A.Palpandian v. The Chairman-cum-Managing DirectorHTL LimitedR1 in WP 16588/Guindy, Chennai - 32.98

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19.7.2007CORAMTHE HON'BLE MR.JUSTICE P.JYOTHIMANIWrit Petition Nos.16588 of 1998 & 15321 of 2001A.Palpandian..Petitioner in both W.Ps.Vs.The Chairman-cum-Managing DirectorHTL LimitedR1 in WP 16588/Guindy, Chennai - 32.98 & Respondent in WP 15321/01.M.Raghuchander..R2 in WP 16588The Inquiring Authorityof 1998Petitions under Article 226 of the Constitution of India praying fora writ of Certiorarified Mandamus and Mandamus respectively, Writpetitions filed under Article 226 of the Constitution of India to issue aWrit of Certiorarified Mandamus to call for the entire records of thefirst respondent in her proceedings Memo.No.8C/1761/RDA dated 10.11.97appointing the Second respondent as Inquiring Authority and all furtherproceedings taken by the respondent and quash the said proceedings dated10.11.97 of the first respondent and consequently direct the firstrespondent to reinstate the petitioner with all attendent service benefitslike seniority backwages, promotion et., (WP.16588 of 1998)Writ of Mandamus, directing the respondent to revise the subsistenceallowance in respect of the petitioner with effect from 01.01.1997 as perRevised pay scales issued as per circular Ref. ADMN/WR-97/Exe. dated12.07.2000 and disburse the subsistence allowance with all back wages andpass such further or other orders for the reliefs as stated therein.For Petitioner :Mr.M.Venkatachalapathy, S.C.For Mr.M.SriramFor Respondents :Mr.Sanjay Mohan forM/S. Ramasubramaniam Associates in WP.16588/98T.R.Sethuraman forMr.S.Srinivasan for Respondent in WP.15321/2001 https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner has filed W.P.No.16588 of 1998 challenging theproceedings of the first respondent dated 10.11.1997, under which, thefirst respondent has appointed one M.Raghuchander, Ex-Chairman, Goa StateAdministrative Tribunal, as the Inquiry Officer to inquire into thecharges framed against him and one V.Panchapakesan, Special PublicProsecutor, Government of Tamil Nadu as the Presenting Officer. 2. W.P.No.15321 of 2001 has been filed by the petitioner for adirection to the respondent, viz. Chairman cum Managing Director, HTLLimited, to revise the subsistence allowance in respect of the petitionerwith effect from 1.1.1997.3.1. The petitioner, who belong to socially and economically downtrodden community, viz. Scheduled Tribe, was originally appointed asElectrical Engineer in the respondent Company and later risen to the levelof Manager. A disciplinary proceedings was initiated against him, inquiryofficer was appointed and after inquiry, a second show cause notice wasissued. Aggrieved by the same, the petitioner has filed W.P.No.16588 of1998. 3.2. Pending the writ petition, it is admitted, as stated by thelearned senior counsel for the petitioner, that the petitioner was allowedto retire on attaining super annuation by the respondent Company on30.5.2002 and the payment of gratuity has not been made so far. It is thegrievance of the petitioner that during the period of suspension, he hasnot been paid the revised amount of subsistence allowance, based on thepay revision and therefore, he filed W.P.No.15321 of 2001.3.3. The petitioner was suspended on 31.7.1995. Even though he wassubsequently reinstated, there was a second suspension order on 7.5.1997and he was paid the subsistence allowance as per the Rules governing therespondent Company. 3.4. The respondent Company has filed the counter affidavit. It isstated that while it is true that the petitioner was placed undersuspension and he was paid subsistence allowance at the rate of 50% of hisbasic pay and D.A. and after a period of six months, the same wasincreased to 75%. Consequent to the wage revision on 1.1.1992, he wasalso paid the arrears of Rs.34,840/- on 27.2.1996 and the D.A. was revisedevery quarter. There was a subsequent wage revision which was giveneffect to from 1.1.1997, and since the petitioner had been suspendedsince 1995, wage revision, which has come into effect from 1.1.1997, wasnot applicable to him.4.1. Mr.Sanjay Mohan, learned counsel appearing for the respondentswould submit that due to the change in circumstances, the writ petitionsare not maintainable, as the respondent Company, which was originally a https://hcservices.ecourts.gov.in/hcservices/ Government of India undertaking at the time of filing of the writpetition, has been subsequently privatised and therefore, the respondentCompany is ceased to be an authority within the meaning of Article 12 ofthe Constitution of India and accordingly, the writ petition for enforcingthe right of employment was not maintainable. 4.2. To substantiate his contention, the learned counsel for therespondents relies upon the judgment of this Court in P.Subban v. H.T.L.Ltd. [2003 (3) LLN 1078], wherein this Court, while dealing with thepresent respondent Company, based on the change of circumstances, viz.privatisation of the said company, has held that the writ petition is notmaintainable as follows:"Having regard to all these aspects, I think it is a fit casewhere a writ can no longer be issued in view of the changedcircumstances, namely privatisation of the respondent.Therefore, I follow the course adopted in the similar WritPetition No.14425 of 1995, dated 19 July 2002 (the entire orderin this case is given in Para. 8 supra) and observe that the writpetition is no longer maintainable. The writ petition isaccordingly disposed of as not maintainable leaving it open tothe petitioner to workout his remedy before the appropriateforum."4.3. The learned counsel for the respondents would also rely upon asubsequent judgment of a Division bench dated 14.3.2007 in W.A.No.416 of1998 (Hindustan Teleprinters Employees Union v. Union of India & 3others), wherein, relying upon the decision of the judgment of this Courtin P.Subban v. H.T.L. Ltd. cited supra, dismissed the appeal in thefollowing words:"When the matter is taken up, the learned counsel for theappellant, brought to the notice of this Court, the judgmentreported in 2003 (3) LLN 1078 (P.Subban v. H.T.L. Ltd.), whereinit has been held that writ petition against a Government Companyafter privatisation is not maintainable. The relevant paragraphin the said judgment is as hereunder:"Having regard to all these aspects, I think it is afit case where a writ can no longer be issued in viewof the changed circumstances, namely privatisation ofthe respondent. Therefore, I follow the courseadopted in the similar Writ Petition No.14425 of 1995,dated 19 July 2002 (the entire order in this case isgiven in Para. 8 supra) and observe that the writpetition is no longer maintainable. The writ petitionis accordingly disposed of as not maintainable leavingit open to the petitioner to workout his remedy beforethe appropriate forum." https://hcservices.ecourts.gov.in/hcservices/

3. Following the above judgment, the present writ appealagainst the order of dismissal of the writ petition filedchallenging the notification issued by the 4th respondent isliable to be dismissed and it is accordingly dismissed. It isopen to the appellant to work out their remedy for exemptionunder the ESI Act before the appropriate forum."5. In the light of the judicial pronouncements that the writpetitions are not maintainable, there is no difficulty to come to theconclusion that the present writ petitions are liable to be dismissed onmaintainability grounds. 6.1. On factual situation, even though the learned senior counsel forthe petitioner states that the petitioner was allowed to retire on superannuation, withholding the payment of gratuity for which there is noprovision, the learned counsel for the respondent Company would submitthat the payment of gratuity is subject to the final decision in thedisciplinary proceedings. It is made clear that the petitioner is alwaysat liberty to workout his remedy in the manner known to law.6.2. As far as the subsistence allowance is concerned, as rightlystated in the counter, since the petitioner was under suspension from theyear 1995, wage revision, which was given effect to from 1.1.1997, is notapplicable to the petitioner and accordingly, there cannot be any revisionof subsistence allowance. In the facts and circumstances of the case, the writ petitions standdismissed on the ground of maintainability as well as on merit, with theabove observation. No costs. Consequently, WMP No.25007 of 1995 is alsodismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkplToChairman-cum-Managing Director,HTL Limited, Guindy, Chennai - 2.1 cc To Mr.S.Ramasubramaniam Associates, Advocate, SR.44489.1 cc To Mr.S.Srinivasan, Advocate, SR.44673.1 cc To Mr.M.Sriram, Advocate, SR.44137.W.P.Nos.16588 of 1998 & 15321 of 2001. VC(CO)RVL 01.08.2007