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2014 DIGILAW 350 (TRI)

Bhanu Lodh v. Tripura Jute Mills Limited

2014-10-31

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. By filing this writ petition under Article 226 of the Constitution of India the petitioner prayed for granting following reliefs: "c] Issue a writ in the nature of mandamus directing the Respondents and each of them to extend the promotional benefits to the petitioner to the post of Commercial Manager with retrospective effect from 17.09.90 in the pays scale of Rs. 5900-200/2-6700/- as per 3rd pay Revision of 1986 and subsequently revised pay scale of Rs. 18400-500-22400/-(as per 4th Pay Revision of 1996) and Apex Scale of Rs. 41400-50400/-(as per 5th Pay Revision of 006) in comparison with the pay scale of Medical Assistant(Pharmacist Category-A) herein Respondent No. 9 was revised and thereafter scale advancement in the next higher pay scale w.e.f. 17.09.93. d] Issue a writ in the nature of Mandamus directing the Respondents to provide promotion to the post of Commercial Manager in the pay scale of Rs. 4000-140-4700-150-5900(as per 3rd pay Revision of 1986) and Rs. 14150-450-20000/-(as per 4th Pay Revision of 1996 and HAG + Scale of Rs. 24625-40600/- + Grad Pay of Rs. 6500/-(as per 5th pay revision of 2006) with retrospective effect from 17.09.90 and thereafter scale advancement in the next higher pay scale of Rs. 5900-6700) 3rd pay revision of 1986) and subsequent revised pay scale of Rs. 18400-500-22400/-(4th pay revision of 1996) and Rs. 41400-50400/-(as per 5th Pay Revision of 2006) w.e.f. 17.09.93 and also the scale advancement in the next higher pay scale w.e.f. 17.09.96 like other similarly situated Officers/Employees. e] Issue a writ in the nature of mandamus and/or any other order directing the Respondent No. 1 & 2 to provide the benefits of promotion to the post of Commercial Manager and thereafter scale advancement/Time Bound Promotion/Career Advancement Scheme(CAS)/Time Bound Movement/Assured Career Progressive scheme(ACP) in the next higher pay scale/post on completion of every 3(three) years with all financial benefits including arrears of pay like other similarly situated employees/officers. f] Issue a writ in the nature of mandamus directing the Respondent No. 1 & 2 to provide 3 numbers of time bound promotion/Time Bound Movement/Assured Career Progressive scheme(ACP) in the next higher pay scale as applicable to the petitioner along with all congenial benefits like similarly situated officers/employees. f] Issue a writ in the nature of mandamus directing the Respondent No. 1 & 2 to provide 3 numbers of time bound promotion/Time Bound Movement/Assured Career Progressive scheme(ACP) in the next higher pay scale as applicable to the petitioner along with all congenial benefits like similarly situated officers/employees. g] Issue a writ in the nature of mandamus or order directing the Respondent No. 1 & 2 to provide pay salary attached to the post of Commercial Manager to the petitioner as the petitioner discharging duties, responsibilities as over all charges of Commercial Department/In-charge, Commercial Manager maintaining commercial affairs alone of the Respondent company with effect from 15-01-1986. h] Issue a writ in the nature of mandamus or order directing the respondent No. 1 & 2 to revise the pay scale of Commercial Manager and next higher pay scales as revision are applicable to the State Government employees. i] Issue a writ in the nature of mandamus or order directing the Respondent No. 1 & 2 to provide the petitioner revision of pay of scale for the post of Commercial Manager w.e.f. 01-01-1996 and subsequent scale advancement to the next higher post as per recommendation of Pay Anamoly Cell being approved by the BODs in 146th meeting of the respondent company and also as per 5th pay revision of 2006 keeping parity/equated at par with the pay scales applicable to the employees of state of Tripura. j] Grant cost of an incidental to this petition. k] Pass such order or further order or orders and/or direction or directions Hon'ble Court may deem fit and proper having regards to the facts and the circumstances of the matter." 2. Petitioner inter alia contended that in the year 1985, pursuant to an advertisement made by respondent No. 1(TJML) for the post of Commercial Officer, the petitioner applied as a candidate and after interview in due process he was selected for the post in the pay scale of Rs.1,400-2,350/- but thereafter he was appointed as a Trainee Officer on probation for a period of six months on a consolidated pay of Rs.500/-(rupees five hundred) and subsequently was appointed as Officer on Special Duty(OSD) attached to the Commercial Section in a lower scale of pay. Under compulsion he joined to the post since he resigned from his earlier service. Under compulsion he joined to the post since he resigned from his earlier service. He made protest and submitted representation for his appointment to the post for which the advertisement was made and he was selected. Subsequently, the respondents-TJML appointed him to the post of Commercial Officer, Gr-II w.e.f. 17.09.1987 in a lower pay scale of Rs.800-1530/-. He was not placed to the post of Commercial Officer in the pay scale of Rs.1400-2350/-. He made numerous representations for his appointment to the post of Commercial Officer and for other service benefits to which the respondents did not make any positive response and therefore, ultimately he approached the then Gauhati High Court, Agartala Bench by filing writ petition being WP(C) No. 454 of 2005 which was allowed by judgment dated 18.04.2007 with following directions: "15. For the discussions and reasons aforementioned, this writ petition has merit and, therefore, the same is allowed directing the respondents to (i) retrospectively appoint the petitioner to the post of Commercial Officer in the pay scale of Rs. 1400-2350/- w.e.f. 17.9.1987; (ii) fix his pay notionally from 17.9.1987 to 1.1.2003 in original and revised pay scale, if any, attached to the post(the date being three years before filing of the writ petition); (iii) pay him arrear from 1.1.2003 till date; (iv) revise the pay scale of the post, the same way, if pay of other officers and workers have been revised. This exercise shall be completed within a period of three months from today. No cost." Respondent Nos. 1 and 2 preferred an appeal being WA No. 45 of 2007 challenging the judgment and order dated 18.04.2007 passed in WP(C) No. 454 of 2005 and the Division Bench by judgment dated 21.08.2007 dismissed the appeal. 3. The petitioner now contended that he is entitled to the post of Commercial Manager w.e.f. 17.09.1990 on his completion of three years of service as Commercial Officer and also entitled to time bound promotion to the next higher post and he also claimed time bound movement to the higher pay scale from time to time on completion of three years of service and also claimed the benefit of Career Advancement Scheme(CAS)/Assured Career Progressive Scheme and Time Bound Scale Advancement in the next higher pay scale, etc. He has contended that such benefit was given to the private respondent Nos. He has contended that such benefit was given to the private respondent Nos. 5 to 9 and the similar benefit should also be given to him. 4. Respondents contended that the claim of the petitioner for promotion does not lie since his promotion was never denied by promoting his juniors and that his promotion would be considered as and when the superior post would be filled up. It is also contended by the respondents that no order was issued asking him to work in the post of Commercial Manager and that the certificate issued in his favour was not by an authorized person. It is also contended that the schemes of time bound promotion, career advancement scheme or assured career progression scheme, etc. have not been introduced by the respondent No. 1 and such schemes under the ROP of the employees of the State Government have not been introduced/adopted by the respondent No. 1 and so the petitioner cannot claim the facilities available under the ROP Rules of the employees of the State Government. It is contended that the claim of the petitioner is unfounded and is not maintainable. 5. Heard learned counsel, Mr. D.K. Biswas for the petitioner and learned counsel, Mr. C.S. Sinha for respondent Nos. 1 and 2 and learned Addl. G.A., Mr. S. Chakraborty for respondent Nos. 3 and 4. Private respondent Nos. 5 to 9 have chosen to remain absent. 6. It is an admitted position that pursuant to an advertisement for the post of Commercial Officer made by respondent No. 1 the petitioner applied for the post and he was selected in due course, but after such selection he was not appointed to the post of Commercial Officer, rather he was initially appointed as a Trainee Officer on probation for six months and thereafter he was appointed as OSD attached to the Commercial Section in the lower pay scale than that of the post of Commercial Officer and, having felt aggrieved he approached the then Gauhati High Court, Agartala Bench by filing WP(C) No. 454 of 2005. Pursuant to the judgment passed on 18.04.2007 in the writ petition which was affirmed in the writ appeal as aforesaid, the petitioner was appointed to the post of Commercial Officer w.e.f. 17.09.1987 along with other service benefits. 7. Pursuant to the judgment passed on 18.04.2007 in the writ petition which was affirmed in the writ appeal as aforesaid, the petitioner was appointed to the post of Commercial Officer w.e.f. 17.09.1987 along with other service benefits. 7. A bare reading of the reliefs claimed in this writ petition makes it abundantly clear that the cause of action for those reliefs claimed in this writ petition were already available at the time when the previous writ petition i.e. WP(C) No. 454 of 2005 was filed. Relief granted by the High Court in the earlier writ petition has already been reproduced hereinbefore which shows that apart from direction for appointment to the post of Commercial Officer with retrospective effect, some other service benefits, such as fixation, etc. were also given to the petitioner. It is, therefore evident that the petitioner would make all the claims which have been adverted in this writ petition at the time when the earlier writ petition was filed. It is apparent that all reliefs claimed in the present writ petition were due when the earlier writ petition was filed and he would claim all reliefs at that time since the cause of action as claimed in the present writ petition was all available at that time. He has consciously abandoned such reliefs, now claimed in the present writ petition. 8. Order II Rule 2 of CPC prescribes thus: "2. (1) Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." As per the above provision the petitioner was supposed to make his claim in a single set of litigation and while he has abandoned the claim, the reliefs claimed in the present writ petition are liable to be held as barred by the principle of acquiescence. 9. The petitioner has admittedly been promoted in the post of Commercial Manager by Office Order dated 10.07.2012(Annexure-72 to the rejoinder affidavit filed by the petitioner). So, question remains as to whether he is entitled to be promoted to the post of Commercial Manager w.e.f. 17.09.1990. If he was entitled to get the promotion w.e.f. 17.09.1990, as claimed, he would make the claim in his earlier writ petition itself and therefore I find no force at all in the claim of the petitioner that he is entitled to get promotion to the post of Commercial Manager with retrospective effect w.e.f. 17.09.1990. 10. Learned counsel, Mr. Biswas has contended that the petitioner is entitled to get time bound promotion as well as time bound movement to higher pay scale. Regarding the claim of time bound promotion, learned counsel Mr. Biswas referred Annexure-7 and Annexure-57D to the writ petition/rejoinder filed by the petitioner. Annexure-7 only prescribes eligibility criteria for promotion. There is nothing in Annexure-7 to read it as a rule/scheme prescribing/providing thereunder time bound promotion. The document can in no way be applied for granting the reliefs claimed by the petitioner. Annexure-57D relates to promotion policy of clerical employees and workers of the Jute Mills. It does not relate to promotion of officers of the Jute Mills. I, therefore, find no basic document to arrive at a conclusion that the petitioner is entitled to get time bound promotion as per any rule or scheme of TJML. Annexure-57D relates to promotion policy of clerical employees and workers of the Jute Mills. It does not relate to promotion of officers of the Jute Mills. I, therefore, find no basic document to arrive at a conclusion that the petitioner is entitled to get time bound promotion as per any rule or scheme of TJML. Regarding time bound movement to higher pay scale also the petitioner could not show any scheme or rule of such time bound movement to higher pay scale. There is nothing to show that the private respondents were given time bound movement to the higher pay scale. No particular document of such time bound movement of those respondents is placed on record. Annexure-40 to the writ petition is a letter written by Financial Controller of TJML to the petitioner which has a reflection that some of the employees who were appointed after 1979 were given scale advancement, as per decision of 70th meeting of the Board of Directors held on 29.01.1983. The petitioner failed to produce any such decision of the Board of Directors held in the 70th meeting. Annexure-7 is an excerpt of minutes of the 70th meeting of the Board of Directors. But it does not speak anything about any scheme of time bound movement adopted by TJML. Even if it is presumed that such benefit was given to the private respondents, it was long ago before the earlier writ petition was filed by the petitioner and there is nothing to show that the petitioner was similarly situated. 11. All the reliefs claimed by the petitioner in the present writ petition shows that the cause of action for claiming the reliefs arose long ago. In para 22 of the writ petition, the petitioner contended that he made numerous representations on different dates claiming the reliefs but since the reliefs were not allowed he filed the present writ petition. It is abundantly clear that the petitioner is guilty of delay and laches. He would approach this Court with his claims long before at least at the time when the earlier writ petition was filed but he has chosen to abandon the claim. His claim has become stale and he is apparently found guilty of delay and laches. 12. We may gainfully refer here para 46 to 51 of the judgment passed by the apex Court in the case of Shankara Co-Op. His claim has become stale and he is apparently found guilty of delay and laches. 12. We may gainfully refer here para 46 to 51 of the judgment passed by the apex Court in the case of Shankara Co-Op. Housing Society v. M. Prabhakar & Ors. reported in (2011) 5 SCC 607 which reads thus: Re : Delay and Laches 46) Delay and laches is one of the factors that requires to be borne in mind by the High Courts when they exercise their discretionary power under Article 226 of the Constitution of India. In an appropriate case, the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his rights taken in conjunction with the lapse of time and other circumstances. 47. The Privy Council in Lindsay Petroleum Company v. Hurd : (1874) LR 5 PC 221, which was approved by this Court in Moon Mills Ltd. V. Industrial Courts, AIR 1967 SC 1450 and Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC 329 , has stated : (Lindsay Petroleum Co. case LR pp. 239-40) "Now the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy." 48) In Amrit Lal Berry Vs. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy." 48) In Amrit Lal Berry Vs. CCE, (1975) 4 SCC 714 , this Court took the view that: (SCC p.726, para 16) "16...if a petitioner has been so remiss or negligent as to approach the Court for relief after an inordinate and unexplained delay, he certainly jeopardises his claims as it may become inequitable, with circumstances altered by lapse of time and other facts, to enforce a fundamental right to the detriment of similar claims of innocent third persons." 49) In State of Maharashtra v. Digambar, (1995) 4 SCC 683 , this Court observed that: (SCC p. 683d) Unless the facts and circumstances of the case at hand clearly justify the laches or undue delay, writ petitioners are not entitled to any relief against any body including the State. 50) In Shiv Dass v. Union of India, (2007) 9 SCC 274 , this Court opined that: (SCC p.277, para 8) "8....The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction." 51) In City and Industrial Development Corporation v. Dosu Aardeshir Bhinandiwala, (2009) 1 SCC 168 , this court held: (SCC P.174, para 26) "26. It is well settled and needs no restatement at our hands that under Article 226 of the Constitution, the jurisdiction of a High Court to issue appropriate writs particularly a writ of mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a writ is an adequate ground for refusing a writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum." The above case relates to an evacuee property and the Supreme Court while deciding on the point of delay and laches in para 65, 66, 67 and 68 of the judgment has held thus- "61) On this issue, we have heard the learned counsel for the parties in great detail, since the immoveable property rights of the parties are involved. In our considered view, there is no explanation, much less satisfactory explanation offered by the respondents in approaching the writ court after an inordinate delay of nearly 15 years from the date of the notification issued under the Evacuee Property Act. For the delay from 1952 to 1955, the contesting respondents would only submit that they were not aware of the notification issued under the Evacuee Property Act, since no notice was served on them, though a public notice was issued by the authority under the Evacuee Property Act. While explaining the delay of nearly eleven years from 1955 to 1966, they contend that they were in possession of the property and they were making representations before the authorities under the Evacuee Property Act for redressal of their grievance. The delay after the orders were passed by the Settlement Commissioner in the year 1983 till the writ petition was filed in the year 1990, it is explained that they had moved the State Government to suo motu revise the order passed by the Chief Settlement Commissioner and since the State Government returned their request, they had approached the High Court to issue directions to the State Government to issue appropriate directions. In our considered view, at every stage, there was inordinate delay in approaching the authorities for redressal of their grievance. 66. As rightly contended by Shri. Mukund, learned counsel, even when they approached the authorities, they were claiming wrong reliefs or incomplete reliefs. In our considered view, at every stage, there was inordinate delay in approaching the authorities for redressal of their grievance. 66. As rightly contended by Shri. Mukund, learned counsel, even when they approached the authorities, they were claiming wrong reliefs or incomplete reliefs. Even when they filed the writ petition in the year 1990, they did not choose to question the correctness of the notification issued under the Evacuee Property Act but was questioned by way of filing an amendment application in the year 1998. There is some merit in the submission made by learned counsel for the contesting respondents that the petitioners in their pleadings before the writ court, had not even offered any explanation, much less satisfactory explanation, in approaching the Court nearly after three decades from the date of notification issued under the Evacuee Property Act. 67. It is now well settled that the power of the High Court under Article 226 of the Constitution to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ court is that the petitioner is guilty of delay and laches. Inordinate and unexplained delay in approaching the Court in a writ is indeed an adequate ground for refusing to exercise discretion in favour of the petitioners therein. The unexplained delay on the part of the petitioner in approaching the High Court for redressal of their grievances under Article 226 of the Constitution was sufficient to justify rejection of the petition. 68. The other factor the High Court should have taken into consideration is that during the period of delay, interest has accrued in favour of the third party and the condonation of unexplained delay would affect the rights of third parties. We are also of the view that reliance placed by Shri Ranjit Kumar on certain observations made by this Court would not assist him in the facts and circumstances of this case. While concluding on this issue, it would be useful to refer the observations made by the Court in the case of Municipal Council, Ahmednagar Vs. Shaha Hyder Baig, (2000) 2 SCC 48 , wherein it is stated that: (SCC p.54, para 14) Delay defeats equity and that the discretionary relief of condonation can be had, provided one has not given by his conduct, given a go-by to his rights'." 13. Shaha Hyder Baig, (2000) 2 SCC 48 , wherein it is stated that: (SCC p.54, para 14) Delay defeats equity and that the discretionary relief of condonation can be had, provided one has not given by his conduct, given a go-by to his rights'." 13. In the present case, the petitioner claimed for promotion to the post of Commercial Manager and such promotion has already been given by the respondents. The petitioner cannot claim as of right further promotion to the next higher post but definitely he has all right to claim promotion if such higher post is vacant and any attempt is made to fill up such post. The other reliefs, such as time bound promotion, etc. cannot be made available to the petitioner since there is no rule or scheme made by the respondents to that effect. 14. In view of the discussions made above, the writ petition stands dismissed. Parties are to bear their own costs.