S.Ramalingam v. Tamilnadu Civil Supplies Corporation Limited

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 31.08.2009CORAM:THE HON'BLE MR.JUSTICE K.RAVIRAJA PANDIANANDTHE HON'BLE MR.JUSTICE T.RAJAW.A.No.2141 of 1999and W.P.No.2748 of 2001 S.Ramalingam ... Appellant in W.A.No.2141 of 2001 and Petitioner in W.P.No.2748/2001Vs.The Chairman and Managing DirectorTamilnadu Civil Supplies CorporationLimited, Madras – 10. ..... Respondent in W.A.No.2141 of 2001 and W.P.No.2748 of 2001.Writ Appeal in W.A.No.2141 of 1999 is filed under Clause 15 ofthe Amended Letters Patent against the order dated 25.8.1999 made inW.P.No.14371 of 1999 on the file of this Court.Writ Petition in W.P.No.2748 of 2001 is filed under Article 226of the Constitution of India seeking for the relief of issuance ofwrit of a certiorari to call for the records in proceedingsProc.No.H3/118176/99(2) dated 15.12.2000 and quash the same. For Appellant : Mr.S.Sadasharamin W.A.No.2141and for petitionerin W.P.No.2748of 2001.For Respondent : Mr.R.P.Kabilan,AAG for Mr.V.Selvanayagam https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT(Judgment of the Court was made by K.RAVIRAJA PANDIAN,J.)W.A.No.2141 of 1999:The writ appeal is filed against the order of the learned singleJudge dated 25.8.1999 made in W.P.No.14371 of 1999 non-suiting theappellant for the relief of setting aside that portion of the orderof the respondent in Rc.No.H3/123983/94 dated 21.12.1998 whereby theappellant was denied monetary benefit despite he be included in thepanel of Assistant Executive Engineer (Civil) for the year 1994 andplacing him between Thiru.K.Veeraraghavan Sl.No.2 - andA.Chandraseakran – Sl.No.3.2. Disputing the seniority list dated 4.11.1994 prepared for thepost of Assistant Executive Engineer (Civil) from among the cadre ofAssistant Engineers, the appellant herein filed writ petition inW.P.No.6350 of 1995. By a detailed order, the writ Court allowed theWrit Petition and directed the respondent herein to include theappellant's name in the panel. As the said direction is having somebearing on the ultimate decision of this appeal, we re-produce thesame here:"Accordingly, there shall be a direction to the firstrespondent to include the petitioner's name in the panelof Assistant Executive Engineer (Civil) for the year 1994and consider his claim for promotion and appointment tothe post of Asst. Executive Engineer (Civil) for the year1994 and consider his claim for promotion and appointmentto the post of Asst. Executive Engineer (Cviil) witheffect from 8-11-1994, the date on which his junior,namely the 4th respondent was promoted with allconsequential service benefits from that i.e., 8-11-1994.Writ Petition is allowed to the extent mentionedabove...."The said order was accepted by the respondent and thus becomefinal. Pursuant to the same, the respondent passed an order givingeffect to the direction by including the appellant's name in thepanel of Assistant Engineers (Civil) for the year 1994 and placed himin between Thiru.K.Veeraraghavan Sl.No.2 - and A.Chandraseakran –Sl.No.3 and was deemed to have been promoted as Assistant ExecutiveEngineer on par with his immediate junior with effect from 8.11.1994,however without monetary benefit. This order came to be passed on21.12.1998. The appellant filed Contempt Application No.375 of 1999on the premise that the order of the learned single Judge was notgiven effect to in full, and that the appellant was given promotionretrospectively with effect from 8.11.1994, however, the pay was not https://hcservices.ecourts.gov.in/hcservices/ regulated and the arrears of salary and allowances have not beensanctioned and paid to him. The said contempt application wasdisposed of by the learned single Judge by observing as follows:"... After going through the order oft his Court dated29-10-1998, more particularly with regard to the directionin the last para of the said order and in view of theexplanation offered by the respondents in their counteraffidavit, I do not find any merit in the contention raisedby the applicant. I am satisfied with the explanationoffered by the respondent. Accordingly the contemptapplication is dismissed. Notice issued earlier isdischarged. I have not expressed anything regarding theclaim of the petitioner with regard to back wages for theperiod from 8-11-1994."3. Thereafter the appellant filed Writ Petition No.14371 of 1999challenging the order dated 21.12.1998 promoting the appellant withretrospective effect from 8.11.1994 without giving monetary benefitand the same was dismissed by the learned single Judge afternarrating the facts of filing of earlier writ petition and subsequentfiling of the contempt application and taking note of the decision ofthe Supreme Court in the case of PALURU RAMAKRISHNAIAH VS. UNION OFINDIA (1989 2 SCC 541) by holding that the appellant herein is notentitled to the benefit sought for in the writ petition in view ofthe judgment of the Supreme Court in the case of PALURURAMAKRISHNAIAH VS. UNION OF INDIA and unless the seniority list isprepared and finalised and promotions are made in accordance with therules on the basis of the seniority list, the question of entitlementto work in the promotional posts does not arise. The correctness ofthe same is now canvassed before us in this writ appeal. 4. Learned counsel for the appellant relying on a judgment ofthe Supreme Court in the case of THE COMMISSIONER, KARNATAKA HOUSINGBOARD VS. C.MUDDAIAH reported in 2007(6) Supreme 97 contended thatunless the order of the learned single Judge granting service benefitunconditionally is set aside or modified, the authorities cannotinterpret the order for their convenience as interpreted in theimpugned order of the writ petition by saying that the appellant isnot entitled to the benefit as he did not work during the relevantperiod.5. However, the learned counsel appearing for the respondentsubmitted that as the appellant has not worked during the relevantperiod, he is not entitled to any payment and he relied on thatportion of the order of the learned single Judge, where he explainedthe decision of the Supreme Court in the case of PALURURAMAKRISHNAIAH VS. UNION OF INDIA (1989 2 SCC 541). https://hcservices.ecourts.gov.in/hcservices/

6. We are not able to sustain the argument of the learnedcounsel appearing for the respondent or sustain the judgment of thelearned single Judge for the reason that the order dated 29.10.1998made in W.P.No.6350 of 1995 and the portion of the order, which hasbeen extracted above has become final, and the Corporation -respondent herein has not taken up the matter on appeal, as done inthe case of PALURU RAMAKRISHNAIAH VS. UNION OF INDIA (1989 2 SCC541). If the order dated 29.10.1998 made in the above writ petitionhas been taken on appeal by the Corporation and that portion of theorder giving all service benefits is put in issue and on that groundthat order has been interfered the issue is totally different. Butin this case the order of the learned single Judge has become finaland that has not been taken up on appeal. These different factorsavailable in this case make ocean of difference between PaluruRamakrishnaiah's case and this case. Vide HARYANA FINANCIALCORPORAION VS. JAGADAMBA OIL MILLS, AIR 2002 SC 834. The learnedsingle Judge has thought it fit to grant the service benefits alsowhile directing the respondent to fix the seniority on par with hisjuniors and promote him to the post of Assistant Executive Engineeron par with his juniors. Rightly that portion of the order has beencomplied with. But without any reason the service benefit granted bythe learned single Judge has been denied in the order impugned. Inalmost identical set of facts, such a relief granted in favour of anemployee was put in issue by the Commissioner of Karnataka HousingBoard before the Supreme Court and the Supreme Court dismissed thesaid appeal in the case of THE COMMISSIONER, KARNATAKA HOUSING BOARDVS. C.MUDDAIAH reported in 2007(6) Supreme 97. We are of the viewthat it would be appropriate to refer paragraph Nos.31 and 32 of thejudgment, so as to have a clear picture on this issue, which readsthus:"... 31. We are of the considered opinion that oncea direction is issued by a competent Court, it has to beobeyed and implemented without any reservation. If anorder passed by a Court of Law is not complied with or isignored, there will be an end of Rule of Law. If a partyagainst whom such order is made has grievance, the onlyremedy available to him is to challenge the order bytaking appropriate proceedings known to law. But itcannot be made ineffective by not complying with thedirections on a specious plea that no such directioncould have been issued by the Court. In our judgment,upholding of such argument would result in chaos andconfusion and would seriously affect and impairadministration of justice. The argument of the Board,therefore, has no force and must be rejected.32. The matter can be looked at from another anglealso. It is true that while granting a relief in favour https://hcservices.ecourts.gov.in/hcservices/ of a party, the Court must consider the relevantprovisions of law and issue appropriate direction keepingin view such provisions. There may, however, be caseswhere on the facts and in the circumstances, the Courtmay issue necessary direction in the larger interest ofjustice keeping in view the principles of justice, equityand good conscience. Take a case, where ex facieinjustice has been meted out to an employee. In spite ofthe fact that he is entitled to certain benefits, theyhad not been given to him. His representations have beenillegally and unjustifiably turned down. He finallyapproaches a Court of Law. The Court is convinced thatgross injustice has been done to him and he waswrongfully, unfairly and with oblique motive deprived ofthose benefits. The Court, in the circumstances, directsthe Authority to extend all benefits which he would haveobtained had he not been illegally deprived of them. Isit open to the Authorities in such case to urge that ashe has not worked (but held to be illegally deprived), hewould not be granted the benefits? Upholding of such pleawould amount to allowing a party to take undue advantageof his own wrong. It would perpetrate injustice ratherthan doing justice to the person wronged. We areconscious and mindful that even in absence of statutoryprovision, normal rule is 'no work no pay'. Inappropriate case, however, a Court of Law may, nay must,take into account all the facts in their entirety andpass an appropriate order in consonance with law. TheCourt, in a given case, may hold that the person waswilling to work but was illegally and unlawfully notallowed to do so. The Court may in the circumstances,direct the Authority to grant him all benefitsconsidering 'as if he had worked'. It, therefore, cannotbe contended as an absolute proposition of law that nodirection of payment of consequential benefits can begranted by a Curt of Law and if such directions areissued by a Court,the Authority can ignore them even ifthey had been finally confirmed by the Apex Court of thecountry (as has been done in the present case). The baldcontention of the appellant-Board, therefore, has nosubstance and must be rejected."7. In the light of the law enunciated by the Supreme Court inthe case of THE COMMISSIONER, KARNATAKA HOUSING BOARD VS. C.MUDDAIAHreported in 2007(6) Supreme 97, we are of the considered view thatthe order of the learned single Judge has to be set aside and thewrit appeal has to be allowed. Accordingly, the writ appeal isallowed and the order of the learned single Judge is set aside andwrit petition is allowed as prayed for by directing the authorities https://hcservices.ecourts.gov.in/hcservices/ giving the benefit as decided by the Supreme Court in the case ofTHE COMMISSIONER, KARNATAKA HOUSING BOARD VS. C.MUDDAIAH reported in2007(6) Supreme 97. W.P.No.2748 of 2001:8. The writ petition tagged along with the above appeal is filedby the appellant/writ petitioner seeking for the relief of issuanceof writ of a certiorari to call for the records in proceedingsProc.No.H3/118176/99(2) dated 15.12.2000 and quash the same. Thesaid relief is sought for by the petitioner contending that pursuantto the order passed on 29.10.1998, by proceedings dated 19.7.1999,the scale of pay of the appellant has been fixed on par withA.Chandraseakran, Assistant Executive Engineer, Tirunelveli, whosepay was fixed at Rs.2575/- from 14.11.1994. While that being so,without any reason, what so ever, without a notice to the appellant,by proceedings dated 15.12.2000, the pay of the writ petitioner wasre-fixed stating that the earlier order of fixing the pay of the writpetitioner by steeping up to Rs.2275/- was not correct as the writpetitioner is only a diploma holder and his salary should not besteeped up on par with A.Chandraseakran, who is a degree holder inEngineering and further directed the authorities to recover theexcess amount paid to the writ petitioner, as per the originalfixation of pay. That order is put in issue in this writ petition. 9. We heard the argument of the learned counsel appearing oneither side. 10. Whatever may be the reason for re-fixation of the scale ofpay of the writ petitioner, but having civil consequence, which isevident on the face of the order. Natural justice requires thatorder should be passed after putting the writ petitioner on noticeonly when the order passed is having civil consequence. On thissingle ground, the order dated 15.12.2000 impugned in this writpetition is hereby set aside with liberty to the writ petitioner topass appropriate order after affording reasonable opportunity to thewrit petitioner. However, there is no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarusk https://hcservices.ecourts.gov.in/hcservices/ Copy to:The Chairman and Managing DirectorTamilnadu Civil Supplies CorporationLimited, Madras – 10. 1 cc To Mr.V.Selvanayagam, Advocate, SR.434601 cc To Mr.,S.Sadasharam Advocate, SR.43106,43105W.A.No.2141 of 1999 and W.P.No.2748 of 2001ka(co)pmk.18.9.2009.