V.Chandra v. The Chairman cum Managing Director, Tamil Nadu Cements Corporation Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.12.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition No.29037 of 2008V.Chandra,Selection Grade Personal Assistant,Tamil Nadu Cements Corporation Ltd.,No.735, Anna Salai,Chennai. ... Petitioner vs.1.The Chairman cum Managing Director, Tamil Nadu Cements Corporation Ltd., No.735, Anna Salai, Chennai.2.The Manager (Personnel & Administration), Tamil Nadu Cements Corporation Ltd., No.735, Anna Salai, Chennai.3.Mr.K.Arjunan, The Manager (Materials), Tamil Nadu Cements Corporation Ltd., No.735, Anna Salai, Chennai.4.Mr.K.Meyyanathan, Senior Company Secretary & Public Information Officer, Tamil Nadu Cements Corporation Ltd., No.735, Anna Salai, Chennai.5.Mrs.K.Sasikala, Personal Secretary, Tamil Nadu Cements Corporation Ltd., No.735, Anna Salai, Chennai.6.Mrs.V.Sankari, Personal Secretary, Tamil Nadu Cements Corporation Ltd., No.735, Anna Salai, Chennai. https://hcservices.ecourts.gov.in/hcservices/

7.Mrs.R.Ezhil Selvi, Personal Secretary, Tamil Nadu Cements Corporation Ltd., No.735, Anna Salai, Chennai. ... RespondentsWrit Petition is filed under Article 226 of the Constitution ofIndia praying to issue a Writ of Certiorarified Mandamus, callingfor the records of the second respondent in proceedings RCNo.5340/A1/2008 dated 29.7.2008 and to quash the same and direct therespondents 1 and 2 to conduct fresh Selection for promotion to thepost of Personal Secretary in TANCEM Registered Office, Chennaiafter complying with the law laid down by the Supreme Court reportedin (2008)8 SCC 725 para 41.For Petitioner : Mr.S.Sathiaseelan For Respondents : Mr.Karthik for M/s.T.S.Gopalan & Co. for respondents 1 to 4 : No appearance for R5 and R6O R D E RThe Writ Petition is filed praying to issue a Writ ofCertiorarified Mandamus, calling for the records of the secondrespondent in proceedings RC No.5340/A1/2008 dated 29.7.2008 and toquash the same and direct the respondents 1 and 2 to conduct freshSelection for promotion to the post of Personal Secretary in TANCEMRegistered Office, Chennai after complying with the law laid down bythe Supreme Court reported in (2008)8 SCC 725 para 41.2. The petitioner challenges the impugned proceedings dated29.7.2008 whereby and whereunder, respondents 5 to 7 were promotedfrom the post of Selection Grade Personal Assistant to the post ofPersonal Secretary. The case of the petitioner is that she is asenior to the respondents 5 to 7 in service and her claim forpromotion to the post of Personal Secretary was rejected for thefollowing reasons:-(i) The pendency of the charge memo RC.No.4180/A1/2008 dated 9.6.2008.(ii) The complaint given by the petitioner against the fourthrespondent Thiru K.Meyyanathan, Senior Company Secretary andPublic Information Officer that he had committed sexual harassmentin the cabin on 14.8.2000. The said Meyyanathan is one of theMembers sitting in the Department Promotion Committee andtherefore, the proceedings of the Committee rejecting thepetitioner's claim is tainted by bias and apparent personal https://hcservices.ecourts.gov.in/hcservices/ prejudice. (iii) The Department has in a letter taken the plea that petitionerhas suffered adverse remarks. Petitioner, however, contends thatthe so-called adverse remarks have not been communicated.Therefore, the rejection of the petitioner's claim for promotionwas based on material which is not furnished to the petitioner.Therefore, the proceedings of the Department Promotion Committeeis arbitrary and contrary to law. Petitioner's counsel relies upon the Apex Court's decision inDev Dutt – vs. - Union of India and others reported in (2008)8Supreme Court Cases 725 to support his contention No.(iii) as above.The Apex Court held in para 41 as follows:-"41. In our opinion, non-communication ofentries in the annual confidential report of apublic servant, whether he is in civil, judicial,police or any other service (other than themilitary), certainly has civil consequencesbecause it may affect his chances for promotion orget other benefits (as already discussed above).Hence, such non-communication would be arbitrary,and as such violative of Article 14 of theConstitution."It was, therefore, pleaded that since the adverse entries have notbeen communicated, the petitioner's non-selection is bad.3. Respondents have been noticed. Respondents 1 to 4 arerepresented by a counsel Thiru Karthick. Respondents 5 and 6 wereserved, but none appeared on their behalf. Even though 7th respondentwas not served, after hearing the counsel for the petitioner and thecounsel for the respondents 1 to 4 and in view of the orders that isto be passed whereby, the selection of respondents 5 to 7 is notdisturbed, notice to 7th respondent is dispensed with.4. Mr.Karthick, learned counsel for the official respondents 1to 4, brought the records of the Department Promotion Committeeand the service records of the petitioner. He submitted that basedon the comparative merits of the candidates who were eligible to beconsidered for promotion to the post of Personal Secretary, therespondents 5 to 7 were selected and the petitioner's case was notconsidered as a charge memo issued against her and the departmentproceedings are pending. The said charge memo has, however, beenchallenged in Writ Petition No.2381 of 2001 and the disciplinaryproceedings has been stayed by this Court. 5. Learned counsel for the official respondents 1 to 4 reliedupon rule 2.8 of the Service Rules which reads as follows (as https://hcservices.ecourts.gov.in/hcservices/ mentioned in the counter-affidavit):-"(a) For all categories of posts, the basiccriteria for promotion will be merit, suitability,efficiency and past performance and senioritybeing taken into consideration only if otherfactors are equal.(b) The management may lay down suitablecriteria to determine merit, suitability andefficiency by assessing the regular work of thestaff member/officer and by means of written/oraltests, performance appraisals, interview, etc."The Department Promotion Committee considered the merits,suitability, efficiency and past performance of all the candidatesand based on the comparative merits, respondents 5 to 7 wereselected, rejecting the claim of the petitioner. He contended thatthe Department Promotion Committee was guided by the Rule as above.The respondents produced the service records of the petitioner toshow that her service record belies her statement of unblemishedservice. 6. With regard to the plea of bias based on the complaint givenby the petitioner against the fourth respondent Thiru K.Meyyanathan,Senior Company Secretary that he had committed sexual harassment inthe cabin on 14.8.2000, learned counsel for the official respondents1 to 4 submitted that the fourth respondent Mr.Meyyanathan, as theSenior Company Secretary and in the absence of Manager (Finance) hehad to sit in the Department Promotion Committee along with otherMembers to consider the selection of several candidates in differentcategory. The Department Promotion Committee's decision was takenby a collective body and therefore, the question of bias orprejudice as has been stated by the petitioner is not justified. Inany event, the complaint as above was dismissed by a competentCommittee.7. Insofar as the plea with regard to the adverse remarks isconcerned, on instruction from the officer of the respondentDepartment, learned counsel Shri.Karthick stated that except theservice record, respondent do not record Annual Confidential Reportinsofar as the petitioner or similarly placed persons are concerned.This statement of the counsel is recorded. 8. The primary plea taken by the counsel for the petitionerthat the non-selection of the petitioner to the post of PersonalSecretary is because of the adverse remarks in the AnnualConfidential Report and that has not been communicated does notmerit consideration, in view of the statement by the learned counselfor the respondents 1 to 4 that no Annual Confidential Report is https://hcservices.ecourts.gov.in/hcservices/ recorded insofar as the petitioner and similarly placed persons areconcerned. Therefore, the reliance placed by the learned counsel forthe petitioner (2008) 8 Supreme Court Cases 725 (cited supra) doesnot apply to the facts of the present case and the said plea does notmerit consideration.9. The only plea that remains to be considered is whether theDepartment Promotion Committee while considering the case of thepetitioner was free from the plea of prejudice or bias as alleged bythe petitioner. As could be seen from the affidavit filed insupport of the petitioner, the petitioner has highlighted thecomplaint that she has made against the fourth respondent in respectof the alleged incident dated 14.8.2000 that she was sexuallyharassed by the fourth respondent. It is a matter of record thatthe complaint was taken up by the Complaints Committee constituted asper the Apex Court's decision in Vishaka & others – vs. - State ofRajasthan and others reported in 1997(6) SCC 241 and after enquiry,the charge was held to be false and the fourth respondent wasexonerated of the charge. Petitioner, however, states that she haschallenged the report of the Special Committee exonerating the fourthrespondent before this Court. In view of the above, it is clear thatthe petitioner and the fourth respondent are averse each other onthis issue. This plea has to be considered as a tenable plea as thefourth respondent sitting in the Department Promotion Committee hasto be free from prejudice or bias of any kind considering the natureof allegation between the two. Though the fourth respondent sat inthe Department Promotion Committee along with other Members of theCommittee, the plea of bias or prejudice should be totally absent.The fourth respondent, who is defending a case against the petitionershould have been refrained himself from the Department PromotionCommittee insofar as the petitioner is concerned. This would avoidthe plea of bias or prejudice. It goes with the adage that justicemust not only be done but seem to be done. 10. In view of the above, the Department Promotion Committeewhich consider the case of the petitioner, in order to be free ofallegation of bias or prejudice, should consist of any other memberexcept the fourth respondent K.Meyyanathan, the Senior CompanySecretary. To the suggestion from this Court, Mr.Karthic learnedcounsel appearing for the respondents 1 to 4 stated that a newManager (Finance) has taken charge and he will be able to participatein the Department Promotion Committee in the place ofMr.K.Meyyanathan and the Committee will consider the case of thepetitioner afresh, if so directed by the Court. 11. Considering the nature of the allegations made against thefourth respondent by the petitioner and in view of the pendency ofthis issue, this Court is constrained to hold that the DepartmentPromotion Committee proceedings insofar as petitioner is concernedhas to be set aside, however, with a further direction to the first https://hcservices.ecourts.gov.in/hcservices/ respondent to consider the case of the petitioner for promotion byconstituting the Department Promotion Committee in whichMr.K.Meyyanathan, the Senior Company Secretary not being a member.The case of the petitioner will be considered on its own merits andbased on relevant records that are already available. Such exerciseshall be completed on or before First March, 2010. This WritPetition is ordered to the extent indicated above. There will be noorder as to costs. Sd/-Asst. Registrar//true copy//Sub Asst.RegistrartsTo 1.The Chairman cum Managing Director, Tamil Nadu Cements Corporation Ltd., No.735, Anna Salai, Chennai.2.The Manager (Personnel & Administration), Tamil Nadu Cements Corporation Ltd., No.735, Anna Salai, Chennai.1 cc to Mr.S.Sathiaseelan, Advocate, Sr.No.696141 cc to Mr.T.S.Gopalan & Co., Advocate, Sr.No.69689 Order in W.P.No.29037 of 2008KS {CO}TP/18.1.2010.