Allowed

K.S.Cherian v. the Kerala Agro Machinery Corporation Lt

Kerala HC10 Jan 2018WP(C)/20316/2011

Case brief

AI extract

What is this about?

This court allowed a writ petition filed by a reinstated employee seeking promotion as Assistant Engineer. The court held that the petitioner was eligible for notional promotion with effect from the date his juniors were promoted, despite not being in the seniority list at that time, as the Labour Court had directed reinstatement with continuity of service.

What did the court decide?

The petitioner was declared entitled to notional promotion as Assistant Engineer with effect from 12.07.2011 and all consequential benefits.

K.S.Cherian Vs the Kerala Agro Machinery… — Labour and Industrial Disputes | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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WEDNESDAY, THE 10TH DAY OF JANUARY 2018 / 20TH POUSHA, 1939

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WP(C).No. 20316 of 2011

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PETITIONER(S)

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K.S. CHERIAN, (EMPOYEE NO.2421), CHARGE HAND, ATHANI UNIT, KERALA AGRO MACHINERY CORPORATION LTD, ATHANI, ERNAKULAM DISTRICT.

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BY ADV. SRI.V.MADHUSUDHANAN, SRI.B. UNNIKRISHNA KAIMAL.

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RESPONDENT(S):

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1. THE KERALA AGRO MACHINERY CORPORATION LTD, REPRESENTED BY ITS MANAGING DIRECTOR,, ATHANI, ERNAKULAM DISTRICT, PIN-683 585.

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2. C.P. HAREENDRANATH,(E.NO.2140), ASSISTANT ENGINEER, MATERIALS OFFICE, CORPORATE OFFICE, KERALA AGRO MACHINERY CORPORATION LTD, ATHANI, ERNAKULAM DISTRICT-683 585.

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3. K.K. RAJAN,(E.NO.2149), ASSISTANT ENGINEER, PURCHASE DEPARTMENT, KERALA AGRO MACHINERY CORPORATION LTD, PALAKKAD-678 621.

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R1 BY ADVS. SRI.E.K.NANDAKUMAR,

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SRI.P.BENNY THOMAS, SRI.P.GOPINATH, SRI.K.JOHN MATHAI. R2 & R3 BY ADVS. SRI.N.C.MOHANAN, SRI.T.P.RAMACHANDRAN (THACHETH).

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 20316 of 2011

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1	COPY OF THE AWARD DATED 22/09/2008 IN ID. NO.10/02 PASSED BY THE LABOUR COURT, ERNAKULAM.
EXT.P2	COPY OF THE LETTER DATED 23/02/2009 OF THE 1ST RESPONDENT.
EXT.P3	COPY OF THE STATEMENT DATED 24/03/2009 ISSUED BY THE 1ST RESPONDENT.
EXT.P4	COPY OF THE SERVICE ORDER DATED 11/08/2010 ISSUED BY THE 1ST RESPONDENT.
EXT.P5	COPY OF THE SERVICE ORDER DATED 15/01/2011 ISSUED BY THE 1ST RESPONDENT.
EXT.P6	COPY OF THE RELEVANT PORTION OF GO(MS) NO.72/2000/AD DATED 21/03/2000.
EXT.P7	COPY OF THE REPRESENTATION DATED 25/05/2011 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT.P8	COPY OF THE NOTICE NO.PR2/500 DATED 26/04/20121 ISSUED BY THE 1ST RESPONDENT.
EXT.P8A	COPY OF THE RELEVANT PORTION OF THE SENIORITY LISTS ISSUED ALONG WITH EXT.P8.
EXT.P9	COPY OF THE REPRESENTATION DATED 02/06/2011 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT.P10	COPY OF THE ORDER NO.KB.2/375 DATED 11/07/2011 ISSUED BY THE 1ST RESPONDENT.
EXT.P11	COPY OF THE ORDER NO.KB.2/279 DATED 12/07/2011 ISSUED BY THE 1ST RESPONDENT.
EXT.P12	COPY OF THE SERVICE ORDER DATED 22/09/2011 ISSUED BY THE 1ST RESPONDENT.
EXT.P13	COPY OF THE SERVICE ORDER DATED 03/01/2012 ISSUED BY THE 1ST RESPONDENT.
EXT.P14	COPY OF THE FINAL SENIORITY LIST OF OFFICERS OF ALL UNITS OF KAMCO AS ON 01/04/2012 PUBLISHED BY THE 1ST RESPONDENT.

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RESPONDENT'S EXHIBITS:

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EXT.R1A	COPY OF THE NOTICE DATED	22/09/2008 ALONG WITH SENIORITY LIST
	AS ON 01/08/2008.

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....2/-

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WP(C).No. 20316 of 2011

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EXT.R1B	COPY OF THE SELECT LIST DATED 24/09/2008 FOR THE ASSISTANT ENGINEERS.	POST OF
EXT.R1C	COPY OF THE SELECT LIST DATED 24/09/2011 FOR THE ASSISTANT ENGINEERS.	POSTS OF
EXT.R1D	COPY OF THE ORDER DATED 03/01/2012 PASSED BY THE	1ST RESPONDENT.
EXT.R2A	COPY OF THE SENIORITY LIST OF EMPLOYEES ELIGIBLE TO THE POST OF ASSISTANT ENGINEER IN GRADE 8, AS ISSUED BY 1ST RESPONDENT MANAGEMENT.	FOR PROMOTION ON 01/08/2008
EXT.R2B	COPY OF THE LETTER DATED 25/01/2010 FROM 'KAMCO' CENTRE (UTUC) TO THE DISTRICT LABOUR OFFICER.	EMPLOYEES
EXT.R2C	COPY OF THE LETTER DATED 19/02/2010 FROM 'KAMCO' CENTRE (CITU) TO THE DISTRICT LABOUR OFFICER.	EMPLOYEES
	//T	RUE COPY//
	P.S	. TO JUDGE

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rs.

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P.V.ASHA, J.

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W.P(C) No.20316 of 2011-L

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Dated this the 10^th day of January, 2018

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JUDGMENT

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The petitioner challenges the orders Exts.P10 and P11 by which respondents 2 and 3 were promoted and seeks promotion as Assistant Engineer with effect from the date on which respondents 2 and 3 were promoted and for consequential benefits.

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The petitioner joined the service of the 1^st respondent - the Kerala Agro Machinery Corporation Ltd. as Operator on 10.05.1978. He was granted promotion to higher grades in the category of Operator. In the year 1992 while he was working as Operator Grade-4, he submitted application for leave without allowance for a period of 5 years for taking up employment abroad. Pending the application, the petitioner left India on getting an offer of appointment to Kuwait and submitted another application on 23.08.1992 for leave without allowance for 5 years from 24.8.1992. The petitioner submits that the 1^st respondent had been granting leave for taking up employment abroad and therefore he left India and took up employment abroad. But the leave was not sanctioned and the 1^st respondent initiated disciplinary action against the petitioner

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W.P.(C).No.20316 of 2011

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for unauthorized absence from 24.08.1992 and dismissed the petitioner from service as per order dated 14.12.1992. The petitioner challenged the order of dismissal by filing O.P.No.10426/1993. By judgment dated 18.11.1999, the petitioner was directed to approach the 1^st respondent against the order of dismissal. When the representation submitted by him subsequent to that was rejected, the petitioner filed O.P.No.26380/2000 challenging the orders of dismissal and rejection of his representation. By judgment dated 18.11.2000 the writ petition was disposed of allowing the petitioner to raise industrial dispute. Thereafter, the Government referred the dispute for adjudication by the Labour Court, Ernakulam and it was numbered as I.D.No.10/2002. As per Ext.P1 award dated 27.1.2009, the order of dismissal was set aside directing reinstatement of the petitioner with continuity in service, but without backwages. The petitioner submits that the writ petition -W.P(c).No.22674/2009 challenging Ext.P9 award to the extent it denies him backwages has already been disposed of in the year 2016 remitting the matter to the Labour Court for reconsidering the question of backwages and the same is pending consideration.

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The petitioner was thereafter reinstated in service as per Ext.P2 order dated 23.2.2009. Thereafter, the 1^st respondent granted him promotion as per Ext.P3 order sanctioning grade change to Grade-

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W.P.(C).No.20316 of 2011

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4 w.e.f 1.6.1998 and fixing his pay on the basis of the grade change.

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The petitioner submits that in Ext.P8(a) seniority list of employees eligible for promotion to the post of Assistant Engineer in Grade-8 as on 1.4.2011 he was included at Sl.No.14 with date of coming over to the Grade-6 as 1.6.1998. Respondents 2 and 3 were included at Sl.Nos.16 and 18 with date of coming over to Grade-6 as 18.6.1998 and 8.12.1998 respectively. As per Ext.P6 long term settlement, the promotion to the post of Assistant Engineer was made by selection from Chief Mechanic charge-hand or equivalent category having minimum of 5 years. The method of appointment is amended whereby the promotion to the post of Assistant Engineer is made by selection from Chief Mechanic Charge-hand/Chief D'man/Senior Technical Asst./Mechanic/operator/Techl. Asst/D'man/Painter/Electrician who have passed SSLC examination plus ITI Trade Certificate/Diploma in Engineering and completed 5 years of service in Grade-6. Referring to Ext.P8(a) seniority list the petitioner points out that he has got service in Grade-6 from 1.6.1998 and therefore he was fully qualified to be promoted as Assistant Engineer. The petitioner submitted Ext.P9 representation on 02.06.2011 requesting for considering him for promotion on the basis of his rank in the seniority list in preference to those who are ranked junior to him. As per Ext.P10 dated 11.07.2011,

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W.P.(C).No.20316 of 2011

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the petitioner was informed by the 1^st respondent that he was not in service when select list was prepared on 24.09.2008 for the post of the Assistant Engineer in accordance with the promotion rules applicable to managerial and supervisory employees. It was also stated that promotion to the post of Assistant Engineer is being made from the select list based on necessity. The petitioner's name was not included in the select list, since he was not available at that time for consideration. It was also stated that his case for promotion cannot be considered in the absence of his name in the select list and that the said select list which was in force would expire on 23.9.2011. It was thereafter that Ext.P11order was passed on 12.7.2011 granting promotion to respondents 2 and 3 along with 9 others. This writ petition was filed at that stage challenging the promotion granted to respondents 2 and 3.

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Counter affidavits are filed by the 1^st respondent as well as respondents 2 and 3 separately. According to the 1^st respondent, the petitioner submitted application for leave in the year 1992, while he was working in Grade-4. As he left employment before getting sanction he was dismissed from service. It is stated that he did not produce any documentary evidence for offer of foreign employment and hence he was not granted leave. Disciplinary action was initiated

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W.P.(C).No.20316 of 2011

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against the petitioner for unauthorized absence from 24.8.1992 and since he was found guilty, he was dismissed from service w.e.f 14.12.1992. Consequent to Ext.P1 award setting aside the order of dismissal the 1^st respondent reinstated the petitioner. It is stated that the charge hand in Grade-6 in machine shop is appointed by selection from Operators in Grade-5 with 3 years' experience in that grade. The select list was drawn, from among the qualified hands in the category of charge man for promotion, on 10.08.2008. The petitioner who was not in service on 10.08.2008 was not included in the list. His name was included in the select list only on 10.08.2010 and he was promoted as Chargeman by order dated 11.08.2010.

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It is further stated that only those charge hands and other employees in the category of Chief Mechanic, Chief Draftsman, STA, TA, Mechanic, Operator, D'man, Painter, Electrician etc., with SSLC and ITI trade/Diploma in Engineering in Grade VI with 5 years of service in Gr.VI alone are entitled for promotion as Assistant Engineers, as per the special Rules for Recruitment and Promotion of Managerial and Supervisory Employees under the KAMC Employees' Staff bye-laws 1973. The Promotion Committee, which was held on 24.09.2008, had drawn a list of eligible hands for promotion to the post of Assistant Engineers from Ext.R1(a) seniority list dated

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W.P.(C).No.20316 of 2011

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22.09.2008. It is stated that petitioner's case was not considered at the relevant time, since he was not in service and he was not included in the seniority list. When the committee required a list of 72 candidates, as per Ext.R1(b) list. Subsequent to the reinstatement of the petitioner, i.e., after Ext.R1(b) select list was expired, the Promotion Committee held interview for promotion to the post of Assistant Engineers and a select list was drawn based on the selection held on 24.09.2011. Petitioner was included in that list as Rank No.5 as per Ext.R1(c) in the select list published on 24.09.2011, petitioner was therefore promoted as Assistant Engineer on 03.01.2012. According to the first respondent, respondents 2 and 3 were rightly promoted on the basis of their inclusion in the selection list of 2008.

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Respondents 2 and 3 have also filed a counter affidavit, justifying their promotion on the basis of the seniority list of eligible hands, as on 01.08.2008, in which the petitioner's name did not find a place. According to the respondents, petitioner, who re-joined only on 05.03.2009, was not entitled to be promoted along with them and he had not made any request to the first respondent to conduct an interview for him, for getting promotion as Assistant Engineer.

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I heard the learned counsel for the petitioner and the respective respondents.

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W.P.(C).No.20316 of 2011

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It is seen that dismissal of the petitioner was set aside by the Labour Court, as per the award Ext.P1, directing reinstatement with continuity in service, though without backwages. The denial of backwages is also now under consideration of Labour Court on the basis of the judgment in writ petition filed by the petitioner challenging denial of backwages.

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Subsequent to the reinstatement of the petitioner, as per Ext.P2 order, petitioner was considered for promotion and was promoted as per Ext.P13 order on 03.01.2012, on the basis of his inclusion in Ext.P8 seniority list. That means petitioner was found fit and suitable by the respondents, though he was not included in the seniority list of 2008 and though he was not considered by the selection committee along with respondents 2 and 3. When the Labour Court directed reinstatement along with continuity of service and the respondents themselves included the petitioner in the seniority list of eligible hands though subsequently and granted him further promotions, petitioner should have been granted all benefits as if he continued in service as in the case of respondents 2 and 3. When respondents 2 and 3 were admittedly placed in Grade VI subsequent to the petitioner, who was placed in Grade VI, as per Ext.P3 order with effect from 01.06.1998, there would not have been any impediment for

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W.P.(C).No.20316 of 2011

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consideration of the petitioner on the basis of the judgment, even though, at the relevant time petitioner was not in service. Therefore, the non availability of the petitioner at the time when the seniority list was drawn and the Promotion Committee considered the cases of those who were included in Ext.R1 (a) or Ext.R1(b) cannot stand in the way of considering the petitioner for promotion or for grant of legitimate promotion to the petitioner with effect from the due date. The fact that petitioner was granted promotion with effect from 03.01.2012, shows that petitioner would have been found eligible for grant of promotion when orders of promotion were issued to his juniors, despite the fact that inclusion of the petitioner in the list. In order to effectively implement Ext.P1 award, the first respondent ought to have considered the case of the petitioner separately, when he was granted the promotion as per Ext.P3 and before any of the persons, who were placed in Grade VI with effect from the dates subsequent to the placement of the petitioner in Grade VI, at least immediately after Ext.P3 order was issued.

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In the above circumstances, I find that the petitioner was eligible for promotion in preference to the respondents 2 and 3. Even though, the learned counsel for the respondents pointed out that inclusion of the petitioner in the seniority list Ext.P8, is under

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W.P.(C).No.20316 of 2011

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challenge before the Deputy Commissioner, I do not think that pendency of such a matter will affect the promotion of petitioner as long as Ext.P1 award is not under challenge, except by the petitioner to the extent it denied backwages. As the petitioner had already retired from service, no prejudice will be caused to the respondents 2 and 3 also.

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In the above circumstances, the writ petition is allowed, declaring that the petitioner would be entitled to get notional promotion as Assistant Engineer with effect from the date of Ext.P11 i.e., 12.07.2011, when respondents 2 and 3 were granted promotion. Petitioner would be granted all consequential benefits, within a period of 'three months' from the date of receipt of a copy of the judgment.

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Sd/-

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(P.V.ASHA, JUDGE)

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rtr/AS

K.S.Cherian v. the Kerala Agro Machinery Corporation Lt

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K.S.Cherian v. the Kerala Agro Machinery Corporation Lt

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