S.P. Kalas vs Karnataka Land Army Corporation Ltd.

The petitioner was appointed as an Assistant Task Force Commander (ATFC) as per an Official Memorandum of the respondent Corporation dated 12.08.1983. His service came to be terminated on 22.09.1984. An industrial dispute was raised u/s 10(4-A) of Industrial Disputes Act (for short ''the Act''). The dispute was allowed and the order of termination from service w.e.f. 22.09.1984 was set-aside and the respondent was directed to reinstate the petitioner into service with full backwages, continuity of service and other consequential benefits, as per award dated 19.01.1995. The award was questioned by the Corporation in W.P.31634/1995, which was dismissed on 11.12.1995. W.A.599/1996 having been filed keeping in view the lapses attributable to the workman, observing that the relief could have been moulded in terms of Section 11-A of the Act, it was held that, consequent upon reinstatement of the petitioner, he would be entitled to only 50% of the backwages w.e.f 15.04.1988 i.e., from the date of reference till the date of reinstatement with continuity of service.

The award as modified in the judgment dated 06.08.1996 passed in W.A.599/1996, was implemented by the respondent by issuing an Official Memorandum dated 05.10.1996. The petitioner was reinstated into service in the post of ATFC with 50% of backwages from 15.04.1988. The petitioner was made eligible for benefit of continuity of service. Based on the said order, an Official Memorandum dated 31.01.1997/05.02.1.997 was passed by the respondent, reckoning the service of the petitioner in the Corporation as ATFC w.e.f. 30.08.1983 by fixing the pay at Rs. 750/- in pay scale of Rs. 750 - 1500/-. There was notional pay fixation for the period 30.08.1983 to 01.08.1987 with actual benefits for the period thereafter upto 09.10.1996, restricting the arrears of 50% of backwages. Feeling aggrieved by the said orders dated 05.10.1996 & 05.02.1997 (Annexures C & D), the petitioner filed W.P.31574/1997. It was found that the respondent having taken conscious decision regarding fixation of salary of the petitioner, it should not deprive the petitioner of the benefits without notice and affording an opportunity of hearing. The impugned action was found to be illegal. As a result, the writ petition was allowed. The order by which the salary of the petitioner was shown to have been reduced was quashed and the petitioner was held entitled to grant of salary in terms of his pay fixation, by making it clear that, the order would not come in the way of respondent Corporation in passing fresh orders regarding re-fixation of salary of the petitioner in accordance with the provisions of the law and after compliance of principles of natural justice.

The respondent thereafter passed an order dated 14.10.1998 reckoning the service of the petitioner w.e.f. 30.08.1983 in pay scale of Rs. 750 - 1500/- and the petitioner was directed to complete probation for a period of one year commencing from 10.10.1996. The said order, copy of which is at Annexure-F, was questioned by the petitioner in W.P.30793/1998. The writ petition was allowed in part. It was held that, the pay scale is to be made available and given to the petitioner from 30.08.1983 when he reported for duty pursuant to the award of the Labour Court. The impugned order was quashed and the respondent was directed to work out the amount payable. With regard to the contention of confirmation of probation, by noticing that the petitioner had not raised such plea in the earlier rounds of litigation, it was held that, the period of probation is deemed to have been extended from time to time. W.A.3420/2001 filed by the petitioner against the order dated 19.04.2001 passed in W.P 30793/1998, noticing that the petitioner did not work from 12.08.1983 to 09.10.1996 and had not completed his probation period of one year as per the initial order, the writ appeal was dismissed. Considering the representations submitted by the petitioner with regard to his time bound promotions, an endorsement dated 19.10.2005 as at Annexure-K was issued. The respondent has issued a notification dated 07.06.2003, as at Annexure-L, being the seniority list of personnel in the cadre of ATFC. This writ petition filed on 01.07.2009 is directed against the decision of the respondent as an Annexure-K, declining to extend the time bound promotions and the seniority list of ATFC as at Annexure-L.

The respondent has filed statement of objections, in justification of the decision as at Annexure-J and the ranking assigned to the petitioner in the cadre of ATFC as on 01.04.2008, as at Annexure-L. They have also raised the plea of delay arm laches in filing this writ petition. They nave also contended that, the petitioner having successfully completed the probationary period on 03.10.2002 vide order dated 18.06.2003, is entitled to the benefit as permanent employee of the respondent Corporation w.e.f 10.10.1996 and not w.e.f 12.08.1983 and hence his ranking shown in the seniority list as at Annexure-L is justified.

Sri A.R. Holla, learned Advocate appearing for the petitioner contended that:

(i) The seniority list of ATFC as on 01.04.2008 vide Annexure-L, treating the petitioner as a fresh appointee on 10.1.0.1996 is contrary to the findings in W.A Nos. 599/1996 & 3420/2001, since in W.A.599/1996, the respondent was directed to extend the benefit of continuity of service to the petitioner w.e.f 12.08.1983 and in W.A.3420/2001, it was only held that the petitioner has to complete the probationary period of one year. Hence, the seniority list is liable to be quashed and the ranking of the petitioner calls for modification by treating his date of initial appointment as 12.08.1983, resulting in extension of consequential benefits.

(ii) The respondent has not extended the benefits in terms of the findings in W.P.30793/1998, upheld in W.A.3420/2001 and there is denial of leave, the benefits under the time bound advancements by reckoning the service from 12.08.1983, as a continuous one.

Sri K. Ramachandran, learned Advocate appearing for the respondent, on the other hand contended that:

(i) The service conditions of the petitioner has been regulated in terms of the orders passed by the Labour Court and as modified by this Court and has been extended the consequential benefits. The petitioner having completed the probationary period as on 03.10.2002, an order dated 18.06.2003 was issued, reckoning the service of the petitioner from the date of re-appointment dated 10.1.0.1996 and the order passed on 1.8.06.2008 has not been questioned by the petitioner.

(ii) The petitioner is not entitled to reckon his service from 12.08.1983 and claim time bound advancement benefits, since he was reinstated into service on 10.10.1996 and was on probation till 03.10.2002 and hence the date of entry into service was reckoned as 10.10.1996 in the seniority list of the cadre vide Annexure-L.

(iii) Annexure-K having been issued on 19.10.2005 and the writ petition having been filed on 01.07.2009 the delay and laches having been admitted, as is evident from Para 8 of the writ petition, the explanation offered being only make-believe, the inordinate delay and laches cannot be condoned and the writ petition is liable to be rejected in limine.

(iv) The grievance against the ranking shown in Annexure-L/seniority list of ATFC as on. 01.04.2008 is untenable since the employees who are above him would be affected by any change, have not been impleaded and the writ petition to consider the grievance as against Annexure-L is bad for non-joinder of necessary and proper parties.

(V) The service of the petitioner in the respondent Corporation w.e.f 30.08.1983 would be reckoned for the purpose of payment of provident fund, gratuity and all other terminal benefits.

I have perused the record. In view of the rival contentions, the points for consideration are:

Whether the writ petition is hit by delay and laches?

Whether the writ petition is bad for non-joinder of necessary and proper parties?

What relief the petitioner is entitled to?

Dispute fifed by the petitioner against the respondent, questioning the order of termination from service w.e.f. 22.09.1984, was allowed as per an Award dated 19.01.1995 and the respondent was directed to reinstate the petitioner into service with full backwages, continuity of service and other consequential benefits. The Award having been questioned by the respondent, in W.A. 599/1996, as per judgment dated 06.08.1996, noticing the lapses on the part of the workman, the relief was moulded and the respondent Corporation was directed to reinstate the petitioner, who was held entitled to 50% backwages w e.f. 15.04.1988 i.e., the date of reference till the date of reinstatement with continuity of service. As per the Official Memorandum of the respondent dated 05.10.1996, the award as modified in the said judgment was implemented. The petitioner was reinstated into service in the post of ATFC. 50% backwages was allowed w.e.f 15.04.1988. Petitioner was held eligible to the benefit of continuity of service. Pursuant to the said order, Official Memorandum dated 31.01.1997/05.02.1997 (Annexure-D) was issued, which shows the date of petitioner''s entry into service as 30.08.1983 with pay scale of Rs. 750 - 1500/-. The period between 30.08.1983 to 01.08.1987 was treated as notional and 50% backwages was allowed for the subsequent period upto 09.10.1996. There being reduction of pay in March 1997, without Issuance of any notice or by making reference to any rules and in violation of principles of natural justice, taking into consideration the explanation offered that there was inadvertent fixation of pay of the petitioner at Rs. 2,100/- as on 09.10.1996 by granting periodical increments from 1983, by mistake, as the petitioner had not completed the probationary period, it was held that, there was violation of principles of natural justice in the matter of reduction of petitioner''s salary and consequently, Annexure-D to this writ petition was quashed and the petitioner was held entitled to the salary in terms of the Official Memorandum as at Annexure-C to this writ petition. Liberty was reserved to the respondent Corporation for passing fresh orders regarding re-fixation of salary to the petitioner, after compliance of principles of natural justice.

The respondent thereafter passed an order dated 14.10.1998, as at Annexure-F, reckoning the service of the petitioner w.e.f 30.08.1983 with pay scale of Rs. 750 - 1500/-. The petitioner was directed to successfully complete the probationary period from 10.10.1996, upon which only the petitioner was held entitled to annual increments. It was made clear that, the petitioner having not discharged the duty between 12.08.1983 to 09.10.1996, for the period between 12.08.1983 to 09.10.1996, the petitioner is not entitled to leave of any kind. The petitioner questioned the said order in W.P.30793/1998. By an order dated 19.04.2001, as at Annexure-G, it was held that:

a) The pay scale is to be made available and given to the petitioner on 30.08.1983, since the petitioner reported to duty pursuant to the award of the Labour Court in K.I.D.No.75/1993 dated 19.01.1995.

b) The respondent was justified in directing the petitioner to successfully complete the probationary period of one year, since the probation is deemed to have been extended from time to time.

c) The grievance against earned leave, casual leave and medical leave does not call for reconsideration.

W.A 3420/2001 filed by the petitioner was dismissed by noticing that the petitioner did not work from 12.08.1983 to 09.10.1996 and he has to complete his probation for a period of one year as per the initial order of appointment.

From the said order and the judgment, which have attained finality, it is clear that the petitioner having not worked between 12.8.1983 to 9.10.1986, cannot re-agitate the issue with regard to his probationary period and the claim towards earned leave, causal leave and medical leave, since the same have been answered against the petitioner.

The petitioner having represented to the respondent in the matter of extension of time bound advancement benefit, taking note of fact that the petitioner has successfully completed the probationary period on 03.10.2002 as declared in the order dated 18.06.2003, the endorsement dated 19.10.2005 as at Annexure-K was issued.

Re-point No. 1:

The claim of the petitioner to extend the benefit of time bound advancement was declined on 19.10.2005. The said order has been questioned in the writ petition, which was tiled on 01.07.2009. The first reason assigned by the petitioner that he could not challenge the said decision immediately, as he was facing financial problems is too vague and also untenable, since it is not the case of the petitioner that he was not on duty and was not paid the salary and allowances by the respondent during the relevant period. The second reason assigned that, he was on deputation to Zilla Panchayath (Engineering), Mangalore from April 2006 to April 2007 and could not pursue the matter is again untenable, as there was no impediment for the petitioner to have approached this Court to question the said order, even during the period of deputation. The third reason assigned that he pursued the matter with the official superiors by submitting representation as at Annexure-M, to which there was no response is untenable, since the said representation is not with reference to the decision of the respondent dated 19.10.2005 as at Annexure-K, but is primarily against the notification/seniority list dated 07.06.2008, as at Annexure-L. The record shows that the petitioner had questioned the actions of the respondent, from time to time i.e., from 1989 till the dismissal of W.A.3420/2001 on 27.09.2001. In the circumstances, I do not find any acceptable reason having been assigned, to ignore the delay and laches on the part of the petitioner in filing this writ petition.

Re-point No. 2:

Respondent prepared and notified the seniority list in the cadre of ATFC as on 01.04.2008 as per notification dated 07.06.2008. The petitioner''s name appears at Sl. No. 90 and his date of entry into service has been taken as 10.10.1996. The petitioner has represented against the said ranking and sought rectification. If the petitioner''s claim that his initial date of entry into service as 12.08.1983 were to be accepted, he has to be placed in between Sl. Nos. 3 & 4 of the said seniority list. It could be seen from the seniority list that several employees, whose names appear at Sl. Nos. 5 to 89, have earned promotions to higher cadres. If the petitioner''s claim were to be accepted, the employees whose name appear up to Sl No. 89, would be affected. The petitioner has not impleaded the said persons. When this aspect was pointed out to Sri A.R. Holla, learned counsel submitted that, petitioner is not serious about the ranking assigned to the petitioner in the seniority list. When the question of non-impleading of the affecting persons was pointed out to Sri A.R. Holla, learned counsel conceded that, to claim seniority over and above the employees at Sl. Nos. 5 to 89, they are necessary parties. Thus, the grievance of the petitioner against the seniority list - Annexure-L, cannot be considered and findings recorded, since the persons who would be affected by the change of ranks in the seniority list have not been impleaded. The contention of Sri K. Ramachandran with regard to petition being bad for non-joinder of necessary parties to consider the grievance against the seniority list as at Annexure-L, is well founded. The finding recorded in W.A.3420/2001 that the petitioner did not work between 12.8.1983 and 9.10.1996 is also significant. Consequently reliance placed by Sri A.R. Holla on the decision in the case of Shri L. Chandrakishore Singh Vs. State of Manipur and Others, is of no assistance to the petitioner.

Re-point No. 3:

In the order dated 19.04.2001 passed in W.P. 30793/1998, the order of the respondent dated 14.10.1998 i.e., Annexure-F, was quashed and the respondent was directed to work out the amount payable taking into consideration the fact that the petitioner was on consolidated salary and from 12.08.1983 and he was appointed on probation for one year as ATFC in pay scale of Rs. 750 - 1500/-. It was further held therein that, the petitioner should be given the benefits as per the orders passed by this Court. The said order was not questioned by the respondent. In the light of the said order, the submission made by Sri K. Ramachandran that, the respondent would reckon the service of the petitioner for the purpose of settlement of terminal benefits such as provident fund, gratuity etc., w.e.f. 12.08.1983 stands recorded.

For the foregoing reasons, the challenge put forth to the impugned orders being untenable, Rule is discharged and the writ petition is dismissed.

However, the respondent is directed to reckon the service of the petitioner for the purpose of payment of terminal benefits such as provident fund, gratuity etc., w.e.f. 12.08.1983.

No costs.