IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 WP(C).No. 159 of 2010(T) ----------------------------------- PETITIONER(S): ------------------------ JAGADISH K.N., S/O.K.K.N.NAMBIAR, AGED 53 YEARS, "MAKUNY", PALAPPARAMBU ROAD, ELAMAKKARA P.O., KOCHI 682 026 (NOW WORKING AS DEPUTY CHIEF ENGINEER IN THE JOB ORDER DEPARTMENT. BY ADV. SRI.ANTONY M. AMBAT RESPONDENT(S): -------------------------- 1. HMT LTD., REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, HMT BHAVAN, 59, BELLARY ROAD, BANGALORE-560 032. 2. THE GENERAL MANAGER, HMT MACHINE TOOLS LTD., HMT COLONY P.O., KALAMASSERY 683 503. 3. UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF INDUSTRY, DEPARTMENT OF PUBLIC ENTERPRISES (WC) 14, CGO COMPLEX, LODI ROAD, NEW DELHI-110 003. BY SRI.M.PATHROSE MATTHAI, SENIOR ADVOCATE BY ADVS. SRI.SAJI VARGHESE, SMT.MARIAM MATHAI. R3 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.T.RAVIKUMAR, J. ---------------------------------------- W.P.(C) NO. 159 OF 2010 ---------------------------------- Dated this the 1st day of February, 2010 JUDGMENT The petitioner who joined the services of the 1st respondent company on 20.7.1981, is due to retire from its service on superannuation on 30.08.2014. He is a Deputy Chief Engineer in the Job Order Department of the 1st respondent. In this writ petition, the petitioner challenges Ext.P8 order and also seeks for a direction to the 1st respondent company to withdraw forthwith Ext.P8 order and to consider Ext.P7 application for extension of lien for a further period of two years. 2. Admittedly, 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 W.P.(C) NO. 159 OF 2010 2 said scheme, the employees are free to seek regular career outside the company, subject to the conditions mentioned in Ext.P1. It is true that going by Ext.P1, 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 enjoined under Ext.P1 scheme, he had executed Ext.P2 agreement. In Ext.P2 agreement all the conditions contained in Ext.P1 have, virtually, been incorporated. After executing Ext.P2 agreement the petitioner 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. 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 any violation of the condition 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, on expiry of the period of lien originally granted to him viz., 3 years he had applied for extension of the period of lien as W.P.(C) NO. 159 OF 2010 3 per Ext.P7. But that request was rejected by the respondent as per Ext.P8. The relevant portion of Ext.p8 reads thus:- “The competent authority has decided not to grant extension beyond three years for all the employees who are under the lien Scheme as on date, since there is acute shortage of manpower in Technical areas.” This writ petition has been filed challenging Ext.P8 order. 3. The contention of the petitioner is that the action on the part of respondents in rejecting his claim made as per Ext.P7 is violative of Article 14 of Constitution of India besides violative of Article 21. According to him he had executed Ext.P6 agreement with M/s. Electronic Controls And Discharge Systems Pvt. Ltd., under the legitimate expectation that he would be granted lien period of five years. In other words, it was the expectation that on expiry of the originally granted period of three years he would be granted extension by two more years that made him to execute the same. According to him, the very scheme in W.P.(C) NO. 159 OF 2010 4 Ext.P1 was framed at the time when there were surplus hands in the first respondent company and it was sick unit. It is contended that the said situation continues even now and therefore there is no reason at all for respondents to reject his request made as per Ext.P7. The very condition incorporated for Ext.P1 that the lien period is extendable for a period of five years would reveal that the petitioner could legitimately expect extension of the originally granted period. It is the further contention that the reason now assigned to reject his application as per Ext.P8 could not be sustained as the said reason is not true to facts and in fact, the company is still overstaffed with officers. Further, it is contended that the statement by the respondents that all the persons who availed the benefit of Ext.P1 scheme on expiry of their lien period rejoined duty and no one has been granted with extension of lien are also incorrect. 4. The respondents have filed a counter affidavit refuting the claims and conditions of the petitioner. It is admitted that Ext.P1 is the special lien scheme permitting its employees to seek career outside the company but it is W.P.(C) NO. 159 OF 2010 5 subject to the conditions specifically mentioned therein. The minimum lien period is 3 years and it is extendable up to 5 years. The learned standing counsel brought to my attention the following conditions incorporated in Ext.P1 which are relevant in the context of the case. “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.” Relying on the aforesaid contentions the learned counsel for the respondents contended that there is no reason for the petitioner to form any legitimate expectation that the period of lien would be extended automatically. It is made clear in Clause(xiii) of Ext.P1 itself that grant of leave under the scheme shall be purely at the discretion of the management and it is also evident from Clause (ix) that a person who is availing the said benefit is not supposed to act or deal in any matter prejudicial to the W.P.(C) NO. 159 OF 2010 6 interest of the first respondent company. Further,Clause (viii) in Ext.P1 prohibits the company from filling up the posts held by the concerned employees who availed the special lien scheme during the period they proceed under the special lien scheme. In the light of the aforesaid provisions in Ext.P1 scheme it is contended that the petitioner who was aware of the condition in Ext.P1 should not have executed Ext.P6 agreement in a manner prejudicial to the interest of the company. The petitioner is bound by the conditions incorporated in Ext.P1. In terms of Ext.P2 the contention of the petitioner is that he should be given extension of lien period beyond three years. According to the learned counsel in fact Ext.P8 itself would reveal the reason for rejecting the request of the petitioner. There is acute shortage of manpower in the technical department and therefore, the petitioner being a technical expert cannot be given extension of lien period beyond three years in the best interest of the first respondent company. The respondent company is not in any way responsible or liable for the predicament now has been W.P.(C) NO. 159 OF 2010 7 facing on account of his execution of Ext.P6. 5. The very prayer in Ext.P7 application for extension of lien period would reveal that the petitioner is requesting for the same solely for satisfying his contractual obligation with the present employer created under Ext.P6. Ext.P6 is dated 11.1.07. The petitioner accepted the job under the present company after executing Ext.P2 with the first respondent company in terms of Ext.P1. Therefore, the petitioner is bound by the conditions incorporated in Ext.P2 especially in the light of Ext.P1. The formation of legitimate expectation that lien period would be extended for another 2 years since, it is extendable, cannot be a reason to interfere with Ext.P8. The respondents have in explicit terms, intimated its employees the conditions for availing the special lien scheme. It is also made clear unambiguously that the discretion as to whether lien period is to be extended or not is with management. Further a caution was given under Clause (ix) that persons who are availing the benefit of lien shall not in any way act or deal in any manner prejudicial to the interest of the first W.P.(C) NO. 159 OF 2010 8 respondent company. It is the contention of the respondents that they are facing acute shortage of technical experts. It is their further contention that the post held by the employee who proceeds under the special leave scheme could not be filled up even by a Contract/Casual/Temporary labour and therefore granting extension of leave would be prejudicial to the prospects of the company. It is for that precise reason that the company took the crucial decision not to extend the lien period to any employee who proceeded on the special lien scheme. It is true that the petitioner is refuting the verity of the said statement made by the respondents. At the same time there is nothing on record to show that the said statement as also, the reason assigned by the respondent in Ext.P8 are incorrect and false. 7. Whether the employees who proceeded under the Special Lien Scheme possess any right to claim its extension as a matter of right on the ground of legitimate expectation or on such other grounds, was elaborately considered by this Court in Ext R2(a). That was a case in W.P.(C) NO. 159 OF 2010 9 which another employee of the first respondent company under similar circumstances approached this court against the rejection of his request for extension of lien period under Ext.P1 scheme. After considering all aspects of the matter this court found that the minimum allowable lien period under Ext.P1 scheme is three years and merely because it is extendable for a period up to five years cannot be a reason for seeking its extension on the mere asking especially in terms of Clause 13 in Ext.P1. In the case of the petitioner herein admittedly, he proceeded on lien only in terms of Ext.P1 scheme that too, after executing Ext.P2 agreement and therefore, he cannot legally raise any challenge against Ext.P8 on the ground that Exts.P1 and P2 stand against him from fulfilling the conditions of Ext.P6 agreement executed between himself and the present employer. The petitioner who was fully astute to the precise conditions in Ext.P1 and P2 should not have accepted and executed any agreement carrying a conflicting term or condition that would be prejudicial to the interest of the first respondent company as long as Ext.P2 was in force. If he W.P.(C) NO. 159 OF 2010 10 ventured to execute such an agreement it could only be at his peril. He cannot be heard to attribute illegality or irrationality on the actions on the part of the first respondent company so long as its action was strictly in terms of Ext.P1 and P2. As per Ext.R2(a) judgment this court found that the decision of the company not to extend the lien period could not be assailed or styled as an arbitrary one and therefore, that could not be interfered with by this court in exercise of powers under Article 226 of the Constitution of India. It was after considering all the contentions and rival contentions based on Ext.P1 scheme that this Court dismissed the said writ petition as per Ext.R2(a) judgment. I do not find any reason to disagree with the reasonings and findings in Ext R2(a). Since Ext.P8 order was passed taking into account the circumstances prevailing in the company it calls for no inference by this court under Article 226 of the Constitution of India. This writ petition is liable to fail. 8. When faced with such a situation the learned counsel for the petitioner submits that the respondents may W.P.(C) NO. 159 OF 2010 11 be directed to regularise the period between date of Ext.P8 and the date of his re-joining duty. I am of the opinion that it is a matter which can be considered by the competent authority under first respondent after allowing the petitioner to re-join duty. It is a fact that the petitioner has been pursuing his grievances against Ext.P8 before this Court and therefore, it is only appropriate for the respondents to consider the said aspect, in case, the petitioner puts forth such a claim and pass appropriate orders thereon. Subject to the above, this writ petition is dismissed. C.T.RAVIKUMAR, JUDGE. mns