M. Gopal v. Tamil Nadu Electricity Board

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:9.2.2009Coram:The Honourable Mr.Justice ELIPE DHARMA RAOand The Honourable Mr.Justice S.TAMILVANANW.P. Nos. 17026 of 2006 and 7321 of 2007andW.A.M.P. No. 1780 of 2006W.P. No. 17026 of 2006:-1.M. Gopal2.H. Ravi3.S. Karthikeyan4.J. Raju5.M. Viswanathan6.K.B. Rajendran7.H.B. Gopal8.B. William9.M. Sekar.. Petitionersvs.1.Tamil Nadu Electricity BoardRep. By its chairman800 Anna Salai, Chennai2.The Chief Engineer (Personnel)Tamil Nadu Electricity Board800 Anna Salai, Chennai3.TNEB Thozhilalar Aykkiya SangamRep. by its General Secretary7 V.M. StreetRoyapettahChennai4.G. Rajamani5.M. Srinivasan6.B. Rajendran7.T. Prakash8.K. Selvaraj(RR 3-8 impleaded vide order dated 23.11.2006 in W.P.M.P. No. 18646 of 2006) https://hcservices.ecourts.gov.in/hcservices/

9.Tamil Nadu Electricity Workers' FederationRep. by its General SecretaryV. Ramachandran92/49 Guruvappa StreetChennai10.T.N.E.B. Workers' Progressive UnionReg. No. 38 C PTRep. by its General SecretaryNo. 800 Anna SalaiChennai11.M. Duraikannu(RR 9-11 impleaded vide order dated 13.12.2006 in W.P.M.P. No. 18549 & 18718 of 2006)12.Tamil Nadu Accounts and Executive Staff UnionRep. by its General SecretaryS.V. Angappan(R12 impleaded vide order dated 16.8.2007 in W.P.M.P. No. 18093 of 2006)... RespondentsPetition filed under Article 226 of the Constitution of India seekingfor issuance of writ of certiorari calling for the records of the secondrespondent relating to impugned Per. BP (Ch) No. 256 (AdministrativeBranch) dated 12.12.2005 and to quash the same insofar as it gives anoption once again to the wireman category either to choose CommercialAssistants line or Wireman line in terms of the 12(3) Settlement dated15.10.2005.W.P. No. 7321 of 2007:-Central Organisation of Tamil Nadu Electricity EmployeesRep. by its General Secretary27 Mosque StreetChepauk, Chennai.. Petitionervs.1.Tamil Nadu Electricity BoardRep. By its chairman800 Anna Salai,Chennai2.The Chief Engineer (Personnel)Tamil Nadu Electricity Board800 Anna Salai, Chennai... Respondents https://hcservices.ecourts.gov.in/hcservices/ Petition filed under Article 226 of the Constitution of India seekingfor issuance of writ of certiorarified mandamus calling for the recordsof the first respondent pertaining to Per. BP (Ch) No. 256(Administrative Branch) dated 12.12.2005, to quash the same insofar aspara 2(iv) of the said B.P. And consequently direct the respondents tofix the seniority and promote workmen based on helper seniority inaccordance with the 12(3) Settlement dated 15.10.2005.For Petitioners: Mr. N.G.R. Prasadin both W.P.17026/06 for M/s Row & ReddyFor petitioner in: Mr.M.Muthupandian forWP.7321/207 M/s.R.Yashod VardhanFor RR 1& 2: Mr. M. Vaidyanathanin both W.Ps.W.P. No. 17026 of 2006For RR 3 - 5 : Mr. D. Hari ParanthamanFor RR 10 & 11: Mr. Balan HaridossFor R12: Mrs. Hema SampathCOMMON ORDERELIPE DHARMA RAO, J.These writ petitions have been filed seeking for quashing theproceedings of the Board passed in Per. BP (Ch) No. 256 (AdministrativeBranch) dated 12.12.2005 and to further direct the respondents to fixthe seniority and promote workmen based on Helper seniority inaccordance with the Settlement dated 15.10.2005 arrived at under Section12 (3) of the Industrial Disputes Act, 1947. 2.The petitioners in W.P. No. 17026 of 2006, who are members ofthe Central Organisation of Tamil Nadu Electricity Employees [for short,'COTEE'], petitioner in W.P. No. 7321 of 2007, joined the Tamil NaduElectricity Board [for short, 'Board'] as Regular Work ChargeEstablishment in the year 1987 - 1988. Later on, when they becameHelpers, they were given the option of line of promotion, viz., Wiremanline and Commercial Assistant line and the option will be final. Thepetitioners exercised their option to go in the Commercial AssistantLine, which would be in the nature of office and allied work, with thatline of promotion. It is stated that the avenue of promotion from aHelper is to the post of Commercial Assistant and then to CommercialInspector is very limited because it is far less compared to the numberof posts of Wireman and Line Inspector and there is only one of post ofCommercial Assistant and Commercial Inspector for a section, whereas forWireman, there are 8 and above posts. Further, the Helpers, who opted https://hcservices.ecourts.gov.in/hcservices/ for Wireman line, will get promotion faster than the CommercialAssistant channel.3.It is stated by the COTEE that pursuant to a settlement dated29.02.1980 by the Board with the Trade Unions and the consequentialB.P.M.S. No. 123, Secretariat Branch dated 01.3.1980, Double ChannelPromotion was introduced and a new post, viz., Assistant CommercialInspector, equivalent to Lineman, was created. The further case ofthe petitioners is that the posts of Assistant Commercial Inspector andLineman were abolished with effect from 01.12.1992 and they wereupgraded as Commercial Inspector and Line Inspector respectively.Since all the unions demanded restoration of single channel promotion,the Board, by Per. BP (Ch) No. 106 (SB) dated 09.4.1996, introduced asingle channel system of promotion by which the Helpers, who opted forWireman channel, became Wireman earlier and got promotion as CommercialInspectors earlier as compared to Commercial Assistants. It isfurther stated that the TN Vaniga Paniyalar Sangam challenged the singlechannel system of promotion in W.P. No. 15168 of 1996 and obtained anorder of stay of B.P. No. 106 as a result of which there was nopromotion based on the single channel from 1996 to 2000. But, in theyear 2002, 9 Wiremen, who would not have otherwise got promotion asCommercial Inspector in the double channel, got promoted as CommercialInspectors because of the single channel system. Subsequently, thedouble channel system was introduced by way of settlement dated15.10.2005 arrived at under Section 12 (3) of the Industrial DisputesAct [for short, 'I.D. Act']. 4.It is the further case of the petitioner in W.P. No. 7321 of2007 that the Board issued proceedings in Per. BP (Ch) No. 256(Administrative Branch) dated 12.12.2005 wherein, in para 2(iv), it isstated that the entry into the promoted post of Wireman or CommercialAssistant is the basis for fixing seniority and, by virtue of the same,the existing wiremen were given one more opportunity to exercise optionto go in the Wiremen Line or Commercial Assistants Line. This,according to the petitioner, is in violation of the terms of thesettlement entered into under Section 12(3) of the I.D. Act. Thegrievance of the petitioners is that the Helpers, who got promoted asWiremen earlier in their line, would now take advantage of the optionand prefer the Commercial Assistant line to become Commercial Inspectorsearlier and that the respondent Board is in the process of preparingprovisional seniority list of Commercial Assistants, based on which 15out of 21 Wiremen, who had opted for the Commercial line, will getpromotion. Hence, the writ petitions.5.The petitioners have also filed an additional affidavitstating that they are not the members of the TNEB Thozhilalar AykkiaSangam which signed the 12(3) Settlement and the COTEE is not asignatory to the 12 (3) Settlement. As per the Settlement, theemployees, who were promoted by applying the single channel promotion https://hcservices.ecourts.gov.in/hcservices/ under B.P. 27 dated 22.6.1999, are alone entitled to one moreopportunity and there is no provision in the settlement as to the secondoption to the existing employees. It is further stated that inspiteof the interim order dated 12.7.2006 passed by this Court in W.P.M.P.No. 16051 of 2006, the respondent Board has called for option from theemployees by an order dated 01.12.2006 , that if the BP is implemented,it would be contrary to the Settlement and Service Regulations.6.The respondent Board filed a counter affidavit stating thatDouble Channel was reintroduced only at the request of the Unions sinceit was felt that there was stagnation in the category of wireman andmany were unable to reach the post of Foreman and by virtue of the same,the existing employees were given one more opportunity to choose theirline of promotion and that those who are facing departmental proceedingsor who had suffered punishment will not be considered. It is alsostated that the seniority of the individual concerned in the post ofWireman or Commercial Assistant, as the case may be, would be fixedbased on Helper seniority. It is further stated that there are numberof systems / circles in the Electricity Board and in some systems /circles, Wireman would get earlier promotions, if the Double Channel isadopted, and Commercial Assistants also would be entitled to speedierpromotions in some circles. According to them, if the writ petitionsare allowed, it will result in undue promotions causing labour unrestand affecting the morale of the majority RWE employees of the Board,which may alter the seniority of almost all the RWE employees of theBoard across Tamil Nadu and prayed for dismissal of the writ petitions.7.Heard the learned counsel appearing for the parties andperused the records.8.The arguments advanced on the part of the respondents is thatwhen major number of the employees have accepted the change beingintroduced in the system for the welfare and benefit of the employees,these petitioners who are in minority, are challenging the systemwithout any legal cause and only with a sole view of stagnating thesystem. But, on the part of the petitioners, it has been strenuouslysubmitted that the 12(3) Settlement, whereupon much reliance has beenplaced on the part of the respondents, has been signed by the otherUnions and not by them and thus, when neither the petitioners nor theirAssociation are parties to the 12(3) Settlement, which has been enteredinto by the Management, clandestinely with the Associations, who arehaving hand in glove relationship with the Management, does not in anyway either bind or prevent them from initiating these proceedings. Perand contra, many judgments of the Hon'ble Apex Court have been reliedon, which would be discussed later.9.Learned counsel appearing for the petitioners has contendedthat altering the terms of 12(3) settlement by the impugned B.P. withoutnotice is illegal and in violation of Section 9A of the I.D. Act and https://hcservices.ecourts.gov.in/hcservices/ Article 14 of the Constitution. It is further contended that because ofthe impugned B.P., the seniors in Helper category would become juniorsand further their promotional prospects would be affected.10.Before going into the questions raised by either side, itwould be profitable to notice the stage of promotion of the employees inboth the categories and the background of the case. Helper is the entrystage for both the categories. At the stage of promotion from the postof helper, option is called for to choose either the line of Wireman orCommercial line. If the Wireman line is opted, the next stage ofpromotion from wireman is Lineman and then the Line Inspector andthereafter the Foreman Grade I. If the employee opts for CommercialAssistant, the next stage of promotion is Assistant Commercial Inspectorand then the Commercial Inspector and thereafter the Foreman Grade I.It is the case of the petitioners that as per the B.P. dated 9.4.1996 asingle channel of promotion was introduced by which the Wiremen channelgot promotion quicker than the Commercial Inspectors and subsequentlysuch B.P. dated 9.4.1996 was successfully challenged in W.P.No.15168 of1996 by T.N. Vaniga Paniyalar Sangam. Thereafter, the Board by theimpugned settlement dated 15.10.2005 has introduced double channel ofpromotion, by which the existing wiremen have been given one moreopportunity to opt to chose either the Wiremen Line or the CommercialAssistants Line. In the above background of facts, the main grievanceof the petitioners is that the promotional avenue in the category ofCommercial Assistant would be less than the employees belonging to theWireman category and the second option to be exercised by the Wiremancategory contemplated in the impugned B.P. is against the earliersettlement and Article 14 of the Constitution. 11. The petitioners would submit that clause 2(iv) of the impugnedB.P.(Ch) No.256, dated 12.12.2005 is working much against theirinterest. For the sake of convenience, clause (iv) of the impugned B.P.(Ch) No.256, dated 12.12.2005 is extracted hereunder:"(iv) Consequent on the separation of categories of CommercialAssistant/Commercial Inspector and Wireman/Line Inspector fromthe existing Common seniority, the seniority of Wireman,Commercial Assistant, Commercial Inspector and Line Inspectorhave to be refixed in the present category based on theirseniority in the post of Helper, among the persons in the samepanel in which the individual was originally promoted.However, it should be ensured that consequent on the revisionof seniority, the already overlooked persons do not get anyunintended benefits;"12.There is no doubt that by the above said clause, the interestsof the persons who stand on the same footing of the petitioners, getmuch affected since the basis for fixing seniority has been taken as theentry into the promoted post of Wireman or Commercial Assistant and theexisting Wiremen are given one more opportunity to exercise option to go https://hcservices.ecourts.gov.in/hcservices/ in the Wiremen Line or Commercial Assistants Line. The specificcontention of the respondents is that the impugned settlement has beenarrived at by vast majority of workers and because of refusal by smallnumber of workers; the settlement does not cease to be just and fair.In support of the aforesaid contention, the learned counsel has placedreliance on several decisions of the Supreme Court as well as this Courtincluding the decisions reported in AIR 1981 SC 2163 [M/s. TataEngineering and Locomotive Co. Ltd. v. Their Workmen], 1995 (1) LLJ214 [Pam Pukar Singh & Others v. Heavy Engineering Corporation &Others], 1999 W.L.R. 16 [K. Vijayan & 2 Others v. Tamil NaduElectricity Board & Others] and 2006-III-LLJ 255 [Chairman and ManagingDirector, Metal Box India Ltd., New Delhi v. Metal Box Company Workers'Union, Chennai and Others]. 13.Though the aforesaid contention of the respondents appears tobe attractive, it cannot be accepted for the reasons stated below.Admittedly, even though a minority, the petitioners and their Union arenot parties to the 12(3) Settlement arrived at by the Management withother Associations. When the petitioners' association is a recognisedunion of the Management, a legal duty is cast upon the Management totake into consideration the views and objections of all the unionsconcerned while arriving at such settlements. Having left over thepetitioners' Union, without being taken into consideration whilearriving at 12(3) Settlement, the Management is pitting the same againstthe petitioners as if they should not and could not raise that objectionat this stage. 14.It is the specific contention of the petitioners that byvirtue of the fresh option to opt Commercial Assistant line, they canbecome Commercial Inspectors earlier than the petitioners, though theyare senior to them. In support of the aforesaid contention, the learnedcounsel for the petitioners has given few examples in para 6 of theW.P.No.17026 of 2006. 15.In the counter filed by the Department, though it is stated ingeneral terms that seniority of the other category would not be affecteddue to the impugned B.P., it has failed to refute the specific avermentsmade in paragraph 6. Moreover, the Board has failed to produce therecords to controvert the details furnished by the petitioners. Oncethey were given the choice to exercise their double option and they haveexercised their option, now they cannot again exercise the option onceagain. The objection is that more seniors are there and unless thislist is exhausted, they will not get promotion. Therefore, thesubmission of the learned counsels for the petitioners that theirpromotional avenue would be affected because of the impugned B.P. cannotbe brushed aside. https://hcservices.ecourts.gov.in/hcservices/

16.It is also the contention of the respondents that since thesettlement was arrived at by the majority of workers, settlement shouldbe treated as valid. For the aforesaid purpose, the learned counsel hasparticularly relied on the decision of the Supreme Court in AIR 1981 SC2163 (cited supra) to the effect if the settlement had been arrived atbetween the management and the union of the workers by a vast majoritywith open eyes and was also accepted by them in its totality, it must bepresumed to be just and fair and not liable to be ignored merely becausea smaller number of workers were not parties to it or refused to acceptit.17.The aforesaid decision would not be applicable to the facts ofthe present case because the settlement arrived at in the said case hasdealt with the wages and practically the number of workers representingthe Union were very minimal and moreover the period specified in thesettlement was over and further talks were going on for a furthersettlement.18.For the aforesaid reasons, we are unable to accept thesubmission made on the part of the Management that promotional avenue ofthe petitioners would not be affected by the impugned B.P. dated12.12.2005. 19. The facts in the case on hand are similar to the one before theHonourable Apex Court in S.B.SARKAR AND OTHERS vs. UNION OF INDIA ANDOTHERS [(1990) 3 SCC 168]. In the said case, separate cadres of ASMsand SMs were prevailing before 1983 in South Eastern Railway and thepromotional channel bifurcated into ASM to ASM and ASM to SM both in thesame pay scale before becoming one common source of promotion and theASMs required to opt either the channel of ASM to ASM or ASM to SM andthe said option was irrevocable in nature called for at the stage ofappointment on the pain of disciplinary action irrespective ofavailability of vacancy. As a result of the option, some became SMswith supervisory control and administrative responsibility, but theirfurther promotion delayed due to lesser number of posts available whileothers though remained ASMs, got promotion in spite of being juniors andafter abolition of the option, cadres of ASM and SM became combined. Inthese circumstances, the Honourable Apex Court has held that those SMswho had exercised options before 1983 must be granted promotionalbenefit in the same manner as it would have been if option had not beenabolished in accordance with the earlier procedure, provided theyfulfilled the other requirements. 20. In the case on hand also, because of the impugned promotionsystem and in view of the admitted fact that the number of posts ofwiremen are more than the number of posts of Commercial Assistant andthe Helpers, who got promoted as wiremen earlier in their opted line,would now enjoy more advantage of the option and prefer the Commercial https://hcservices.ecourts.gov.in/hcservices/ Assistant line to become Commercial Inspectors earlier, the abovejudgment of the Honourable Apex Court would squarely apply to the factsof the case on hand. The petitioners have established and proved before us that clause(iv) of the impugned B.P.(Ch) No.256 (Administrative Branch) dated12.12.2005, extracted above, is working much against their interest.Therefore, following the dictum laid down by the Honourable Apex Courtin the above judgment, instead of quashing the impugned B.P.(Ch)No.256(Administrative Branch), dated 12.12.2005, we order that the impugnedpromotion system should not be given effect to until the list of thepetitioners is exhausted. With this direction, these writ petitions aredisposed of. Consequently, all the connected Miscellaneous Petitionsare closed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrargri/RaoTo1.The Chairman, Tamil Nadu Electricity Board800 Anna Salai, Chennai2.The Chief Engineer (Personnel)Tamil Nadu Electricity Board800 Anna Salai,Chennai3.The General SecretaryTNEB Thozhilalar Aykkiya Sangam7 V.M. StreetRoyapettah, Chennai4.V. RamachandranGeneral SecretaryTamil Nadu Electricity Workers' Federation92/49 Guruvappa StreetChennai https://hcservices.ecourts.gov.in/hcservices/

5.The General Secretary,T.N.E.B. Workers' Progressive UnionReg. No. 38 C PTNo. 800 Anna SalaiChennai6.S.V. AngappanThe General SecretaryTamil Nadu Accounts and Executive Staff UnionNo.29, Meeran Sahib Street,Chennai - 2.1 cc To Mr.M.Vaidyanathan, Advocate, SR.5506.1 cc To Mr.Balan Haridoss, Advocate, SR.5352.1 cc To Mr.M.Muthupandian, Advocate, SR.5325.1 cc To Mr.D.Hariparanthaman, Advocate, SR.5726.1 cc To M/s.Row & Reddy, Advocate, SR.5401.W.P. Nos. 17026 of 2006 and 7321 of 2007 KJI(CO)RVL 16.02.2009