Madras High Court
S.Valluvan vs Tamil Nadu Civil Supplies Corporation on 12 April, 2013
Author: M.M.Sundresh
Bench: M.Jaichandren, M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 12.04.2013 Coram The Honourable Mr.Justice M.JAICHANDREN and The Honourable Mr.Justice M.M.SUNDRESH Writ Appeal Nos.187 & 188 of 2011 S.Valluvan ... Appellant in both appeals -vs- 1.Tamil Nadu Civil Supplies Corporation, rep. by its Managing Director, No.12, Thambusamy Road, Kilpauk, Chennai-600 010. 2.S.Purushothaman ... Respondents in both appeals Writ Appeals filed under Clause 15 of the Letters Patent against the common order dated 28.01.2011 made in W.P.Nos.10173 and 2443 of 2009. For appellant : Mr.V.Prakash Senior Counsel for Mr.K.Sudalaikannu For respondents : Mr.C.Selvaraj for R1 Mr.G.Ethirajalu for R2 COMMON JUDGMENT
M.M.SUNDRESH,J.
These two writ appeals have been preferred by the appellant against the dismissal of the writ petitions in W.P.Nos.2443 and 10173 of 2009 respectively, by the learned single Judge, by way of a common order dated 28.01.2011.
2. The facts in brief:
2.1. In order to appreciate the issue involved in these appeals, the factual matrix surrounding the cases would require a proper and appropriate narration. The second respondent herein was appointed on 29.04.1980 along with the appellant as a "Trainee Shift Engineer" on a consolidated pay. He met with a serious accident during the course of employment on 16.05.1980, by which, half of his right foot and five toes were lost. He was admitted in the hospital on different dates and he was granted leave on loss of pay for those days he was absent in view of the accident. Unfortunately, as he was not regularised in service within two years from the date of the appointment, the leave was treated as loss of pay. The appellant was originally a junior to the second respondent. However, in view of the accident and the consequential decision of the first respondent in wrongly treating the leave period during the accident as loss of pay, the second respondent was placed below the appellant even though he was senior at the time of appointment. The seniority list was published on 23.04.1990, giving liberty to the employees to give objections, if any. The second respondent filed his objection, which was rejected on 26.02.1991.
2.2. During the time of accident, there was no specific provision for sanctioning of "Special Disability Leave". However, under Rule 14(1) of the Old Service Rules, 1976, Fundamental Rules 83 and 83-A were made applicable to an employee of the first respondent. Unfortunately, these rules were not followed by the first respondent earlier. In the year 1989, New Service Regulation came into force with effect from 27.06.1990. Accordingly, the second respondent, once again made a request to reconsider his request for treating his absence as "Special Disability leave". It was rejected on 04.08.2000 on the question of limitation as provided under the Workmen's Compensation Act. Thereafter, the second respondent was included in the panel of Assistant Engineer for the year 2005 and he was promoted accordingly with effect from 09.01.2006. The second respondent made a further appeal to the first respondent on 06.11.2008 to reconsider his request. He also submitted before the first respondent that he was ready and willing to forego the monetary benefits for the relevant period in the event of granting "Special Disability Leave". Considering the fact that the accident was said to have occurred during the course of employment and taking note of the relevant Rules, both under the old Service Rules, 1976, and subsequent Rules, the first respondent has passed appropriate orders. Accordingly, two orders have been passed. By the proceedings dated 03.01.2009, the absence of the second respondent during the accident and the treatment period was regularised as "Special Disability Leave" without monetary benefit. The same was also made to count for promotional benefits. Consequently, by the subsequent proceedings dated 30.05.2009, the first respondent revised the seniority of the second respondent and included his name in the panel of Manager(Engineering) for the year 2006, on par with his immediate junior with retrospective effect. The abovesaid proceedings have been passed in pursuant to the resolution of the Board of the first respondent.
2.3. In the mean while, the appellant was not included in the panel of Assistant Engineer (Mechanical) for the year 2005 as he was facing charges. The punishment imposed on him on 19.10.2004 was set aside with 'severe warning' in by the proceedings dated 08.08.2006. The other major charges against the appellant were closed as exonerated by the proceedings dated 20.10.2005. Accordingly, he was once again included in the panel for the year 2005. Now, in view of the impugned proceedings dated 03.01.2009 and 30.05.2009 passed in favour of the second respondent, he was placed above the appellant. Being aggrieved against the said two orders, the appellant has filed two writ petitions in W.P.Nos.2443 and 10173 of 2009. The learned single Judge, on an analysis of facts and law, has dismissed the writ petitions by an order dated 28.01.2011. Hence, the appellant has filed these two writ appeals.
3. The findings of the learned single Judge:
The learned single Judge dismissed the writ petitions on the ground that the employer has rightly rectified an error committed by it earlier. The Fundamental Rules were originally made applicable to the case of the second respondent and the New Regulation also provided for treating the period of absence as "Special Disability Leave". Therefore, the question of delay cannot be attributed against the second respondent. The judgments relied upon by the appellant were not applicable to the case on hand. Moreover when a mistake was rectified, this Court cannot exercise its jurisdiction under Article 226 of the Constitution of India as it is extraordinary and discretionary in nature.
4.Submissions of learned Senior Counsel appearing for the Appellant:
Shri.V.Prakash, learned Senior Counsel appearing for the appellant, focussed all his arguments on the issue of the delay, laches and acquiescence on the part of the second respondent and the consequences emerged from them. The learned Senior Counsel would submit that if this Court cannot exercise its jurisdiction over a case involving huge delay, then the same cannot be applicable to an administrative action. While passing the orders impugned, the first respondent has not considered the question of delay. The impugned orders are liable to be set aside as an accrued right cannot be taken away. The second respondent has not given proper explanation for the delay. The earlier orders passed against the second respondent have not been challenged. Therefore, the appeals filed by the appellant will have to be allowed. In support of his contentions, the learned Senior Counsel has made reliance upon the following judgments.
"(i) SHIV DASS V. UNION OF INDIA AND OTHERS (2007) 9 Supreme Court Cases 274;
(ii) UNION OF INDIA V. TARSEM SINGH (2008) 8 Supreme Court Cases 638;
(iii) SHANKARA CO-OPERATIVE HOUSING SOCIETY LIMITED V. M.PRABHAKAR AND OTHERS (2011) 5 Supreme Court Cases 607; and
(iv) TUKARAM KANA JOSHI AND OTHERS V. MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION AND OTHERS (2013) 1 Supreme Court Cases 353."
5. Per contra, the learned counsels appearing for the respondents would submit that the earlier orders have been passed against the second respondent on a misconception of fact and law. As found by the learned single Judge, the second respondent is entitled to the relief granted as per law. There is no vested right accrued to the appellant. The seniority list is not the issue in these appeals. As the necessary consequence to the passing of the impugned order, the second respondent has been placed above the appellant. Therefore, it was submitted by both the counsels that the appeals will have to be dismissed.
6. DISCUSSIONS:
The facts narrated above are not in dispute. Admittedly during the course of employment, the second respondent suffered a major accident. The accident crippled him with the infliction of a permanent disability. It is also not in dispute that the second respondent is senior to the appellant at the time of appointment. In other words, but for the accident, the second respondent would continue to be the senior. The records would clearly demonstrate that the first respondent has rejected the genuine request of the second respondent on a total misconception of fact and law. The orders impugned did not deal with the seniority. It merely rectified a wrong done to the second respondent by treating the period of absence due to accident as "Special Disability Leave", that too, without any monetary benefit. The second respondent has already suffered physical disability apart from losing monetary benefit. The first respondent has admitted that the earlier rejections were absolutely wrong as there is no question of applying the provisions of the Workmen's Compensation Act.
7. Vested Right:
7.1. There is no question of any right having been vested on the appellant. A vested right is a concluded right created by a statute. A vested right has also to be seen on the facts of each case. The appellant was admitted junior to the second respondent originally. The seniority list itself was made in the year 1990. It is interesting to note that when the second respondent was included in the promotional panel for the post of Assistant Engineer(Mechanical) for the year 2005, the appellant was not in the picture as he was facing disqualification. He was included in the said panel subsequently in pursuant to the modification of the punishment in the appeal. Therefore, the appellant himself was put back above the second respondent only in the year 2005-2006. In such view of the matter the delay alleged cannot be put against the second respondent. Such a right cannot be asserted on the ground of an alleged delay against a person, who has got a better right. It has been held by the Honourable Apex Court in CMD.CHAIRMAN, B.S.N.L., AND OTHERS V. MISHRI LAL AND OTHERS (2011) 3 Law Weekly 126 as follows:
"In our opinion the expression 'vested right' could only mean a vested Constitutional right, since a Constitutional right cannot be taken away by amendment of the rules."
Hence, we are of the view that if at all, the appellant had any right, it was a temporary one, which in any case cannot be termed as vested.
7.2. In NATIONAL TEXTILE CORPORATION LTD. V. NARESHKUMAR BADRIKUMAR HAGAD AND OTHERS (2012) 2 Madras Law Weekly 296) the Honourable Apex Court has held as follows:
"The expression 'vest' is a word of ambiguous import since it has no fixed connotation and the same has to be understood in a different context under different set of circumstances. (Vide:Fruit & Vegetable Merchants Union V. Delhi Improvement Trust, AIR 1957 SC 344; Maharaj Singh V. State of Uttar Pradesh and Others, AIR 1976 SC 2602:(1977) 1 SCC 155; Municipal Corporation of Hyderabad V. P.N.Murthy and Others, AIR 1987 SC 802 : (1987) 1 SCC 568; Vatticherukuru Village Panchayat V. Nori Venkatarama Deekshithulu and Others, (1991) Supp. 2 SCC 228; Dr. M.Ismail Faruqui V. Union of India and Others, AIR 1995 SC 605 : (1994) 6 SCC 360; Government of A.P. V. H.E.H. The Nizam, Hyderabad, AIR 1996 SC 3142 : (1996) 3 SCC 282 K.V.Shivakumar and Another V. Appropriate Authority and Others, (2000) 3 SCC 485; Municipal Corporation of Greater Bombay and Others V. Hindustan Petroleum Corporation and another, AIR 2001 SC 3630 : (2001) 8 SCC 143; and Sulochana Chandrakant Galande V. Pune Municipal Transport and Others, (2010) 8 SCC 467: LNIND 2010 SC 645."
`Therefore, we are of the view that the appellant did not have any vested right, which has been taken away. Further, it is not as if the appellant was promoted to the next cadre ahead of the second respondent prior to the orders impugned, pursuant to which, he has been promoted.
8. Delay and Laches:
8.1. The judgments relied upon by the learned Senior Counsel appearing for the appellant on the question of delay are not helpful to substantiate his case. As rightly held by the learned single Judge, the power under Article 226 of the Constitution of India is both discretionary and extraordinary in nature. Such a power cannot be equated with the power of the employer to the undo a wrong committed by it. Further more, it is the appellant, who has filed the writ petitions and not the second respondent. The delay and laches are one of practice and not law. An illegality cannot be sustained on the sole ground of laches alone when the facts and circumstances of the case warrant an interference. In this connection, the following passage of the pronouncement of the Honourable Apex Court in SHANKARA CO-OPERATIVE HOUSING SOCIETY LIMITED V. M.PRABHAKAR AND OTHERS (2011) 5 Supreme Court Cases 607 is apposite.
"54. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are:
(1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.
(2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners.
(3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy.
(4) No hard-and-fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts.
(5) That representations would not be adequate explanation to take care of the delay."
8.2. When substantial justice and technical considerations are pitted against each other, that the former is to be preferred and the later cannot claim to have a vested right based on delay. Considering the said issue, it has been held in DEHRI ROHTAS LIGHT RAILWAY COMPANY LIMITED V. DISTRICT BOARD, BHOJPUR ((1992) 2 Supreme Court Cases 598), which reads thus:
"13. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not as to physical running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand case relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. (emphasis supplied) 8.3. In RAMACHANDRA SHANKAR DEODHAR V. STATE OF MAHARASHTRA (1974) 1 Supreme Court Cases 317, the Apex Court overruled the objection of delay in filing of a petition involving challenge to the seniority list of mamlatdars and observed as follows:
"10.... Moreover, it may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Article 16 is itself a fundamental right guaranteed under Article 32 and this Court which has been assigned the role of a sentinel on the qui vive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like".
The abovesaid pronouncement of law has also been quoted with approval by the Honourable Apex Court in ROYAL ORCHID HOTELS LIMITED AND ANOTHER V. G.JAYARAMA REDDY AND OTHERS (2011) 10 Supreme Court Cases 608.
8.4. In TUKARAM KANA JOSHI AND OTHERS V. MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION AND OTHERS (2013) 1 Supreme Court Cases 353, it has been observed by the Honourable Apex Court in the following manner on the question of delay.
"13.The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equaitable (vide P.Sadasivaswamy v. State of T.N., State of M.P., V. Nandlal Jaiswal and Tridip Kumar Dingal V. State of W.B.)
14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The Court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga prashad V. Rohtas Light Railway C. Ltd., V. District Board, Bhojpur, Dayal Singh V. Unio of India and Shankara Co-op. Housing Society Ltd. V. M.Prabhakar.)
15. In H.D. Vora V. State of Maharashtra this Court condoned a 30 year delay in approaching the court where it found violation of substantive legal rights of the applicant. In that case, the requisition of premises made by the State was assailed."
8.5. Therefore, on a consideration of the abovesaid principles of law, we have no hesitation to hold that the appellant is not entitled to succeed in these writ appeals.
9. Before the learned single Judge, reliance was made on the judgment of the Honourable Apex Court in H.S.VANKANI AND OTHERS V. STATE OF GUJARAT AND OTHERS (2010) 4 Supreme Court Cases 301. As rightly held by the leaned single Judge, the issue involved therein was an interse seniority between two different groups on an interpretation of Rule. The first respondents/Government on an extraneous consideration and evidently under pressure from one group, reviewed the order of seniority after long delay. Therefore, the said case has got no application to the case on hand. Further as observed above, in these appeals, the first respondent has rectified the error committed by it and it is the appellant, who filed writ petitions challenging the same. Further more, the impugned orders do not directly deal with the interse seniority pertaining to a seniority list.
10. Fairness in Action:
The matter can be looked at from a different angle as well. An employer is expected to act fairly. The state Government or its instrumentality will have to be a model employer, with high probity and candour to its employees. Considering the said principle, the Honourable Apex Court, in the recent pronouncement in BHUPENDRA NATH HAZARIKA AND ANOTHER V. STATE OF ASSAM AND OTHERS (2013) 2 Supreme Court Cases, 516, has observed as follows:
"61. Before parting with the case, we are compelled to reiterate the oft stated principle that the State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the concept.
62. Almost a quarter century back, this Court in Balram Gupta V. Union of India had observed thus:(SCCP.236, para13) "13.... As a model employer the Government must conduct itself with high probity and condour with its employees."
In State of Haryana V. Piara Singh the Court had clearly stated: (SCC p.134, para 21) "21....The main concern of the Court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16."
Therefore, as a model employer, the first respondent has correctly and rightly rectified the error committed earlier. As observed above and as noted by the learned single Judge, the said rectification has been done in accordance with law. Perhaps, that is the reason why the arguments have been focussed on the question of delay and laches. Therefore, even on that score, we do not find any error in the orders impugned. Accordingly both the writ appeals fail and the same are dismissed. No costs.
(M.J.,J) (M.M.S.,J.)
12.04.2013
Index:Yes/No
Internet:Yes/No
raa
To
1.The Managing Director,
Tamil Nadu Civil Supplies Corporation,
No.12, Thambusamy Road,
Kilpauk, Chennai-600 010.
M.JAICHANDREN, J.
and
M.M.SUNDRESH, J.
raa
Pre-delivery Judgment in
W.A.Nos.187 & 188 of 2011
12.04.2013