Madras High Court
P.Venkatachalam E.No.13 vs The Madras Fertilisers Ltd on 23 March, 2010
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :23 .03.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI Writ Petition No.23271 of 2005 P.Venkatachalam E.No.1301 ... Petitioner Vs. 1.The Madras Fertilisers Ltd., rep.by its Chairman and Managing Director, Manali, Chennai 600 068 2.The General Manager, (Personal & Admin) Madras Fertilisers Ltd., Chennai 600 068. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus, directing the respondents to promote the petitioner from the Non Supervisory Grade V Post, to the post of E-1(Executive-1) in the promotion list to be effect from 14.08.1996 or in the next drawn list (after the expiry of one year after the petitioner declines promotion in 1996 as per Cl.2.05(ii) of promotion policy of the 1st respondent placing the petitioner in the appropriate seniority above his next junior and to give further due promotions with due seniorities in the further levels of Executive positions and to pay the petitioners the differences of salary and other attendant benefits, the petitioner would have earned had he been promoted in E-1(Executive-1) in 1996. For Petitioners :Mr.M.Kalyanasundaram S.C. For Mr.K.J.Bharathy Mohan For Respondents :Mr.Rita Chandrasekaran for M/s.Aiyar & Dolia O R D E R
Heard the learned counsel appearing for the petitioner and the learned counsel for the respondents.
2.The writ petitioner has joined the first respondent Madras Fertilisers Ltd, a Government of India Company in the year 1977 as technician Grade-II was offered promotion to the post of Executive-I by notional seniority consequent on the preponement of implementation of 40 point roster from 01.01.1996 to 01.01.1990 by giving notional seniority date as 14.08.1995 by the order of the second respondent, dated 24.03.1998 also stating that the fitment benefits if any in E-1 will be given with effect from 01.11.1997. Based on the said offer, the petitioner has written to the second respondent on 17.04.1998 opting to continue in the same post in non supervisory Grade-V since there was no monetary benefit by the said proposal. That was accepted by the second respondent by letter dated 04.05.1998 permitting the petitioner to continue in the non supervisory Grade V as Senior Material Handling Assistant. It is stated as per the policy of the first respondent framed in the guidelines when a person declines to accept the permission he would not be eligible for promotion for a period of one year and only thereafter, he should be considered for promotion. The grievance of the petitioner is that inspite of the lapse of one year from the date of option, the respondents are refusing the promotion to the petitioner in the next vacancy while the juniors were promoted upto E-II posts. In these circumstances, the present writ petition has been filed to the effect that the conduct of the respondents is in violation of the rights under Article 14 and 16(1) of the Constitution of India; that even as per the policy of the first respondent, the bar of further promotion is only for one year and after one year, the petitioner ought to have been considered for the next post of promotion, apart from many other grounds.
3.It is the case of the respondents as it is seen in the counter affidavit that the writ petition is not maintainable since there is an alternative remedy available to the petitioner by raising industrial dispute. On merit also it is stated that the Madras Fertilisers Limited is incorporated under the Companies Act with non supervisory promotion and supervisory employees, the petitioner belongs to non supervisory cadre namely, workman category and the services and the promotion policy are decided in consultation with the union. It is stated that the petitioner after completion of S.S.L.C has joined in the respondent Company on 04.10.1976 as B&S Technician Trainee and was absorbed as B&S Technician in Grade-III on 01.08.1977. As per the promotion policy, he was upgraded to Grade-IV on 01.04.1987 and Grade-V on 01.08.1988 and promoted as Material Handling Assistant in Grade-IV/V with effect from 16.01.1991. The respondent company having decided to implement the police of reservation for SCs&STs retrospectively from 01.01.1990 which has resulted in anomaly and it was in order to rectify the anomaly and to protect the seniority of those non SC/ST employees, notional seniority was given on condition that they will draw salary of the higher post but continue to perform the same job since the appointment was not on vacancy based. The petitioner being one such candidate was given notional seniority promotion in E-I Grade with retrospective effect from 14.08.1995 as per the letter of the second respondent, dated 24.03.1998 it was declined by the petitioner by his letter dated 17.04.1998 on the ground that by that notional promotion, there is no monetary benefit to him and that was accepted by the respondent company by its letter dated 04.05.1998. It is stated that the notional seniority promotion was given as special dispensation as one time measure. It is not applicable under the promotion policy and when once such offer was declined, the same cannot be claimed as a matter of right. The eligibility criteria as per the policy is stated to be not applicable to the petitioner.
4.Mr.M.Kalyanasundaram, learned Senior Counsel for the petitioner would submit that as far as the maintainability of the writ petition as claimed by the respondent company that the petitioner as a workman that it is not the individual dispute but it is the larger interest which is covered under Section 2(k) of the Industrial Disputes Act and therefore, the petitioner having resigned from the union cannot have any of his right or grievance ventilating his dispute under Section 2-A of the Industrial Disputes Act. It is his submission that the issue is relating to the promotional policy of the respondent which is a larger interest, the writ petition is maintainable especially when it is the grievance of the petitioner even as per the policy, the denial of promotion is for a retrospective period and that cannot be a bar forever.
5.It is stated that the petitioner put in a total period of service of 29 years in the category of non supervisory cadre and denied promotion to the post of E-I for the past 10 years even though his juniors have been promoted. He would rely upon the judgment of the Hon'ble Supreme Court in A.Satyanarayana and others Vs. S.Purushotham and others reported in 2008 (5) SCC 416 to substantiate his contention that the purpose of promotion is to remove stagnation and avoid frustration amongst the employees and therefore, this Court should taking note of such fact and interfere with for the purpose of rendering substantial justice.
6.On the other hand, it is the contention of Mr.Rita Chandrasekaran, learned counsel for the respondents that the issue requires appreciation of evidence and that cannot be gone into in a writ petition under Article 226 of the Constitution of India.
7.I have considered the rival submissions made on either side and perused the materials available on record.
8.Taking note of the peculiar circumstances in this case that the petitioner who is not a member of the union is unable to raise the dispute under Section 2(k) of the Industrial Disputes Act which is as follows:
2(k)industrial dispute means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non employment or the terms of employment or with the conditions of labour, of any person;
and also it is not possible for the petitioner to enforce his right under Section 2-A of the Industrial Disputes Act since it relates to the promotion policy and the respondents' objection regarding the maintainability of the writ petition is only in availing alternative remedy available under the Industrial Disputes Act. Section 2-A of the Industrial Disputes Act reads as follows:
2-A.Dismissal, etc., of an individual workman to be deemed to be an industrial dispute:-Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.
9.I am of the considered view that the issue is to be taken note of in the larger interest keeping in mind the yardstick stipulated by the Hon'ble Apex Court in A.Satyanarayana and others Vs. S.Purushotham and others reported in 2008 (5) SCC 416 wherein while explaining about the judicial review the Hon'ble Supreme Court has held as follows:
28.The superior courts, while exercising their power of judicial review, must determine the issue having regard to the effect of the subordinate legislation in question. There must exist a rational nexus between the impugned legislation and the object of the promotion. Promotions are granted to a higher post to avoid stagnation as also frustration amongst the employees. This Court, in a large number of decisions, has emphasised the necessity of providing for promotional avenues, (See Food Corporation of India Vs. Parashotam Das Bansal). The State, keeping in view that object, having found itself unable to provide such promotional avenue, provided for the scheme of accelerated career progress (ACP). The validity and effect of the impugned legislation must be judged keeping in view the object and purport thereof. This Court would apply such principle of interpretation of statute which would enable it to subserve the object in place of subverting the same.
10.It is not in dispute that the promotion policy as one time measure was taken by the respondent in the peculiar circumstances that the respondent has proposed to give retrospective effect to the policy of reservation which cannot be found fault with. But at the same time, it is the duty of the respondents to see that any anomaly that may be caused due to such anomaly, the promotion policy should be rectified. It is in this regard, it is relevant to point out the promotion policy itself as per Clause 5.02.
11.The original promotion policy of the respondents which was with effect from 01.04.1987 in Clause 5.03 is as follows:
5.03.Where an employee voluntarily opts for reversion to a lower position/grade for any reason whatsoever he/she shall be so reverted to the immediate lower position/grade with the approval of the Competent Authority. Such employees shall not be eligible for consideration of any promotion for a period of one year from the date of reversion. On reversion, his/her seniority in the original position/grade will be restored.
that was again reiterated in the promotion policy with effect from 01.04.1995 and the relevant paragraphs is 5.02 which is as follows:
5.02. Where an employee voluntarily opts for reversion to a lower position for any reason whatsoever, he/she will be reverted to the immediate lower position.
Such employees shall not be eligible for consideration of any promotion for a period of one year from the date of reversion. In such case his/her seniority in the original position will be restored after the above stipulated period of one year.
12.A reference to the said clause which stood original as well as subsequently extended makes it clear that the embargo which has been imposed on reversion is only for a limited purpose of one year and in fact in the policy which was given effect to 01.04.1985 it is made clear abundantly that after the stipulated period of one year the original seniority has to be restored.
13.In the light of the above said specific clause, there is absolutely no difficulty to come to a conclusion that the petitioner is entitled for consideration of promotion due to him after the period of embargo namely one year from the date when he exercised his option not to accept notional promotion comes to an end.
14.In such circumstances, considering the special circumstances which is in existence in the present case, the writ petition is disposed of directing the respondents to consider the case of the petitioner in the light of the specific clause in the promotion policy as elicited above and pass appropriate orders regarding the grant of promotion to the petitioner as per the promotion policy by rectifying anomaly if any which has been caused by the long delay, if there are no other legal impediments and such order shall be passed by the respondents within a period of eight weeks from the date of receipt of a copy of this order. No costs.
23.03.2010 Index : Yes/No Internet: Yes/No sms P.JYOTHIMANI,J.
sms To
1.The Madras Fertilisers Ltd., rep.by its Chairman and Managing Director, Manali, Chennai 600 068
2.The General Manager, (Personal & Admin) Madras Fertilisers Ltd., Chennai 600 068.
Pre-delivery order in Writ Petition(MD)No.10055 of 2005 23.03.2010