C.Thirugnanasambandam v. Neyveli Lignite Corporation Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.10.2008CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.5453 of 2001 C.Thirugnanasambandam .. Petitioner vs.

Neyveli Lignite Corporation Ltd., rep. by its Chairman Neyveli-607 8012. Director Personnel Neyveli Lignite Corporation Ltd., Neyveli-607 8013. General Manager (Mines-II) Neyveli Lignite Corporation Ltd., Neyveli-607 8014. The Chief Personnel Manager Neyveli Lignite Corporation Ltd., Neyveli-607 801 .. RespondentsThis writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records from therespondents relating to the impugned proceedings No.8090/REI-2/GM/MII/98, dated 17.11.1998 of the third respondent and theconsequential letter, dated 4.9.2000 of the Chief PersonnelManager to the petitioner concerned, quash the said proceedingsof the third respondent dated 17.11.1998, bearingProcs. No.8090/REI-2/GM/MII/98 (Ex-A) and the consequential letterof the fourth respondent dated 4.9.2000 bearingLr.No.CORP/P&A/550/8772/96 (Ex-B) and consequently direct therespondents to revise the petitioner's pay with effect from1.1.1992 as per proceedings No.06/EXE/WR/96, dated 5.4.1996, ofthe Chief General Manager (P&A) and pay to the petitioner arrearsthereof with consequential additional PF and gratuity withinterest at 18% p.a. award costs. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.K.Srinivasamurthy for M/s.Row & Reddy For Respondents : Mr.N.A.K.SarmaO R D E RHeard the learned counsels appearing for the partiesconcerned.

The facts, in a nutshell, are as follows: The petitioner, who is a B.E.(Civil) graduate, had joined inthe services of the Neyveli Lignite Corporation Limited, on4.2.1987, as per the order of recruitment, dated 8.1.1987, issuedby the second respondent. On his successful completion of thetraining, he was confirmed in the post of Assistant ExecutiveEngineer, vide proceedings, dated 14.6.1989, issued by the ChiefPersonnel Manager, the fourth respondent herein. Later, by theproceedings, dated 3.11.1992, issued by the second respondent, the petitioner had been promoted as an Executive Engineer (Civil)and he was posted to Mines-II. While so, the respondents hadintroduced a scheme, by the proceedings, dated 18.2.1994, for thegranting of Extra Ordinary Leave to the Executives of therespondent Corporation, belonging to the various engineeringdisciplines at E3 and E4 levels and the civil engineers at alllevels, in order to enable them to apply and secure employmentabroad, either through the Overseas Man Power Corporation limitedor through the other available sources.

It has been further stated that under the said scheme, the period of Extra Ordinary Leave shall not exceed two years. However, in exceptional cases, the extension could be granted bythe Chairman of the Neyveli Lignite Corporation Limited, upto oneyear, subject to certain conditions. Clause 10 of the scheme hadspecifically provided that the Executives, who avail the ExtraOrdinary Leave under the said scheme and who did not rejoin dutyon the date of the expiry of the leave granted/extended to them, shall be deemed to have voluntarily resigned their appointmentsin the respondent Corporation, with effect from his/her date ofproceeding on leave. Thus, the master and servant relationshipbetween the respondent Corporation and the concerned executivecomes to an end automatically, on the failure of the concernedexecutive to rejoin duty on the specified date of the expiry of Extra Ordinary Leave. https://hcservices.ecourts.gov.in/hcservices/

It has been further stated that the petitioner had beensanctioned Extra Ordinary Leave by the Chief General Manager(P&A), vide his proceedings, dated 17.10.1995, to enable thepetitioner to take up employment abroad. Clause 8 of the saidproceedings had stated that if the petitioner does not rejoinduty on the date of the expiry of the leave granted to him, heshall be deemed to have voluntarily resigned his appointment inthe respondent Corporation, with effect from the date of hisproceeding on leave, after the recovery of three months pay andany other amount due from him would be recovered from theoutstanding amount payable to him from the Neyveli LigniteCorporation Limited. Even though the scheme did not provide forany recovery, the proceedings, dated 17.10.1995, had authorisedsuch recovery. Such a provision in the proceedings isinconsistent with the scheme and therefore, it is illegal.

The petitioner has further stated that he was sanctionedExtra Ordinary Leave, initially, for a period of 2 years, witheffect from 17.10.1995, or the date of release whichever islater. Pursuant to the proceedings, dated 17.10.1995, the thirdrespondent, by a memo, dated 19.10.1995, had relieved thepetitioner from his duties in the respondent Corporation, on19.10.1995, and the petitioner had joined the foreign employerimmediately thereafter. Since the foreign employer had requestedthe petitioner to seek for extension of Extra Ordinary Leave forone more year, as the work entrusted to him had not beencompleted, the petitioner had, by a letter, dated 19.5.1997, hadsought for extension of Extra Ordinary Leave for a further periodof one year, as he was entitled to such an extension, under Clause 2 of the scheme. However, the then Chief General Manager(P&A) had declined to grant the extension of leave by his memo, dated 5.8.1997. Further, he had threatened the petitioner withdisciplinary action if the petitioner did not join duty, on19.10.1997, even though he did not have the authority orjurisdiction to initiate such disciplinary action under thescheme. Thereafter, by a letter, dated 23.2.1998, and theproceedings, dated 17.11.1998, the General Manager, Mines-II, thethird respondent herein, had informed the petitioner that anamount equivalent to three months pay and any other amount thatwould be due from the petitioner would be recovered from theoutstanding amount payable to him. The proceedings of the thirdrespondent, dated 17.11.1998, is arbitrary, and illegal andtherefore, liable to be set aside.

In the counter affidavit filed on behalf of therespondents, the averments made by the petitioner had beendenied. It has been stated that the petitioner had joined theservice of the respondent Corporation, as a Graduate Engineer https://hcservices.ecourts.gov.in/hcservices/ (Trainee), in the year 1987. Thereafter, he was promoted as an Executive Engineer in the year 1992. In the year 1994, therespondent Corporation had introduced the scheme for grantingExtra Ordinary Leave, without pay, for a period of two years forthe Executives of the specified grades for taking up employmentabroad. For the duration of the Extra Ordinary Leave, theindividual was ineligible for pay and allowances. Though theperiod of leave was not treated as a break-in-service, it is notcounted for increment, leave entitlement, promotion, Providentfund Contributions, etc. The duration of such leave was not toexceed two years, in normal circumstances.

It has also been stated that the petitioner had appliedfor Extra Ordinary Leave, in accordance with the scheme and bythe proceedings, dated 17.10.1995, he was sanctioned ExtraOrdinary Leave, as per the terms stated therein, for a period oftwo years from 17.10.1995 or from the date of being relieved, whichever is later. The petitioner had been relieved, on19.10.1995. On expiry of the two years period, the petitioner hadsought for extension of the leave. The request had been refusedby the respondent Corporation by the proceedings, dated 5.8.1997.He was also informed that in case he did not report for duty onthe expiry of leave, namely, on 19.10.1997, suitable action wouldbe taken against him. However, the petitioner did not rejoinduty, on 19.10.1997. Instead, he had remained absent. Due to theprolonged absence, the petitioner was treated as "being no longerinterested in rejoining the service" by the proceedings, dated17.11.1998. Accordingly, the petitioner's service in therespondent Corporation had come to an end, as if he hadvoluntarily deserted his post, with effect from 19.10.1995.Thereafter, the terminal benefits had been released to himtreating it to be a case of voluntary resignation. The petitionerhad received the dues without any protest. Though he had sent hisresignation in the month of December, 1998, it has not beenaccepted for the reason that at that time the proceedings, dated17.11.1998, had already been issued terminating his service.

It has also been stated that the pay and allowance of the Executives of the respondent Corporation was revised by theproceedings, dated 5.4.1996, by giving it retrospective effectfrom 1.1.1992. While the benefit of the pay revision was grantedto the Executives, who had left the Corporation after 1.1.1992,on resignation or on retirement, the same was inadmissible tothose leaving the services without permission or notice and forthose who were in continuous unauthorised absence. In the case ofthe petitioner his services had been severed, with effect from19.10.1995. The petitioner had not left the service of the Corporation due to resignation. As such, the petitioner did notfall within the purview of Clause 15(iii) of the proceedings, https://hcservices.ecourts.gov.in/hcservices/ dated 5.4.1996 and therefore, he was not entitled to the arrearsof pay and other benefits based on the revised scales. Thepetitioner's request for treating him as a case of 'voluntaryresignation' and thereby, granting him all the benefits of payrevision was rejected by the proceedings, dated 4.9.2000, whichis under challenge in the present writ petition. The contentionof the petitioner that his case should have been considered as a'voluntary resignation' is without merit. Admittedly, thepetitioner did not leave the service of the respondentCorporation on acceptance of resignation. In fact, the petitionerdid not submit any resignation letter, before his services weresevered nor has there been a formal resignation submitted by him. As such, the petitioner is not entitled to be treated as a caseof 'voluntary resignation'.

It has been further stated that the impugned proceedings, which is dated 17.11.1998, had been received by the petitioner inthe month of November, 1998 and it has been clearly stated thatit was an order removing the petitioner from service. In spite ofhaving received the impugned proceedings in the month of November, 1998 and after the petitioner had received the terminalbenefits granted to him, he had filed the writ petition forquashing the impugned order, dated 17.11.1998. Having acceptedthe terminal benefits without any protest, he cannot demandfurther payments said to be due from the respondent Corporation. The petitioner cannot be allowed to approbate and reprobate atthe same time. Admittedly, the petitioner did not rejoin duty onthe expiry of the Extra Ordinary Leave. Consequently, theimpugned proceedings, dated 17.11.1998, came to be issued. Pursuant to the impugned proceedings, the petitioner had receivedthe entire terminal benefits reckoning his services upto the year1995. Therefore, the petitioner cannot seek to quash the verysame order, dated 17.11.1998, under which his service had beensevered and he has been paid all the benefits due to him. Whensuch inconsistent pleas are raised, the writ petition deserves tobe dismissed. Further, the writ petition is liable to bedismissed on the ground of laches. The impugned proceedingshaving been received by the petitioner in the month of November,1998, the writ petition has been filed before this Court in theyear, 2001. The orders for revision of pay and allowances issuedin the year, 1996, with effect from 1.1.1992, does not apply tothe petitioner as he had not left the services of the Corporationdue to 'resignation'. His services were severed due to continuosunauthorised absence. Admittedly, on expiry of the Extra OrdinaryLeave, the petitioner did not rejoin duty, on 19.10.1997 or atany time thereafter. The petitioner's case falls under clause 15(iii) (c) of the proceedings, dated 5.4.1996. For the reasonsstated above, the writ petition has no merits and therefore, itis liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/

The learned counsel appearing for the petitioner hadsubmitted that the petitioner was entitled for an extension ofthe Extra Ordinary Leave, by one year. If such an extension hadbeen refused and if the petitioner did not rejoin duty on theexpiry of the initial period of leave, he would be deemed to havevoluntarily resigned from service, without attracting anydisciplinary proceedings and without any liability to pay anyamount towards the alleged notice period. The respondents hadfailed to see that there is no provision under the scheme for anynotice, as in the case of resignation, as per the existing rules. The scheme framed for granting of Extra Ordinary Leave is anexception to the normal rules. The scheme was an offer and on itsacceptance by the petitioner, by obtaining Extra Ordinary Leave, it had become a binding contract and the respondents are estoppedfrom acting in any manner contrary to the terms of the contractor modifying them, unilaterally. According to the terms of thescheme, the petitioner had not committed any misconduct by notreporting for duty, on 19.10.1997. Under the scheme and the termsof the order of sanction of the Extra Ordinary Leave, therelationship of master and servant, between the respondentCorporation and the petitioner, had come to an end, with effectfrom 19.10.1995.

It has been further stated that the allegations made bythe respondents that the petitioner was on unauthorised absence, after the expiry of the Extra Ordinary Leave, cannot be sustaineddue to the fact that the petitioner's absence should have beentaken to be a case of deemed resignation, in accordance with theterms of the scheme. Even otherwise, the impugned proceedings isarbitrary and illegal as it is contrary to the terms of thescheme and violative of the principles of natural justice. Noopportunity had been given to the petitioner to defend himself. The impugned order, dated 17.11.1998, is inconsistent with thethird respondent's letter, dated 23.2.1998, wherein he had notedthat the petitioner's failure to rejoin duty amounts to voluntaryresignation. Therefore, there is no question of initiating anydisciplinary action against the petitioner under the scheme for Extra Ordinary Leave. The petitioner is deemed to have resignedfrom service, with effect from 19.10.1995. From the said date, the petitioner would not be an employee of the respondentCorporation. However, the petitioner had submitted a resignationletter, dated 11.8.1998, addressed to the second respondent, byway of abundant caution. The submission of the resignation letterby the petitioner by itself would not have the effect of denyingthe rights otherwise vested in the petitioner nor can it attractany penalty. Since no reply had been received by the petitioner, he had addressed another letter, dated 6.12.1998, to the secondrespondent, with a copy marked to the third respondent, https://hcservices.ecourts.gov.in/hcservices/ requesting them to settle his terminal benefits. No favourablereply had been received by the petitioner. However, by theproceedings, dated 2.1.1999, the third respondent had stated thatthe petitioner had been removed from service as the resignationletter, dated 11.8.1998, addressed to the second respondent hadnot been received by him. Subsequently, the petitioner hadreceived another letter, dated 18.3.1999, from the SeniorPersonnel Manager (P&A), purporting to reject the petitioner'sresignation letter even though he did not have the jurisdictionor authority to do so. While so, the third respondent, by hisproceedings, dated 8.9.1999, purported to accord the sanction forpayment of Rs.30,010/- towards the gratuity payable to thepetitioner.

It has been further stated that while the petitioner wason Extra Ordinary Leave, the then Chief General Manager (P&A)had, by his proceedings No.06/EXE/WR/96, dated 5.4.1996, revisedthe pay scales of all the Executives, with retrospective effectfrom 1.1.1992. Under the said proceedings, all the Executives, who were on the rolls of the Corporation, as on 31.12.1991,including those who have resigned after 1.1.1992, would beeligible for fixation of the scales of pay, as set out in theproceedings. As the petitioner was an Executive on the rolls ofthe respondent Corporation, on 31.12.1991, and deemed to haveresigned after 1.1.1992, he is entitled for the revision of payand the arrears thereof, from 1.1.1992 to 19.10.1995, when he hadbeen relieved on Extra Ordinary Leave. The petitioner came toknow about the proceedings revising the pay scales, only when hehad visited Neyveli, on 11.8.1998, to submit his resignationletter.

With regard to the issue of latches, the learned counselappearing for the petitioner had relied on the decision of the Supreme Court in HINDUSTAN PETROLEUM CORPN. LTD Vs. DOLLY DAS((1999) 4 SCC 450), wherein it was held that the delay in filingthe writ petition, would by itself, may not defeat thepetitioner's claim for relief, unless the position of therespondent has been irretrievably altered or he has been put toundue hardship.

Per contra, the contention raised on behalf of therespondents is that since the claim made by the petitioner forthe arrears of salary and other retiral benefits arises out ofthe letter, dated 17.11.1998, issued on behalf of therespondents, the reliefs sought for by the petitioner in thepresent writ petition to quash the said letter is not proper. Inreply to the said contention, the learned counsel appearing forthe petitioner had submitted that this Court is empowered, under Article 226 of the Constitution of India, to mould the reliefs tobe granted, while deciding the matter in favour of thepetitioner.

In view of the submissions made by the learned counselsappearing for the parties concerned and on a perusal of therecords available before this Court, it is clear that therespondent Corporation cannot be permitted to deny the amountsdue to the petitioner, under the revised scale of pay, witheffect from 1.1.1992, as well as the retiral benefits due to himbased on such revision. It is found that the revised scales ofpay had been fixed by the respondent Corporation, by itsproceedings No.06/EXE/WR/96, dated 5.4.1996, applicable to itsExecutives, who were on the rolls of the petitioner Corporation, https://hcservices.ecourts.gov.in/hcservices/ as on 31.12.1991. It had also been stated that the Executives, who had left the services of the Corporation, on or after1.1.1992, due to resignation/retirement (including voluntaryretirement) and their legal heirs, in case of their death, wouldbe paid the arrears on account of the pay revision. The benefitof pay revision, however, would not be allowed to the Executiveswho had left the services of the Corporation on the ground of a)Dismissal b) Leaving the service without permission or notice c)Continuous unauthorised absence. It cannot be said that thepetitioner had unauthorisedly absented himself from duty, from19.10.1997, thereby committing misconduct.

It is not in dispute that the petitioner had beengranted Extra Ordinary Leave by the respondent Corporation, fortwo years, from 19.10.1995. Accordingly, the petitioner had beenon Extra Ordinary Leave, as sanctioned by the respondentCorporation, upto 19.10.1997. According to the Extra OrdinaryLeave Scheme framed by the respondent Corporation, if an Executive, who avails the leave under the said scheme, does notrejoin duty on the date of the expiry of the leave granted tohim, he shall be deemed to have voluntarily resigned hisappointment in the respondent Corporation, with effect from thedate of his proceeding on leave. Therefore, the absence of thepetitioner from duty, on or after 19.10.1997, cannot be termed asa misconduct, as the petitioner would be deemed to have resignedfrom his service under the respondent Corporation. Accordingly, no disciplinary action could have been initiated against thepetitioner for his alleged unauthorised absence from duty after19.10.1997.

Further, there is no dispute with regard to the factthat the petitioner had been in the service of the respondentCorporation on 1.1.1992, when the respondent Corporation hadissued the proceedings revising the pay scales including theallowances and other benefits for its executives. Therefore, itcannot be said that the petitioner had left the service of therespondent Corporation without permission or notice, as alleged. Once the right had accrued to the petitioner from 1.1.1992, itcannot be said that the revision of pay scales would not beapplicable to the petitioner. According to the terms of thescheme, which is a binding contract between the petitioner andthe respondent Corporation, the petitioner cannot be denied therevised of pay scales by issuing the impugned proceedings, contrary to the terms and conditions laid down under the scheme. Therefore, due to the fact that the petitioner would be deemed tohave voluntarily resigned from service from 19.10.1995, nofurther act is necessary from the respondent to endorse orauthorise his resignation. After 19.10.1995, there would be nomaster and servant relationship between the respondent https://hcservices.ecourts.gov.in/hcservices/ Corporation and the petitioner. Once it is stated that it wouldbe a 'deemed resignation', there would be no need for thepetitioner to submit a further resignation letter nor wouldthere be any need for the respondent to accept the same.

The contention raised on behalf of the respondents thatonce the petitioner had availed the benefits granted to him onthe basis of the proceedings, dated 17.11.1998, he cannot bepermitted to seek for further benefits thereafter, by challengingthe said proceedings, cannot be said to be correct. But for theproceedings, dated 17.11.1998, issued on behalf of the respondentCorporation, the petitioner would have continued in service. Further, the resignation letter submitted by the petitioner hadnot been accepted by the respondent Corporation as correct andvalid.

The claim of the respondent Corporation that the case ofthe petitioner would fall under clause 15(iii)(c) of theproceedings issued by the respondent Corporation, on 5.4.1996, isnot acceptable. Once the petitioner is deemed to have voluntarilyresigned from service, on 19.10.1995, the question of hisunauthorised absence thereafter, would not arise. Therefore, itcannot be said that the petitioner had committed a misconduct byhis unauthorised absence nor can it be said that he had left theservice without permission or notice, in accordance with clause15(iii) of the proceedings, dated 5.4.1996. Hence, this Courtdoes not find any serious inconsistency in the reliefs sought forby the petitioner, as alleged by the learned counsel appearingfor the respondents.

In such circumstances, this Court is not persuaded bythe contentions raised on behalf of the respondent Corporation todeny the petitioner the arrears of salary due to him, inaccordance with the revised pay scale, effective from 1.1.1992,based on the proceedings of the respondent, dated 5.4.1996, norcan the respondent Corporation deny the payment of retiralbenefits due to the petitioner till 19.10.1995, when thepetitioner is deemed to have resigned from his service under therespondent Corporation. Further, from the facts of the case, thecontention raised on behalf of the respondent Corporation, thatthere has been an inordinate delay or latches on the part of thepetitioner to approach this Court, is not acceptable. https://hcservices.ecourts.gov.in/hcservices/