Andhra HC (Pre-Telangana)
Chairman And Managing Director, ... vs P. Raman Unni on 28 March, 2001
Equivalent citations: 2001(3)ALD484, 2001(3)ALT595
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER
S.B. Sinha, CJ
1. The only question which arises for consideration in this writ appeal which is directed against a judgment and order dated 17-8-2000 passed by a learned single Judge of this Court in WP No. 12763 of 1994 is as to whether the respondent therein who was ex-military personnel was entitled to get the pay protection in terms of a memorandum of the Central Government dated 25-11-1958.
2. The basic fact of the matter is not in dispute. The respondent herein was appointed as a tradesman 'C' with effect from 2-2-1973 in the scale of pay of Rs. 160-8-240. He retired as Hawaldar class IV on 18-5-1973. He was subsequently promoted to the post of tradesmen grade D in the scale of pay of Rs.295-445 with effect from 20-4-1976 and again promoted to the post of Chargehand in the scale of pay of Rs.335-560 with effect from 25-4-1978. Yet again he was promoted to the post of senior supervisor with effect from 3-7-1983 in the scale of pay of Rs.590-22-964. Finally he was promoted as an Assistant Engineer with effect from 25-1-1986. He retired from service on 31-11-1988. The original application was filed in the year 1994 by the respondent herein making a grievance that he should have been given the pay protection, his initial pay having been fixed at Rs.240/-. The learned single Judge held:
"It is also further submitted that this Court in WP No.4488/1991 filed by the petitioner herein, passed orders on 31-3-1994 directing the petitioner to make a representation to the Corporation and the respondent was directed to dispose of the representation on merits. In accordance with the said order, the petitioner made a representation on 22-4-1994 and the respondent issued proceedings No.CORP/PERS/CAW-14/ 94/D558, dated 1-6-1994 wherein it was stated that the petitioner was drawing less pay on his appointment in comparison with the pay drawn while leaving the Armed Services.
In view of this clear admission, the respondent ought to have fixed the pay at Rs.240/- per month in the scale of pay of Rs.160-240 with effect from 2-2-1973 of Tradesman 'C' with consequential promotion in the posts of Tradesman 'D!, Chargehand, Senior Supervisor and Assistant Engineer with all consequential benefits. I deem it a fit case to issue the writ as prayed for.
3. Sri Vedula Venkataramana, the learned Counsel appearing on behalf of the appellants herein has raised two contentions. The learned Counsel would submit that the direction of the Central Government having not been accepted by the appellants-company, no reliance thereupon could have been placed. In any event, Mr. Venkataramana would urge that the said Government Order dated 25-11-1958 applies to a retired person who is re-employed in a central civil department. Our attention has been drawn to clause l(b) of the said memorandum which is in the following terms:
"The initial pay, on re-employment should be fixed at the minimum stage of the scale of pay prescribed for the post in which an individual is re-employed."
4. It was submitted that having regard to the construction of the said provision there cannot be any doubt whatsoever that the same applies only in case of undue hardship which the respondent cannot be allowed to suffer.
5. The learned Counsel would contend that another army officer has been given the same benefit although the same had been denied to him. Our attention has further been drawn to the letter dated 1-6-1994 issued by the Hindustan Cables Limited which was impugned before the learned single Judge which is in the following terms:
"You were appointed in Hindustan Cables Limited on 2-2-1973 as Tradesman 'C" in the scale of pay of Rs.160-240/-. At the time of joining you have drawn total emoluments of above Rs.421/- (Rupees Four hundred twenty one only) per month (inclusive of the pension which was received by you from the army). On the other hand, while leaving army services, you were drawing a sum of Rs.442/-(Rupees four hundred forty two only) per month. Consequent upon pay revision in the company with effect from 1-10-1973 you were drawing Rs.520/-(Rupees five hundred twenty only) per month (including pension elements) and, therefore, with effect from 1-10-1973 you were drawing total emoluments more than what you could have drawn in the army. Your representation submitted in the year 1982 regarding re-fixation of scale of pay as per instructions dated 25-11-1958 of the Government of India, was also considered by the Management and the same was replied by speaking order dated 23-10-1987. From the facts it is also clear that within 8 months of joining the company you had obtained a better pay than what you were drawn in the army and, therefore, the question of mitigating the undue hardship, if any, as per the instructions of the Government of India, issued on 25-11-1958 and 16-1-1964 does not arise."
6. On the basis of the said statements it was submitted that the learned single Judge rightly passed the impugned order.
7. The rival contentions of the learned Counsel as noticed hereinbefore give rise to three principal contentions:
(1) Whether the aforementioned memorandum dated 25-11-1958 is applicable in the case of M/s. Hindustan Cables Limited;
(2) Whether the original application should have been entertained having regard to the fact that the respondent herein did not feel any undue hardship even assuming that the said memorandum is applicable in his case; and (3) (a) assuming that such benefit had been granted by the company in favour of another employee who was similarly situated, in absence of any legal right whether the writ petition could be allowed and (b) whether in any event having regard to the gross delay and negligence on the part of the respondent herein the writ petition ought not to have been entertained.
8. Contention (1): A bare perusal of the aforementioned memorandum dated 25-11-1958 in no uncertain terms shows that the same applies only in relation to those employees who had been an ex-army personnel but re-employed in central civil departments. Even re-employment in other departments of the Central Government does not attract the said memorandum. M/s. HCL, Calcutta is admittedly a company constituted and governed by the provisions of the Indian Companies Act, 1956. If may be a Government company but unless it, in terms of its articles and memorandum of association, is bound by any directive of the Central Government, no such direction is permissible. The company being a juristic person is entitled to take its own policy decisions as regards grant of benefit to 'its employees. It is only when such a policy decision on the part of the Central Government is adopted by it, the company will be bound thereby and not otherwise.
A bare perusal of the said memorandum in no uncertain terms shows that the same was applicable in relation to those who are re-employed in central civil departments and not in any other Government companies although the same may have a pervasive control thereon. This contention is thus answered.
9. Contentions (2) and (3): Clause (b) of the aforementioned memorandum as referred to hereinbefore is not absolute in its terms. The same is governed by the proviso appended thereto.
10. The said proviso which is inserted as an exception to the main rule confers a discretion upon the employer only in a case of undue hardship to fix the pay at a higher stage. Such undue hardship must be pleaded and proved. The learned single Judge has not addressed himself to the aforementioned question at all. We, therefore, agree with the contention of Sri Venkatarantatia.
11. The respondent was appointed in 1973. He retired in 1988. Throughout his period of service he accepted his scale of pay without any demur whatsoever nor raised any plea at any point of time that he was entitled to the benefit of the said memorandum of the Central Government dated 25-11-1958. It is only in the year 1994 he filed the aforementioned original application. Delay defeats equity is a well-known principle. The writ Court while exercising its equitable jurisdiction will not grant any relief to a person who has approached the Court after inordinate delay. In some cases physical running of time may not be material. But those who sleep over their rights for a long time may not be entitled to any relief at all.
12. In A.Hamsaveni v. State of Tamil Nadu, (1994) 6 SCC 52, it has been held:
4. .... No reliance can be placed on the averment lhat they did not approach earlier as they were not affected. Even if it be so they are to thank themselves. Sleeping over the rights, if there were any, with eyes open does not cure laches.
....."
13. In State of Maharashtra v. Digambar, , it has been held:
"23. In our view, the above allegation is in no way sufficient to hold that the writ petitioner (respondent here) has explained properly and satisfactorily the undue delay of 20 years which had occurred between the alleged taking of possession of his land and the date of filing of writ petition in the High Court. We cannot overlook the fact that it is easy to make such kind of allegations against anybody that too against the State. When such general allegation is made against a State in relation to an event said to have occurred 20 years earlier, and the State's non-compliance with petitioners demands, State may not at all be in a position to dispute such allegation, having regard to the manner in which it is required to carry on its Governmental functional...."
14. In High Court of M.P. v. Mahesh Prakash, , it has been held:
"16. ..... Apart therefrom, the 1st respondent's delay in approaching the writ Court had resulted in the creation of a long settled position as to seniority in the subordinate judiciary disturbing the long settled position adversely affected not only the 39 Civil Judges whose seniority was displaced but also the functioning of the subordinate judiciary, responsibility for which lay with the High Court. It is, therefore, as open to the High Court to agitate the ground of delay and laches as it would have been open for the 39 Civil Judges had they preferred an appeal."
15. In Principal, Engineering College v. S. Mukherjee, 1998 (1) CHN 471, it has been held:
"7. ....The petitioner furthermore, filed the writ application after a long time although the impugned order as contained in annexure 'D' to the writ application passed as aforesaid on 19-12-1988. It is now well known that those who sleep over their right could not be granted any equitable relief. Reference in this connection may be made to ...."
16. For the reasons aforementioned no relief could be granted in favour of the respondents. Before parting with this case we may, however, note one disturbing feature. We come across many writ applications where the employer which is a company or a society having distinct juridical identity is not impleaded as a party. Only a company or the State which performs a sovereign function of the State would be an authority within the meaning of Article 12 of the Constitution of India and an office held by a person under the State would by itself is not a State and thus against the 2nd appellant herein against whom the writ petition was directed, being not the employer or a State within the meaning of Article 12 writ petition could not have been entertained. There is no merit in the writ petition. The writ appeal is allowed and the writ petition is dismissed. The impugned order is set aside. No costs.