Karnataka High Court
A.L. Lamba vs Steel Authority Of India Ltd. on 21 March, 1989
Equivalent citations: ILR1989KAR1408
ORDER Balakrishna, J.
1. The petitioner, who is an employee of the Steel Authority of India Limited ('SAIL' for short), has sought the following reliefs:
(1) the benefit of placement in the higher scale under the service linked promotion scheme with effect from 2-1-1982 instead of 2-7-1982;
(2) adjustment of the personal pay of Rs. 286-57 given to the petitioner in lieu of Bonus by fixing the pay at Rs. 2,130+6 (Personal Pay) instead of Rs. 1,890/- in the scale of Rs. 1650-80-2210;
(3) for retention in the channel of promotion in the parent department and for promotion in accordance with the seniority in that channel;
(4) for promotion of the petitioner and placement above respondents-3 and 4 in the parent channel of promotion of the petitioner and for full monetary benefit with retrospective effect;
(5) for other consequential benefits.
2. The material facts may be stated as follows:
The petitioner joined SAIL as a graduate apprentice in 1960. On completion of training, he was promoted as a Junior Engineer in the Merchant Mill Unit of Durgapur Steel Plant ('DSP' for short) of SAIL eversince its inception in the year 1961. The Management had deputed the petitioner to Australia for specialisation in the Rolling Mills Technique. On 19-10-1971, he was promoted to the post of General Foreman in the scale of Rs. 1250-1550 by virtue of an order dated 22-10-1971. According to the petitioner, he has turned out excellent work as a General Foreman in improving the performance and production of Merchant Mill Unit of the DSP receiving wide appreciation from the Senior Officers. At present, the petitioner is a Technical Officer working at Bangalore on transfer from Durgapur drawing a basic pay of Rs. 2,920/-. It is stated that he is not a workman within the meaning and definition of 'workman' under Section 2(s) of the Industrial Disputes Act, 1947.
3. It is stated that the petitioner was an activist in the DSP Officers Association and he was elected as its General Secretary for the years 1974-75. The petitioner was also the, Convenor and later the Joint Secretary of the Steel Executives Federation of India and took keen interest in improving the working of the merchant mill unit of the plant as General Foreman of the merchant mill unit. According to the petitioner, the extra curricular activities of the petitioner were not relished by the Management and, therefore, the petitioner was victimised. Earlier, it is stated, that the Ex-President of the DSP Officers Association and Ex.General Secretary of the Steel Executives Federation of India Ashok Chatterjee who was also a General Foreman but in the Raw Materials Unit of the DSP was falsely implicated with the termination of his service on account of his active participation in the Association.
4. According to the petitioner, as General Foreman of the Merchant Mill Unit of the Rolling Mills Department of the DSP, he was fully aware of the working of the Merchant Mill and realised the possibility of mal-practices, scope for manipulation and corrupt practices in the inter-intra Department transaction of materials, such as, billets, vis-a-vis the stock verification system. The petitioner wanted to put an end to these alleged mal-practices. Therefore, he wrote to the Management requesting the Management to look Into the irregularities prevailing and to stipulate the Company's laid-down procedures and practices for maintenance of accounts. It is stated that the petitioner had been insisting upon a proper system to be made available to him in order to safeguard the fair interest of the mill as well as the national plant for many years. In the absence of such a system, the petitioner was averse to associate himself with any adhoc practice.
5. On 5-5-1977, the petitioner received a charge-sheet imputing neglect of duty, disorderly and indecent behaviour and disobedience of reasonable and lawful orders of the superiors. The petitioner replied appropriately. An Enquiry Committee was set up by the Management to enquire into the allegations and charges against the petitioner and for submission of findings through disciplinary proceedings. It is stated that the findings of the Enquiry Committee were never communicated to the petitioner despite the mandatory obligation under Rule 28 of the Conduct Discipline and Appeal Rules of the Company.
6. At this juncture, the petitioner received an order of transfer on 17-4-1979 to the Commercial Department with immediate posting as Technical Officer at Bangalore on his existing pay and allowance. According to the petitioner, the post was specially created to send him away from Durgapur and it was a case of victimisation. On completion of 10 years of service in General Foreman's grade (Deputy Manager Grade-I in Rs. 1250-1550 scale) was given placement in the higher grade of Rs. 1650-80-2210 under the Service Linked Promotion Scheme ('SLPS' for short) by order dated 5/7-8-1982 (Annexure-A) with effect from 2-7-1982 instead of 2-1-1982, according to the petitioner. It is stated that the petitioner had completed more than 10 years of continuous service on 2-1-1982 itself in the Deputy Manager's grade according to letter dated 28-6-1972 (Anenxure-B) and that obviously the petitioner was placed in the Deputy Manager's grade (General Foreman's grade) with effect from 19-10-1971 and, therefore, that the petitioner would have completed 10 years of service on 19-10-1981.
7. On 16-8-1982, the petitioner requested the Management that his placement in SLPS ought to be considered with effect from 2-1 -1982 and not from 2-7-1982 since he had completed more than 10 years in the grade of Deputy Manager on 2-1-1982 itself. However, there was no reply.
8. On 13-2-1985, the petitioner wrote to the Management in regard to the issue of placement in the higher scale under the SLPS which had been delayed by 6 months and a reply was received on 30-10-1985 intimating him that his placement under the SLPS was delayed on the basis of his appraisal reports. However, it is maintained by the petitioner that no adverse remarks are found in the appraisal reports, nor communicated to him so far. According to the petitioner, his earlier post as General Foreman at Durgapur had a bonus potential of Rs. 540/- per month. The petitioner demanded pay protection which was granted by order dated 1-8-1979 and 13-3-1980 (Annexures 'F' & 'G'). The effect of the said letters is that the petitioner was at liberty to draw personal pay so long as he remained posted at Bangalore as a Technical Officer.
9. On 10-11-1982, the petitioner on his placement in the higher grade under the SLPS received an order fixing his salary at Rs. 1890/- per month instead of Rs. 2130 + Rs. 6 as personal pay in the scale of Rs. 1650-80-2210 with effect from 2-7-1982. The grievance of the petitioner is that his salary fixed at Rs. 1890/- fell short of the salary of Rs. 2136/- which he was drawing in the previous scale at Durgapur. It is also the grievance of the petitioner that the personal pay of Rs. 286-57 allowed to him earlier on his transfer to Bangalore as personal pay was unjustifiably withdrawn with effect from the date of his placement in the higher scale of pay of Rs. 1650-80-2210. Despite the petitioner's request that he should not be deprived of his pay protection, there was no response from the Management except a telex message that his case was under examination.
10. According to the petitioner, his designation, duties and responsibilities as well as source of supervision and control remained the same on movement from existing grade to the next higher grade under order dated 5/7-8-1982. The petitioner is distressed since the personal pay was withdrawn without informing the petitioner. On 20-1-1983, the petitioner wrote to the Director (Personnel), explaining the claim of the petitioner for proper pay fixation. It is stated that the Chairman of the Steel Executives Federation of India also addressed a letter to the Director (Personnel) commending the claim of the petitioner and also to the effect that there was vindictiveness towards the petitioner on account of his activities with SEFI and DSP Officers Association, However, on 6-2-1984, the petitioner received a reply which was unhelpful to him despite his request for protection of personal pay. It is stated that pay protection is the normal practice and that the petitioner is entitled to it similar to an order dated 13-10-1976 issued to one Reddy by the Management conferring upon him protection of personal pay and that order mentioned that personal pay would be adjusted against future promotion.
11. The grievance of the petitioner is also that contrary to normal practice, he was transferred from the Rolling Mills Department of the DSP at Durgapur to the Commercial Department at Bangalore as a Technical Officer without even obtaining a consent for such a change of department from the petitioner. According to the petitioner, the post of a Technical Officer is only tenure post in which a person continues to retain his channel of promotion in the parent department and significantly enough this was not incorporated in the order of transfer of the petitioner.
12. In the letter issued by the Management dated 4-7-1986, the petitioner was assured that the issue of determination of line of promotion is receiving consideration. In this behalf, the petitioner also issued a legal notice dated 6-12-1986 (Annexure 'O'). But the assertion of the petitioner was repudiated by the Management in Its reply dated 21/27-1-1987 (Annexure 'P').
13. Another development was that on 30-6-1986, the petitioner received personal promotion under the cluster based promotion scheme envisaged by the new promotion policy to the post of Manager in the Import Substitution Department, thus arbitrarily changing the department of the petitioner without his consent, according to him. The petitioner did not accept it. But, however, the Management has not thereafter informed the petitioner specifically as to his line of promotion as on today nor it had considered him for promotion in any channel. It is alleged by the petitioner that even under the vacancy promotion scheme the petitioner was denied his right to be considered for promotion. Just prior to his transfer to Bangalore, the petitioner was directed to appear before the Selection Committee on 29-3-1979 for an interview for promotion to the post of Assistant Superintendent in Rolling Mills Department and the petitioner did appear for the interview and it is also claimed that he satisfied all the qualifications to fill the vacancy of Assistant Superintendent (Manager) and that he had officiated in that post several times and further that he was the senior most candidate with untainted Confidential Reports or appraisal reports. The petitioner was optimistic that he would be selected and promoted. But before the result of the interview was communicated to him, he was actually transferred to Bangalore with another candidate being selected to fill the vacancy.
14. After his transfer in April, 1979, to Bangalore, the petitioner was not called for interview for promotion under the vacancy promotion scheme. On 11-11-1981, the petitioner wrote to the Management complaining about the injustice done to him on learning that some promotions to the Manager's grade had been made whereas he was denied the opportunity.
15. According to the petitioner, respondent-3 was serving directly under him as Foreman in the Merchant Mill (OP) of the DSP which is consistent with the seniority list furnished to the petitioner under Annexure-R when the petitioner was General Foreman at DSP. The petitioner has alleged that respondent-3, who was junior to him, is today occupying the post of Superintendent in the Section Mill. Similarly, it is alleged by the petitioner that respondent-4, who was also a Foreman in the Skelp Mill is also promoted as Superintendent in the said Mill and thus the petitioner has suffered injustice. Even to this day, according to the petitioner, his right to information is denied and he has been kept in the dark regarding the promotions made in his parent department subsequent to his transfer to Bangalore in 1979. Therefore, the petitioner has relied upon the information available in two telephone directories of the company for the years 1976 and 1983 showing the corresponding designation of respondents 3 and 4 in 1976 and 1983 respectively. On 13-2-1985, the petitioner wrote a letter to the Management and received a reply dated 30-10-1985 under Annexure-E.
16. Ultimately, the petitioner was driven to the last and desperate bid to appeal to the Management by addressing a letter to the highest authority in the respondent Management, the Chairman, by letter dated 10-12-1985 seeking the necessary reliefs. The petitioner specifically claimed promotion interse seniority with retrospective effect and full monetary benefit from the day his juniors were promoted in the parent department channel. On 4-7-1986, a reply was received from the Management by the petitioner. On all his efforts being fruitless, the petitioner instructed his Advocate to issue a legal notice on 6-12-1986 under Annexure 'O' to which a reply was received from the Management dated 21/27-1-1987 under Annexure 'P' from the Chief Personnel Manager denying all the allegations. After all his efforts were exhausted, the petitioner finally approached this Court through this Writ Petition.
17. The point for consideration is whether the Writ Petition deserves to be dismissed for laches and, if not, to what relief the petitioner would be entitled.
18. On behalf of the respondent Management, it was strongly contended by the learned Counsel that the petitioner is not justified in questioning an order of the Management of 1981 in the year 1987 after an unreasonably inordinate delay.
19. It was also contended that the Management has a right to shift the petitioner from one place to another and that the petitioner has never challenged the order of transfer from Durgapur to Bangalore. Another contention of the learned Counsel for respondents-1 and 2 is that the 4th relief claimed by the petitioner is incapable of being granted. The learned Counsel for respondents-1 and 2 placed strong reliance on the contentions urged by him in paras 12 to 17 of the statement of objections filed by the Management in the context of Annexure-VI.
20. On behalf of the petitioner, it was submitted that in the light of the protracted correspondence between the petitioner and the Management with the controversy being kept alive hopefully, the delay that ensued cannot be regarded as delay at all in the facts and circumstances of the case and, therefore, the Writ Petition is not barred by laches.
21. It was contended that the right to promotion became vested in the petitioner by virtue of the fact that the petitioner was appointed and did work for a long time in a specified department after specialisation in functions and duties akin to that department and that by merely shifting the petitioner from the parent department to Bangalore, the right of promotion in the concerned channel of the parent department did not cease to exist. It was also contended that respondents-3 and 4 being juniors to the petitioner at the time when the petitioner was holding the substantive post of General Foreman at Durgapur when respondents 3 and 4 were working under him, he is entitled to be promoted over and above respondents-3 and 4.
22. Another contention raised by the petitioner is that all appointments and promotions are based on merit-cum-seniority and, therefore, the petitioner is entitled to the reliefs which he has sought in this Writ Petition.
23. Much emphasis was laid by the petitioner on the fact that the petitioner was constantly kept in the dark in regard to the promotions made from time to time in the channel of the parent department and that he was not even informed of the result of his interview for promotion which he attended prior to his transfer from Durgapur to Bangalore. Added to this, it was submitted that the Management kept the petitioner guessing by writing a letter to him dated 4-7-1986 under Annexure 'N' assuring the petitioner that the line of promotion in regard to the petitioner was still under consideration, particularly in the context of cluster promotion having been introduced in the year 1986. Equally significant is the submission that the list of seniority has not been furnished to the petitioner even to this day and that the petitioner is entitled to be considered for promotion through the channel of promotion in the Rolling Mills Department at Durgapur where he joined service and worked for a long time till he was transferred to Bangalore.
24. Admittedly, prior to his transfer to Bangalore, the petitioner appeared before the Selection Committee on 29-3-1979 for an interview to consider his promotion to the post of Assistant Superintendent in Rolling Mills Department. However, the result of the interview was not communicated to him and, in the meanwhile, he was transferred to Bangalore in April 1979. Thereafter, he was not summoned for any interview for filling up the post by promotion under the vacancy promotion scheme. It is not in dispute that on 11-11-1981, the petitioner complained to the management about the injustice done to him when he learnt that some promotions to the Manager's grade had been made to his detriment since he did not enjoy the same benefit. On 13-2-1985 the petitioner wrote a letter to the management to which a reply was received on 30-10-1985. Again on 10-12-1985, the petitioner addressed a letter to the Chairman seeking necessary reliefs claiming promotion interse, seniority with retrospective effect and full monetary benefit from the day his juniors were promoted in the parent department channel. On 4-7-1986, a reply was received by the petitioner and his entreaties were in vain. Thereafter, the disillusioned petitioner was constrained to issue a legal notice through his Counsel to the management on 6-12-1986 and it was replied to by the management by letter dated 21/27-1-1987. The petitioner being denied the relief, approached this Court by filing this Writ Petition in 1987. In these circumstances, I do not think that it would be either reasonable or fair to hold that the Writ Petition is barred by laches. I am of the opinion that the Writ Petition is maintainable.
25. The question of challenging the order of transfer from Durgapur to Bangalore by the petitioner does not arise since the petitioner had no premonition that adverse consequences would follow as a sequel to his transfer and that the transfer was mala fide. Besides it is reasonably probable to infer that the petitioner accepted the transfer in good faith least suspecting the bona fides of the management. Moreover, in the letter issued by the Management on 4-7-1986, there was a solemn assurance from the management that the question of determination of line of promotion was under active consideration of the management. The fact that the transfer was ill-motivated was realised by the petitioner when he made a search in the telephone directories of the company for the period 1976 and 1983 which revealed the elevated status of respondents 3 and 4 in 1976 and 1983 respectively enjoying a higher post than the petitioner. Though the two respondents were actually juniors to the petitioner, they had been promoted without the knowledge of the petitioner above him. The necessity to delve into the telephone directories for information regarding the promotions of respondents-3 and 4 was necessitated entirely on account of the denial of the right to information to the petitioner by the management. Over and above all these happenings, the replies received from the management from time to time by the petitioner did not offer any clue that the claims of the petitioner had been negatived categorically. In these circumstances, it cannot be said that the petitioner should be denied any relief at this stage on the ground that he did not challenge his transfer from Durgapur to Bangalore when the transfer took place. I, therefore, hold that the Writ Petition is not liable to be rejected on the said ground. The non-challenge to the order of transfer effected by the management in 1981 is not fatal to the Writ Petition.
26. That the management has a right to shift the petitioner from one place to another by itself may not be either odious or dubious. However, the rights which became vested in the petitioner when he was functioning at Durgapur in the last designation that he held cannot be extinguished by a transfer. The gravamen of the plea of the petitioner is that whatever right he enjoyed in regard to promotion and other benefits if he had continued at Durgapur should be extended to him and the rights did not disappear merely because he had been transferred from Durgapur to Bangalore into a different assignment. According to the contention of the petitioner, mere change in the nature of functions and duties cannot bring about a change in the nature of rights enjoyed by the petitioner when he was absorbed at Durgapur in the parent department. The petitioner is justified in contending that his right to promotion became vested in him by virtue of the fact that he was appointed and worked for a considerably long time in the parent department after undergoing a specialisation course and after a long period of performance of duties and functions akin to that department. The further contention of the petitioner is equally justified that the right of promotion which was available to him in the concerned channel of the parent department was not imperilled by his transfer to Bangalore to a different section. The fact remains that had the petitioner continued at Durgapur, respondents-3 and 4 being juniors to the petitioner at the relevant point of time when the petitioner was holding the substantive post of General Foreman and respondents-3 and 4 working under him, the petitioner would have been entitled to a promotion over and above respondents-3 and 4. Equally relevant is the argument advanced by the learned Counsel for the petitioner that all appointments and promotions are based on merit-cum-senrority and, therefore, the petitioner would be entitled to promotion over his juniors. Significantly enough the management kept the petitioner guessing by writing a letter to him dated 4-7-1986 assuring the petitioner that the tine of the promotion in regard to the petitioner was still under consideration especially in the context of cluster promotion having been introduced in the year 1986. In the light of the above facts, I am of the opinion that the case of the petitioner ought to have been considered for promotion through the channel of promotion stipulated in the Rolling Mills Department at Durgapur prior to his transfer to Bangalore. It is not pointed out by the respondents on any tenable basis that even if the petitioner had continued to work in the original department at Durgapur. he would not have been promoted and he did not have the necessary merit and seniority to be promoted over and above respondents-3 and 4. In the absence of any communication to the petitioner regarding the result of his interview prior to his transfer to Bangalore, an adverse inference has to be drawn that the management was not only withholding information, but also acting without credibility. Denial of information by the management to a responsible employee who was specially trained to discharge specific duties and functions and later on shifted to a post at Bangalore which could not harness the abilities of the petitioner, would lead to the inference that the entire atmosphere was fishy and vitiated by ulterior motive of impairing the promotional opportunities of the petitioner vis a vis respondents-3 and 4. In these circumstances, I am convinced that the petitioner is entitled for promotion and placement above respondents-3 and 4 in the parent channel of promotion of the petitioner and full monetary benefit with retrospective effect and to be retained in the channel of promotion in the parent department and to be promoted as per the seniority in the said channel.
27. Managerial obduracy and imperviousness to reason and lack of fairness in its dealings with its own employees and tangential post-decisional reasoning in justifying its unsavoury actions, cannot legitimise oblique gyrations and cannot stand in the way of the petitioner who is invoking the principle of fair-play in action, nor deter the Court from opening the doors of justice to undo the injustice done. There can be no immunity to a Public Sector undertaking against equity and good conscience. Service conditions constitute solemn undertaking of the management to honour its commitment free from invidious discrimination. The managerial or administrative power ought to be exercised in consonance with natural justice. I believe that the powerful engine of authority should be controlled by the brakes of natural justice, openness and accountability. The "right to know" is a new dimension of natural justice. Denial of it is a negation of the noble concept.
Justice not only must be done but also manifestly appear to have been done.
In the context, the observations of Lord Macnagten are relevant:
"It is well settled that a public body invested with statutory powers such as those conferred upon the Corporation, must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. And it must act reasonably. The last proposition is involved in the second, if not in the first."
West Minister Corporation v. L & N.W. Railway, (1905) A.C. 426 (430).
In MANEKA GANDHI v. UNION OF INDIA , the Supreme Court held:
"The law must therefore now be taken that even in an administrative proceeding which involves civil consequences, the doctrine of natural justice must be held to be applicable".
Rules of reason and justice must prevail and an act otherwise done is susceptible to the power of redress exercisable by the Court.
According to Lord Denning M.R. as observed in METROPOLITAN PROPERTIES (F.G.C) LTD., v. LANNON (1969) 1 Q.B. 577:
"The Court does not look to see if there was a real likelihood that he would or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people...........
Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking 'the Judge was biased'.
There is no escape for the management from the principle.
28. In the result, for the reasons stated above, Rule is issued and made absolute. The Writ Petition is allowed. Respondents-1 and 2 are directed to promote and place the petitioner above respondents-3 and 4 in the parent channel of promotion of the petitioner and give him full monetary benefit with retrospective effect and retain him in the channel of promotion in the parent department and promote him as per the seniority in the said channel within a period of ninety days from the date of receipt of a copy of this order.
29. In the circumstances of the case, I award costs of Rs. 1,000/- to the petitioner.