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2011 DIGILAW 281 (MAD)

Chairman Chennai Port Trust v. R. Manimuthu

2011-01-20

C.NAGAPPAN, M.M.SUNDRESH

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JUDGMENT :- 1. The Writ Appeal has been preferred by the appellant, challenging the order of the learned single Judge by which the order impugned passed by the appellant dated 10.12.1998 was set aside and a consequential direction was issued to the appellant to implement the grouped schemes as per the award and to promote the respondent No.1 as Assistant Superintendent with effect from 18.11.1997 with all consequential benefits. 2. The respondent No.1 joined the duty as Lower Division Clerk with the appellant on 22.05.1979. Thereafter, he was posted in the Electrical and Mechanical Department on 25.02.1980. He was further promoted as Junior Assistant with effect from 20.12.1987 in the year 1989. Thereafter, by the order dated 01.02.1997, he was further promoted as a Senior Assistant. Thereafter, by a subsequent order dated 09.04.1997, the appellant regularised the services of the respondent No.1 as Senior Assistant retrospectively with effect from 18.11.1992. 3. Earlier, in view of the lack of promotional opportunities, the appellant made a request to the Government seeking for the creation of the adequate posts. The said request of the appellant was rejected by the Government. Thereafter, the matter was referred to an Arbitrator. The Arbitrator, in and by the arbitration award dated 03.02.1996, was pleased to hold that by adopting the cut-off date of 31.03.1990, the appellant - Madras Port Trust has to comply with the proposal to the Government on 15.10.1986. The said arbitration award has become final between the appellant and the Worker's Union. 4. Thereafter, the said award of the Arbitrator was implemented by the appellant by promoting the respondent No.1 along with other employees in the category of Senior Assistant in and by the proceedings dated 09.04.1997. The respondent No.1 was promoted with retrospective effect by the said proceedings dated 09.04.1997 in accordance with the award of the Arbitrator with effect from 18.11.1992. However, a letter was sent by the appellant to the respondent No.2, Madras Port United Labour Union stating that the further promotion to the employees, who are covered by the award, cannot be agreed inasmuch as others have not been put in active service, in pursuant to the order of promotion granted with retrospective effect. 5. Challenging the said order, the petitioner has filed the Writ Petition in W.P.No.1031 of 1999. 5. Challenging the said order, the petitioner has filed the Writ Petition in W.P.No.1031 of 1999. The learned single Judge has allowed the Writ Petition on the ground that after giving effect to the award and after giving the benefits including the monetary benefits in passing an order of promotion with retrospective effect, the appellant cannot act contrary to the said award by denying further promotion on the sole ground that inasmuch as the respondent No.1 having not put up adequate service in the promoted post, he cannot be considered for promotional post. It is seen from the proceedings dated 22.11.2002 that the respondent No.1 was further promoted as Assistant Superintendent by implementing the order of the learned single Judge. It is submitted by the learned senior counsel appearing for the appellant and the learned counsel appearing for the respondent No.1 that the respondent No.1 has retired from service after working in the post of Assistant Superintendent. 6. Mr.R.S.Jeevarathanam, learned senior counsel appearing for the appellant contended that the respondent No.1, having not worked for a period of five years, is not entitled to be promoted to the post of Assistant Superintendent from the post of Senior Assistant. The learned senior counsel further submitted that even though the retrospective promotion has been given in the absence of adequate service in the promoted post, further promotion cannot be given. Reliance has been made upon the proceedings of the appellant dated 09.04.1997, wherein it has been stated that the promotions are subject to the provisions of the Madras Port Trust Employees' (Appointment, Promotion, etc.) Regulations and also the directions and circulars of the Central Government and therefore, the respondent No.1 cannot be promoted to the next promotional post of Assistant Superintendent. In support of his contention, the learned senior counsel has made reliance upon the judgment of the Honourable Apex Court in A.G.SAINATH REDDY v. GOVERNMENT OF ANDHRA PRADESH AND OTHERS [(2003) 4 SCC 65] and submitted that the seniority has to be reckoned from the date of regular appointment, in accordance with the rules and therefore, the Writ Appeal will have to be allowed. 7. Per contra, Mr.L.Chandrakumar, learned counsel appearing for the respondent No.1 submitted that the award passed by the Arbitrator is very specific. The said award has not been challenged by the appellant. The appellant has implemented the award by passing the proceedings dated 09.04.1997. 7. Per contra, Mr.L.Chandrakumar, learned counsel appearing for the respondent No.1 submitted that the award passed by the Arbitrator is very specific. The said award has not been challenged by the appellant. The appellant has implemented the award by passing the proceedings dated 09.04.1997. It is not in dispute that the respondent No.1 was promoted with retrospective effect from 18.11.1992. All the benefits including the monetary benefits, have been given to the respondent No.1, treating the promotion date as 18.11.1992. Therefore, the appellant cannot go back from the award and interpret in the manner known to him. 8. The learned counsel for the respondent No.1 submitted that the clause contained in the proceedings dated 09.04.1997 would be applicable to the next cadre and not to the present post. In other words, the learned counsel submitted that it would not be applicable for considering to the next promotional post. Therefore, the learned counsel submitted that once promotion has been given retrospective effect, it will relate back to the date in which it has been implemented and the respondent No.1 is deemed to have worked in the said promotional post with effect from 18.11.1992. Hence the learned counsel submitted that the Writ Appeal will have to be dismissed. 9. It is not in dispute that the award passed by the Arbitrator has been given effect to vide the proceedings dated 09.04.1997. The date of promotion to the respondent No.1 has been fixed as 18.11.1992. There is nothing in the award passed by the Arbitrator to indicate that the services shall not be counted in the promotional post with effect from 18.11.1992. The very fact that the respondent No.1 was paid all other benefits including the monetary benefits, as if he worked with effect from 18.11.1992, would exemplify the fact that for all purposes the services will have to reckoned from 18.11.1992. The statement made in the order dated 09.04.1997 to the effect that promotion are subject to the arbitration of the Madras Port Trust Employees' (Appointment, Promotion, etc.) Regulations and also the Directions and Circulars of the Central Government, would be pertaining to the promotion made already. The said provisions have been taken into consideration and accordingly, the respondent No.1 has been promoted in the post of Senior Assistant. The said provisions have been taken into consideration and accordingly, the respondent No.1 has been promoted in the post of Senior Assistant. Therefore, after passing the said order, it is not open to the appellant to turn around and contend that for the next promotional post, the respondent No.1 services cannot be counted with effect from 18.11.1992. 10. It is very clear that for no fault of the respondent No.1, the promotion has been denied. That is the reason why the appellant itself has made a recommendation to the Government. The appellant has accepted the award of the Arbitrator. The Arbitrator has also taken into consideration of the fact that the issue has been pending for number of years and therefore fixed a cut-off date with effect from 31.03.1990. Accepting the award of the Arbitrator, the appellant has fixed the date of promotion of the respondent No.1 as 18.11.1992. Therefore, we are of the view that the contention of the learned senior counsel for the appellant has no legal basis. As held by the learned single Judge, when promotion is made with retrospective effect, then the date of promotion will have to be traced back to the date on which, the retrospective promotion was given. 11. The Honourable Apex Court in STATE OF RAJASTHAN v.FATEH CHAND SONI [ (1996) 1 SCC 562 ] has held that expression "promotion" has to be given a wider interpretation. It is further held by the Honourable Apex Court in O.S.SINGH AND ANOTHER v. UNION OF INDIA AND ANOTHER [ (1996) 7 SCC 37 ] as follows: "Once the error in the matter of his promotion is rectified and he has been given substantive appointment from an anterior date on which he should have been promoted the year of allotment has to be assigned to him having regard to the date from which his substantive appointment becomes operative even though he did not officiate in a senior post prior to the said date of substantive appointment. His year of allotment cannot be depressed on the basis that he had started officiating on a senior post from a date later than the date with effect from which he has been substantively appointed to the service." 12. His year of allotment cannot be depressed on the basis that he had started officiating on a senior post from a date later than the date with effect from which he has been substantively appointed to the service." 12. Therefore, we are of the view that once an employee is given retrospective promotion, he is not only entitled to the benefit of the scale of pay, but also entitled to every other benefit attached to the post to which he has been promoted. The judgments relied upon by the learned senior counsel for the appellant have no application on facts. In the said judgments what was contended on behalf of the employee is that the services rendered on an adhoc and temporary basis will have to be reckoned and counted for the purpose of seniority. The Honourable Apex Court has rightly rejected the said contention and held that seniority has to be reckoned from the regular appointment made in accordance with rules. In fact, the said judgment would only help the case of the respondent No.1 inasmuch as the retrospective promotion has been given by the appellant, in accordance with rules, by accepting the award passed by the Arbitrator. 13. It is further to be seen that the order of the learned single Judge has been given effect to and the respondent No.1 has been promoted as Assistant Superintendent, by considering his other qualification and eligibility to be appointed in the said post and he has since retired. Therefore, we do not find any reason to interfere with the order passed by the learned single Judge. Accordingly, the Writ Appeal is dismissed. No costs.