Andhra Pradesh High Court - Amravati
P.V. Srinivas Acharyulu vs National Thermal Power Corporation, on 19 July, 2022
THE HON'BLE Dr.JUSTICE K. MANMADHA RAO
WRIT PETITION Nos.24495 of 2018 + 32834 of 2011
and 31216 of 2012
COMMON ORDER:
Writ Petition No. 24495 of 2018 is filed under Article 226 of the Constitution of India, claiming the following relief:
".....Issue an order or direction more particularly one in the nature of writ of Mandamus direct the respondents to permit the petitioner to exercise option for VRS Scheme vide Corporate HR Circular No. 848 of 2018, dated 25.01.2018 operative from 18.04.2018 to 17.07.2018 through the prescribed format in the physical form and consequently direct the respondents to accept the VRS Scheme application submitted by the petitioner dated 13.07.2018 in the prescribed format of VRS Scheme vide Corporate HR Circular No. 848 of 2018 operative from 18.04.2018 to 17.07.2018 and pass such other orders.
Writ Petition No.32834 of 2011 is filed under Article 226 of the Constitution of India, claiming the following relief:
".....Issue an order or direction more particularly one in the nature of writ of Mandamus declaring the action of the respondents for not giving the wage benefits from 1997 and corresponding promotions to the petitioner as per the wage revision 1997 till today as illegal, improper, injustice and violative of principles of natural justice and consequently direct the respondents to consider the seniority, qualifications, performance of the petitioner for the promotion to his corresponding next higher grade in the year 2012 by reviewing the performance scores from 2007 onwards till date before proceeding for promotions by the promotion committees for the year 2012 and pass such other orders.
Writ Petition No. 31216 of 2012 is filed under Article 226 of the Constitution of India, claiming the following relief:
".....Issue an order or direction more particularly one in the nature of writ of Mandamus (i) declaring the proceedings Office Order No. 42/2012, dated 27.03.2012 by striking off of the name of the petitioner from the rolls of the Company by invoking the Clause 24.9 of NTPC Service Rules is illegal, arbitrary, unjust and contrary to Judgment of the Hon'ble Supreme Court; (ii) declaring the proceedings the appellate authority the order Ref.No.SMPP: HR: dated 20.08.2012 2 is wholly, illegal, arbitrary and contrary to Judgment of Hon'ble Supreme Court and set aside the same; (iii) direct the respondents to reinstate the petitioner into service with all consequential and attendant benefits in the interest of justice; (iv) and pass such other orders.
2. Since the facts and issue involved in both the writ petitions is one and the same, I find it expedient to decide both the matters by common order.
3. For the sake of convenience, W.P.No. 24495 of 2018 is taken as leading case.
4. Heard Mr. P.V.Srinivas Acharyulu, petitioner/ Party-in- Person and learned Standing Counsel for the respondents.
5. The brief case of the petitioner in W.P.No. 24495 of 2018 is that the petitioner joined National Thermal Power Corporation (NTPC) on 10.12.1992 as Junior Supervisor, EDP at Auraiya GPS, Uttar Pradesh. On several promotions, the petitioner was transferred to Simhadri Thermal Power Project in the year 2010 as Assistant Engineer (E1) since 2001 till impugned orders dated 27.03.2012. The petitioner filed W.P.No.32834 of 2011 questioning the action of the respondent corporation for not granting wage revision benefits of 1997. In the year 2000, the respondents announced wage revision, 1997, which gives benefit of one year service weightage for all the Supervisor category to next higher grade promotion with effect from 01.01.1997. By that time the petitioner was working in S-3 Category and he is entitled for promotion of Assistant Engineer (E-1 Grade) as per time scale. However the respondents not implemented the wage revision 1997. Further, the petitioner filed W.P.No.31216 of 2012 questioning the action of the respondents passing orders dated 27.03.2012 and 20.08.2012 striking off name of the petitioner from 3 the rolls of the company with effect from 27.03.2012 vide Ref.No.SMPP:HR by 5th respondent by confirming the office order 42/2012, dated 27.03.2012 without considering medical reports and leave application and quashing the same by reinstate the petitioner into service with back wages and continuity of service with all consequential benefits thereto.
6. While the matter stood thus, the petitioner has received part of the provident fund amount from the respondents and failed to comply with the directions of this Court in W.P.No.31216 of 2012. Therefore C.C.No.762 of 2017 is filed. The respondent corporation has announced Voluntary Retirement Scheme, VRS Scheme vide Corporate HR Circular No. 848/2018, dated 25.01.2018 with option for opting VRS through their intranet portal for consideration within three months from 01.02.2018 to 30.04.2018. Therefore the petitioner approached the respondents to permit the petitioner to avail the VRS Scheme, but the respondents refused to receive the application of the petitioner, which is illegal and arbitrary. Hence this writ petition came to be filed.
7. Per contra, the respondents filed counter in W.P.No.32834 of 2011 by denying all material averments made in the writ affidavit and mainly contended that the petitioner is not promoted and the promotion could not be given at relevant points of time, which is justifiable as sanction is given basing upon the company's requirement which have legs to stand. Further the petitioner sought relief for wage benefits from 1997 and corresponding promotion as per the wage revision 1997 and also a directions to consider his seniority, qualifications, performance for the promotion to his next higher grade in the year 2012 by reviewing the performance scores from 2007 4 onwards is totally not acceptable as he was not availed the appeal provision as laid down in the policy. Based on the promotion policy, he was considered for promotion from S-2 to S-3 during 1999. As per policy, the employees who are on the rolls of the said Unit as on the date of Departmental Promotion Committee required to be considered. Accordingly, the petitioner and Mr. KSM Prasad were considered and as Mr. Prasad got more marks than the petitioner, got promoted whose performance and marks are better than that of the petitioner. NTPC promotion policy is based on merit-cum- seniority but not seniority-cum-merit. The Departmental Promotion Committee of the Company will verify the eligibility, appraisal marks, merit and seniority and those who got higher marks are promoted. The petitioner has not raised any issue even though he was not promoted at that time. Now the petitioner questioning the promotion of Mr. KSM Prasad after long lapse of 13 years comparing the wage benefits which is illegal and arbitrary. Further it is contended that the petitioner's performance appraisal was not up to the mark/ satisfactory and he was counseled several times by his superiors to change his attitude and to work hard to achieve goals, but there is no change in his works culture and attitude. The petitioner remained absent on the ground of ill health without applying any leave for long period on several occasions.
8. It is further contended that as per Corporate policy 30% will be on top, 65% will be in middle and 5% are to be at bottom level and accordingly Normalization Committee will review and award the marks which are final and the same will be informed to employee every year. However, in the year 2009 the petitioner refused to submit the Key Performance Areas to his reporting officer, which has resulted 5 that the appraisal has been prepared by the reviewing Officer by himself and made available to the committee. The committee also reviewed the issue and given certain marks and the same marks was also communicated to the petitioner vide letter dated 04.02.2010. The petitioner having received the communication of marks for the year 2008 under protest, the petitioner has not chosen to avail the remedy in appeal provision. Thus the awarded marks have become final, basing upon the said final scores. The respondents have strictly followed the procedures while promoting the executives to the next higher grade hence the writ petition is liable to be dismissed.
9. The respondents filed Counter affidavit in W.P.No.31216 of 2012 wherein it is contended that the grievance procedure under Stage-II was underway this petitioner lodged Stage-III grievance on 21.09.2011. A notice was issued on 21.10.2011 to the petitioner with regard to unauthorized absence and instructed to report for duty. As per Rule 24.9 of NTPC Service Rules states that "An employee who remains unauthorized absent from duty or place of work either without sanction of leave or after expiry of sanctioned leave, if any, and does not report for duty for any reason whatsoever within 90 consecutive days from the date of his/ her unauthorized absence, shall automatically lose lien on his/ her post and he/ she shall be deemed to have voluntarily abandoned and left the service of the company without notice". Admittedly the petitioner was unauthorized absent from duty on various occasions and more so, the petitioner knows well that the respondent authorities will be invoking clause 24.9 of NTPC Service Rules, the petitioner neither joined duty nor submitted any medical certificates along with leave letter for the leave period. Therefore the respondent company as per service rule 234.9 treated this petitioner 6 as voluntarily abandoned the services of the respondent company resulting in loss lien on the post held by this petitioner and the same was communicated to him vide order No. 42/2012, dated 27.03.2012. The petitioner also filed an Appeal against the said order, so far no medical record is produced. A committee was constituted by competent authority under Clause 24.9 of NTPC Service Rules and Clause 5.0 of Procedure for regulating unauthorized absence under CPC 415/99, dated 13.05.1999" to examine the appeal and submit recommendation and based on the recommendations of the committee after giving fair opportunity to the petitioner, the appeal filed by the petitioner was disposed of vide letter dated 20.08.2012. Therefore striking off the name of the petitioner has been in accordance with the rules of the company, therefore the same cannot be treated as illegal and arbitrary. Hence, requested to dismiss the writ petition.
10. As could be seen from the material available in the above three writ petitions, it is apparent on the face of the record that the petitioner promoted to S-3 in the year 2000 and availing the benefits since then and further promoted to Senior Supervisor S-4 in the year 2004 and again promoted to E-1 in the year 2007. It is a settled principle that no person can challenge the policy having accepted and taken the benefits arising out of it and as per the principle of appropriate and reprobate, the petitioner cannot claim the promotions from back date. Further the petitioner kept quite for several years when other employees were promoted in various categories and now making adverse comment. Further it is contended by the respondents the petitioner's performance is not up to satisfaction of the superiors and the petitioner was counseled several times to change his attitude, 7 but in vain and also remained absent without applying leave. Consequently the committee was constituted by competent authority under Clause 24.9 of NTPC Service Rules and Clause 5.0 of Procedure for regulating unauthorized absence under CPC 415/99, dated 13.05.1999" to examine the appeal, based on the recommendations of the committee after giving fair opportunity to the petitioner, the appeal filed by the petitioner was disposed of vide letter dated 20.08.2012. Therefore striking off the name of the petitioner has been in accordance with the rules of the company. Since the petitioner is out of service, question of claiming attendant benefits does not arise as claimed in W.P.No.31216 of 2012.
11. Further the petitioner sought relief for wage benefits from 1997 and corresponding promotion as per the wage revision 1997 and also a directions to consider his seniority, qualifications, performance for the promotion to his next higher grade in the year 2012 by reviewing the performance scores from 2007 onwards is unsustainable, as he was not availed the appeal provision as laid down in the policy. Based on the promotion policy, he was considered for promotion from S-2 to S-3 during 1999. In view of the policy, the employees who are on the rolls of the said Unit as on the date of Departmental Promotion Committee required to be considered. Accordingly, the petitioner and Mr. KSM Prasad were considered and as Mr. Prasad got more marks than the petitioner, got promoted whose performance and marks are better than that of the petitioner. In view of the said circumstances, the petitioner is not entitled for the benefit as claimed in the W.P.No.32834 of 2011.
12. The petitioner leveled allegation that the petitioner suffering from ill health due to hazardous pollution from the respondent 8 company. Whereas thousands of employees are working in the corporation, but no one is suffering and no one has raised similar complaint till now, except the petitioner, even though the petitioner has not produced any iota of evidence to substantiate his version. Therefore, the contention of the petitioner is without any basis and irrelevant.
13. In view of the above said circumstances, this Court find no merit in the case of the petitioner and in view of lacunae on the part of the petitioner, the petitioner is not entitled for the relief's as claimed in the writ petitions and it deserves to be dismissed.
14. Accordingly, the writ petitions are dismissed. No costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed.
___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 19.07.2022.
KK 9 THE HON'BLE Dr.JUSTICE K. MANMADHA RAO WRIT PETITION Nos.24495 of 2018 + 32834 of 2011 and 31216 of 2012 Date: 19.07.2022.
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