P.V. Srinivas Acharyulu vs National Thermal Power ...
2022 Latest Caselaw 4126 AP

          THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

       WRIT PETITION Nos.24495 of 2018 + 32834 of 2011
                     and 31216 of 2012

COMMON ORDER:

      Writ Petition No. 24495 of 2018 is filed under Article 226 of the

Constitution of India, claiming the following relief:


      ".....Issue an order or direction more particularly one in the nature of
      writ of Mandamus direct the respondents to permit the petitioner to

exercise option for VRS Scheme vide Corporate HR Circular No. 848 of 2018, dated 25.01.2018 operative from 18.04.2018 to 17.07.2018 through the prescribed format in the physical form and consequently direct the respondents to accept the VRS Scheme application submitted by the petitioner dated 13.07.2018 in the prescribed format of VRS Scheme vide Corporate HR Circular No. 848 of 2018 operative from 18.04.2018 to 17.07.2018 and pass such other orders.

Writ Petition No.32834 of 2011 is filed under Article 226 of the

Constitution of India, claiming the following relief:

".....Issue an order or direction more particularly one in the nature of writ of Mandamus declaring the action of the respondents for not giving the wage benefits from 1997 and corresponding promotions to the petitioner as per the wage revision 1997 till today as illegal, improper, injustice and violative of principles of natural justice and consequently direct the respondents to consider the seniority, qualifications, performance of the petitioner for the promotion to his corresponding next higher grade in the year 2012 by reviewing the performance scores from 2007 onwards till date before proceeding for promotions by the promotion committees for the year 2012 and pass such other orders.

Writ Petition No. 31216 of 2012 is filed under Article 226 of the

Constitution of India, claiming the following relief:

".....Issue an order or direction more particularly one in the nature of writ of Mandamus (i) declaring the proceedings Office Order No. 42/2012, dated 27.03.2012 by striking off of the name of the petitioner from the rolls of the Company by invoking the Clause 24.9 of NTPC Service Rules is illegal, arbitrary, unjust and contrary to Judgment of the Hon'ble Supreme Court; (ii) declaring the proceedings the appellate authority the order Ref.No.SMPP: HR: dated 20.08.2012

is wholly, illegal, arbitrary and contrary to Judgment of Hon'ble Supreme Court and set aside the same; (iii) direct the respondents to reinstate the petitioner into service with all consequential and attendant benefits in the interest of justice; (iv) and pass such other orders.

2. Since the facts and issue involved in both the writ petitions

is one and the same, I find it expedient to decide both the matters by

common order.

3. For the sake of convenience, W.P.No. 24495 of 2018 is taken

as leading case.

4. Heard Mr. P.V.Srinivas Acharyulu, petitioner/ Party-in-

Person and learned Standing Counsel for the respondents.

5. The brief case of the petitioner in W.P.No. 24495 of 2018 is

that the petitioner joined National Thermal Power Corporation (NTPC)

on 10.12.1992 as Junior Supervisor, EDP at Auraiya GPS, Uttar

Pradesh. On several promotions, the petitioner was transferred to

Simhadri Thermal Power Project in the year 2010 as Assistant

Engineer (E1) since 2001 till impugned orders dated 27.03.2012. The

petitioner filed W.P.No.32834 of 2011 questioning the action of the

respondent corporation for not granting wage revision benefits of

1997. In the year 2000, the respondents announced wage revision,

1997, which gives benefit of one year service weightage for all the

Supervisor category to next higher grade promotion with effect from

01.01.1997. By that time the petitioner was working in S-3 Category

and he is entitled for promotion of Assistant Engineer (E-1 Grade) as

per time scale. However the respondents not implemented the wage

revision 1997. Further, the petitioner filed W.P.No.31216 of 2012

questioning the action of the respondents passing orders dated

27.03.2012 and 20.08.2012 striking off name of the petitioner from

the rolls of the company with effect from 27.03.2012 vide

Ref.No.SMPP:HR by 5th respondent by confirming the office order

42/2012, dated 27.03.2012 without considering medical reports and

leave application and quashing the same by reinstate the petitioner

into service with back wages and continuity of service with all

consequential benefits thereto.

6. While the matter stood thus, the petitioner has received part

of the provident fund amount from the respondents and failed to

comply with the directions of this Court in W.P.No.31216 of 2012.

Therefore C.C.No.762 of 2017 is filed. The respondent corporation

has announced Voluntary Retirement Scheme, VRS Scheme vide

Corporate HR Circular No. 848/2018, dated 25.01.2018 with option

for opting VRS through their intranet portal for consideration within

three months from 01.02.2018 to 30.04.2018. Therefore the

petitioner approached the respondents to permit the petitioner to

avail the VRS Scheme, but the respondents refused to receive the

application of the petitioner, which is illegal and arbitrary. Hence this

writ petition came to be filed.

7. Per contra, the respondents filed counter in W.P.No.32834 of

2011 by denying all material averments made in the writ affidavit and

mainly contended that the petitioner is not promoted and the

promotion could not be given at relevant points of time, which is

justifiable as sanction is given basing upon the company's

requirement which have legs to stand. Further the petitioner sought

relief for wage benefits from 1997 and corresponding promotion as per

the wage revision 1997 and also a directions to consider his seniority,

qualifications, performance for the promotion to his next higher grade

in the year 2012 by reviewing the performance scores from 2007

onwards is totally not acceptable as he was not availed the appeal

provision as laid down in the policy. Based on the promotion policy,

he was considered for promotion from S-2 to S-3 during 1999. As per

policy, the employees who are on the rolls of the said Unit as on the

date of Departmental Promotion Committee required to be considered.

Accordingly, the petitioner and Mr. KSM Prasad were considered and

as Mr. Prasad got more marks than the petitioner, got promoted

whose performance and marks are better than that of the petitioner.

NTPC promotion policy is based on merit-cum- seniority but not

seniority-cum-merit. The Departmental Promotion Committee of the

Company will verify the eligibility, appraisal marks, merit and

seniority and those who got higher marks are promoted. The

petitioner has not raised any issue even though he was not promoted

at that time. Now the petitioner questioning the promotion of Mr. KSM

Prasad after long lapse of 13 years comparing the wage benefits which

is illegal and arbitrary. Further it is contended that the petitioner's

performance appraisal was not up to the mark/ satisfactory and he

was counseled several times by his superiors to change his attitude

and to work hard to achieve goals, but there is no change in his works

culture and attitude. The petitioner remained absent on the ground of

ill health without applying any leave for long period on several

occasions.

8. It is further contended that as per Corporate policy 30% will

be on top, 65% will be in middle and 5% are to be at bottom level and

accordingly Normalization Committee will review and award the

marks which are final and the same will be informed to employee

every year. However, in the year 2009 the petitioner refused to submit

the Key Performance Areas to his reporting officer, which has resulted

that the appraisal has been prepared by the reviewing Officer by

himself and made available to the committee. The committee also

reviewed the issue and given certain marks and the same marks was

also communicated to the petitioner vide letter dated 04.02.2010. The

petitioner having received the communication of marks for the year

2008 under protest, the petitioner has not chosen to avail the remedy

in appeal provision. Thus the awarded marks have become final,

basing upon the said final scores. The respondents have strictly

followed the procedures while promoting the executives to the next

higher grade hence the writ petition is liable to be dismissed.

9. The respondents filed Counter affidavit in W.P.No.31216 of

2012 wherein it is contended that the grievance procedure under

Stage-II was underway this petitioner lodged Stage-III grievance on

21.09.2011. A notice was issued on 21.10.2011 to the petitioner with

regard to unauthorized absence and instructed to report for duty. As

per Rule 24.9 of NTPC Service Rules states that "An employee who

remains unauthorized absent from duty or place of work either without

sanction of leave or after expiry of sanctioned leave, if any, and does

not report for duty for any reason whatsoever within 90 consecutive

days from the date of his/ her unauthorized absence, shall

automatically lose lien on his/ her post and he/ she shall be deemed to

have voluntarily abandoned and left the service of the company without

notice". Admittedly the petitioner was unauthorized absent from duty

on various occasions and more so, the petitioner knows well that the

respondent authorities will be invoking clause 24.9 of NTPC Service

Rules, the petitioner neither joined duty nor submitted any medical

certificates along with leave letter for the leave period. Therefore the

respondent company as per service rule 234.9 treated this petitioner

as voluntarily abandoned the services of the respondent company

resulting in loss lien on the post held by this petitioner and the same

was communicated to him vide order No. 42/2012, dated 27.03.2012.

The petitioner also filed an Appeal against the said order, so far no

medical record is produced. A committee was constituted by

competent authority under Clause 24.9 of NTPC Service Rules and

Clause 5.0 of Procedure for regulating unauthorized absence under

CPC 415/99, dated 13.05.1999" to examine the appeal and submit

recommendation and based on the recommendations of the

committee after giving fair opportunity to the petitioner, the appeal

filed by the petitioner was disposed of vide letter dated 20.08.2012.

Therefore striking off the name of the petitioner has been in

accordance with the rules of the company, therefore the same cannot

be treated as illegal and arbitrary. Hence, requested to dismiss the

writ petition.

10. As could be seen from the material available in the above

three writ petitions, it is apparent on the face of the record that the

petitioner promoted to S-3 in the year 2000 and availing the benefits

since then and further promoted to Senior Supervisor S-4 in the year

2004 and again promoted to E-1 in the year 2007. It is a settled

principle that no person can challenge the policy having accepted and

taken the benefits arising out of it and as per the principle of

appropriate and reprobate, the petitioner cannot claim the promotions

from back date. Further the petitioner kept quite for several years

when other employees were promoted in various categories and now

making adverse comment. Further it is contended by the respondents

the petitioner's performance is not up to satisfaction of the superiors

and the petitioner was counseled several times to change his attitude,

but in vain and also remained absent without applying leave.

Consequently the committee was constituted by competent authority

under Clause 24.9 of NTPC Service Rules and Clause 5.0 of Procedure

for regulating unauthorized absence under CPC 415/99, dated

13.05.1999" to examine the appeal, based on the recommendations of

the committee after giving fair opportunity to the petitioner, the

appeal filed by the petitioner was disposed of vide letter dated

20.08.2012. Therefore striking off the name of the petitioner has been

in accordance with the rules of the company. Since the petitioner is

out of service, question of claiming attendant benefits does not arise

as claimed in W.P.No.31216 of 2012.

11. Further the petitioner sought relief for wage benefits from

1997 and corresponding promotion as per the wage revision 1997 and

also a directions to consider his seniority, qualifications, performance

for the promotion to his next higher grade in the year 2012 by

reviewing the performance scores from 2007 onwards is

unsustainable, as he was not availed the appeal provision as laid

down in the policy. Based on the promotion policy, he was considered

for promotion from S-2 to S-3 during 1999. In view of the policy, the

employees who are on the rolls of the said Unit as on the date of

Departmental Promotion Committee required to be considered.

Accordingly, the petitioner and Mr. KSM Prasad were considered and

as Mr. Prasad got more marks than the petitioner, got promoted

whose performance and marks are better than that of the petitioner.

In view of the said circumstances, the petitioner is not entitled for the

benefit as claimed in the W.P.No.32834 of 2011.

12. The petitioner leveled allegation that the petitioner suffering

from ill health due to hazardous pollution from the respondent

company. Whereas thousands of employees are working in the

corporation, but no one is suffering and no one has raised similar

complaint till now, except the petitioner, even though the petitioner

has not produced any iota of evidence to substantiate his version.

Therefore, the contention of the petitioner is without any basis and

irrelevant.

13. In view of the above said circumstances, this Court find no

merit in the case of the petitioner and in view of lacunae on the part

of the petitioner, the petitioner is not entitled for the relief's as

claimed in the writ petitions and it deserves to be dismissed.

14. Accordingly, the writ petitions are dismissed. No costs.

As a sequel, miscellaneous applications pending, if any, shall

also stand closed.

___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 19.07.2022.

KK

THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

WRIT PETITION Nos.24495 of 2018 + 32834 of 2011 and 31216 of 2012

Date: 19.07.2022.

KK