Madras High Court
J.R.Bala Bhaskar vs The Chairman And Managing Director on 15 April, 2014
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS CAV ON 07/01/2013 DATED: 15/04/2014 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.39904 of 2002 1.J.R.Bala Bhaskar 2.S.Sinnurao 3.V.Elumalai 4.V.Balu ... Petitioners vs. The Chairman and Managing Director, Anglo French Textiles, Pondicherry. ... Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Mandamus directing the respondent to convene a Department Promotion Committee and to give promotion to the petitioners to the post of Assistant Manager, with effect from the date on which the vacancies arose, with all other consequential benefits including difference of salary, seniority etc. For Petitioners : Mr.V.Ajaya Kumar For Respondent : No appearance * * * * * O R D E R
The prayer in the writ petition is for issuance of a writ of mandamus to direct the respondent to convene a Department Promotion Committee and to give promotion to the petitioners to the post of Assistant Manager, with effect from the date on which the vacancies arose, with all other consequential benefits including difference of salary, seniority etc.
2. The short facts of the case are as follows:
The petitioners submit that they have joined the respondent Mill on 14.06.1976, 01.03.1982, 06.08.1980 and July, 1976 respectively and are working as Supervisors. During 1983, the respondent Mill was closed and subsequently it was taken over by the Government of Pondicherry by issuing the ordinance for the purpose of acquisition of Anglo French Textile, which become an Act, namely, Anglo French Textiles Act. By the said Act, the entire Mill as well as it's properties were vested with the Government of Pondicherry and were brought under the Pondicherry Textile Corporation Limited. The Management of the respondent Mill prescribed Rules in respect of terms and conditions of the services and norms of promotion for the workmen category, whereas no such Rules were prescribed by the respondent in respect of employees other than workmen, which resulted in arbitrary exercise of power by the respondent under the influence of extraneous consideration in respect of employees other than workmen regarding fixation of pay scale, fixation of promotional avenues, granting promotion to the higher posts etc.
3. Further, they submit that at the time of taking over of the respondent Mill, a project report was prepared by the Government, which deals with existing work force, the work force, which is needed for management, production etc. In Annexure-II of the said report, it is stated the total existing number of technical staff as 327, but actually 215 persons are on the roll and the short fall is shown as 105 and the same has been recruited by fresh appointment. The said report stated various expansion schemes and as a result of which there would be further requirement of 26 technical staff in various departments and at present there are 108 Assistant Managers working in the respondent Mill and nearly 40 vacancies are existing from 1991 onwards. After taking over of the respondent Mill by the Pondicherry Government, fresh appointment orders were issued on 07.06.1986 to the post of Supervisor. In other category of employees, the services in the erstwhile Management were taken into account, but in the case of Supervisors, the services rendered by the petitioners have not been taken into account, when they were forced to work as Trainee Supervisors, even though the name gives an expression that Supervisors are appointed as Trainees. In fact the Supervisors were appointed in the post of Trainee Supervisor and after two years, they were promoted to the post of Supervisor, which shows that the post of Trainee Supervisor is a separate cadre and nothing to do with the post of Supervisor. Therefore, the respondent is bound to take the previous service rendered by them in the erstwhile Management for the counting of their services for promotion.
4. The petitioners further submit that the respondent refused to issue seniority list for each category and is relying upon the token number, which was given to each employee as the basis of seniority. Similarly, no recruitment Rules were published so far even though they were demanding publication of seniority list and for prescription of recruitment Rules for the post of Assistant Manager. The respondent has given promotion to all other categories both workmen as well as ministerial staff except the category of Supervisor and whenever they made demand of promotion, the financial crisis is shown by the respondent as justification for not giving promotion, but promotions were given to workman, Manager and other categories except Supervisor, who are in the technical side. They are about to retire within less than two years and the first petitioner joined the service with Diploma in Mechanical and Automobile Engineering as Supervisor. Though the petitioners are fully qualified and the senior most in the cadre, they are not given any promotion and at the same time more than 44 posts of Assistant Manager are kept vacant from 1991 onwards. In the meantime, some employees filed W.P.No.12568 of 1998 for the implementation of the fifth pay commission and W.P.No.6082 of 2001 against the conduct of the Appellate Rules, which were proposed to be implemented without publishing any recruitment rules or other Rules regarding conditions of service and both the writ petitions are pending before this Court. Therefore, the petitioners have filed this writ petition seeking the relief as stated above.
5. The respondent has filed a counter affidavit stating that their Mill remained closed from the July 1983 and thereafter there was no manufacturing process. Subsequently, the Government of Pondicherry acquired the respondent Mill and promulgated an ordinance called as the Anglo French Textiles Limited (Acquisition and Transfer of Textile Undertaking) Ordinance, 1985 and subsequently an Act of legislature was enacted by the Pondicherry Legislative Assembly called as the Anglo French Textiles Limited (Acquisition and Transfer of Textile Undertaking) Act, 1986 (hereinafter, referred to as 'the Act'). The preamble to the Act reads as follows:
To provide for the acquisition and transfer of the rights, title and interest of the Anglo French Textiles Limited for the purpose of ensuring continued and increased production of goods essential to the needs of the community and for matter connected therewith or incidental thereto. By virtue of the provisions contained in the Act, the Textile Undertaking was vested with the Government and stood transferred to the Pondicherry Textile Corporation Limited. As per Section 2(a) of the Act, the appointed date means 24th December, 1985. Section 3(1) of the Act provides that on the appointed day, the Anglo French Textiles Limited and the rights, title and interest of the owner in relation to the textile undertaking shall stand transferred to and shall vest absolutely in the Government. Section 3(2) of the Act provides that the respondent Mill, which stands vested in the Government by virtue of Sub-Section (1) shall immediately, after it has so vested, stand transferred to, and vest in the Corporation. Chapter IV of the Act relates to the provisions with respect to employees of the respondent Mill. Section 11(1) deals with services of persons, who were workmen under the Industrial Disputes Act, 1947, while Section 11(2) deals with services of persons, who were not workmen within the meaning of the Industrial Disputes Act, 1947.
6. Further, the respondent submits that the Government of Pondicherry, by notification prescribed the date 25.06.1986, as the designated date of purpose of employment of persons. Section 23 provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act or in any decree or order of any Court, Tribunal, or authority. Article 74 of the Articles of Association of the Pondicherry Textile Corporation Limited (hereinafter, referred to as 'Articles of Association') deals with appointment etc., of clerks and officers etc. Article 74(5) of the Articles of Association empowers the Board of Directors of the Corporation to appoint, remove or suspend such Managers, Secretaries etc., for permanent, temporary or special services as they may from time to time think fit and to determine their powers and duties and fix their salaries or emoluments and to require security of such amount as they think fit in such instances, provided that no appointment on a pay scale, the maximum which exceeds Rs.18,300/- per mensum shall be made without the prior approval of the Government.
7. The respondent further submits that the appointment orders, dated 07.06.1986, were issued to the petitioners posting them as Supervisors, in different departments of the Mill as per the requirement, by virtue of the powers conferred under the provisions of the Act and Article 74(5) of the Articles of Association, with specific terms and conditions applicable to the employees and they have signed the same as a token of acceptance. There are number of staff employed in the Mills in the capacity of Technical Supervisors in various departments and the Supervisors post is not a feeder post to the post of Assistant Manager. Similar writ petitions in W.P.Nos.21341 of 2001 etc., batch have been filed before this Court and they are pending disposal, but one similar writ petition in W.P.No.16721 of 2001, filed by one Ramasamy, has been dismissed by this Court by order, dated 11.02.2003.
8. Further, the respondent submits that it is incorrect to state that no rules have been prescribed for the employees other than workmen. As on 10.06.1986, the total spindleage was 62,240 with 1643 looms and the production per day, during 1987-1988, was about 87,294 metres per day. But, as on 31.03.2002, the spindleage has come down to 31,408 with 1122 looms and the average production was around 39,000 metres per day. Therefore, it is clear that the total production capacity has come down considerably and the posts have also become redundant, while the petitioners are harping on promotions to the posts of Assistant Manager. In order to prove that the staff strength has not been proportionately reduced when compared to the reduction of workers in the respondent Mill, the staff/labour strength particulars in the respondent Mill has been tabulated below:
Month & Year Workers Staff Ratio 10.06.1986 5273 485 1:0:09 31.06.2002 3539 486 1:0:14 Therefore, the staff strength in all categories, including clerical staff, supervisors, Assistant Managers and Managers are on the higher side and more than the required ratio and the labour cost is on the higher side when compared to any other textile industry in the region or in Tamil Nadu. The Mill has an accumulated loss of Rs.139.44 Crores as on 31.03.2001 and the loss during 01.04.2000 to 31.03.2001 alone is Rs.17.65 Crores. One of the major reasons for the losses is the exorbitant labour and staff strength apart from low production and utilization. The petitioners have referred to a project report published during 1986 and wantonly failed to highlight the current position existing in the Mills and have no justification to contend that there is a shortfall of staff due to expansion schemes.
9. The respondent further submits that the petitioners have suppressed the fact that the staff and officers are not covered under the Standing Orders, but they are covered under the Anglo French Textiles (Conduct, Discipline and Appeal) Rules. There are approved Recruitment Rules approved by the Board of Directors of the Corporation for it's Supervisors and Officers. The promotion is strictly given as per merit-cum-seniority and the petitioners contention that there are no service conditions is incorrect. Further, there are separate sheets in the attendance register for supervisors and Assistant Manager and the Supervisors are engaged only as such and not as Assistant Managers as claimed by them. As on 01.06.2003, the onroll strength of staff and officers are as follows:
Designation Factory Side Office Side General Manager 1
-
Senior Manager 2 3 Manager Grade-III 5 3 Dy.Manager 4 5 Asst.Manager Grade-I 13 3 Asst.Manager Grade-II 35 10 Technical Supervisors 121 1 Office Supervisors 13 15 Selection Grade Supervisors (Clerical) 58 47 Junior Supervisors (Clerical) 48 38 Junior Plus Clerk (Clerical)
-8
Junior Clerk (Clerical) 3 8 Attenders 9 17 Total 9 17 Total 470
10. Further, the respondent submits that as the Supervisor post is not a feeder post for promotion, the petitioners have no right to seek promotion to the post of Assistant Managers. The promotions in general have been kept pending by the Management in view of the fact that the Mill is highly overstaffed. In fact, the Ahmedabad Textile Industry's Research Association had gone into the assessment of staff and officers and submitted it's report during January, 1998 itself highlighting on this aspect of overstaffing as under:
Anglo French Textiles engages a total of 612 staff members, which ATIRA suggestion is only 412. It means 33% excess over the requirement. This excess is found in all categories and almost in all departments. The ATIRA report, submitted during January, 1998, has specified the proposed complement of staff as follows:
Department Existing Proposed OFCR CLK ATT TOTAL OFCR CLK ATT TOTAL Head Office 86 163 48 297 60 110 14 184 Production / Technical Departments 208 101 6 315 162 62 4 228 Total 294 264 54 612 222 172 18 412 Excess over the proposed 72 92 36 200 Percentage 12 15 6 33 OFCR : All Officers (Managers & Supervisors) CLK : All Clerical Staff (SG Supervisor & downwards) ATT : Attenders Therefore, even as on date, there are 470 staff and officers and further reduction has to be done in order to tune in to the industry norms. With reference to the Officers and Supervisors in both the factory and administrative side, the total employees are 234, while the proposed strength fixed by ATIRA is 222 and therefore, they have surplus officers and staff and the requirement vis-a-vis the machineries has to be finalized before going into the promotion of supervisors.
11. The respondent further submits that the claim of the petitioners that their training period should be taken into account of the purpose of service period is untenable. They themselves have stated that they were initially employed as trainee supervisors for two years and subsequently confirmed as supervisors and therefore their claim has no basis. Furthermore, this claim has already been made before this Court, after about ten years, after the appointment orders, dated 07.06.1986, were issued and the same was hit by laches and delay. That apart, the appointment of the employees, who were employed during the erstwhile Management period has been made under the powers conferred under Section 11 of the Anglo French Textiles (Acquisition and Transfer of Textile Undertaking). In fact, the respondent Mill is divided into various departments like spinning, weaving, processing, winding, engineering, warehouse etc., and the technical supervisors are posted in each of the technical departments. Normally, for promotion, the seniority-cum-merit of the supervisors in the particular department would be taken into account and not the token seniority as claimed by the petitioners. Further, the promotion for Technical Supervisors cannot be compared to that of clerical staff and workers. At the outset, the requirement for the post of Assistant Managers has to be assessed by taking into account the existing spindlage and loomage and only then the question of promotion will arise.
12. Further, the respondent submits that the Anglo French Textiles Officers Association, Anglo French Textiles United Staff Association and Anglo French Textiles Staff, Supervisors and Officers Joint Action Council filed writ petitions in W.P.Nos.4760 of 1995, 15068 of 1996 and 12568 of 1998, claiming fixation of pay scales on the basis of the Fourth and Fifth Pay Commission Recommendations, on par with Central Government Employees stationed at Pondicherry, which are pending before this Court and hence, the reference made by the petitioners in respect of monetary loss because the majority of the petitioners have reached the basic pay in the post of Supervisor, which is equivalent to the post of Assistant Manager, is nothing but misleading one. The promotions in general have been kept pending by the Management since the Mill is highly over staffed. The Mill has one third staff excess over what is required and hence the Management has to take steps to reduce the excess staff and officers before going into the question of promotion. Further, there are no recruitment rules, while the 89th Board of Directors Meeting held on 24.12.1996 has approved the recruitment rules vide Board Resolution No.89.3 and the said Rules are in force. The promotion given to clerical staffs is on time scale basis and promotion in respect of worker category is kept pending as there is reduction in the production capacity and the revision of work load and work norms are pending. Therefore, the Technical Supervisors cannot claim promotion on time scale. The promotions will be considered after finalization of the required strength for all categories such as Assistant Manager, Deputy Manager, Managers etc., taking into account the reduced production capacity and requirement.
13. The respondent further submits that W.P.Nos.1258 of 1998 and 6082 of 2001 have nothing to do with the claim for promotion by the petitioners. Furthermore, the attendance registers of the related departments, wherein the petitioners are employed and as well as the pay slips for the last six months will clearly prove that the petitioner are engaged only as Supervisors and not as Assistant Managers as claimed by them. Therefore, for all the above reasons, the third respondent prayed this Court to dismiss the writ petition.
14. The highly competent counsel Mr.V.Ajaya KUmar appearing for the petitioners submits that the petitioners are working as Supervisors in the respondent Textile Mill, and they rendered service for around 26 years. But, they have not been promoted so far. The respondent had not followed the prescribed Rules in respect of service, promotion, fixation of pay etc. Hence, the highly competent counsel entreats this Court to give direction to the respondent to convey a Department Promotion Committee and to provide promotion to the petitioners to the post of Assistant Managers with effect from the date on which the vacancies arose with all other consequential benefits including salary, seniority.
15. On considering the facts and circumstances of the case and arguments advanced by the highly competent appearing for the petitioner and on perusing the counter statement of the respondent, this Court is of the view that the Anglo French Textiles Limited has been closed from the first week of July 1983. Subsequently, there was no manufacturing process. Hence, this Court declines to give direction to the respondent to form Department Promotion Committee. Accordingly, the above writ petition is dismissed. There is no order as to costs.
15/04/2014
Index : Yes.
Internet : Yes.
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C.S.KARNAN, J.
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Pre-Delivery Order in
W.P.No.39904 of 2002
15/04/2014