The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Electricity Board, Salem v. S.Duraisamy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.4.2009CORAM:THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANWrit Appeal No.924 of 2008& M.P.No.1 of 20081. The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Electricity Board, Salem.2. The Chief Engineer/Personnel, Tamil Nadu Electricity Board, No.800, Annasalai, Chennai-600 002.3. The Executive Engineer, Operation and Maintenance/Salem East, Tamil Nadu Electricity Board, Salem. .. Appellantsvs.S.Duraisamy .. RespondentWrit Appeal against the order dated 11.9.2007 passed by thelearned single Judge in Writ Petition No.9883 of 2007 on the file ofthis Court.WP No.9883/2007: Petition presented to this Court to issue awrit of Certiorari calling for the records of the first respondent inMemo No.319-4/Adm.2/A2/F-1 (Select list) 2007, dated 5.2.2007 andquash the same.For appellants : Mr.Parthiban PadmanabanFor respondent : Mr.K.SasindranJUDGMENT(The Judgment of the Court delivered by S.J.Mukhopadhaya,J)The respondent-writ petitioner, working as Commercial Assistant https://hcservices.ecourts.gov.in/hcservices/ in Salem Electricity Distribution Circle of the Tamil NaduElectricity Board (for short, 'the TNEB'), along with 30 persons,were transferred to the post of Wireman, vide order, dated 5.2.2007issued by the first appellant-Superintending Engineer, SalemElectricity Distribution Circle, as per B.P.No.256, dated 12.12.2005.The said order dated 5.2.2007 having been set aside by the learnedsingle Judge, the present Writ Appeal was preferred by theappellants-TNEB. 2. The case lies on a narrow compass as evident from therelevant facts stated hereunder.3. In the Electricity Distribution Circle of the appellants-TNEB, in the Regular Work Establishment (commonly known as "R.W.E")Category, the Helpers used to be promoted as Commercial Assistants,Line Inspectors, Foremen Grade-I. Certain workmen also used to bepromoted as Wiremen, Line Inspectors, etc. The workers' Unionrequested to introduce separate (double) channels of promotion toR.W.E. category of Electricity Distribution Circle, on the basis ofwhich, a Memorandum of Settlement was arrived under Section 12(3) ofthe Industrial Disputes Act, between the TNEB and its workmen, on15.10.2005 on revision of workload/revision of wages and orders wereissued, vide B.P.(Ch).No.219 (Sectt. Branch), dated 16.10.2005,wherein, the following terms were included in the statements:"Based on the request of the Unions, it isagreed to reintroduce the double channel ofpromotion in the R.W.E. category. The existingemployees may be given one more opportunity to goeither to choose the line of promotion asCommercial Assistant, Commercial Inspector andForeman or Wireman, Line Inspector and Foremanbased on their seniority in the category ofHelper".4. Subsequently, the TNEB, vide Per.B.P.(Ch).No.256(Administrative Branch), dated 12.12.2005, took into considerationthe demand of the majority Unions, based on the above settlement,called for options and issued the orders and the relevant portion ofthe order dated 12.12.2005 is quoted hereunder:"2. After careful consideration of thedemand of the majority unions and based on theabove settlement provisions, the following ordersare issued:i) On and from the date of settlement(15.10.05) the line of promotion from the R.W.E.categories in Distribution Circles will beHelper-Commercial Assistant-Commercial Inspector- https://hcservices.ecourts.gov.in/hcservices/ Foreman I Grade AND Helper-Wireman-LineInspector-Foreman I Grade;ii) Consequent on the re-introduction ofdouble channel of promotion ordered, there willbe no change in the existing condition,qualification prescribed in the ServiceRegulations/orders in force for promotion to thehigher post;iii) Consequent on the above, one moreopportunity shall be allowed to the existingemployees to choose any one of the line ofpromotion on their own choice by exercising anoption. The existing employee, except Helpersshould exercise the option within one month fromthe date of this order. The Helpers shallexercise their option at the time of theirpromotion. The option once exercised shall befinal. The option shall be pasted in the ServiceBook of the employee duly making an entry in theService Book. If no option is received from theexisting Commercial Assistant before thestipulated date, such Commercial Assistant willbe deemed to have opted for Commercial Assistant-Commercial Inspector-Foreman I Grade line.Similarly if no option is received from theexisting wireman before the stipulated date, suchwireman will be deemed to have opted for wireman-Line Inspector-Foreman I Grade line;iv) Consequent on the separation ofcategories of Commercial Assistant/CommercialInspector and Wireman/Line Inspector from theexisting Common seniority, the seniority ofWireman, Commercial Assistant, CommercialInspector and Line Inspector have to be refixedin the present category based on their seniorityin the post of Helper, among the persons in thesame panel in which the individual was originallypromoted. However, it should be ensured thatconsequent on the revision of seniority, thealready overlooked persons do not get anyunintended benefits;v) Consequent on the refixation ofseniority due to revised option exercised by theindividuals, the Superintending Engineers of theDistribution Circles are directed to finalise andpublish a provisional seniority list in theirrespective Distribution Circle afresh. Theobjection/representation if any to/on the revisedseniority, may be obtained within a stipulated https://hcservices.ecourts.gov.in/hcservices/ time by serving a copy of seniority list to eachand every individual by obtainingacknowledgement. In case no objection is receivedwithin the stipulated time, it would be presumedthat the employees are nothing to say in therevised seniority list and the revised listshould be treated as final and no representationon the above subject would be entertainedthereafter;vi) Consequent on the above change in theline of promotion, rectification of pay anomaly,if any, of senior in R.W.E. category getting lesspay than the junior will not be considered."5. The respondent-writ petitioner, by representation dated28.4.2006, thereafter, submitted his option, the English version ofwhich reads as follows:"FromS.DuraisamySR/2637Commercial AssistantO & M/KaripattyToThe Executive EngineerO & M/EastSalem-636 014.Through Proper ChannelSir,Sub: Electricity-Karipatty O & M-Promotion as Line Inspector- singlechannel-requested-Reg.----I am working as Commercial Assistant inKaripatty O & M Section. I request I may bepromoted as Line Inspector instead of CommercialAssistant Please.Yours faithfully,Sd/- ......S.Duraisamy.Date: 28.4.06Station: Salem."6. After the aforesaid option, the first appellant-Superintending Engineer issued the impugned order dated 5.2.2007 andalong with the respondent-writ petitioner, 30 other Commercial https://hcservices.ecourts.gov.in/hcservices/ Assistants were posted as Wireman in order to take charge.7. The learned single Judge, by the impugned common order dated11.9.2007 in W.P.Nos.5419 and 9883 of 2007, referring to thesettlement reached under Section 12(3) of the Industrial DisputesAct, held that the respondent-writ petitioner opted for promotion tothe post of Line Inspector and that there was no occasion to transferhim as Wireman and thereby, set aside the impugned order dated5.2.2007.8. Learned Standing Counsel appearing on behalf of theappellants-TNEB, while submitting that the option letter of the writpetitioner, dated 28.4.2006, has not been properly couched, as in theplace of promotion, he should have opted for the other channel ofpromotion, submitted that the respondent-writ petitioner can bepromoted to the post of Line Inspector after his posting in the otherchannel of promotion, i.e. Wireman.9. Per contra, the stand taken by learned counsel for therespondent-writ petitioner is that the respondent never opted for thepost of Wireman and merely opted for promotion to the higher post ofLine Inspector and therefore, the posting order as Wireman wasagainst the settlement under Section 12(3) of the Industrial DisputesAct.10. We have heard the learned counsel appearing for the partiesand perused the records. 11. From the relevant records, it would be evident that in theR.W.E., in the Distribution Circle, the base post is Helper. From thesaid post, the persons used to get promotion as Commercial Assistant;thereafter, Commercial Inspector and next to the post of ForemanGrade-I. The Helpers also used to get promotion in another Channeli.e. to the post of Wireman and thereafter, to the post of LineInspector and thereafter to the post of Foreman Grade-I. The oldsystem of separate promotion in the aforesaid two different channels,was given a go-bye and a common promotion used to be given. Forexample, a person who was promoted from the post of CommercialAssistant, was also entitled for promotion to the post of LineInspector; the separate Channel for promotion having been abolished,and therefore, subsequently, the Union wanted re-introduction ofseparate channel of promotion to the R.W.E. categories inDistribution Circle, which was on introduction, provides thefollowing channel: https://hcservices.ecourts.gov.in/hcservices/ (a)First channel of promotion,(hereinafter called as Channel A): HelperCommercial AssistantCommercial InspectorForeman Grade-I(b) The other channel of promotion,(hereinafter called as Channel B:HelperWiremanLine InspectorForeman Grade-I12. Admittedly, the respondent-writ petitioner was functioningas Commercial Assistant (the post in Channel-A, which was equivalentto the post of Wireman in Channel-B). After the letter dated12.12.2005, the respondent-writ petitioner opted for the otherChannel, i.e. Channel-B, by representation dated 28.4.2006, whereby,he requested to promote him to the post of Line Inspector, i.e. thepost in the other Channel, i.e. Channel-B. Therefore, it will beevident that the writ petitioner opted for the other Channel and asper the Circular/letter dated 12.12.2005, a revised seniority listwas to be prepared for two separate Channels, for the purpose ofpromotion to the higher post in the respective Channels andtherefore, the appellants-TNEB authorities posted the writ petitionerto the post of Wireman by the impugned order dated 5.2.2007. Theaforesaid aspects have not been noticed by the learned single Judge,nor discussed in the impugned common order.13. From the facts aforesaid and the submissions made by thelearned counsel appearing for the parties, it would be evident thatthe respondent-writ petitioner has opted for promotion to the post ofLine Inspector, i.e. option for the other Channel, i.e. Channel-B,and the appellants-authorities of the TNEB rightly posted him to thepost of Wireman and thereby, there was no occasion to interfere withthe impugned order dated 5.2.2007, which being completely inconsonance with the settlement under Section 12(3) of the IndustrialDisputes Act, and thereby, interference with the same was uncalledfor. https://hcservices.ecourts.gov.in/hcservices/

14. We accordingly set aside the impugned order dated 11.9.2007passed by the learned single Judge in Writ Petition No.9883 of 2007and allow the Writ Appeal. No costs. The Miscellaneous Petition isclosed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcsTo1. The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Electricity Board, Salem.2. The Chief Engineer/Personnel, Tamil Nadu Electricity Board, No.800, Annasalai, Chennai-600 002.3. The Executive Engineer, Operation and Maintenance/Salem East, Tamil Nadu Electricity Board, Salem.+1cc to Mr.B.Sekar, SC for 18754+1cc to Mr.K.Sasindran, Advocate Sr 18437NM(CO)km/6.5.Writ Appeal No.924 of 2008