IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.10.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.5453 of 2001 C.Thirugnanasambandam .. Petitioner vs. 1. Neyveli Lignite Corporation Ltd., rep. by its Chairman Neyveli-607 801 2. Director Personnel Neyveli Lignite Corporation Ltd., Neyveli-607 801 3. General Manager (Mines-II) Neyveli Lignite Corporation Ltd., Neyveli-607 801 4. The Chief Personnel Manager Neyveli Lignite Corporation Ltd., Neyveli-607 801 .. Respondents This 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 the respondents relating to the impugned proceedings No.8090/REI- 2/GM/MII/98, dated 17.11.1998 of the third respondent and the consequential letter, dated 4.9.2000 of the Chief Personnel Manager to the petitioner concerned, quash the said proceedings of the third respondent dated 17.11.1998, bearing Procs.No.8090/REI-2/GM/MII/98 (Ex-A) and the consequential letter of the fourth respondent dated 4.9.2000 bearing Lr.No.CORP/P&A/550/8772/96 (Ex-B) and consequently direct the respondents to revise the petitioner's pay with effect from 1.1.1992 as per proceedings No.06/EXE/WR/96, dated 5.4.1996, of the Chief General Manager (P&A) and pay to the petitioner arrears thereof with consequential additional PF and gratuity with interest 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.Sarma O R D E R Heard the learned counsels appearing for the parties concerned. 2. The facts, in a nutshell, are as follows: The petitioner, who is a B.E.(Civil) graduate, had joined in the services of the Neyveli Lignite Corporation Limited, on 4.2.1987, as per the order of recruitment, dated 8.1.1987, issued by the second respondent. On his successful completion of the training, he was confirmed in the post of Assistant Executive Engineer, vide proceedings, dated 14.6.1989, issued by the Chief Personnel Manager, the fourth respondent herein. Later, by the proceedings, 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 had introduced a scheme, by the proceedings, dated 18.2.1994, for the granting of Extra Ordinary Leave to the Executives of the respondent Corporation, belonging to the various engineering disciplines at E3 and E4 levels and the civil engineers at all levels, in order to enable them to apply and secure employment abroad, either through the Overseas Man Power Corporation limited or through the other available sources. 3. 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 by the Chairman of the Neyveli Lignite Corporation Limited, upto one year, subject to certain conditions. Clause 10 of the scheme had specifically provided that the Executives, who avail the Extra Ordinary Leave under the said scheme and who did not rejoin duty on the date of the expiry of the leave granted/extended to them, shall be deemed to have voluntarily resigned their appointments in the respondent Corporation, with effect from his/her date of proceeding on leave. Thus, the master and servant relationship between the respondent Corporation and the concerned executive comes to an end automatically, on the failure of the concerned executive to rejoin duty on the specified date of the expiry of Extra Ordinary Leave. https://hcservices.ecourts.gov.in/hcservices/ 4. It has been further stated that the petitioner had been sanctioned Extra Ordinary Leave by the Chief General Manager (P&A), vide his proceedings, dated 17.10.1995, to enable the petitioner to take up employment abroad. Clause 8 of the said proceedings had stated that if the petitioner does not rejoin duty on the date of the expiry of the leave granted to him, he shall be deemed to have voluntarily resigned his appointment in the respondent Corporation, with effect from the date of his proceeding on leave, after the recovery of three months pay and any other amount due from him would be recovered from the outstanding amount payable to him from the Neyveli Lignite Corporation Limited. Even though the scheme did not provide for any recovery, the proceedings, dated 17.10.1995, had authorised such recovery. Such a provision in the proceedings is inconsistent with the scheme and therefore, it is illegal. 5. The petitioner has further stated that he was sanctioned Extra Ordinary Leave, initially, for a period of 2 years, with effect from 17.10.1995, or the date of release whichever is later. Pursuant to the proceedings, dated 17.10.1995, the third respondent, by a memo, dated 19.10.1995, had relieved the petitioner from his duties in the respondent Corporation, on 19.10.1995, and the petitioner had joined the foreign employer immediately thereafter. Since the foreign employer had requested the petitioner to seek for extension of Extra Ordinary Leave for one more year, as the work entrusted to him had not been completed, the petitioner had, by a letter, dated 19.5.1997, had sought for extension of Extra Ordinary Leave for a further period of 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 with disciplinary action if the petitioner did not join duty, on 19.10.1997, even though he did not have the authority or jurisdiction to initiate such disciplinary action under the scheme. Thereafter, by a letter, dated 23.2.1998, and the proceedings, dated 17.11.1998, the General Manager, Mines-II, the third respondent herein, had informed the petitioner that an amount equivalent to three months pay and any other amount that would be due from the petitioner would be recovered from the outstanding amount payable to him. The proceedings of the third respondent, dated 17.11.1998, is arbitrary, and illegal and therefore, liable to be set aside. 6. In the counter affidavit filed on behalf of the respondents, the averments made by the petitioner had been denied. It has been stated that the petitioner had joined the service 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, the respondent Corporation had introduced the scheme for granting Extra Ordinary Leave, without pay, for a period of two years for the Executives of the specified grades for taking up employment abroad. For the duration of the Extra Ordinary Leave, the individual was ineligible for pay and allowances. Though the period of leave was not treated as a break-in-service, it is not counted for increment, leave entitlement, promotion, Provident fund Contributions, etc. The duration of such leave was not to exceed two years, in normal circumstances. 7. It has also been stated that the petitioner had applied for Extra Ordinary Leave, in accordance with the scheme and by the proceedings, dated 17.10.1995, he was sanctioned Extra Ordinary Leave, as per the terms stated therein, for a period of two years from 17.10.1995 or from the date of being relieved, whichever is later. The petitioner had been relieved, on 19.10.1995. On expiry of the two years period, the petitioner had sought for extension of the leave. The request had been refused by the respondent Corporation by the proceedings, dated 5.8.1997. He was also informed that in case he did not report for duty on the expiry of leave, namely, on 19.10.1997, suitable action would be taken against him. However, the petitioner did not rejoin duty, on 19.10.1997. Instead, he had remained absent. Due to the prolonged absence, the petitioner was treated as "being no longer interested in rejoining the service" by the proceedings, dated 17.11.1998. Accordingly, the petitioner's service in the respondent Corporation had come to an end, as if he had voluntarily deserted his post, with effect from 19.10.1995. Thereafter, the terminal benefits had been released to him treating it to be a case of voluntary resignation. The petitioner had received the dues without any protest. Though he had sent his resignation in the month of December, 1998, it has not been accepted for the reason that at that time the proceedings, dated 17.11.1998, had already been issued terminating his service. 8. It has also been stated that the pay and allowance of the Executives of the respondent Corporation was revised by the proceedings, dated 5.4.1996, by giving it retrospective effect from 1.1.1992. While the benefit of the pay revision was granted to the Executives, who had left the Corporation after 1.1.1992, on resignation or on retirement, the same was inadmissible to those leaving the services without permission or notice and for those who were in continuous unauthorised absence. In the case of the petitioner his services had been severed, with effect from 19.10.1995. The petitioner had not left the service of the Corporation due to resignation. As such, the petitioner did not fall 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 arrears of pay and other benefits based on the revised scales. The petitioner's request for treating him as a case of 'voluntary resignation' and thereby, granting him all the benefits of pay revision was rejected by the proceedings, dated 4.9.2000, which is under challenge in the present writ petition. The contention of the petitioner that his case should have been considered as a 'voluntary resignation' is without merit. Admittedly, the petitioner did not leave the service of the respondent Corporation on acceptance of resignation. In fact, the petitioner did not submit any resignation letter, before his services were severed nor has there been a formal resignation submitted by him. As such, the petitioner is not entitled to be treated as a case of 'voluntary resignation'. 9. It has been further stated that the impugned proceedings, which is dated 17.11.1998, had been received by the petitioner in the month of November, 1998 and it has been clearly stated that it was an order removing the petitioner from service. In spite of having received the impugned proceedings in the month of November, 1998 and after the petitioner had received the terminal benefits granted to him, he had filed the writ petition for quashing the impugned order, dated 17.11.1998. Having accepted the terminal benefits without any protest, he cannot demand further payments said to be due from the respondent Corporation. The petitioner cannot be allowed to approbate and reprobate at the same time. Admittedly, the petitioner did not rejoin duty on the expiry of the Extra Ordinary Leave. Consequently, the impugned proceedings, dated 17.11.1998, came to be issued. Pursuant to the impugned proceedings, the petitioner had received the entire terminal benefits reckoning his services upto the year 1995. Therefore, the petitioner cannot seek to quash the very same order, dated 17.11.1998, under which his service had been severed and he has been paid all the benefits due to him. When such inconsistent pleas are raised, the writ petition deserves to be dismissed. Further, the writ petition is liable to be dismissed on the ground of laches. The impugned proceedings having been received by the petitioner in the month of November, 1998, the writ petition has been filed before this Court in the year, 2001. The orders for revision of pay and allowances issued in the year, 1996, with effect from 1.1.1992, does not apply to the petitioner as he had not left the services of the Corporation due to 'resignation'. His services were severed due to continuos unauthorised absence. Admittedly, on expiry of the Extra Ordinary Leave, the petitioner did not rejoin duty, on 19.10.1997 or at any time thereafter. The petitioner's case falls under clause 15 (iii) (c) of the proceedings, dated 5.4.1996. For the reasons stated above, the writ petition has no merits and therefore, it is liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 10. The learned counsel appearing for the petitioner had submitted that the petitioner was entitled for an extension of the Extra Ordinary Leave, by one year. If such an extension had been refused and if the petitioner did not rejoin duty on the expiry of the initial period of leave, he would be deemed to have voluntarily resigned from service, without attracting any disciplinary proceedings and without any liability to pay any amount towards the alleged notice period. The respondents had failed to see that there is no provision under the scheme for any notice, as in the case of resignation, as per the existing rules. The scheme framed for granting of Extra Ordinary Leave is an exception to the normal rules. The scheme was an offer and on its acceptance by the petitioner, by obtaining Extra Ordinary Leave, it had become a binding contract and the respondents are estopped from acting in any manner contrary to the terms of the contract or modifying them, unilaterally. According to the terms of the scheme, the petitioner had not committed any misconduct by not reporting for duty, on 19.10.1997. Under the scheme and the terms of the order of sanction of the Extra Ordinary Leave, the relationship of master and servant, between the respondent Corporation and the petitioner, had come to an end, with effect from 19.10.1995. 11. It has been further stated that the allegations made by the respondents that the petitioner was on unauthorised absence, after the expiry of the Extra Ordinary Leave, cannot be sustained due to the fact that the petitioner's absence should have been taken to be a case of deemed resignation, in accordance with the terms of the scheme. Even otherwise, the impugned proceedings is arbitrary and illegal as it is contrary to the terms of the scheme and violative of the principles of natural justice. No opportunity had been given to the petitioner to defend himself. The impugned order, dated 17.11.1998, is inconsistent with the third respondent's letter, dated 23.2.1998, wherein he had noted that the petitioner's failure to rejoin duty amounts to voluntary resignation. Therefore, there is no question of initiating any disciplinary action against the petitioner under the scheme for Extra Ordinary Leave. The petitioner is deemed to have resigned from service, with effect from 19.10.1995. From the said date, the petitioner would not be an employee of the respondent Corporation. However, the petitioner had submitted a resignation letter, dated 11.8.1998, addressed to the second respondent, by way of abundant caution. The submission of the resignation letter by the petitioner by itself would not have the effect of denying the rights otherwise vested in the petitioner nor can it attract any penalty. Since no reply had been received by the petitioner, he had addressed another letter, dated 6.12.1998, to the second respondent, with a copy marked to the third respondent, https://hcservices.ecourts.gov.in/hcservices/ requesting them to settle his terminal benefits. No favourable reply had been received by the petitioner. However, by the proceedings, dated 2.1.1999, the third respondent had stated that the petitioner had been removed from service as the resignation letter, dated 11.8.1998, addressed to the second respondent had not been received by him. Subsequently, the petitioner had received another letter, dated 18.3.1999, from the Senior Personnel Manager (P&A), purporting to reject the petitioner's resignation letter even though he did not have the jurisdiction or authority to do so. While so, the third respondent, by his proceedings, dated 8.9.1999, purported to accord the sanction for payment of Rs.30,010/- towards the gratuity payable to the petitioner. 12. It has been further stated that while the petitioner was on Extra Ordinary Leave, the then Chief General Manager (P&A) had, by his proceedings No.06/EXE/WR/96, dated 5.4.1996, revised the pay scales of all the Executives, with retrospective effect from 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 be eligible for fixation of the scales of pay, as set out in the proceedings. As the petitioner was an Executive on the rolls of the respondent Corporation, on 31.12.1991, and deemed to have resigned after 1.1.1992, he is entitled for the revision of pay and the arrears thereof, from 1.1.1992 to 19.10.1995, when he had been relieved on Extra Ordinary Leave. The petitioner came to know about the proceedings revising the pay scales, only when he had visited Neyveli, on 11.8.1998, to submit his resignation letter. The submission of the resignation letter by the petitioner does not have any meaning since, as per clause 10 of the Extra Ordinary Leave scheme, the petitioner is deemed to have resigned from 19.10.1995. Thereafter, the relationship of master and servant had come to an end. If the pay scales of the petitioner had been revised, as per the proceedings, dated 5.4.1996, he would be entitled to an additional amount by way of provident fund and gratuity, based on such revision, along with the arrears. Since the revision of pay had taken effect from 1.1.1992, before the deemed resignation, the right had become vested in him. Therefore, the petitioner is entitled to a sum of Rs.68,452.24 by way of pay revision and a sum of Rs.2,718.52 towards encashment of earned leave. The petitioner is also entitled to provident fund contribution at 10% (i.e., Rs.7,117.08) and additional gratuity of Rs.13,679.63. Thus, the total amount of Rs.91,967.47 is due to the petitioner over and above the amount of Rs.30,010 sanctioned by the third respondent towards gratuity. The said amounts due to the petitioner had been wrongly denied by the respondent Corporation on the ground that the petitioner had been removed from service for misconduct. Such https://hcservices.ecourts.gov.in/hcservices/ a stand cannot be taken by the respondent Corporation, since the petitioner is deemed to have resigned from service, on 19.10.1995. Thereafter, there is no master and servant relationship between the respondent Corporation and the petitioner. Therefore, the respondent Corporation does not have the jurisdiction to initiate any action against the petitioner for the alleged misconduct. Further, the respondents are not entitled to make any deduction towards the alleged three months notice period, as stated in the impugned proceedings. The respondents have not been in a position to point out as to which of the rules of the respondent Corporation the petitioner has violated to allege that the petitioner had committed misconduct. Even if the absence of the petitioner from duty, after 19.10.1995, is taken to be a misconduct, the revised pay scales made applicable from 1.1.1992 cannot be denied to the petitioner. In such circumstances, the impugned proceedings of the respondents are arbitrary, illegal and void. 13. With regard to the issue of latches, the learned counsel appearing 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 filing the writ petition, would by itself, may not defeat the petitioner's claim for relief, unless the position of the respondent has been irretrievably altered or he has been put to undue hardship. 14. Per contra, the contention raised on behalf of the respondents is that since the claim made by the petitioner for the arrears of salary and other retiral benefits arises out of the letter, dated 17.11.1998, issued on behalf of the respondents, the reliefs sought for by the petitioner in the present writ petition to quash the said letter is not proper. In reply to the said contention, the learned counsel appearing for the petitioner had submitted that this Court is empowered, under Article 226 of the Constitution of India, to mould the reliefs to be granted, while deciding the matter in favour of the petitioner. 15. In view of the submissions made by the learned counsels appearing for the parties concerned and on a perusal of the records available before this Court, it is clear that the respondent Corporation cannot be permitted to deny the amounts due to the petitioner, under the revised scale of pay, with effect from 1.1.1992, as well as the retiral benefits due to him based on such revision. It is found that the revised scales of pay had been fixed by the respondent Corporation, by its proceedings No.06/EXE/WR/96, dated 5.4.1996, applicable to its Executives, 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 after 1.1.1992, due to resignation/retirement (including voluntary retirement) and their legal heirs, in case of their death, would be paid the arrears on account of the pay revision. The benefit of pay revision, however, would not be allowed to the Executives who 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 the petitioner had unauthorisedly absented himself from duty, from 19.10.1997, thereby committing misconduct. 16. It is not in dispute that the petitioner had been granted Extra Ordinary Leave by the respondent Corporation, for two years, from 19.10.1995. Accordingly, the petitioner had been on Extra Ordinary Leave, as sanctioned by the respondent Corporation, upto 19.10.1997. According to the Extra Ordinary Leave Scheme framed by the respondent Corporation, if an Executive, who avails the leave under the said scheme, does not rejoin duty on the date of the expiry of the leave granted to him, he shall be deemed to have voluntarily resigned his appointment in the respondent Corporation, with effect from the date of his proceeding on leave. Therefore, the absence of the petitioner from duty, on or after 19.10.1997, cannot be termed as a misconduct, as the petitioner would be deemed to have resigned from his service under the respondent Corporation. Accordingly, no disciplinary action could have been initiated against the petitioner for his alleged unauthorised absence from duty after 19.10.1997. 17. Further, there is no dispute with regard to the fact that the petitioner had been in the service of the respondent Corporation on 1.1.1992, when the respondent Corporation had issued the proceedings revising the pay scales including the allowances and other benefits for its executives. Therefore, it cannot be said that the petitioner had left the service of the respondent Corporation without permission or notice, as alleged. Once the right had accrued to the petitioner from 1.1.1992, it cannot be said that the revision of pay scales would not be applicable to the petitioner. According to the terms of the scheme, which is a binding contract between the petitioner and the respondent Corporation, the petitioner cannot be denied the revised 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 to have voluntarily resigned from service from 19.10.1995, no further act is necessary from the respondent to endorse or authorise his resignation. After 19.10.1995, there would be no master and servant relationship between the respondent https://hcservices.ecourts.gov.in/hcservices/ Corporation and the petitioner. Once it is stated that it would be a 'deemed resignation', there would be no need for the petitioner to submit a further resignation letter nor would there be any need for the respondent to accept the same. 18. The contention raised on behalf of the respondents that once the petitioner had availed the benefits granted to him on the basis of the proceedings, dated 17.11.1998, he cannot be permitted to seek for further benefits thereafter, by challenging the said proceedings, cannot be said to be correct. But for the proceedings, dated 17.11.1998, issued on behalf of the respondent Corporation, the petitioner would have continued in service. Further, the resignation letter submitted by the petitioner had not been accepted by the respondent Corporation as correct and valid. 19. The claim of the respondent Corporation that the case of the petitioner would fall under clause 15(iii)(c) of the proceedings issued by the respondent Corporation, on 5.4.1996, is not acceptable. Once the petitioner is deemed to have voluntarily resigned from service, on 19.10.1995, the question of his unauthorised absence thereafter, would not arise. Therefore, it cannot be said that the petitioner had committed a misconduct by his unauthorised absence nor can it