IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 16..07..2009 C O R A M The Honourable Mrs. Justice Prabha Sridevan and The Honourable Mr. Justice C.T. Selvam Writ Appeal No.1477 of 2006 1. The Management, Rural Unit for Health and Social Affairs (RUHSA), Gudiyatham Taluk, North Arcot Ambedkar District, Pin – 632 209. 2. The Management, Christian Medical College and Hospital, Vellore – 632 004, North Arcot Ambedkar District... Appellants/Respondents 2 & 3 versus 1. The Presiding Officer, Labour Court, Vellore-632 004. 2. R. Chidambaram .. Respondents/1st Respondent & Petitioner - - - - - Prayer : Writ Appeals filed under Clause 15 of the Letters Patent against the order passed by a learned single Judge of this Court dated 27.9.2006 in W.P. No.2434 of 1996. Writ of Certiorarified Mandamus, calling for the records of the presiding Officer, Labour Court, Vellore the 1st respondent herein in connection with its impugned order dated 5.10.1994 made in I.D.No.428/93 and quash the same and direct the third respondent herein to reinstate the petitioner in service with continuity of service,with backwages and all other attendant benefits for the relief as stated therein. - - - - - For Appellants : Mr. Sanjay Mohan for M/s. S. Rama Subramaniam Associates https://hcservices.ecourts.gov.in/hcservices/ For Respondent-2 : Mr. N.G.R. Prasad for Mr. S.N. Ravichandran - - - - - J U D G M E N T Prabha Sridevan, J. The second respondent herein was selected for training as Livestock Supervisor in the Programme conducted by the Rural Unit for Health and Social Affairs (RUHSA) with effect from 1.6.1983. The RUHSA had rules providing for benefits to the employees under the said Programme. In the year 1985, RUHSA was re-integrated with the Chritian Medical College and Hospital, Vellore. The second respondent was asked to give his option and willingness to come under the discipline of CMCH. He gave an undertaking to abide by the CMCH Staff Service Rules, Leave Rules, etc. 2. By order dated 16.10.1987, the CMCH, the second appellant herein, informed the second respondent that his term of appointment was extended and he was posted as Livestock Assistant in the RUHSA Department at the institution for a period of three years from 1.7.1985. This appointment letter had the usual clauses, viz. the appointment being temporary and terminable at any time without notice. By order dated 27.6.1988, his appointment was extended for one more period of one year from 1.7.1988 and then again for a period of six months from 1.7.1989 by order dated 9.6.1989. On 4.1.1990, his appointment was extended for one month. On 29.1.1990, he was informed that there would be no further extension of his services because of reduction of funds and that his appointment will cease from 1.2.1990. 3. The second respondent and one C. Ramamurthy, similarly placed, raised industrial disputes in I.D. Nos.420 and 421 of 1993. The Labour Court at Vellore dismissed their claim for reinstatement and other benefits and held that, "by no stretch of imagination, they could have reasonably expected to be absorbed in the permanent vacancies under the second respondent-CMCH at Vellore and that the appointment had come to an end by efflux of time". The other employee, Ramamurthy filed W.P. No.19562 of 1996 and the second respondent filed W.P. No.2434 of 1996. W.P. No.2434 of 1996 was dismissed for default on 29.11.2001. he filed a restoration application on 15.12.2001 with a delay of 280 days. On 8.7.2003, the second respondent was appointed as a Temporary Junior Assistant in the Tamil Nadu Ministerial Services where he continues to work till date. On 3.3.2004, the writ petition filed by Ramamurthy came to be allowed by this Court, which directed that he would be reinstated with backwages, but with continuity of service. On 25.8.2005, the delay in re-presentation was condoned and the second respondent's https://hcservices.ecourts.gov.in/hcservices/ writ petition was restored by order dated 10.9.2005, approximately four years from the date on which it was dismissed for default. On 27.9.2006, the order that is challenged herein was passed by the learned single Judge directing reinstatement of the second respondent without backwages, but with continuity of service. 4. Learned counsel appearing on behalf of the appellant-CMCH submitted that in the Hospital, there is no position where a Livestock Inspector can be accommodated and merely because Ramamurthy was reinstated in obedience to this Court's order would not give the second respondent herein an automatic right of reinstatement. Learned counsel also submitted that the second respondent should have been content to leave the writ petition, which was dismissed for default, as it is, since he had got an appointment in the Tamil Nadu Ministerial Service. It was only because he was inspired by the success of the other employee Ramamurthy that he had given life to the writ petition that was dismissed for default. Learned counsel submitted that the delay with which he had moved this Court for restoration must definitely be a factor which would disentitle him to have the same benefit that Ramamurthy was given. Learned counsel referred to the following decisions : (2005) 5 S.C.C. 91 [Haryana State Co-op. Land Development Bank vs. Neelam] (1994) 1 S.C.C. 373 [Renu Mullick vs. Union of India] (2002) 2 S.C.C. 475 [Food Corporation of India vs. S.N. Nagarkar] (2005) 7 S.C.C. 690 [Bank of India vs. Avinash D. Mandivikar] 5. Learned counsel appearing for the second respondent submitted that when both Ramamurthy and the second respondent had been inducted under the same RUHSA Programme, they are entitled to be reinstated with the same benefits. Learned counsel also submitted that during the pendency of the court proceedings, it would be cruel to expect the litigant to starve and just because he takes up a temporary appointment, that cannot be cited as a reason for not granting him his just relief. Learned counsel submitted that if the appellant's case that the second respondent is not entitled to be given any appointment in the Hospital must be accepted, then the option letter given by them is meaningless. According to the learned senior counsel, the fact that he gave the option letter asking him whether he was willing to abide by the CMCH Rules would show that he was entitled to be absorbed as an employee of the Hospital. Learned counsel also relied on the following decisions : 2002 (1) L.L.J. 460 [A.P.S.R.T.C., Cuddapah vs. K. Bajjanna] (1997) 6 S.C.C. 721 [K.C. Sharma vs. Union of India] https://hcservices.ecourts.gov.in/hcservices/ (2008) 9 S.C.C. 24 [Maharaj Krishan Bhatt vs. State of Jammu & Kashmir] C.D.J. 2006 S.C. 353 = (2006) 4 S.C.C. 733 [U.P.S.R.T.C. Ltd. vs. Sarada Prasad] (1983) 4 S.C.C. 225 [Sengara Singh vs. State of Punjab] 6. After hearing the matter, we asked the learned counsel whether the Hospital was willing to pay some compensation which would be acceptable to the second respondent. There was no meeting point with regard to the quantum of compensation offered and the quantum of compensation expected. Further, it appears that being an employee of the Hospital has certain other benefits that cannot be matched by monetary benefits. 7. We will look at the words in the option letter given by the second respondent which reads as follows : "I am working as a Animal Husbandry Supervisor is RUHSA from 1.6.83 having been appointed by the Programme Director, RUHSA. Consequent on the re-organisation of RUHSA and (integration of RUHSA with CMCH), I hereby give my option and willingness to come under the discipline of CMCH and also to work in any Unit/Department of CMCH or RUHSA department as the case may be. I shall abide by the CMCH Staff Service Rules, Leave Rules and other Rules and regulations." 8. The learned single Judge who decided the case of Ramamurthy held that while it is true that CMCH had the discretion to keep the workman either under the RUHSA Project or under their own establishment until the Project continued, but once the RUHSA Project concluded, it was obligatory on the part of the respondents to have transferred the writ petitioner to any other department of CMCH. That would be the natural outcome for the petitioner, he having exercised his option. The learned single Judge held that otherwise, there was no purpose in calling for an option. In the order under challenge with regard to the second respondent, the learned single Judge was of the opinion that there is no reason why the management should discriminate between the petitioner and Ramamurthy when both their cases rest on almost identical facts. 9. Now, we will look at the decisions cited by the learned counsel for the appellants. In (2005) 5 S.C.C. 91 (supra), the respondent was appointed as a Typist on an ad hoc basis with the appellant-Bank. She did not possess the requisite qualification. Her appointment was extended from time to time on several occasions. On 30.5.1986, it was discontinued. Thereafter, she joined the https://hcservices.ecourts.gov.in/hcservices/ services of Haryana Urban Development Agency. Others who had also been appointed on an ad hoc basis as the respondent before the Supreme Court got some relief in the industrial dispute raised by them. Inspired by that, the respondent filed the writ petition and then she prayed for permission to withdraw the writ petition so that she can approach the labour court. The labour court dismissed her claim as belated. Against that, she filed a writ petition and the High Court allowed the writ petition directing her to be reinstated with continuity of service, but without backwages. Aggrieved by that, the Bank moved the Supreme Court. The Supreme Court held that indisputably, the respondent had filed the writ petition only after the other workman had obtained some relief and that the belated claim was justifiably taken note of by the labour court. The Supreme Court set aside the order passed by the High Court and allowed the appeal. According to the appellant herein, the above case is identical to the case on hand since here also, the second respondent was content with the status quo of the dismissed writ petition, but only inspired by Ramamurthy's success, had belatedly moved the restoration petition, though it was undoubtedly filed earlier. 10. Insofar as the judgments relied on by the learned counsel for the appellant, in (2005) 7 S.C.C. 690 (supra), the argument was that the relief given in another case where an equitable view had been taken must be applied to the respondent before the Supreme Court. The Supreme Court was of the opinion that, that was given under the peculiar factual background of that case. Similarly, the learned counsel for the appellant here submitted that the fact that Ramamurthy was granted reinstatement and absorbed cannot ipso facto mean that the second respondent herein should also be given the same benefit. In (1994) 1 S.C.C. 373 (supra), the Supreme Court had commented about the extension of constitutional remedy only to persons with clean hands and honest conscience. In (2002) 2 S.C.C. 475 (supra), the Supreme Court had held that under Article 226 of the Constitution, the Court may mould the relief having regard to the facts of the case and interest of justice. According to the learned counsel, except for compensation, no other relief can be granted in this case. 11. Now, we will look at the decisions cited by the learned counsel for the second respondent. In (1997) 6 S.C.C. 721 (supra), in view of the decision of a Central Administrative Tribunal declaring certain notification as invalid, the appellants claimed the same benefit, though with delay. The Supreme Court held that it was a fit case where the Tribunal should have condoned the delay in filing the application and the appellant should have been given the relief in the same terms as was granted by the Full Bench of the Tribunal. In (1983) 4 S.C.C. 225 (supra), the Supreme Court held that when the petitioners and others were wrongly dismissed and some https://hcservices.ecourts.gov.in/hcservices/ others were reinstated, the petitioners were also entitled to be treated on par. In (2006) 4 S.C.C. 733 (supra), the Supreme Court held that when the employee had raised an industrial dispute after a period of seven years, he was entitled only to 50% of the backwages. According to the learned counsel appearing for the second respondent, moulding of the relief could only mean that he was not entitled to backwages, but he should be granted all other benefits. In (2008) 9 S.C.C. 24 (supra), the Supreme Court held as follows : "Constitution of India – Arts. 14 and 16 – Extension of benefit to similarly situated persons – Proposition of law accepted that wrong decision in one case could not be extended to others – But held on facts, once a judgment had attained finality, it could not be termed as wrong, and its benefit ought to have been extended to other similarly situated persons – Service Law – Promotion – Service Recruitment rules – Relaxation of – SErvice Law – J & K Police Manual – Ch. VII, Regn. 174." In 2002 (1) L.L.J. 460 (supra), the Supreme Court held as follows : "The Supreme Court found that a similarly placed workman had been given the relief of reinstatement with back wages by the appellant-Corporation. There was no reason why the respondent placed in similar circumstances should not be granted similar relief. The appellant was therefore directed to pay the respondent workman back wages , subject to his placing materials before the competent authority to show that he was not gainfully employed during the relevant period." 12. On a reading of the option letter, we are not persuaded to hold contrary to what the learned single Judge had held in Ramamurthy's case. There was no meaning in asking the employee whether he was willing to come under the CMCH Rules if the possibility of CMCH taking him into its services did not exist. Otherwise, the offer could not have been made and when the offer has been made and accepted, the CMCH was bound to abide by the offer it had made. Therefore, clearly the second respondent is entitled to reinstatement. Now the question is, what further relief is he entitled to. 13. Though the above decisions would show that persons similarly placed should be treated similarly, we are not sure that the second respondent and the aforesaid Ramamurthy are similarly placed. The observation of the Supreme Court in (2005) 5 S.C.C. 91 (supra) apply to an extent in the present case. There too, the proceedings seeking the relief of reinstatement were not agitated vigorously, as in this https://hcservices.ecourts.gov.in/hcservices/ case, perhaps because the second respondent herein had got an appointment with the Tamil Nadu Ministerial Service. In the case before the Supreme Court, the workman had secured employment with HUDA. Similar feature is not found in Ramamurthy's case or at least it is not brought to our knowledge. It is only because Ramamurthy achieved success that the application for restoration filed on behalf of the second respondent was immediately brought up. Otherwise, it was lying in the Registry for years without any effort to secure orders. It was repeatedly submitted before us that for the delay that occurs in the Court, the workman cannot be punished. If really there had been urgency, the restoration petition would have immediately been moved. In fact, the restoration petition itself was filed with delay. The second respondent has been working as Junior Assistant in the Tamil Nadu Ministerial Service and his salary was Rs.4,000/- per month initially. Therefore, there are several features which make this case different from the case of the other employee Ramamurthy, and therefore, the relief we grant to the second respondent herein must be moulded suitably. 14. The writ appeal is allowed to the following extent. We modify the order passed by the learned single Judge only with regard to granting of consequential benefits of continuity of service. With regard to reinstatement and regularization without any backwages, we confirm the order of the learned single Judge. But as regards the benefits flowing from continuity of service, that will be restricted only to his terminal benefits. For all other purposes, no benefit will flow from continuity of service. The appeal is partially allowed. There shall be no order as to costs. Consequently, M.P. No.1 of 2009 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ab To The Presiding Officer, Labour Court, Vellore-632 004. +1cc to Mr.S.N.Ravichandran, Advocate Sr 31745 VSV(CO) km/22.7. W.A. No.1477 of 2006 https://hcservices.ecourts.gov.in/hcservices/