Karnataka High Court
Bhel Engineers And Officers ... vs Bharat Heavy Electricals Limited on 3 January, 2017
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NO.48308/2013 &
WRIT PETITION NOs.48669 - 48787/2013 (L-RES)
Between:
BHEL Engineers and Officers Association (R)
Represented by its General Secretary,
BHEL, Electronics Division,
Mysore Road,
Bengaluru - 560 026. ... Petitioner
(By Sri. Narayan Bhat M. for
M/s. Subba Rao & Co., Advocates)
And:
1. Bharat Heavy Electricals Limited,
Represented by its Chairman
and Managing Director,
Having its Registered Office at:
BHEL House, Siri Fort,
New Delhi - 110 049.
2. The Executive Director,
BHEL, Electronics Division,
Mysore Road,
Bangalore - 560 026. ... Respondents
(By Sri. C.K. Subramanya for Sri. B.C. Prabhakar,
Advocates)
These Writ Petitions are filed under Article 226 of the
Constitution of India praying to quash the Order bearing No
EDN/511/IR/02/2012 dated 05.11.2012 as the same is
manifestly illegal and violative of Articles 14, 16 and 21 of
2
the Constitution of India and is violative of the Rules vide
Annexure-J, etc.
These Writ Petitions coming on for Preliminary Hearing
in 'B' Group this day, the Court made the following:
ORDER
BHEL Engineers and Officers' Association which is a registered Trade Union consisting of 120 members is before this Court for a writ of certiorari to quash the order dated 5.11.2012 made in EDN/511/IR/02/2012 passed by the first respondent and also for a writ of mandamus directing the respondents to grant promotional increment to 120 Supervisors whose names are found in Annexure-A as contemplated under Section B7(3), Volume I of the Promotion Policy in terms of the Personal Manual of the respondents and direct the respondents to step up the pay of 120 supervisors by granting promotional increment from the date of their promotion from the cadre of workman to supervisory cadre (SA1) and pay them consequential monetary and other benefits and arrears of pay from the date of the promotion as on date in the interest of justice. 3
2. It is the specific case of the petitioners that their appointments are regulated by Rules as per Annexure-A. Personal Manual of the respondents in terms of Volume-I sub-Section A-4 deals with promotion policy and rules. The posts are classified in Groups and Cadres. They are three cadres viz., (1) Workmen cadre;
(2) Supervisor cadre and (3) Executive cadre.
According to the petitioners, the pay fixation on promotion from the cadre of Workman to that of Supervisor. The guidelines and principles are mentioned in the Personal Manual Volume-I, Sub- section A:4 - 4 as at Annexure-A. In the Personal Manual of the respondents, Volume-I, sub-Section A : 4- 4.1 deals with promotion from one cadre to other cadre and the same is done by Department of Promotion Committee which determines the employees skill and ability. The same is further explained in paras A.4 - 4.5 to 4.6. Channels of promotion are mentioned in 4 Volume-I sub-Section A.4 -(Personal Mannual) of the respondents.
3. It is the further case of the petitioner that Part- B of the Personal Manual deals with pay fixation. On promotion to higher post/grade, the initial pay of an employee in the new time scale shall be fixed at the next stage above the pay notionally arrived at by increasing their pay in respect of one increment which has not been done in the case of the members of the present petitioner-Association. The respondent without considering all these rules/ provisions stated supra as per Personal Manual, issued the impugned endorsement bearing No.EDN/511/IR/02/2012 dated 5.11.2012 on the ground that the matter has been discussed at length at corporate levels on several occasions and it had been communicated that promotion from Workman category to Supervisor category has been done as per policy of the Company and therefore the issue stands settled from the Management side. Therefore, the petitioners are before this Court for the relief sought for. 5
4. The respondents filed statement of objections denying the averments made in the Writ Petition and contended that, the very Writ Petition filed by the petitioner - Association is not maintainable since the Association has alternative and efficacious remedy to raise their dispute before the concerned Labour Authorities; the fixation has been done in accordance with law fixing the policy of the company which has been applied uniformly in all the cases; Admittedly the existing policy of the company is not disturbed; The petitioner did not challenge the legality of the promotion policy and hence there are disputed question of facts involved which are required to be adjudicated under the Industrial Dispute Act. It is further contended that as this Hon'ble Court exercising its discretion under Article 226 of the Constitution of India would not dwell upon the disputed question of facts, the Writ Petition is not maintainable in writ jurisdiction and hence the same is liable to be dismissed at the threshold. 6
5. It is further contended that the first respondent is a Central Public Sector Industries and is Government Company registered is under the Companies Act, 1956 having its Corporate Office and Registered Office at New Delhi. It has many manufacturing units, divisions and offices across the country and has offices abroad as well. The promotions of the employees made in the first respondent - Company are governed by a well laid down promotion policy which also applies to the entire strength of the company employed in its various units across India and abroad. By and large, the promotion policy of the respondent is on identical lines with other public sector undertakings throughout the country. All the promotions of the employees are channelized within the ambit of promotion policy and the Management is required to apply the same uniformly in all the cases. It is further contended that the inter cadre comparison is not permitted under the Personnel Manual (Clause 6.1 Sub-Section B:7). This issue has been deliberated at length both at Unit as well at Corporate levels on several occasions and that has been communicated to the 7 petitioner - Association and accordingly the endorsement issued by the respondents at Annexure- J is in accordance with law and prays for dismissal of the Writ Petition.
6. I have heard the learned counsel for the parties to the lis.
7. Sri.Narayana Bhat, learned counsel for the petitioner vehemently contended that the impugned order passed by the respondents is not a speaking order. Absolutely no reasons are assigned while issuing endorsement rejecting the petitioner's grievance. In the absence of the same, the impugned order passed by the respondents is illegal and violative of the provisions of the Constitution of India. He further contended that the members of the petitioner - Association who were found more meritorious were selected to the supervisory cadre and their counterparts who are less meritorious continued in workmen cadre, are enjoying better monetary benefits vis-à-vis the employees who are promoted, which has come to light after 3 to 4 years. 8 Hence, the pay of the employees on promotion is required to be stepped up by the management. Therefore, the impugned order passed by the respondents refusing the representation of the petitioner's to fix up anomaly, therefore he sought to allow the Writ Petition.
8. Per contra, Shri. C.K Subramanya for Shri.Prabahakar learned counsel for respondents sought to justify the impugned order passed by the respondents as per Annexure - J and contended that the members of the petitioner - Association who were not promoted since they were unsuccessful in the first attempt. But they were given promotion on par with those who are promoted to Supervisor cadre and subsequently they are re-designated as Supervisor after following the procedure mentioned in the personal manual. Therefore he sought for dismissal of the Writ Petition.
9. Having heard the learned counsel for the parties to the lis, it is not in dispute that all these petitioners 9 viz., employees of respondent No.1 working in Supervisory cadre are before this Court for redressal of the grievances as stated in the Writ Petition. Though the respondents field detailed statement of objections to show as to how the members of the petitioner- Association are not entitled to the relief sought for in the Writ Petition, however, the same is not reflected in the impugned order. What is not reflected in the impugned order cannot come in aid of the respondents. By reading of Annexure-J, it clearly indicates that the respondents have deliberated at length at unit as well as at corporate levels on several occasions and communicated the same to the workmen category and senior category. Except such assertion, no detailed reasons are assigned by the respondents as to what was the deliberation or how the case of the members of petitioner-Association are considered. When the policy was effected, in the absence of any particulars and detail discussion made, the order passed by the respondents is not of a speaking order and cannot be sustained in the eye of law and by filing the statement 10 of objections the respondents cannot improve Annexure-J.
10. Considering the entire material on record, without adverting to the merits and demerits of the case, it is suffice to quash the impugned order passed by the respondents on that short ground alone and direct respondents to pass fresh detailed orders after considering the contentions urged by the petitioners, after following the procedure as contemplated strictly in accordance with the Personal Manual/guidelines of the company.
11. At this stage the learned counsel for the petitioners, Sri.Narayan Bhat, brought to notice of this Court that the order dated 28.01.2015, this Court in the case of BEL Technical Cadre Association Vs. The Management of BEL (Writ Appeal Nos.3351-3352/2013) in similar circumstances has allowed the appeal. The same is vehemently opposed by Sri.C.K.Subramanya, learned counsel for respondents and contended that the 11 said judgment has no application to the facts of the present case.
12. In view of the aforesaid reasons, the Writ Petitions are allowed. The impugned order dated 5.11.2012 passed by the respondents in NO.EDN/5411/IR/02/2012 is quashed. The matter is remanded to the respondents for fresh consideration and to pass a detail order after considering all the contentions of both parties and strictly in accordance with the Personal Manual guidelines of the respondents, within a period of four months from the date of receipt of copy of this order. The petitioner-Association is also permitted to produce any individual documents, judgments in support of their case, within a period of one month from today.
Ordered accordingly.
Sd/-
JUDGE RS/* CT-bsu