WP/7171/2000 of Vs on 19 December 2000

1. The Presiding Officer, Labour Court, Trichy.

2. Thiru.L.Poonchezhian, rep. by the Regional Secretary, Tamil Nadu Electricity Board, Accounts and Executive Staff Union, 44, Spencer Compound, 37, Veera Pandiamman Koil Street, Dindigul 624 001. ..Respondents Prayer : The Writ Petition filed under Article 226 of theConstitution of India for issue of Writ of Certiorari to call for therecords of the first respondent relating to his award, dated22.09.1999 and made in I.D.No.50/98 and quash the same as illegal andwithout jurisdiction.

The Chief Engineer/Personnel, Tamil Nadu Electricity Board is thewrit petitioner. The Challenge is to an award dated 22.09.1999 inI.D.No.50 of 1998, on the file of the first respondent. The secondrespondent workmen raised the industrial dispute before the firstrespondent stating that when he was working as Junior Assistant(Administration) in the office of the Assistant ExecutiveEngineer/South Sub-Division, Dindigul, he was proceeded withdepartmentally, which conclude in a punishment of stoppage of

increment for one year without cumulative effect, by order dated25.06.1994.

2. The period of punishment commenced on 01.04.1995 and in themeanwhile a panel for promotion to the post of Assistant(Administration) was drawn by the board in the proceedings dated14.02.1995, in which the second respondent name did not find place.The second respondent is said to have made an appeal to the Chairmanof the board on 24.04.1995, against the non inclusion of his name inthe promotion panel, dated 20.07.1995, which was not considered,since he was undergoing punishment. Thereafter, the second respondentapproached the conciliation officer for resolving the dispute, sincethe conciliation failed an industrial dispute was raised before thefirst respondent contending that there was no crucial date fixed forconsidering promotion to various categories of post and suchprocedure was not followed while drawing the panel from 1987 to 1995.Further, the second respondent placed reliance upon a memo of theTamil Nadu Electricity Board dated 26.06.1992, in memo no.12146/P192-1 and contended that he should have been considered for promotion.

3. The Board filed a counter statement and contended that thesecond respondent was not eligible to be included in the panel dated18.10.1996 for promotion as Assistant (Administration) for 1996,since on the crucial date i.e. 20th March, he was undergoingpunishment. The crucial date has been fixed by the board in BP.Ms(ch) 212 dated 12.06.1987. The first respondent, Labour Court, heldthat the concept of crucial date was never adhered to earlier andthere is no such requirement to be followed and on that ground thesecond respondent cannot be denied consideration for promotion. Thefirst respondent further held that in view of the memorandum dated26.06.1992, the first respondent was entitled for being consideredand passed an award to effect that the name of the second respondentshould be fitted in the promotional panel of Assistant(Administration), dated 18.10.1996, in the appropriate place.

4. Mr.M.Vaidyanathan, learned standing counsel for theElectricity Board contended that the award of the Labour Court iserroneous and against the proceedings of the board and the settledlaw on the subject. Further, the learned counsel would submit thatthe memo dated 26.06.1992 has no application to the facts andcircumstances of the case and since the second respondent wasundergoing punishment the question of considering him promotion doesnot arise, since in terms of the service regulation, namelyregulation 98(1)(b) promotion are based on merit cum ability. Learnedstanding counsel would further submit that in terms of the boardproceedings in BP No.316 dated 27.12.1995, the promotion of personson whom specific charges have been framed should be deferred till theproceedings are concluded. Therefore, the learned counsel wouldsubmit that the second respondent having suffered a punishment is notjustified in seeking for considering his case of promotion, when he was undergoing punishment. The learned counsel placed reliance onthe Judgment of this Court in W.A.443/04 dated 10.08.2005 andW.P.No.8220/01 dated 06.07.2009 in support of his contention.

5. Per contra, Mrs. R.Meenal, learned counsel appearing for thesecond respondent would contend that the Labour Court afterappreciating, the facts and circumstances of the case correctly cameto conclusion that the second respondent is entitled for promotion.Further, it was contended that in view of the memorandum dated26.06.1992, there is no bar for considering the promotion of thesecond respondent pending disciplinary proceedings. Learned counselfurther relied on the decision of this Court in W.A.No.1358/1988dated 10.08.1992, in support of her contention and prayed that theaward of the Labour Court does not call for any interference.

6. I have carefully considered the submissions on either sideand perused the materials available on record.

7. The facts, which are not in dispute are that punishment ofstoppage of increment without cumulative effect for one year wasimposed on second respondent by order dated 25.06.1994. The periodof punishment was from 01.04.1995 till 31.03.1996. When the secondrespondent was undergoing punishment, panel for promotion to the postof Assistant (Administration) was prepared. In terms of BP No.212dated 12.06.1987, the board fixed up crucial date for considerationof claims of officials for promotion to higher post and issueddetailed orders in this regard. In the annexure to the said boardproceedings, the crucial date for various post were mentioned and inrespect of the post of Assistants in systems/circles, the crucialdate was fixed as 20th March.

8. Therefore, when the panel was prepared by taking intoconsideration the crucial date as 20.03.1996, the second respondentname did not find place in the panel, since he was undergoing thepunishment imposed by order dated 25.06.1994. It is to be noted thatafter the currency of the punishment i.e after 31.03.1996, the secondrespondent has been promoted to the post of Assistants on 20.10.1997.

9. The Labour Court came to be guided by the fact that suchcrucial dates were not followed earlier by the board from 1987 to1995 and there was no reason as to why it needs to be brought induring 1996. Further, the Labour Court placed heavy reliance on thememorandum of the board dated 26.06.1992 and issued a positivedirection to include the name of the second respondent at theappropriate place in the panel dated 18.10.1996. The reasonsassigned by the Labour Court for passing the impugned award is notsustainable for more than one reason. Firstly, the board is empoweredto issue directions in the form of board proceedings for the purposeof regulating activities and business and such proceedings couldsupplement the statutory Regulations. One such proceedings is BP Ms

(ch) No 212 dated 12.06.1987 in and by which crucial dates have beenfixed for consideration of promotion, in respect of various post.Whether such crucial dates were followed on earlier occasions is ofno consequences, since the board decided to adhere to same whiledrawing the panel for 1996. It is to be noted that there is nochallenge to the said BP No.212. In such circumstances the action ofthe board in fixing up the crucial date cannot be faulted merely onthe ground that such crucial dates were not followed during earlieryears and this is no ground to state that the same should not havebeen followed in 1996.

10. Secondly, the memorandum dated 26.06.1992 has absolutely noapplication to the facts and circumstances of this case, since thesaid instruction came to be issued pending decision of certain writpetitions before this Court and it pertains to the claim forpromotion to higher category by employees against whom disciplinaryproceedings were pending. This memorandum is not applicable to thesecond respondent, since as on the crucial date i.e. 20.03.1996, hewas undergoing punishment, which commenced from 01.04.1995 and it wasnot a case where disciplinary proceedings were pending.

11. In fact, the decision of this Court in W.A.1358/98 dated10.08.1992 came to be rendered, since it was not stated by the boardthat under what regulation the claims of those undergoing punishmentcannot be considered. Therefore, the Judgment came to be rendered,since no material was placed before the Court. It is to be notedthat the board has passed BP No.316 dated 27.12.1995, issuingguidelines for promotion/appointments of board employees against whomcharges/enquiry are pending or specific charges have been framed.The said guidelines are to the following effect:-

(i) "In case of pending enquiries including Vigilance Enquiriesand in the case of where specific charges have not beenframed, promotion/appointment of such persons shall beconsidered on the basis of their performance as on date ofconsideration for promotion/appointment as revealed throughpersonal file and seriousness of the punishments if anypreviously imposed.

(ii) In case where specific charges have been framed or chargesheets have been filed in criminal case promotion/appointmentof such persons shall be deferred till the proceedings areconcluded."

12. The effect of the said board proceedings came to beconsidered by the Hon'ble Division Bench in W.A.No.443/2004, wherein,it has been held as follows:- "In the present case, specific charges had been framedagainst the writ petitioner and final orders imposing

punishment had been passed. As the writ petitioner had beenpunished his name was not included in the panel for promotion.In our opinion, the writ petitioner cannot claim promotion asof right, particularly, when he had been punished for gross-negligence in his duties and poor performance."

"13. Moreover, we fail to understand how the learned singleJudge could have himself directed the promotion of thepetitioner. The learned single Judge could at most havedirected the D.P.C. or the concerned selection authority tohave considered (or reconsidered) the question of promotion ofthe petitioner, but he could not himself take over thefunction of the D.P.C. or the selection authority, videU.P.S.R.T.C. Vs. Mohd. Ismail (1991) 3 SCC 239 (vide para-12),State of U.P. Vs. Raja Ram Jaiswal, (1985) 3 SCC 131 (videpara-16), etc."

13. In view of the above reasoning the award of the LabourCourt, passed by relying upon the memo dated 26.06.1992 and issuing apositive direction for promotion is wholly unsustainable. This Courtin W.P.No.8220/01 dated 06.07.2009 also considered the effect of BPNo.316 and held as follows:-

"4. Since the charges were pending as well as the punishmentwas in currency, the respondents were justified in deferringthe petitioner's case for inclusion in the panel and oncompletion of the punishment, the respondents have rightlyincluded the petitioner's name and gave promotion. There isno illegality in the said order and there is no merit in thewrit petition.

14. In view of the above, it has been to be held that theimpugned award is unsustainable and wholly without jurisdiction.Hence, this writ petition is allowed as prayed for and the impugnedorder is set-aside and the petitioner board is directed to considerthe claim of the second respondent for promotion to the post ofAssistant (Administration) after the expiry of the period ofpunishment in accordance with law. No costs.

Sd/Asst.Registrar/true copy/

pbn

To

1. The Presiding Officer, Labour Court, Trichy. Labour Court, Trichy.

2. The Chief Engineer/Personnel Tamil Nadu Electricity Board, 800, Anna Salai, Chennai-2. Tamil Nadu Electricity Board, 800, Anna Salai, Chennai-2.

+ 1 c.c. to Mr. R. Subramanian, Advocate. S.R.No.69822.

KG (CO)GSK 31.12.2009.

W.P.No.7171 of 2000