Telangana High Court
G.N. Somayajulu, Adilabad Dist. vs The Singareni Collieries Co.Ltd., ... on 12 March, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 30998 OF 2010
ORDER:
Proceedings No. MMR/PER/M/234/10/5411, dated 03.11.2010 issued by the 2nd respondent - Deputy General Manager (F&A), Singareni Collieries Company Limited are challenged in this Writ Petition. Consequent direction is also sought to treat petitioner's date of appointment as 25.10.1976 and refix and pay his pension and all other terminal benefits.
2. Singareni Collieries Company Limited (for short, 'the company') established schools in all the areas where coal mines are located and all such of those schools used to be organized and run by the said Company. Petitioner was appointed as Clerk-cum-Typist on 25.10.1976 in the school at Kalyankhani, Adilabad. When Circular dated 05.03.1986 was issued inviting Applications from the employees working in the Company, petitioner applied for the same and was appointed as such on 09.02.1987. By that time, he had already put in ten years of service in the school. According to petitioner, the Circular dated 05.03.1986 does not prescribe that candidates selected for Clerk Grade II would forego previous service. Recently, he came to know that his date of appointment was 2 being treated as 09.02.1987 instead of 25.10.1976, depriving pensionary benefits. Immediately, he approached the authorities requesting to treat his initial date of appointment as 25.10.1976, but not at 09.02.1987. It is stated that in similar circumstances, one Sri Gampa Prakasham raised a Dispute which was adjudicated by the Central Government Industrial- cum-Labour Court, Hyderabad, wherein the 2nd respondent was directed to reckon the service rendered by him in the school ran by the 1st respondent company also as service being rendered in the 1st respondent company. Hence, petitioner is stated to have submitted representation dated 04.09.2010 to the 2nd respondent, who, unfortunately, rejected the same vide proceedings dated 03.11.2010 stating that Gampa Prakasham case was considered basing on the Award in I.D.No. 27 of 2004 and it is only applicable to him and the same cannot be treated as precedent. Hence, petitioner is before this Court.
3. In the counter-affidavit filed on behalf of the respondents by the Chief General Manager, it is stated that petitioner was appointed as Typist-cum-Clerk in Singareni Collieries High School, Kalyani Khani and reported as such on 23.10.1976. It is stated that service conditions of employees working in Singareni Collieries Company Limited and that of teaching and non-teaching staff of Singareni Collieries High 3 School are not identical but are governed by different Acts, Rules and Regulations. The respondents admitted that in response to the Circular dated 05.03.1986, petitioner accepting the terms and conditions stipulated in his appointment order dated 15/16.10.1976, made the Application for appointment as Clerk Grade-II in Company. Consequently, petitioner got selected to the said post and was appointed as such and was posted to work at Mandamarri Area vide order dated 09.02.1987 with effect from the date of his reporting and keeping him on probation for a period of three months from the date of reporting as Clerk and that his confirmation and grant of annual increment would depend upon earning satisfactory reports about his work, attendance and conduct. Thus, his appointment is fresh and has no relevance to the service rendered by him in Singareni Collieries High School. In the service book, it was mentioned that petitioner was appointed on 23.10.1976 at S.C. High School and in Accounts Department Mandamarri on 16.02.1987.
It is stated that Circular dated 05.03.1986 was issued by the Chief Personnel Officer wherein it was advised the eligible employees to submit Applications for recruitment as Clerks Grade-II but not on the ground of transfer or deputation and accordingly, an office order dated 09.02.1987 was issued by 4 Chief Personnel Officer of the respondent Company appointing the petitioner as Clerk Grade-II but it was not by way of appointment and transfer from school services to company services. Hence, his appointment be treated as fresh appointment. Even on the identity and service card prepared on 05.09.1995, his date of appointment was written as 16.02.1987. Petitioner never disputed this date of appointment at any point of time till retirement. It is stated that petitioner is a B.Com graduate and can read, write and speak in English and in his identity card, it was recorded that date of appointment as Clerk Grade-II is 16.02.1987 and he affixed his signature at page 2 of the said record certifying that the recorded data including his date of appointment was correctly recorded and he did not object for the same. Thereafter, he was promoted as Clerk Grade-I and later to the position of Special Grade Clerk.
There is no nexus between the service conditions, rules and regulations applicable to teaching and non-teaching staff of S.C. Schools and Coal Miners working in the respondent company, therefore, petitioner was appointed as Clerk Grade-II in the respondent company otherwise he would have been either drafted to work as Clerk Grade II or transferred to the services of respondent company or would have been placed in Clerical Grade-II, which is normally done in the case of coal miners. It is 5 stated that petitioner retired from service on attaining the age of superannuation from 31.10.2010 after duty hours, but he was not approaching to process his terminal benefits as Clerk fro 16.02.1987 to 31.10.2010.
4. Heard Sri K. Vasudeva Reddy, learned counsel for petitioner as well as Sri Nandigam Krishna Rao, learned Standing Counsel for respondent Company.
5. The grievance of petitioner is that Circular dated 05.03.1986 has not specified that past service would not be reckoned, otherwise, he would not have taken the post of Clerk Grade-II. According to him, date of appointment in respect of Gampa Prakasam was modified, therefore, he be given the same facility.
6. A perusal of the material papers filed along with the paper book, at page 24 i.e. note of the Singareni Collieries Company Limited dated 18/29-09-2010 shows that since the present case of petitioner is similarly-situated one to Gampa Prakasham, the committee has recommended to reckon the date of appointment of petitioner as 23.10.1976. However, vide proceedings dated 03.11.2010, the 2nd respondent observed that G.M.(Per) after examining the issue informed that in the case of Sri Gampa Prakasham, Sampling Mazdoor, QM Department, in order to honour the Award passed by the Central Government 6 Industrial Tribunal, Hyderabad in I.D.No. 27 of 2004, dated 10.09.2008 in which Sri Gampa Prakasam was only the petitioner, his date of appointment was modified. G.M(Per) has further informed that the Award passed by the CGIT, Hyderabad is applicable only to Sri Gampa Prakasam and hence, petitioner cannot compare his case with that of Sri Gampa Prakasam.
7. At this stage, learned Standing Counsel has produced before this Court the Note put up by P.M., M.M., dated 03.03.2011, detailing the circumstances in which the date of appointment of Gampa Prakasam was modified and the date of appointment of petitioner was changed from 23.10.1976 to 16.02.1987 i.e. the date from which he reported as Clerk Grade- II. The said Note reads as under:
THE SINGARENI COLLIERIES COMPANY LIMITED MANDAMARI AREA Ref.No.MMR/PER/L/062/11/1065 PO:Kalyani khani Dt: 03.03.2011 NOTE Sub: Writ Petition No.30998 of 2010 filed by Sri G.N.Somayajulu, Retd Clerk of F&A Dept., MM.
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G.N.Somayajulu Ex-Clerk F&A Dept, has filed WP No. 30998 of 2010 wherein he Impleaded C&MD and Dy GM (F&A), MM as the respondents, Sri G.N.Somayajulu filed W.P. to declare the letter No.MMR/PER/M/234/10/5411, dated 3.11.2010 rejecting his claim for modifying his DOA as 23.10.1976 instead of 16.02.1987 as Illegal, arbitrary and consequently direct the management to treat his date of appointment as 25.10.1976 and refix his pay, pension and terminal benefits. He was appointed in SCHS/KK and then was appointed as Clerk. He is requesting to consider the service rendered by him in Singareni School. A copy of the affidavit is placed at Flag- A.
02) Sri G.N.Somayajulu's date of appointment is as indicated below:-
S.NO DOCUMENT REMARKS
01 AGM BPA/351/4911, DOA as Clerk-cum-Typist in School
dated 25th Oct, 1976 services is 23.10.1976
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02 P(PM)4/3208/477, dated Appointed as Clerk Grade-II from the
09.02.1987 date of reporting DOA as Clerk Grade-II
as
03 Posting Order No DOA as Clerk Grade-II as 16.02.1987
P/MM/2/1/ 87/469,
16.02.1987
04 Service Book DOA is altered from 23.10.1976 to
16.02.1987
05 EPR 16.02.1987
03) The copy of office order dated 25.10.1976 is at Flag-B. Office Order dtd 09.02.1987 appointing as Clerk Grade-II is
at Flag-C. Post order dtd 17.02.1987 is at Flag-D. School Service Book is at Flag-E and the Service Book of the Company is at Flag-F.
03) G.M(Personnel), Kothagudem vide letter No.CRP/PER/PM/ OM/663, dated 25.04.2002 (Flag-G) clarified that the services of candidates who worked in Super Bazar/Schools/College and subsequently appointed to company jobs are reckoned from the dates they join In the Company. The services in Super Bazar/Schools/College should not be reckoned as service in the Company.
04) Accordingly, the date of appointment Sri G.N.Somayajulu, was changed from 23.10.1976 to 16.02.1987 1. of the date from which he reported as Clerk Grade-II Sri G.N.Somayajulu has been retired on superannuation from the services of the company from 01.11.2010.
05) Sri G.N.Somayajulu In the Affidavit filed by him In Writ Petition claimed that in the case of Srl G.Prakasham, Sampling Mazdoor, QM Dept., Mandamarl, Management has considered the services rendered by him In School and reckoned the date of appointment from the date of his entry In SCHS services.
06) In this regard It is to submit that in the case of Sri G.Prakasham, EC 2261898, Sampling Mazdoor, QM Dept., Mandamarl, who was Initially appointed In SCHS/KK Assistant 25.07.1980. vide office order dated 12.07.1980, as Record reported on
a) During the year 1989, Management of SCCL issued circular No.P(PM)4/4515/1948, dated 02.06.1989 calling applications from In-service employees for the post of Sampling Mazdoors to work in Coal Quality Control & Grading Department of the Company.
b) In response to this, Sri Gampa Prakasham, also made application, while working in S.C. High School as Record Assistant and he was appointed as Sampling Mazdoor on Category-I wages vide office order No.P(PM)4/4515/742, dated 15 03.1990 at Mandamari.
c) During verification of service records it was noticed that the date of appointment of Sri Gampa Prakasham was recorded as 25.7.80 in his service book instead of 13.04.1990 the date on which he reported as Sampling Mazdoor
d) G.M(Personnel), Kothagudem vide letter No.CRP/PER/PM/OM/ 663, dated 25.04.2002 clarified that the services of candidates who worked in Super Bazar/Schools/College and subsequently appointed to company jobs are reckoned from the dates they join in the Company The services in Super Bazar/Schools/College should not be reckoned as service in the Company.
e) Accordingly, the date of appointment of Sri Gampa Prakasham was changed as 13.04.1990 from 25.07.1980 1.e., the date from which he reported as Sampling Mazdoor.
(f) Sri N.Kistalah, Branch Secretary, SCWU (AITUC), Mandamari vide representation No. SCWU/MM/2002/F-10/41, dated 03.06.2002 ralsed dispute before the Asst. Labour Commissioner (Central) Mancherial for taking the date of appointment of Sri Gampa Prakasham as 25.07.1980 1.e., the date of his appointment as Record Asst., in SCHS/KK Instead of 13.04.1990.
g) The conciliation proceedings ended in fallure and the Central Govt., referred the matter for adjudication to the Industrial Tribunal, Hyderabad wherein it was registered as ID No. 27/2004. 8
"Whether the action of the General Manager, M/s Singareni Collleries Co.Ltd., Mandamarri in denying to rectify the date of Initial appointment as 25.7.80 Instead of 13.4.90 In respect of Sh.Gampa Prakasham, Sampling Mazdoor, KK 1 CSP, Mandamari Division taking into consideration of his service at Singareni Colllery School is legal and justified? If not, to what relief he is entitled?"
h) The Presiding Officer, CGIT, Hyderabad passed Award In the 1.D. on 10.09.2008 answering the reference in favour of the employee and observed that M/s.S.C.Co.Ltd., Mandamari is not justified in denying to rectify the date of initial appointment as 25.7.80 instead of 13.4.90 and that the action of the Company is illegal, untenable and unconstitutional and directed the Company to rectify the mistake and enter the date of appointment as 25.7.1980.
i) It was proposed to challenge the Award of the Industrial Tribunal, but after examining the case details, Addi GM(Law) has opined that it is difficult to contest our case by filing a writ petition and hence it is proposed to implement the orders passed by the Tribunal.
j) On the basis of above legal opinion from Law Department, the date of appointment of Sri Gampa Prakasham, Sampling Mazdoor, QM Dept., was corrected as 25.7.80 reckoning his School services.
07) The approved Note No.MMR/PER/L/063/09/505, dtd. 24.01.2009 along with copy of Award dtd 10.09.2008 in ID No.27/2004 is placed at Flag-H.
08) In this regard it is to submit that Sri G.N.Somayajulu, before his retirement, made a representation dated 04.09.2010 requesting to reckon his date of appointment as 23.10.1987 l.e. date of entry into SCHS/KK services. A Note No.MMR/PER/M/234/10/4616, dated 29.09.2010 was moved proposing to reckon the date of appointment of Sri G.N Somayajulu, EC 2400248, Spl. Grade Clerk, F&A Dept., MM as 23.10.1976. But the proposal was not admitted by Corporate Office on the ground that the Award dated 10.09.2008 is binding only in the case of Sri Gampa Prakasham but not to others. The copy of note dated 29.09.2010 is placed at Flag-I.
09) Hence, the decision was informed to Dy GM (F&A), MM vide letter No.MMR/PER/M/234/10/5411, dated 03.11.2010 (Flag-J).
10) In the light of what has been explained in the foregone paragraphs, Addi GM(Law) is requested to whether the present writ petition is a fit case to contest or not and whether to reckon the date of appointment of Sri G.N.Somayajulu as 23.10.1976 or not.
11) Pending receipt of legal opinion and approval of competent authority the fair counter denying the claim of the petitioner Srl G.N Somayajulu, In Writ Petition No. 30998 of 2010 is submitted in five sets to AddI.GM (Law) along with material papers for taking further action.
12) Submitted.
The Chief General Manager, MM has made endorsement thereon stating that 'there is extraordinary delay in filing of Writ Petition which is not explained. Hence, the Writ Petition needs to be contested by filing counter in consultation with Advocate on priority.
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8. The Hon'ble Supreme Court in Kulwant Singh Gill v. State of Punjab 1 made the following observations and held that the delay of five to 18 years was held to be inordinate in preferring a Writ Petition under Article 226.
"71. On the basis of the decisions of the Supreme Court referred to above, the relevant considerations that may be taken into account in determining the issue of delay and laches may be summarized thus:
(1) Though no period of limitation is prescribed for the writ Courts to exercise their powers under Article 226 of the Constitution of India or to file a writ petition, a person aggrieved should approach the Court without loss of time. In appropriate cases, where there is delay and the same has properly been explained with cogent reasons, Court may condone the delay as an exception to meet the ends of justice. But, it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters.
(2) Courts have evolved rules of self-imposed restraints or fetters where the High Court may hot enquire into belated or stale claim and deny relief to a party if he is found guilty of laches. One who is tardy, not vigilant and does not seek intervention of the Court within a reasonable time from the date of accrual of cause of action or alleged violation of the constitutional, legal or other right, is not entitled to relief under Article 226.
(3) No hard and fast rule can be laid down for universal application and every case shall have to be decided on its own facts.
(4) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.
(5) There is no lower limit or upper limit and it will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. (6) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners.
(7) Where there is remiss or negligence on the part of a party approaching the Court for relief after an inordinate and unexplained delay, in such cases, it would not be proper to enforce the fundamental right. As a general rule if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party in exercise of the extraordinary power of mandamus.
(8) There is no waiver of fundamental right. But while exercising discretionary jurisdiction Court can take into account delay and laches on the part of the applicant in approaching a writ Court. (
9) Though the High Court in exercise of the power under Article 226 in its discretion grant relief in cases where the fundamental rights are violated, but, in such cases also, High Court, to meet the ends of justice, shall refuse to exercise its high prerogative jurisdiction in favour of a party who has been guilty of laches and where there are other relevant circumstances which indicate that it would be inappropriate to exercise the discretionary jurisdiction.1
1991 Supp (1) SCC 504 10 (10) The maximum period fixed by the Legislature as the time within which the relief by a suit in a civil Court must be brought may ordinarily taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured.
(11) If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Courts have applied the rule of delay with greater rigor in service matters. (12) The benefit of a judgment cannot be extended to a case automatically. The Court is entitled to take into consideration the fact as to whether the petitioner had chosen to sit over the matter and wake up after the decision of the Court if it is found that the petitioner approached the Court with unreasonable delay, the same may disentitle him to obtain a discretionary relief. Long delay disentitles a party to the discretionary relief under Articles 32 and 226 and persons who had slept over their rights for long and elected to wake up when they had the impetus from the judgment of similarly placed persons.
(13) Where during the intervening period rights of third parties have crystallized, it would be inequitable to disturb those rights at the instance of a person who has approached the Court after long lapse of time and where there is no cogent explanation for the delay. (14) Where the appellate authority acting within its jurisdiction condoned the delay after being satisfied with the facts stated in relation thereto, the High Court in exercise of its powers under Article 226 or 227 of the Constitution should not ordinarily interfere with the order.
72. An analysis of the case law discussed above would amply make it clear that issue of a writ of a mandamus or certiorari is largely a matter of sound discretion and will not be granted if there is negligence or omission on the part of the person to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. Therefore, burden lies on the workman who has to establish that in spite of his best efforts and diligence he was prevented from approaching the authority within the period of limitation provided for or the writ Court within a reasonable period of time. If the workman is not able to satisfactorily explain with cogent reasons for the delay he is not entitled to seek for condonation of the delay. It is true that the punishment imposed cannot be sustained in law because of the illegality crept in it in not conducting a prior enquiry. But, still the workman is under a statutory obligation to challenge the same within the time provided by the statutory rules or regulations or within a reasonable period of time before the writ Court. if delay of 5 to 18 years is condoned, for no reason or fault on the part of the authority, the proceedings which had attained finality are to be set aside. Setting aside of such order at a belated stage and allowing of a stale claim, may, as rightly held by the Division Bench in Esa Ali's case (supra), inspite the workman to seek for consequential benefits of promotion as well, in which event, the rights of the third parties would adversely be affected for no fault of theirs. A workman who is tardy and not diligent for years in availing a statutory remedy or in approaching the Court of law, in our view, cannot be encouraged or permitted to contend that in view of the decision of the Supreme Court the punishment cannot be sustained in law, therefore, delay to any extent is to be condoned automatically in exercise of the power conferred on the appellate or revisional authorities or by the writ Courts in exercise of the discretionary powers under Article 226 of the Constitution of India. Courts can come to the aid of a person who is diligent and vigilant but unable to approach the authority or Court of law for redressal of his grievance in spite of his best efforts and reasons beyond his control but not to a person who is tardy and negligent or slept over the matter in availing the statutory or legal remedies.
73. No doubt in the present cases the punishment awarded cannot be sustained in law in view of the law laid down by the Supreme Court in Kulwant Singh Gill's case (supra) and in the light of the Regulations, but, a specific period having been prescribed in the Regulations of the Corporation, as stated earlier, the same need to be adhered to. The proviso under Regulation 23 empowers the 11 appellate authority to entertain an appeal even after expiry of the period of limitation provided if it is satisfied that the appellant had sufficient cause for not submitting the appeal in time. A similar power may also be exercised under Regulation 29. If the authority is not satisfied with the explanation offered by the workman in challenging the orders of punishment, this Court, in exercise of the jurisdiction under Article 226, cannot interfere unless the conclusion arrived at by the authority that the explanation offered by the workman is not justified or germane or no prudent person would have come to such a conclusion. In appropriate cases where the appeal or revision is filed within a reasonable period of delay, it is always open to the appellate or revisional authority to condone the delay on valid explanation put forth by the workman in not approaching the authorities within the time specified, in which event, the writ Court should not interfere with the order. In our opinion, when Regulations provided a period of two months for filing an appeal and six months for a revision, delay of 5 to 18 years in approaching the authority would certainly be fatal to the case of a workman unless properly explained with cogent reasons.
74. It is true that in some cases where the delay is five years or so the Supreme Court inclined to condone the delay but under different circumstances when the fundamental rights are violated or where the delay is not directly attributable to the party seeking the relief or where the rights of the third parties are not intervened or in matters where seniority of employees is not finalized, the Court, would be justified to grant the relief; but not as a general rule of practice. Therefore, in our considered opinion, Kulwant Singh Gill's case (supra), does not confer or clothe an automatic right with the employee to challenge the order of the authority at any time or whenever he wishes. The principles laid down by the Apex Court governing the condonation of delay will certainly and equally have application even in cases where challenge is made to an order imposing the punishment contrary to the Regulations or the ratio in Kulwant Singh Gill's case (supra), where the employee had slept over the matter and had not chosen to challenge it within a reasonable period of time. It may also be noticed that in service matters, the Courts have applied the rule of delay with greater rigor.
9. In view of the foregoing discussion, particularly the averments in the counter as to how appointment of petitioner is to be read as fresh appointment and the fact that he never disputed the date of appointment at any point of time till retirement, and the extraordinary delay in filing the Writ Petition, as pointed out by the Chief General Manager, in the light of the observations made by the Hon'ble Supreme Court in Kulwant Singh Gill's case (supra), petitioner is not entitled to any relief as sought. The Writ Petition is therefore, liable to be dismissed.
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10. The Writ Petition is accordingly, dismissed. No costs.
11. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 12th March 2024 ksld