and further submitted that allowing the writ petition would not affect the rights of the junior members, based on the memorandum of understanding that was entered into by the Union and the Management. According to the learned Senior counsel for the petitioner, this writ petition has to be allowed, in view of the Memorandum of Understanding (MOU) between the parties.
16. On behalf of the respondents, it was further contended that as per Tamil Nadu Civil Supplies Corporation Limited, Employees' Service Regulations 1989, the appointing authority of the employees in category 3, Superintendent is the Managing Director and the method of recruitment and qualification for the same is by way of promotion, for which the rule requires four years of service as Assistant. According to the learned counsel for the respondents, as the petitioner was terminated from service, he had not served four years as Assistant, hence, he is not entitled for seeking promotion as Superintendent. However, it was argued by the learned Senior counsel for the petitioner that in view of the erroneous termination order passed against the petitioner and the subsequent order of re-instatement with continuity of service, legally it has to be presumed that the petitioner was in service along with other employees and therefore, the petitioner was eligible to seek promotion, on par with his junior G.Barnabas.
17. The Minutes, dated 16.08.1989, available at page No.4 of the typed set of papers, reads that the memorandum of understanding was arrived at by Chairman cum Managing Director and the Tamil Nadu Civil Supplies Corporation Employees Union, whereby it was agreed by the respondents, to reinstate the petitioner in service with continuity of service and other monetary benefits and that was accepted by Employees union. It is not in dispute that as per order dated 04.08.1992, the petitioner was given all monetary benefits and also the promotion and as per letter dated 29.04.1999, Senior Regional Manager has addressed the Manager Administration-I, Chennai, referring various developments, that had taken place and also the memorandum of understanding and further, he had recommended the petitioner to be considered for promotion as Superintendent with effect from 02.03.1992 on par with another similarly placed employee G.Barnabas, who was also appointed on the same day on 07.10.1974 along with the petitioner, considered for promotion as Superintendent with effect from 02.03.1992.
18. According to the learned Senior counsel appearing for the petitioner, as per the Minutes dated 16.08.1989, it was categorically stated that subject to the Boards approval, the promotion of the petitioner as Superintendent could be considered, however, as per the impugned order, it was not decided by the board but only the Chairman and Managing Director passed the order, that is said to have confirmed by the Board, hence, the procedure followed is erroneous and further, the matter was not considered on merits and no reason has been assigned for rejecting the claim of the petitioner.
19. On a perusal of Memorandum of Understanding, I am of the view that the petitioner was re-instated and he was given continuity of service and other monetary benefits. The Minutes of the respondents, dated 16.08.1989, reveals that the petitioner was re-instated as Junior Assistant and promoted as Assistant and it is also agreed to include his name in the panel for Superintendent which could be drawn up immediately after promoting him as Assistant subject to the Boards approval. Admittedly, it was not directly placed before the Board for approval, but the Chairman and Managing Director passed the order and placed it before the Board. It was further argued on behalf of the petitioner that if it is placed before the Board consists of the Chairman and other members, there can be every possibility for open discussion and taking independent decision. As it was decided by the Chairman and Managing Director, without placing before the Board, there was only a mechanical approval and further, there is no reason given by the respondents for not giving promotion on par with his juniors, though the same was recommended by the Senior Regional Manager, Nilgris, by his letter in Rc.No.1257/99/E1, dated 29.04.1999.
20. When there was recommendation by the Senior Regional Manager, by an official letter, in view of the memorandum of understanding, to consider the petitioner on par with another similarly placed employee, Barnabas, who was also appointed on the same day on 07.10.1974 as Bill Clerk, similar to that of the petitioner, that cannot be ignored without assigning any acceptable reason. In pursuance of the Memorandum of Understanding entered into between the labour Union and the Chairman and Managing Director, it is the duty of the respondents to place it before the Board for approval and only the Board could have decided the issue. Learned Senior counsel contended that the impugned order is not an independent decision of the Board, as per the MOU, but the Chairman-cum-Managing Director first took the decision and the Board was made to approve the same in a compelling circumstance against an employee, hence, the same is not sustainable in law.
21. Had it been placed before the Board, there could have been participation of the other members in taking the decision by the Board independently, hence, I am of the view that the order being passed by the Chairman and Managing Director and then placed it before the Board, would be against the decision taken in the Minutes of the meeting, held on 16.08.1989 and further, there is no acceptable reason assigned for non-considering the promotion of the petitioner, on par with his juniors, as recommended by the Senior Regional Manager. As the Memorandum of Understanding stipulates certain terms and conditions, agreed by both the parties, such as, the reinstatement and continuity of service and other benefits of an employee, against the mandate, the first respondent cannot decide that there was insufficient service for promoting the petitioner as Superintendent, though the same was not a ground for earlier promotion. As per the Employees' Service Regulations 1989, Sl.No.7, to promote an Assistant as Superintendent, the required qualification is continuity of four years service as Assistant. The memorandum of understanding and the promotion given in the previous stage would show that he was promoted on the legal presumption, in view of the continuity of service given to the petitioner, hence, the respondents cannot take a contrary view against the legal mandate under the "MOU". Hence, I find it just and reasonable to allow this writ petition and to set aside the impugned order passed by the respondents and issue suitable directions.
22. In the result, the writ petition is allowed as prayed for and the impugned order, dated 12.11.2002 is quashed, directing the respondents to promote the petitioner as Superintendent on par with his immediate junior, who was originally appointed along with the petitioner, with all other benefits, as per the "MOU", within a period of six weeks from the date of receipt of a copy of this order. No order as to costs. vga / tsvn To 1. Tamil Nadu Civil Supplies Corporation Limited, represented by its Chairman and Managing Director No.42, Thambuswamy Road, Kilpauk, Chennai-10 2. The Regional Manager, Tamil Nadu Civil Supplies Corporation Nilgris