Gauhati High Court
Tripura Jute Mills Limited And Anr. vs Bhanu Lodh on 21 August, 2007
Equivalent citations: 2008(1)GLT22
JUDGMENT B.K. Sharma, J.
1. This appeal is directed against the judgment and order dated 18.4.2007 passed in WP(C) No. 454/2005. The writ petition was filed by the petitioner (respondent herein) for his appointment and/or deemed appointment as Commercial Officer from the date on which he was appointed initially as "Office Trainee" and thereafter on completion of the training as Commercial Officer -II.
2. The undisputed facts are in a narrow campus. While the writ petitioner asserted his right or merit of the case, the respondents resisted the same on technical pleas of delay in asserting the right.
3. The writ petitioner while was in the employment of Tripura Apex Weavers' Cooperative Society Limited as Store-cum-Marketing Officer, offered his candidature in response to an advertisement issued by the appellant No. 1 namely Tripura Jute Mills Ltd. (TJML) inviting applications for the post of Commercial Officer in the pay scale of Rs. 1400-2350/-. The candidature offered by the petitioner having been accepted, he was called for the selection conducted on 14.9.1985.Be it statedhere that the petitioner is an M.Com with added degrees of MBA and B.J.
4. Although the petitioner was selected for the post of Commercial Officer in the aforementioned pay scale, he was appointed as Officer Trainee on a consolidate stipenderj Rs. of 500/- per month with effect from 15.1.1986.It will be partinent to mention here that the petitioner on being selected for appointment as Commercial Officer in the pa) scale of Rs. 1400-2350/- and being apprised of the same, resigned from his earlier assignment as Store-cum-Marketing Office to accept the post of Commercial Officer. Hi; resignation was accepted and he was released with effect from 14.1.1986. However, when the petitioner was appointed as Office Trainee, he objected to the same and made it known in his joining report dated 15.1.1986. In the joining report, he made a prayer for his appointment as commercial Officer, for which he was selected. Be it stated here that the post from which the petitioner had resigned carried the pay scale of Rs. 750-1750/-.
5. It is the case of the petitioner that upon raising objection, the authority informed him that he would be appointed as Commercial Officer on completion of the training as Officer Trainee. The petitioner honestly believed the same and rendered his services with the expectation that the post for which he was selected would be offered to him. Time to time representations made by him yielded results. In the meantime, the petitioner was appointed as Commercial Officer-II preceded by appointment as officer on special duty attached to the Commercial Department with condition to remain on probation for a period of 6 months with effect from 17.3.1987. By an order dated 22.9.1987, it was indicated that he would continue his duties as per his designation until further order. However, later on the petitioner was appointed as Commercial Officer - II and was confirmed as such with effect from 17.9.1987 by order dated 8.3.1988. The post of Commercial Officer carried the pay scale of Rs. 800-1110/- at that point of time.
6. There is some confusion relating to the certificate issued by the appellant No. 2 i.e. the Managing Director TJML certifying that the petitioner was in continuous service of the company as Commercial Officer with effect from 15.1.1986 till the issuance of the certificate on 25.5.2005. This certificate finds a mention in the judgment of the learned Single Judge. Upon verification of records, we also find the said certificate issued by the appellant No. 2. However, the learned Counsel for the appellants has contended that such certificate not forming part of the writ petition cannot be accounted for to which learned Counsel for the respondent/writ petitioner has objected to with the submission that when the certificate very much formed part of the records of the writ proceeding and was issued by none other then the appellant No. 2 himself, its veracity or otherwise cannot be doubted and that such document cannot be said to be inadmissible without first disowning the same and that too at the stage of the appeal.
7. We are of the considered opinion that the said certificate having formed the part of the records and the writ petition having been disposed of taking note of the same and there being no objection and/or disowning of the same by the appellants urging any such ground in the appeal, the said document cannot be said to be inadmissible and that too at this stage.
8. It was only in 2005, the petitioner was informed by the appellant No. 2 that although efforts were being made to appoint the petitioner in the post of Commercial Officer with retrospective effect but in absence of inclusion of the post in the TJML Employees (Revised Pay) Rules, 1999 same did not materialize. The petitioner was informed of the same by letter dated 27.4.2005 followed by memorandum dated 1.8.2005 reiterating the same. In the memorandum while mentioning the facts stated above, it was also stated that in consideration of the numerous representations submitted by the petitioner coupled with personal interview, the position was intimated to the petitioner by the aforesaid letter dated 27.4.2005.
9. In the writ petition, the petitioner annexed documents relating to creation of the post of Commercial Officer and appointment thereto on earlier occation so as to contend that the post of Commercial Officer was very much available. By Annexure-12 letter dated 8.8.2003 the TJML authority intimated the petitioner about non-inclusion of the post of Commercial Officer in the aforesaid rules of 1999. It was also intimated that the TJML has recommended corresponding revised pay scale to the pre-revised scale of Rs. 1400-2350/- for necessary approval for inclusion in the ROP Rules of 1999. In the letter the petitioner was addressed as "Commercial Officer".
10. The writ petition filed by the petitioner was resisted by the TJML without stating anything as to why the petitioner was not appointed as Commercial Officer, although he was selected as such. The only plea taken in the counter affidavit is that the post of Commercial Officer was not included in the aforesaid ROP Rules, 1999.
11. In the rejoinder affidavit filed by the petitioner while reiterating the pleas in the writ petition, it was stated that the plea of the respondent in their counter affidavit was not only unfounded, untrue and contrary to the records but was also an attempt to confuse the Court. It was pointed out that the TJML being a company, is governed by its Memorandum and Articles of Association, and the company is not dependant on any approval of the Government pertaining to the matter relating to appointment etc. and for that matter appointment of the petitioner as Commercial Officer. It was brought on record that although TJML was included in the terms of reference to the 4th Pay Commission, but subsequently it was withdrawn from the purview by notification dated 7.7.1999. We have gone through the same, which was annexed as Annexure-14 to the rejoinder affidavit. By the said notification the Governer of Tripura revoked the TJML Employees (Revised Pay) Rules, 1999. By another notification dated 5.7.1999 issued by the Governer of Tripura, while notifying revocation of the aforesaid Rules of 1999, it was also indicated with a direction that the Board of Director of TJML would consider revision of pay scale of the officials and workers of the company.
12. In the rejoinder affidavit, the petitioner has also annexed certain other documents pertaining to revision of pay scale, post available in TJML and power, jurisdiction and competence of the Board of Directors to take all necessary decisions relating to formulation and finalization of pay and perquisites of its employees and thus there was no necessity to refer such matters to the Pay Commission. These documents were brought on records so as to contend that the plea of the TJML that due to non-inclusion of the post of Commercial Officer in the ROP Rules, 1999, the petitioner could not be appointed as Commercial Officer, was ill founded and contrary to records.
13. The learned Single Judge by the impugned judgment and order has held the claim of the petitioner cannot be thwarted on unsustainable pleas reflected in the counter affidavit. The learned Single Judge has dealt with every aspects of the matter including the plea of delay and latches on the part of the petitioner in approching the Court. The learned Single Judge has found that the post of Commercial Officer was created in the year 1980 and appointment in the post was also made. The aforementioned communication dated 8.8.2003, by which the petitioner was informed about the stand of TJML regarding the proposal made for approval and inclusion of the corresponding revised pay scales to the pre-revised scale of Rs. 1400-2350/-attached to the post of Commercial Officer has also been referred to. This document has revealed that the pay scale of Commercial Officer was upgraded to Rs. 1400-2350/-from Rs. 1200-1900/-. All these aspects of the matter, which are not in dispute, have been elaborately discussed by the learned Single Judge to arrive at the finding recorded in the impugned judgment and order.
14. Mr. Se. Deb, learned Sr. Counsel assisted by. Mr G.S. Das and Mr. S. Choudhury, learned Counsel for the appellants in his elaborate argument mainly highlighted on the principles relating to delay & latches and estoppel. While fairly admitting that in the counter affidavit the only plea advanced was that the post of Commercial Officer was not included in the ROP Rules of 1999, he submits that even otherwise also the petitioner having had no indefeasible right for appointment merely being selected, cannot harp upon his selection for appointment as Commercial Officer. To buttress his argument, he has placed reliance on the following decisions:
Sharkarshan Dash v. Union of India Madan Lal v. State of J & K. All India SC & ST Employees Association v. A. Arthur Jeen G.N. Nayok v. Goa University Chandra Prakash Tiwari v. Shakuntala Shukla.
State of Orissa v. Bhikari Charan Khuntia Food Corporation. of India v. Bhanu Lodh Union of India v. Kali Dass Batish K.H. Siraj v. High Court of Kerala
15. Countering the above argument, Mr. D.K. Biswas, assisted by Mr. S. Datta, learned Counsel for the respondent/writ petitioner submits that the injustice meted out to the petitioner on untenable ground is so staring and glaring that the learned Single Judge taking note of the same had no option than to redress the same as has been done by the impugned judgment and order. According to him, the learned Single Judge having dealt with the entire aspects of the matter on the basis of the pleadings and arguments advanced on behalf of the parties and there being no infirmity in the findings recorded, this Court will be reluctant to interfere with the same. He has also placed reliance on numerous decisions of the Apex Court as well as of this Court. However, he has mainly concentrated only on some of the decisions, which are as follows.
(1995) Suppl. 2 SCC 230 R.S. Mittal v. Union of India Munna Roy v. Union of India Bhagwan Parshu Ram College v. State of Haryana Shankarshan Dash v. Union of India (2000) 1 GLR 407 Md. Ibrahim Ali v. State of Assam (2001) 2 SCC 259 K. Thimmappa v. Chairman, Central Board of Directors, State Bank of India Union of India v. Kishorilal Bablani M.R. Gupta v. Union of India 1990 (Supp) SCC 770 Vimla Sharma v. State of U.P. Sushil Kr. Yadunath Jha v. Union of India P.C. Sethi v. Union of India (1986) 2 GLR 195 Arunoday Barman v. State of Tripura (1988) 2 GLR 54 The Workman of Naharani Tea Estate, Represented by the Akhil Bharatiya Chah Mazdoor Sangha, Rangapara v. The Manager of Naharani Tea Estate.
(1991) 2 GLR 480 Surendra Nath Talukdar v. The Senior Regional Manager, FCI 2004 (2) GLT 678 : (2004) 3 GLR 99 Tarani Talukdar v. Union of India Rakesh Ranjan Verma v. State of Bihar 2001 (3) GLT 246 : (2002) 1 GLR 581 Parimal Kanti Chakraborty v. Tripura Jute Mills Ltd.
16. The aforesaid decisions on which the learned Counsel for the parties have placed reliance are primarily on the point of delay and latches. This aspect of the matter having been elaborately dealth with by the learned Single Judge upon a reference to the law laid down by the Apex Court, we need not repeat the same. The appellants themselves did not bring an end to the matter and it was only in 2005 they expressed their inability to recognize the petitioner as Commercial Officer in the pay scale Rs. 1400-2350/- with corresponding revised pay scales only on the ground that the post was not included on the ROP Rules, 1999. The appellant No. 2 i.e. the Managing Director of TJML himself issued certificate dated 25.5.2005 certifying that the petitioner all along has been working as Commercial Officer. If that be so, it is not understood as to how the petitioner could be deprived of the attached pay scale. It is also not understood as to how the same very authority who issued the certificate could be one of the appellants taking a contrary view.
17. The petitioner was selected for the post of Commercial Officer. There was no indication that initially he would be on training as Trainee Officer and that too on consolidated stipend of Rs. 500/-. Even if it is assumed that such training was necessary, but on completion of the training the petitioner was not appointed as Commercial Officer, but was appointed as Officer on Special Duty. It was only thereafter, he was appointed as Commercial Officer - II in a much lower scale i.e. 800-1110/- which was even lower than the post of Store-cum-Marketing Officer earlier held by the petitioner in Tripura Apex Weavers' Co-operative Society Ltd. As Store-Cum-Marketing Officer, the petitioner used to draw his salary in the pay scale of Rs. 750-1750/- It can be well be imagined the predicament in which the petitioner was forced to be in after he had resigned from his earlier job. Needless to say that he was at the receiving end with no option than to accept the successive posts like Trainee Officer, Officer on special Duty and finally Commercial Officer-II It was a case of survival of the petitioner. The appellants after making the petitioner to act in a particular way and thereafter backing out from their own promise putting the petitioner in a disadvantageous position, cannot now take recourse to untenable technical pleas.
18. The principles of law laid down in the decisions on which the learned Counsel for the appellants has placed relience are all well founded and there cannot be any quarrel on the said principles. But as has been observed by the Apex Court in Ambica Quarry Works v. State of Gujarat, , a decision is rendered in the back ground of the facts involved in the case. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it see Lord Hals bury in Quinn v. Leathern 1901 AC 495.
19. The appellants after raising the wholly untenable plea in sustain their illegal action in not appointing the petitioner to the post for which he was selected, which is non-availability of the post in the ROP Rules, 1999 cannot fall back on the principles relating to delay and latches in approching the Court, they themselves being guilty of the same. All throughout the service carreer of the petitioner, he was never told that his claim was ill founded. Rather the appellants continued to entertain the grievance, which on the face of it a legitimate one, and finally apprised him of their inability to do anything in the matter in view of non-inclusion of the post in the ROP Rules of 1999. By letter dated 27.4.2005 the appellants while expressing regret to the petitioner, made it known to him that they made all out efforts to redress his grievance. This letter followed by the memorandum dated 1.8.2005 coupled with the aforementioned letter dated 8.8.2003 leave no manner of doubt that the appellants did not burry the matter due to efflux of time, but in fact pursued the matter all throughout. However, such persuasion was on untenable ground of the post being not there in ROP Rules of 1999. 20. Admittedly, the post of Commercial Officer was in existence atleast upto 1999. The petitioner having been selected for the same in 1986, it is not understood as to how he could be appointed in a lower post in a pay scale lower than the one attached to the earlier post held by the petitioner. The counter affidavit filed by the respondents/appellants is completely silent on that. As noted above, the only plea raised is non-inclusion of the post in the ROP Rules of 1999. Even this plea is not founded on real fact. The TJML Employees (Revised Pay) Rules, 1999 was revoked by the Governer with direction to the Board of Directors to consider revision of pay scale of the officer and workers of the company. In its various letters, copies of which were annexed to the rejoinder affidavit filed by the petitioner, the company clearly indicated its power, jurisdiction and competence to create posts and prescribe pay scales with corresponding revision thereof. However, when the case of the petitioner came to the picture, the TJML authority took recourse to inaction and silence and thereafter took the untenable plea of the post being not included in the ROP Rules of 1999.
21. The appellants have not even wishpered as to what they did during the period from 1986 to 1999, when the post of Commercial Officer was very much in existence, even if we accept their plea that the post was not included in the ROP Rules, 1999. Even this plea is not acceptable in view of revocation of the said Rules in 1999 itself. In the letter dated 8.8.2003 addressed to the petitioner by the Administrative Officer of TJML, there was enough indication regarding taking up the matter of the petitioner. In the letter it was indicated that the matter was being pursued to remove the anomaly. Even in the letter and the memorandum issued in 2005 regretting the redressal of grievance of the petitioner, there was enough indication about the sequence of events and the persistent effort purportedly being made towards redressal of the grievance of the petitioner.
22. It is in the aforesaid backdrop of the case, the learned Single Judge has arrived at the findings recorded in the impugned judgment and order. During the course of hearing of the appeal, learned Counsel for the respondent submitted that it is the petitioner, who alone has been maintaning the affairs of the commercial branch of the company. Coupled with this, the certificate issued by the Managing Director of the company who is also the appellant No. 2 herein certifying that the petitioner has all along been functioning as Commercial Officer, clinches the issue in favour of the respondent/writ petitioner. The Apex Court in the case of M.R. Gupta (supra) has held that the right to receive correct salary is a persisting right and the cause of action arises every month on payment of salary lesser than the admissible. In the instant case also if the petitioner, for all practical purpose has been discharging the duties, functions and responsibilities attached to the post of Commercial Officer, irrespective of the description of the assignment, he will be entitled to receive salary attached to the post of Commercial Officer.
23. The learned Single Judge while granting relief to the petitioner, has not granted any back wages to him. Direction issued is for notional fixation with arrear salary with effect from date of filing of the writ petition. Further direction issued is to fix the pay of the petitioner in the revised pay scales after revising the pre-revised scale in the same way such revisions have been affected in respect of other officers. This direction is in tune with the aforementioned letter dated 8.8.2003(Annexure-12) by which proposal for revising the pay scale of the post of Commercial Officer was indicated. The appellants after alluring the petitioner to give up his earlier job, which was in higher scale than the one offered to him, and thereafter persistently hoodwinking the petitioner that his grievance would be redressed and thereafter expressing its regret by the aforesaid letter and memorandum issued in 2005 cannot take the technical pleas on which the learned Counsel for the appellants have must emphasized. Such plea, after perpetrating wrong to the petitioner, does not behave of a model employer. In fact the appellants ought not to have raised the technical pleas.
24. The decisions on which Mr. Deb, learned Counsel for the appellants has placed reliance, apart from dealing with the principle on delay and latches also speak of the principle well known in service jurisprudence that a candidate merely being selected does not have any indefeasible right for appointment. Even after selection, the employer may on good and sufficient grounds deny appointment to the selected candidate. It is in this context, this principle will have to be understood. In the instant case not to speak of assigning any good and sufficient reason for non-appointment of the petitioner as Commercial Officer, the appellants in their counter affidavit filed in the writ petition did not even whisper as to why the petitioner could not be appointed as Commercial Officer. It is not a case of altogether denying appointment on any sound principle or policy adopted by the TJML. No such plea was either taken before the learned Single Judge nor has been taken before us. The only plea taken is that the ROP Rules of 1999 did not provide for the post of Commercial Officer. There was no explanation as to why for long 13 years i.e. from 1986 to 1999, the petitioner could not be provided with the post for which he was selected.
25. The whole basis of the technical pleas raised by the appellants after perpetrating illegality to the petitioner being not founded on any bonafide exercise of power and jurisdiction falls through on noticing the facts stated above. The appellants instead of behaving like a model employer have adopted the approach of confrontation although they are devoid of any factual and legal foundation for, the same.
26. The learned Single Judge on the basis of the materials on record has found that the Board of Directors of the company is the final authority to create posts, appoint officers and employees and revised their scale of pay. This aspect of the matter has been highlighted above in reference to Annexure-15 letter annexed to the rejoinder affidavit. The contention that no-inclusion of the post of Commercial Officer in the ROP Rules, 1999 was the reason for not appointing the petitioner to the said post is an absurd proposition, an eyewash to defeat the just and legal claim of the petitioner, as has been rightly observed by the learned Single Judged.
27. There is another aspect of the matter. Although, in the ROP Rules of 1999, the post of Commercial Officer was not included, but in view of the revocation of the said rules, same become redundant. It is not known as to whether due to non-operation of the post of Commercial Officer over the years, by illegally depriving the petitioner from the said post, the same was not included in the ROP Rules, 1999. Whatever formalities were required to be carried out by the appellants, ought to have been carried out in time. Sheer inaction on the part of the respondents cannot defeat the just and legitimate claim of the petitioner. The principle of estoppel on which the learned Counsel for the appellants has emphasized is rather applicable against the appellants. Equity demands redressal of the grievance of the petitioner, which the learned Single Judge has rightly done. We see no reason to interfere with the impugned judgment and order.
28. As has been observed by the Apex Court in Roshan Deen v. Preeti Lal , the power conferred on the High Court under Article 226 of the Constitution is to advance justice and not to thwart it. In paragraph 12 of the judgment, the Apex Court observed thus:
12. We are greatly disturbed by the insensitivity reflected in the impugned judgment rendered by the learned Single Judge in a case where judicial mind would be tempted to utilize all possible legal measures to impart justice to a man mutilated so outrageously by his cruel destiny. The High Court non-suited him in exercise of a supervisory and extraordinary jurisdiction envisaged under Article 227 of the Constitution. Time and again this Court has reminded that the power conferred on the High Court under Article 226 and 227 of the Constitution to advance justice and not to thwart it. Vide State of Uttar Pradesh v. District Judge, Unnao and Ors. . The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the Law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the byproduct of an erroneous view of law the High Courts is not expected to erase such justice in the name correcting the error of law.
(Emphasis added) In view of the above, the writ appeal is dismissed, without however, any order as to costs.