Madras High Court
Thiruvengidaraj vs Tamil Nadu Cements Corporation Ltd on 14 November, 2022
Author: S.S. Sundar
Bench: S.S. Sundar
W.P.(MD) No.5839 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.11.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
W.P.(MD) No.5839 of 2013
and
M.P.(MD) No.1 of 2013
Thiruvengidaraj ... Petitioner
Vs.
1.Tamil Nadu Cements Corporation Ltd.,
L.L.A. Building, 735 Anna Salai,
Chennai – 2,
Represented by its Deputy General Manager
2.Tamil Nadu Cements Corporation Factory,
Alankulam, represented by its Deputy General Manager,
Virudhunagar District.
3.The Special Deputy Collector and Land Acquisition Officer,
Government Cement Factory,
Sivakasi,
Virudhunagar District. ... Respondents
[R3 is impleaded vide Court order dated
15.10.2020 made in WMP (MD) No.10197 of 2017
in W.P.(MD) No.5893 of 2013]
Prayer : Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, calling for the records
pertaining to the impugned order passed by the 1st respondent in his Letter
No.713/A4/2011-10 dated 23.03.2011 and quash the same and consequently
direct the 1st respondent to appoint the petitioner as a Technical Executive
https://www.mhc.tn.gov.in/judis
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W.P.(MD) No.5839 of 2013
(Electrical) Engineer with all attendant benefits from 04.08.2010 in the 2 nd
respondent factory.
For Petitioner : M/s.Chamondi Bose
For R1 and R2 : Mr.A.Sivaji
ORDER
(Through video conferencing) This Writ Petition is filed for issuance of Writ of Certiorarified Mandamus to quash the impugned order passed by the 1st respondent in his Letter No.713/A4/2011-10 dated 23.03.2011 and for consequential direction to appoint the petitioner as a Technical Executive (Electrical) Engineer with all attendant benefits from 04.08.2010 in the 2nd respondent factory.
2.The petitioner states that he is a graduate in Engineering and he has also undergone apprenticeship training in the 2nd respondent factory. The case of the petitioner is that the 1st respondent acquired vast extent of land including his grandfather's coparcenary property to an extent of 6.6 Acres, and the entire land acquired from his grandfather’s holding was utilized for construction of the 2nd respondent factory. An award was passed in the year 1967 and the compensation was duly paid to the land owners. https://www.mhc.tn.gov.in/judis Page 2 of 16 W.P.(MD) No.5839 of 2013
3.By a notification dated 04.08.2010, applications for appointment to the post of Technical Executive in the 2nd respondent's company was called for from eligible candidates of 'Land Given' cases. The petitioner applied for the post. The petitioner requested the respondents to give appointment to the petitioner on the ground that he is entitled to get employment, as substantial property of his family was acquired by the respondents for the establishment of cement factory. Along with the application submitted by the petitioner, the petitioner enclosed a copy of the award to show that the petitioner's ancestors have received compensation for the acquired land from them. It is stated that No Objection Certificate from other family members and other legal heirs of the petitioner's father was also submitted by the petitioner, to the effect that other legal heirs have no objection to provide employment to the petitioner in M/s.TANCEM, and that they will not raise any dispute. The petitioner's father also gave a representation on 29.11.2010 to provide employment to petitioner on the promise that his land measuring an extent of 6 Ares 6 Cents had been acquired for establishing the respondent's industry and that he is entitled to preference under 'Land Given' cases.
4.After a long inaction, by the impugned order of 1st respondent https://www.mhc.tn.gov.in/judis Page 3 of 16 W.P.(MD) No.5839 of 2013 dated 23.03.2011, the petitioner's request for appointment was turned out on the ground that the petitioner is not a direct legal heir of his grandfather. It is stated that, as per the Government Order, only direct legal heir of Thiru Bodi Perumal Naicker (petitioner's grandfather) is eligible and not the petitioner.
5.Aggrieved by the impugned order passed by the 1st respondent, the petitioner has filed the above writ petition before this Court.
6.The petitioner challenged the impugned order mainly on the ground that the reason for rejecting the petitioner's request that the petitioner is not a direct legal heir of his grandfather, is incorrect and legally unsustainable. Since it is admitted that the petitioner's ancestral property was acquired for the establishment of 2nd respondent unit from the custody of petitioner's grandfather, the 1st respondent ought to have provided employment to the petitioner as per the policy of Government, especially when the petitioner's educational qualification and eligibility otherwise is admitted by the respondents. It is further stated that the 1 st respondent failed to consider the petitioner's case that his family was solely dependent upon the land acquired from them for their livelihood and that no one in petitioner's family got employment. The petitioner also contended that the 1st respondent ought to have appointed the petitioner by giving natural https://www.mhc.tn.gov.in/judis Page 4 of 16 W.P.(MD) No.5839 of 2013 interpretation to the meaning of the term “family members”.
7.During arguments, it was pointed out that the land acquired from grandfather of petitioner is a joint family coparcenary property and that therefore, petitioner's father and the petitioner are entitled to right by birth. In other words, the property acquired from the petitioner's grandfather cannot be treated as the property of grandfather, but a property of the joint family as such. The petitioner, being the direct legal heir, cannot be denied employment solely on the ground that he is not the son or daughter of petitioner's grandfather.
8.A counter affidavit was filed by respondents 1 and 2 referring to G.O.Ms.No.656, Labour and Employment Department, dated 29.06.1978, and G.O.Ms.No.324, Revenue Department, dated 18.03.1986. A letter of Government dated 29.02.1988 is also referred to. By referring to the Government Orders and the Government letter, it is stated in the counter affidavit that the petitioner, who is not the son of land giver, is not eligible and the petitioner cannot claim the benefit of the Government Order. In the counter affidavit, the delay in filing the writ petition is also cited as one of the reasons to dismiss the writ petition, apart from stating that the 1 st respondent cannot go beyond the orders of Government and that the post was https://www.mhc.tn.gov.in/judis Page 5 of 16 W.P.(MD) No.5839 of 2013 also filled in 2013 as per communal rotation.
9.This Court has no reason to disbelieve the statement that the land acquired from the petitioner's grandfather was the major source of income for the family and that the property acquired was ancestral coparcenary property. In this case, the petitioner himself has enclosed the Government Order in G.O.Ms.No.656, Labour and Employment Department, dated 29.06.1978. The Government, in order to give employment assistance to the families whose lands were acquired and who were displaced by virtue of acquisition, issued orders. The order is based on the advise of Government of India to give instructions to the private sector as well as the Public Sector Undertakings to provide employment atleast to one person of the family, which was displaced on account of acquisition of land for establishment of a project. Subsequently, the Government undertook to provide employment in all Public Sector Undertakings without reference to Employment Exchange, atleast to one member of each family which was displaced on account of acquisition of lands for the projects sponsored by the Public Sector Undertakings.
10.Para No.2 of G.O.Ms.No.656, Labour and Employment Department, dated 29.06.1978, reads as follows:
https://www.mhc.tn.gov.in/judis Page 6 of 16 W.P.(MD) No.5839 of 2013 “2)The Government of India, in their letter second read above, have requested this Government to issue instructions to the Private Sector as well as State Public Sector undertakings to provide employment to atleast one person of the family displaced on account of acquisition of land for the establishment of a project in the Public Sector or in the Private Sector. The Government have examined the above suggestion in detail in consultation with the Director of Employment and Training, Madras and pass the following orders:-
i. All Public Sector Undertakings may recruit without reference to Employment Exchange, atleast one member of each family which is displaced on account of acquisition of lands for any projects of such Public Sector Undertakings etc., provided that the acquired land should have been the only or major source of substance for that family.
ii. The term "Displaced family" will include 'owner of the land' or the 'cultivating tenants' or 'varamdars'. iii. The appointing authorities concerned of the respective Public Sector Undertakings etc., shall themselves ascertain and decide whether the was the major source of substance of family placed from the land acquired, without insisting on production of any certificates from Revenue Authorities before recruitment is made. iv. For consideration of appointment as indicated in 2(i) above, first priority should be assigned to the cultivating owner and the cultivating tenant or varamdars and https://www.mhc.tn.gov.in/judis second priority only should be given to the 'absentee Page 7 of 16 W.P.(MD) No.5839 of 2013 land lords'.”
11.From the reading of the Government Order, it is understood that the Public Sector Undertakings are required to recruit at least one member of each family, which was displaced on account of the acquisition of lands for the project of Public Sector Undertakings. It should be noted that the Government Order subsequently provides for the eligibility of persons to get employment in Public Sector Undertakings. The first condition is that the person who seeks employment must be a member of the family which was displaced on account of acquisition of lands. Secondly, it should be the position that the land belonging to them was the only major source of income for the family. In the present case, the petitioner has specifically stated that the property is the ancestral property of the petitioner's grandfather and it is stated in the affidavit that the petitioner's family was displaced on account of acquisition and the acquired lands are the only source of income for their family. These facts are not specifically denied in the counter affidavit filed by respondents 1 and 2.
12.Learned Counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in the case of Butu Prasad Kumbhar Vs. Steel Authority of India Ltd. reported in 1995 Supp. (2) SCC 225. The question https://www.mhc.tn.gov.in/judis Page 8 of 16 W.P.(MD) No.5839 of 2013 arose before the Hon’ble Supreme Court was whether the Public Sector Undertakings were bound to give employment to all the erstwhile residents and their descendants or to treat them preferentially for employment if they were displaced due to the establishment of the industry of the Public Sector Undertaking. More than 20,000 Acres of land were acquired under the Land Acquisition Act for Rourkela Steel Plaint, one of the largest Steel Plants in India. A Scheme was formulated to give employment to the members of family who were displaced on account of the establishment of Steel Plant. The Hon'ble Supreme Court found that there was no Scheme for employing every displaced person and therefore, dismissed the writ petition filed by a member of displaced family under Article 32 of the Constitution of India. In Para Nos.6 and 7 of the above judgment, the Hon'ble Supreme Court has observed as follows :
“6.The constitutional challenge based on Article 21 does not appear to have any substance. In Olga Tellis (supra) it was observed by this Court that the concept of right of life conferred was wide and farreaching and the deprivation of the right to livelihood without following the procedure established by law was violative of the fundamental guarantee to a citizen. Needless to say that petitioners or their ancestors were not deprived of their land without following the procedure established in law. Their land was taken under the Land Acquisition Act. They were paid compensation for it. https://www.mhc.tn.gov.in/judis Page 9 of 16 W.P.(MD) No.5839 of 2013 Therefore, the challenge raised on violation of Article 21 is devoid of any merit. Even otherwise the obligation of the State to ensure that no citizen is deprived of his livelihood does not extend to provide employment to every member of each family displaced in consequence of acquisition of land. Rourkela Plant was established for the growth of the country. It is one of the prestigious steel plants, It is established in public sector. The Government has paid market value for the land acquired. Even if the Government or the steel plant would not have offered any employment to any person it would not have, resulted in violation of any fundamental right yet considering the poverty of the persons who were displaced both the Central and the State Government took steps to ensure that each family was protected by giving employment to at least one member in the Plant. We fail to appreciate how such a step by the Government is violative of Article 21. The claim of the petitioners that unless each adult member is given employment or the future generation is ensured of a preferential claim it would be arbitrary or contrary with the constitutional guarantee is indeed stretching Article 21 without any regard to its scope and ambit as explained by this Court. Truly speaking it is just the otherwise. Acceptance of such a demand would be against Article 14.
7.The learned Solicitor General however stated that even though the public sector undertaking because of being over- staffed is being put to great strain and even though the Government of India had taken a policy decision as far back https://www.mhc.tn.gov.in/judis Page 10 of 16 W.P.(MD) No.5839 of 2013 as 1986 not to give employment to any one in future, yet the respondent-Steel Plant after verification has found 247 persons eligible for being given employment. They are will-
ing to abide by it. He has pointed out that in die meantime another darn has been constructed and the persons who had been displaced have also been required to be accommodated and, therefore, a scheme has been framed in which 80% displaced in consequence of Mandira Dam and 20% out of 247 are being given employment since 1993. He stated that nearly 50 persons out of 247 have already been absorbed. We are of the opinion that giving employment to 20% may take longer time and since the age bar has been put at 35 it would be appropriate if the SAIL expedited the absorption of these persons by increasing their number from 20% to 40% each year.” The above judgment of Hon'ble Supreme Court cannot be cited as a precedent to support the case of petitioner.
13.The learned counsel for the petitioner has relied upon the judgment of the Division Bench of this Court in the case of the Chairman, Tamil Nadu Vs. Arulnathan And Others [2003 (3) MLJ 726] and another judgment in the case of Chairman, Neyveli Lignite Corporation, Neyveli, Cuddalore District v. D.Visweswaran and another reported in 2007 (8) https://www.mhc.tn.gov.in/judis Page 11 of 16 W.P.(MD) No.5839 of 2013 MLJ 461. It is to be noted that the Hon’ble Division Bench has categorically observed that, in matters of employment of persons who were displaced by acquisition of lands, no right is conferred to such persons to seek for employment under Article 21 of the Constitution of India or under any law. It was further observed that the land owners, whose lands were acquired, are only entitled to compensation. If a scheme for employment of one person from one family of land owners is framed, it may confer right for considering the request for employment by families of displaced. Except a scheme that may be formulated at the time of acquisition, it cannot be said that there was a promise to the members of displaced families so as to bring promissory estoppel. In the present case, it is not the case of the petitioner that there was a promise at the time of acquiring the petitioner's lands or there was a scheme framed by the Government or Public Sector Undertakings that while acquiring the lands, employment guarantee was given to the members or descendants of persons who lost their lands, which was acquired for the Public Sector Undertakings for their projects. However, by virtue of subsequent orders of Government, in compliance of directions of Government, respondents have issued the recruitment notification specifically earmarking/reserving a particular post under the category of land given case. The learned counsel tried to stress the observation of Hon'ble Division Bench in Para No. 23 of the judgment in D.Visweswaran's case https://www.mhc.tn.gov.in/judis Page 12 of 16 W.P.(MD) No.5839 of 2013 reported in 2007 (8) MLJ 461, which reads as follows:
"23.For all the above reasons, we are of the view that except the family members of the owners of patta lands and the settlers, the displaced persons from the lands in R.S.Nos.2 and 4 are not entitled to the benefit of the scheme for employment as a matter of right in the Corporation. Accordingly, all the Writ Appeals are allowed and the orders in Writ Petitions are set aside. No costs. Consequently, all connected Writ Miscellaneous Petitions are closed".
Therefore, Courts have to give due regard for policy of Government to provide employment by framing a Scheme for displaced persons and land givers and issue necessary guidelines to honour their policy to provide employment opportunity in reason of the Scheme.
14.In the factual context, this Court has examined the notification dated 04.08.2010. In this notification, applications were invited from eligible candidates of 'Land Given' cases to fill up one post of Technical Executive (Electrical) at Alankulam Cement Works. Under Clause (3) of Terms and Conditions, it is stated as follows :
“3.Only the person from whom the land was acquired husband/wife and unmarried children are alone eligible to apply for the above post.” The industry was established in 1960s after acquiring vast extent of lands https://www.mhc.tn.gov.in/judis Page 13 of 16 W.P.(MD) No.5839 of 2013 from local residents. The recruitment notification was to invite applications from eligible candidates of 'Land Given' cases, nearly after 30 years.
However, the notification is only meant for the husband or wife or unmarried children of the land giver. As per G.O.Ms.No.656, dated 29.06.1978, atleast one member in each family which is displaced on account of acquisition of lands for any project of such Public Sector Undertakings should be given employment. Therefore, in terms of the Government Order vide G.O.Ms.No. 656, dated 29.06.1978, and as per the general policy of Government of India, the petitioner is entitled to seek employment as a direct legal heir of land giver. As pointed out earlier, by the impugned order, the request of petitioner was declined only on the ground that, as per the Government Order, only a direct legal heir of the concerned individual/land giver is eligible to get employment and that the petitioner is not eligible as the lands were acquired from his grandfather. The impugned order is, therefore, directly in conflict with the object behind the Government Order and the recruitment notification specifically reserving the appointment under the category of 'Land Given' cases. When the property acquired is a joint family coparcenary property, the grandson who is entitled to a share by birth cannot be denied employment on the ground that he is not a direct legal heir.
15.Therefore, the impugned order of the 1st respondent is liable to https://www.mhc.tn.gov.in/judis Page 14 of 16 W.P.(MD) No.5839 of 2013 be quashed and accordingly, quashed. Respondents 1 and 2 are directed to provide employment to the petitioner either as Technical Executive (Electrical) or in any post within a period of three months from the date of receipt of a copy of this order. However, the petitioner's request as to the attendant benefits from 04.08.2010 is declined. In case there is delay in complying with the directions of this Court, the petitioner is entitled to monetary benefits by treating him as appointed from this date.
S.S. SUNDAR, J.
mkn
16.Accordingly, this writ petition is partly allowed. No costs. Consequently, connected miscellaneous petition is closed.
14.11.2022
cm/mga/mkn
Internet : Yes
Index : Yes / No
Speaking order / Nonspeaking order
To
1.The Deputy General Manager,
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W.P.(MD) No.5839 of 2013
Tamil Nadu Cements Corporation Ltd.,
L.L.A. Building, 735 Anna Salai,
Chennai – 2.
2.The Deputy General Manager,
Tamil Nadu Cements Corporation Factory,
Alankulam,
Virudhunagar District.
3.The Special Deputy Collector and Land Acquisition Officer, Government Cement Factory, Sivakasi, Virudhunagar District.
W.P.(MD) No.5839 of 2013 https://www.mhc.tn.gov.in/judis Page 16 of 16