IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.7.2009 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition No.44522 of 2002 R.Raju. ... Petitioner vs. 1.The Chairman and Managing Director, Tamil Nadu Civil Supplies Corporation Limited, Chennai-600 010. 2.The Regional Manager, Tamil Nadu Civil Supplies Corporation Limited, Dharmapuri, Salem Main Road, Dharmapuri-636 705. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for records of the respondents pursuant to the proceedings in Na.Ka.20424/93/,5 dated 23.2.2001 in so far as it restricts the right of the petitioner and direct the respondents to regularise the petitioner's service from 23.1.1992 and consequently pay the monetary benefits from 23.1.1992. For Petitioner : Mr.Venkatesan for Mr.M.Selvam For Respondents : Mr.C.Selvaraj ----- O R D E R This Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus, calling for records of the respondents pursuant to the proceedings in Na.Ka.20424/93/,5 dated 23.2.2001 https://hcservices.ecourts.gov.in/hcservices/ insofar as it restricts the right of the petitioner and direct the respondents to regularise the petitioner's service from 23.1.1992 and consequently pay the monetary benefits from 23.1.1992. 2. Petitioner joined the services of the respondent Civil Supplies Corporation as trainee Bill Clerk on 1.11.1978. On 12.5.1981, he was issued with a show-cause notice on the allegation that he was responsible for transport of essential commodities to a place other than the retail outlet. In response, petitioner submitted a reply dated 21.5.1981. According to the petitioner, no enquiry was conducted. The management, however, examined some witnesses and the enquiry officer came to hold that the charges were proved. A second show-cause notice was issued on 9.8.1991 calling upon the petitioner to show cause as to why he should not be removed from service. Petitioner gave a reply on 3.9.1981 which was rejected and the petitioner was removed from service on 29.10.1981. Petitioner, thereafter, has raised an industrial dispute against the order of termination in I.D.No.170 of 1983. The Industrial Tribunal by award dated 23.1.1992 set aside the order of the respondent management removing the petitioner from service. The Industrial Tribunal while setting aside the order of removal from service, specifically ordered that the petitioner will be reinstated without backwages and without continuity of service. Respondent management, thereafter, filed Writ Petition No.2835 of 1993 challenging the award of the Industrial Tribunal. The High Court by order dated 1.2.2000 dismissed the writ petition and confirmed the award/order of the Industrial Tribunal. Thereafter, based on instruction by way of fax message issued on 23.2.2001 by the head office, the second respondent Regional Manager passed the impugned order dated 23.2.2001. Such order is challenged in the present writ petition. The substance of the order which is under challenge, viz., Na.Ka.20424/93/,5 dated 23.2.2001 is as follows: (i) The High Court has directed that the petitioner should be reinstated without backwages and without continuity of service. (ii) The head office in its fax message dated 23.2.2001, has directed that the petitioner should be appointed as a watchman. (iii) In view of the above, the petitioner, formerly trainee bill clerk, is appointed as a watchman in the scale of pay of Rs.2,550-55-2660-60-3200. (iv) On and from the date of joining duty, the petitioner will be treated as fresh appointee and he will not be entitled to any backwages or continuity of service. 3. The grievance of the petitioner is that he is entitled to https://hcservices.ecourts.gov.in/hcservices/ be reinstated as per the award of the Tribunal dated 23.1.1992. The relief of continuity of service and backwages was denied by the Tribunal and that alone can be denied. On the contrary, the respondents have proceeded on the basis that the reinstatement is ordered by the High Court without backwages and without continuity of service. This is apparently is on a misreading of the order of the High Court. 4. The respondent management is bound by the order of the Tribunal and cannot appoint the petitioner in some other post. This is in violation of the order of the Tribunal which has been confirmed by this Court. The condition imposed that the petitioner will be treated as fresh appointee also is contrary to the award of the Industrial Tribunal and confirmed by this court. On this ground, the impugned order is challenged and it is justified. 5. A counter-affidavit has been filed by the second respondent stating that on the basis of the order of this court dated 1.2.2000 dismissing the management's writ petition and also on the basis of the representation made by the petitioner, respondent civil supplies corporation issued the impugned order dated 23.2.2001 reinstating the petitioner in service. It is stated in the impugned order that the petitioner is not entitled to claim backwages for the period after the date of award since the award clearly states that the petitioner should be reinstated without backwages and continuity of service. Except stating as above, no other reason is given in the counter-affidavit. In effect the respondents have not denied the various contentions raised by the petitioner in the writ petition. Except narrating the facts leading to the initiation of departmental proceedings, resulting in the order of termination and reinstatement by the Industrial Tribunal, the respondents have not shown any good reason as to how the impugned proceedings dated 23.2.2001 can be sustained in law. 6. As far as the first part of the impugned order is concerned, the respondents have erroneously come to conclusion that the reinstatement has been ordered by this Court without backwages and without continuity of service. This is an error apparent on the face of record. Such order was passed by the Industrial Tribunal on 23.1.1992 and that has been confirmed by this Court. The petitioner is entitled to future benefit on reinstatement on or from the date of the award of the Industrial Tribunal, viz., 23.1.1992. He is not entitled to backwages or continuity of service for the period prior to the award (i.e.), 23.1.1992. The respondents on the other hand contend that the petitioner will not be entitled to backwages and continuity of service prior to 23.2.2001, on which date this court dismissed the writ petition confirming the award of the Tribunal. The impugned proceedings was passed after nearly nine years from the date of the award passed by the Tribunal and it is https://hcservices.ecourts.gov.in/hcservices/ not the fault of the petitioner. Petitioner is entitled to the benefit of the award of the Tribunal confirmed by this Court. The respondents are, therefore, not justified in denying the backwages and continuity of service on and from 23.1.1992 (i.e.) the date of the award of the Tribunal. 7. In so far as the appointment of the petitioner as watchman is concerned, it is admitted case of the respondents that the petitioner was appointed as a trainee bill clerk/sales assistant and therefore, based on a fax message from the head office, the petitioner cannot be appointed as a watchman. No rule or provision of law has been shown as to how the petitioner can be appointed as watchman. The reinstatement order of the Tribunal is in relation to the work performed by the petitioner at the time of institution of disciplinary proceedings. Therefore, the appointment of the petitioner as a watchman is erroneous and bad. 8. The impugned order treats the petitioner as a watchman on a particular scale of pay and he is stated to be a fresh appointee. This is also contrary to the order of the Tribunal as confirmed by this court. 9. Petitioner was already in service from 1.11.1978 and the show-cause notice was issued on 12.5.1981. Petitioner will be entitled to the benefit of the order of the Tribunal and he should be reinstated in the same post held at the time of termination. The respondents cannot treat the petitioner as a fresh appointee. No rule or provision of law has been shown as to how the petitioner should be treated as a fresh appointee. Therefore, the entire proceedings dated 23.2.2001 which is under challenge suffers from arbitrary and capricious exercise of power by the respondent authority. Respondents have erroneously denied the benefits that has accrued to the petitioner consequent to the order of the Tribunal which has been confirmed by this Court. 10. In the result, the impugned order is set aside. The petitioner is entitled to reinstatement based on the award of the Tribunal dated 23.1.1992 in I.D.No.170 of 1983. Petitioner is entitled to all the benefits on and from the date of the award of the Tribunal. 11. The impugned proceedings of the respondent Civil Supplies Corporation on the face of it is without application of mind treating the claim of the petitioner casually and without going into the merits of the award of the Tribunal and the order of this court. https://hcservices.ecourts.gov.in/hcservices/ 12. This court was inclined to impose cost. However, learned counsel for the respondents made an earnest plea that immediately on receipt of a copy of the order of this Court, the respondents will take steps to implement the order and therefore, no cost should be imposed. Considering the said submission, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ts To 1.The Chairman and Managing Director, Tamil Nadu Civil Supplies Corporation Limited, Chennai-600 010. 2.The Regional Manager, Tamil Nadu Civil Supplies Corporation Limited, Dharmapuri, Salem Main Road, Dharmapuri-636 705. +1cc to Mr.V.Selvaraj,Advocate Sr 34132 +1cc to Mr.M.Selvam, Advocate Sr 33714 KM(CO) km/6.8. W.P.No.44522 of 2002 https://hcservices.ecourts.gov.in/hcservices/