IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 WP(C).No. 6934 of 2010(N) ------------------------- PETITIONER(S): --------------- SOMASUNDARAM.K.S. S/O. SIVARAMAN ACHARY AGED 55 YEARS, "SOORYASOMA", MANKUZHY ROAD, EDAPPALLY TOLL, KOCHI-682024,ERNAKULAM DISTRICT. (SENIOR ENGINEER, CNC ASSEMBLY (PROGRESS) DEPARTMENT, H.M.T. LTD.) BY ADV. SRI.ANTONY M.AMBAT RESPONDENT(S): --------------- 1. HMT LTD. REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, HMT BHAVAN, 59, BELLARY ROAD, BANGALORE-560032. 2. THE GENERAL MANAGER, HMT MACHINE TOOLS LTD., HMT COLONY P.O., KALAMASSERY-683503. 3. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF INDUSTRY, DEPARTMENT OF PUBLIC ENTERPRISES (WC) 14, CGO COMPLEX, LODI ROAD, NEW DELHI-110003. ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA FOR R3 SRI.SAJU VARGHESE, STANDING COUNSEL-R1,R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C) NO. 6934 OF 2010 -------------------------------------------- Dated this the 9th day of March, 2010 JUDGMENT The petitioner who joined the services of the 1st respondent company on 7.7.1978, is due to retire from its service on superannuation on 30.11.2012. He is a Senior Engineer in the CNC Assembly (Progress) Department of the 1st respondent. In this Writ Petition, the petitioner challenges Ext.P9 order and also seeks for a direction to the 1st respondent company to withdraw forthwith Ext.P9 order and to consider Exts.P7 and P13 representations for extension of lien for a further period of two years. 2. The 1st respondent company is a sick industrial company, declared as such on 31.3.2005 under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985. As part of a revival scheme they have formulated Ext.P1 Special Lien Scheme. As per the said scheme, the employees are free to seek regular career outside the company, subject to the conditions mentioned in Ext.P1. Going by Ext.P1, the minimum duration of the lien is three years and it is extendable up to five years. The petitioner had applied under the scheme and thereafter, as W.P.(C) NO.6934/2010 2 enjoined under Ext.P1 scheme, he had executed Ext.P2 agreement on 31.7.2006. In Ext.P2 agreement all the conditions contained in Ext.P1 have, virtually, been incorporated. Thereafter, based on Ext.P3 application, he was relieved from the service of the first respondent Company for a period of three years as per Ext.P5 dated 26.8.2006. Thereupon, he took up employment in M/s. Electronic Controls And Discharge Systems Private Limited. At the time of joining the said company he executed Ext.P6 agreement on 27.8.2006. Ext. P6 contained the certain conditions which make him to serve the said company for a minimum period of five years from the date of joining its service. Moreover, as per the same in case of failure to serve the said minimum period of service of five years from the date of joining he is bound to pay compensation of Rs.5 lakhs. Therefore, prior to the expiry of the period of lien originally granted to him viz., 3 years, he had applied for extension of the period of lien as per Ext.P7 dated 20.7.2009. According to the petitioner, he was then called upon to submit a letter with a request to rejoin duty. Accordingly, he submitted Ext.P8 letter dated 25.7.2009 carrying a request for permission to rejoin duty. As per Ext.P9 dated 6.8.2009, the petitioner was informed W.P.(C) NO.6934/2010 3 of the decision not to grant extension of lien period beyond 3 years and was also requested to rejoin duty on 26.8.2009. The same was challenged by the petitioner before this Court in W.P.(C).No.22839/2009. As per Ext.P11 judgment dated 12.11.2009, the said Writ Petition was dismissed. W.A.No.2842/2009 was preferred against Ext.P11 judgment and the same was disposed of as per Ext.P12 judgment. The operative portion of Ext.P12 judgment reads thus: “The learned Single Judge dismissed the Writ Petition. Hence the Writ Appeal. Learned counsel for the appellant seeks permission to withdraw the Writ Petition itself, so as to pursue Ext.P7 application pending before the respondents. Though, normally this court would not permit such withdrawal, in view of the submission that liberty may be given to the petitioner to approach the second respondent for appropriate orders on Ext.P7, we set aside the judgment under appeal and permit the petitioner to withdraw the Writ Petition with liberty to move the second respondent/competent authority for appropriate orders on Ext.P7 application. The competent authority will pass appropriate orders as expeditiously as possible. Ext.P9 will be deferred till orders are passed on Ext.P7.” 3. The case of the petitioner is that pursuant to Ext.P12 judgment, he had submitted Ext.P13 representation dated 12.1.2010 and the same was received by the first respondent company on 18.1.2010. However, without waiting for Ext.P12 judgment and Ext.P13 representation, ExtP15 order rejecting Ext.P7 application was passed, it is W.P.(C) NO.6934/2010 4 submitted. In the circumstances, it is contended that Ext.P15 is a pre- determined and prejudiced reply and it could not be construed as an order passed in terms of Ext.P12. Therefore, on receipt of Ext.P15, he has submitted Ext.P16 representation. But, so far, the respondents have not taken any action subsequent to the receipt of Ext.P13 representation. It was in the said circumstances that this Writ Petition has been filed by the petitioner with the following prayers: (i) To call for the records leading to Exhibit P-9 order of the Respondent Company and to declare that the same is ultra vires of Articles 14, 21 of the Constitution of India. (ii) To issue a writ of certiorari or any other appropriate writ, direction or order, quashing Ext.P-9 order issued by the Respondent Company. (iii) To issue a writ of mandamus or any other writ, order or direction, directing the Respondent Company to withdraw forthwith the Ext.P-9 order and to consider Ext.P-7 and Ext.P-13 representations on merit for extension of lien for a further period of two more years. 4. At the very outset, it has to be noted that there is no challenge in this Writ Petition against Ext.P15 order whereby Ext.P7 application was rejected. In this Writ Petition, the petitioner is mainly assailing Ext.P9 order. In fact, this Court as per Ext.P11 judgment, declined to uphold the contentions against the said order. As per Ext.P12 judgment, considering W.P.(C) NO.6934/2010 5 the prayer made on behalf of the appellant/petitioner, permission was granted to withdraw the Writ Petition itself so as to enable the petitioner to pursue Ext.P7 application. A consequential direction was also given to the second respondent/competent authority to take appropriate orders on Ext.P7 application. Of course, the petitioner was granted a liberty to move the second respondent for that purpose. A perusal of Ext.P12 judgment would reveal that besides directing to pass orders on Ext.P7 expeditiously, Ext.P9 order was directed to be kept in abeyance till passing of such orders. Obviously, Ext.P15 order was passed by the second respondent pursuant to Ext.P12 judgment and as per the same, Ext.P7 application was rejected. In terms of the liberty granted to the petitioner to move the second respondent for orders on Ext.P7 application, he submitted Ext.P13 representation dated 12.1.2010 and the same was received by the first respondent company only on 18.1.2010. However, it is his contention that Ext.P15 order was passed without waiting for Ext.P12 judgment and without considering Ext.P13 representation. Therefore, Ext.P15 order cannot be construed as an order passed in compliance with Ext.P12 judgment. However, even after raising such an averment, no relief has W.P.(C) NO.6934/2010 6 been sought with respect to Ext.P15 order. 5. The question is whether Ext.P15 order is liable to be interfered with on the aforesaid ground? A bare perusal of Ext.P15 order would reveal that the same was passed in compliance with Ext.P12 judgment of the Division Bench in W.A.No.2842/2009. In fact, a scanning of Ext.P12 judgment would reveal that the second respondent was directed thereunder to pass appropriate orders on Ext.P7 application and till such time, Ext.P9 was ordered to be kept in abeyance. The question is whether the same is to be interfered solely because the second respondent did not wait till the second respondent was moved for that purpose. Construction of Ext.P12 judgment in such a manner would definitely be against the spirit of the said judgment. In fact, according to me, the petitioner was permitted to withdraw the Writ Petition even after suffering Ext.P11 judgment solely to enable him to pursue Ext.P7 application. Ext.P15 order would reveal that the second respondent has considered Ext.P7 application, imbibing the spirit of Ext.P12 judgment and the question whether Ext.P7 application could be sanctioned or not was also considered in detail by the second respondent as per Ext.P15. Therefore, according to W.P.(C) NO.6934/2010 7 me, Ext.P15 order cannot be interfered with solely on the ground that it was passed without waiting a move on the part of the petitioner ie., before receiving Ext.P13 application from the petitioner. 6. Indisputably, the impact of Ext.P15 order is restoration of Ext.P9 order. A scanning of Ext.P9 would reveal that the same was issued pursuant to the decision to reject the request of the petitioner for extension of the lien period for a further period of two years. Since this Court as per Ext.P12 judgment directed the second respondent to pass appropriate orders on Ext.P7 application, I think the technical contention regarding absence of specific prayer against Ext.P15 shall not stand in the way of this Court to look into the sustainability of Ext.P15 order. 7. Essentially, the contention of the petitioner against the action on the part of the respondents in rejecting his claim for extension of lien period is that it is violative of Article 14 of the Constitution of India besides being violative of Article 21. That apart, according to the petitioner, he had executed Ext.P6 agreement with Electronic Controls Discharge Systems Pvt.Ltd. under the legitimate expectation that on expiry of the originally granted lien period of three years, he would be granted W.P.(C) NO.6934/2010 8 extension for two more years since, going by Ext.P1 scheme, the lien period is extendable upto five years. The petitioner further contends that Ext.P1 scheme was framed at a time when there was surplus hands in the first respondent company and it was a sick unit and still the first respondent company is over staffed. 8. Ext.P6 agreement executed by the petitioner with M/s.Electronic Controls Discharge Systems Pvt.Ltd. would reveal that it carries a condition making it obligatory on the part of the petitioner to serve the said company for a minimum period of 5 years from the date of his joining the service of the said company and it also carries a further condition making the petitioner liable to pay a compensation of Rs.5 lakhs for violation of the said condition. In that context, it cannot lose sight of the fact that even prior to the execution of Ext.P6 agreement, the petitioner has executed Ext.P2 agreement that virtually carried all the conditions contained in Ext.P1. In W.P.(C).No.159/2010, I had occasioned to consider the sustainability of the contention of a similarly situated employee of the first respondent for extension of the lien period for a further period of two years from the date of the originally granted lien W.P.(C) NO.6934/2010 9 period of three years. It is a fact that virtually all the contentions raised by the petitioner herein were raised by the petitioner therein to challenge the action on the part of the first respondent-company in rejecting his claim for extension of the lien period. In that case also, in terms of Ext.P1 Scheme, the petitioner therein had executed an agreement exactly akin to Ext.P2 agreement. So also, availing the benefit of Ext.P1 Scheme, he sought job outside the company and on obtaining such a job, executed an agreement similar to Ext.P6 with that company. The point considered thereunder was whether execution of such an agreement after executing an agreement like Ext.P2 in terms of Ext.P1 with the first respondent company, would be sufficient to make a successful contention based on legitimate expectation. So also, the question whether the first respondent company got any obligation to extend the lien period only to enable the concerned employee to honour his obligation with the latter company disregarding the conditions in the agreement executed with the first respondent in the light of Ext.P1 Scheme, was considered. Ext.P1 is the Special Lien Scheme permitting the employees of the first respondent to seek career outside the first respondent company. But it is subject to the conditions specifically W.P.(C) NO.6934/2010 10 mentioned therein. Minimum lien period is three years and it is extendable up to 5 years. Whether the said fact would enable the employees who availed the benefit of Ext.P1 Scheme to seek an automatic extension of the minimum lien period was considered in the light of the other relevant provisions in Ext.P1. In that context of the issue, the following conditions in Ext.P1 were taken into consideration. “viii) The post of the employee who proceeds under the Special Lien Scheme should not be filled even by a Contract/Casual/Temporary labour. ix) Any person who has the benefit of lien shall not in any way act or deal in any manner prejudicial to the interest of the company. xiii) Grant of Lien under this scheme shall be purely at time discretion of Management.” 9. The fact that clause 13 of Ext.P1 made in unambiguous terms that the granting of lien under the Scheme shall be purely on the discretion of the management and the impact of clauses 8 and 9, extracted above, were also taken into consideration in the said judgment. Clause 8 prohibits the company from filling up the posts held by the concerned employee who availed the benefit of the Special Lien Scheme during the period when proceeded under the Special Lien Scheme and the fact that W.P.(C) NO.6934/2010 11 Clause 9 prohibits an employee who proceeds under the Special Lien Scheme to act in any way or deal in any manner prejudicial to the interest of the first respondent company were also taken into consideration.. In fact acute shortage of technically qualified personnel and rejection of requests of similarly situated persons were the reasons assigned as in this case. A perusal of Ext.P15 order would reveal that Ext.P7 application filed by the petitioner was also rejected exactly on similar grounds. After considering all the aspects of the issue, W.P.(C).No.159/2010 was dismissed. I am of the considered view that the case of the petitioner is squarely covered by the decision in the said Writ Petition. In short, I am of the opinion that there is no merit in the contentions raised by the petitioner warranting interference with the action on the part of the first respondent-company in rejecting the application submitted by the petitioner for extension of the lien period. The petitioner was required to rejoin duty on 26.8.09. Certainly, in the light of the subsequent developments, it became an impossibility to comply with the said direction. Necessarily, considering the fact that the petitioner has been pursuing his grievances before this Court, the respondents are bound to W.P.(C) NO.6934/2010 12 issue a fresh intimation denoting the date on which the petitioner is to rejoin duty. If the petitioner rejoins duty on receipt of such intimation, the respondents shall consider the question of regularisation of the period between Ext.P9 and the date of his rejoining duty. While considering the said aspect, the respondents shall bear in mind that the petitioner has been pursuing his grievances against Ext.P9 before this Court and pass appropriate orders thereon. Subject to the above observations, this Writ Petition is dismissed. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.6934/2010 13 C.T. RAVIKUMAR, J. W.P.(C) NO.6934/2010 JUDGMENT 9th March, 2010 W.P.(C) NO.6934/2010 14 W.P.(C) NO.6934/2010 15 C.T. RAVIKUMAR, J. W.P.(C). NO. /2010 JUDGMENT 3rd March, 2010 W.P.(C) NO.6934/2010 16