Madras High Court
Unknown vs P.Murugesan on 1 April, 2021
W.A(MD)No.1215 of 2020 & Cont.P(MD)No.144 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.04.2021
CORAM:
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
W.A(MD)No.1215 of 2020
and
Cont.P(MD)No.144 of 2020
1.W.A(MD)No.1215 of 2020:-
1.The President,
National Horticultural Research &
Development Foundation,
Chitegaonphata Village,
Damasangvi (Post),
Niphadtaluk, Nasik District,
Maharastra – 422 201.
Now shifted to
The President,
National Horticultural Research and
Development Foundation (NHRDF),
Plot No.47, Pankha Road, Institutional Area,
Janakpuri,
New Delhi – 110 058.
2.National Horticultural Research and
Development Foundation (NHRDF),
55, Pandiyan Nagar,
Dindigul – 624 001.
A part of Work of Dindigul Centre shifted and
Presently functioning at
National Horticultural Research and
Development Foundation (NHRDF),
5/5, B-1B, Sakthi Vinayagar Nagar,
Vellalore,
Coimbatore – 641 111.
Another part of work Dindigul Centre retained
and presently functioning at
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W.A(MD)No.1215 of 2020 & Cont.P(MD)No.144 of 2020
3.National Horticultural Research and
Development Foundation (NHRDF),
T.Kombai Village, Pannaipatti B.P.O.,
Kannivadi via, Dindigul West Taluk,
Dindigul District. ... Appellants/Respondents
Vs.
P.Murugesan ... Respondent/Writ Petitioner
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent to set
aside the order, dated 28.11.2019 made in W.P(MD)No.25060 of 2018 on
the file of this Court.
For Appellants : Mr.M.Silambanan
Senior Counsel
for Mr.V.O.S.Kalaiselvam
For Respondent : Mr.P.Murugesan
(Party-in-Person)
2.Cont.P(MD)No.144 of 2020:-
P.Murugesan ... Petitioner
Vs.
Dr.Bijender Singh Ex-MLA,
President,
National Horticultural Research and
Development Foundation,
Plot No.47, Pankha Road,
Institutional Area,
Janakpuri,
New Delhi – 110 058. ... Respondent
Prayer: Petition filed under Section 11 of the Contempt of Courts Act,
1971, to punish the contemnor/respondent herein for the wilful
disobedience of the order of this Court made in W.P(MD)No.25060 of
2018, dated 28.11.2019.
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W.A(MD)No.1215 of 2020 & Cont.P(MD)No.144 of 2020
For Petitioner : Mr. Mr.P.Murugesan
(Party-in-Person)
For Respondent : Mr.M.Murugan
Government Advocate
COMMON JUDGMENT
(Judgment of the Court was delivered by
PUSHPA SATHYANARAYANA,J.)
W.A(MD)No.1215 of 2020 has been preferred by the National
Horticultural Research and Development Foundation (NHRDF), challenging
the order passed by the learned Single Judge in W.P(MD)No.25060 of
2018, dated 28.11.2019.
2. Alleging that the order of this Court made in W.P(MD)No.25060 of
2018, dated 28.11.2019, has not been complied with, the writ petitioner
has come up before this Court with Cont.P(MD)No.144 of 2020.
3. The respondent in the Writ Appeal was the writ petitioner, who
had challenged the order passed by the Labour Court, Tiruchirappalli, in
I.D.No.100 of 2010, dated 22.10.2018.
4. The said Writ Petition was allowed on 28.11.2019. Against which,
a review application in Rev.Aplc(MD)No.5 of 2020 was filed by the
appellants herein, which was also dismissed on 03.09.2020, confirming
the order passed earlier.
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W.A(MD)No.1215 of 2020 & Cont.P(MD)No.144 of 2020
5. The writ petitioner was appointed as a Technical Assistant in the
year 1983. It is the case of the writ petitioner that he was fully qualified
to be appointed as a Deputy Director of Horticulture in the first appellant
Society. When he tried to apply for the said post, his application was
rejected, which constrained the writ petitioner to file an Industrial Dispute
with the Assistant Commissioner of Labour, Dindigul. The first appellant
Society attended the Conciliation proceedings and the first appellant
Society was aware of the pendency of the Conciliation proceedings.
Secondly, there was also a claim petition in C.P.No.20 of 2009, which was
pending under Section 33(C)(2) of the Industrial Disputes Act, 1947.
Thirdly, there was a general charter of demand submitted by the AADF
workers Union and that was also pending before the Assistant
Commissioner of Labour, Nasik, for Conciliation. While so, the writ
petitioner was dismissed from service on 21.07.2010, which was
challenged in I.D.No.100 of 2010 before the Labour Court, Tiruchirappalli.
6. The Labour Court, Tiruchirappalli, after elaborately considering
the case of the writ petitioner and after adverting to the various
documents, had dismissed the Industrial Dispute on 22.10.2018. In the
Writ Petition filed against the same, the writ petitioner had challenged the
order of termination, dated 21.07.2010, which was confirmed by the
Labour Court, Tiruchirappalli. The learned Single Judge allowed the writ
petition setting aside award of the Labour Court as well as the termination
order
http://www.judis.nic.in passed by the Director of National Horticulture Research &
W.A(MD)No.1215 of 2020 & Cont.P(MD)No.144 of 2020
Development Foundation (NHRDF).
7. The learned Single Judge held that the contention of the writ
petitioner that he was dismissed from service by the authorities without
following the procedure under Section 33(2)(b) of the Industrial Disputes
Act, 1947, is without merits. It was further held by the learned Single
Judge that there was no industrial dispute pending at the time of order of
termination. Therefore, the only point that was to be considered was
whether the dismissal order issued by the Director was correct or not?
8. According to the writ petitioner, only the President has the power
to initiate disciplinary proceedings against him and has power to
terminate the services of the writ petitioner, as the President is the
competent authority. It is further contended that the Director of National
Horticultural Research and Development Foundation (NHRDF) has no
power to initiate disciplinary proceedings and to terminate the services.
Any authority in support of the appointing authority has no power to
terminate the services of the employee. Accordingly, the learned Single
has held as follows:-
“The Director of National Horticultural Research
and Development Foundation (NHRDF) who had initiated
disciplinary proceedings and terminated the services of
the petitioner does not have power to do so. ..... The
http://www.judis.nic.in Labour Court has committed perversity in not
W.A(MD)No.1215 of 2020 & Cont.P(MD)No.144 of 2020
considering all the issues raised by the petitioner and
failed to give a finding.”
10. Aggrieved by the said order, the appellants filed a review
application and that was dismissed by the learned Single Judge vide order
dated 03.09.2020. Hence, this Writ Appeal.
11.The learned Senior Counsel appearing on behalf of the appellants
contended that the authority of the Director to terminate the writ
petitioner was challenged only for the first time before the learned Single
Judge in the said Writ Petition and the said ground was not raised before
the Labour Court, Tiruchirappalli. The learned Senior Counsel further
contended that the Writ Court had accepted the award of the Labour
Court on all the grounds, however, set aside the same on the ground that
the Director was not empowered to terminate the writ petitioner, as he
was not the appointing authority.
12. It was pointed out by the learned Senior Counsel that the
Director got the approval of the President for the termination of the writ
petitioner before the same was issued. He further pointed out that in the
meeting of 79th Managing Committee held on 30.03.1998, it was decided
and resolved in the minutes of discussion, as agenda item No.2, that the
Managing Committee and also the President, authorized the Director to
act as a disciplinary authority for various other posts, for which, the
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W.A(MD)No.1215 of 2020 & Cont.P(MD)No.144 of 2020
Director is not the appointing authority, so as to complete the disciplinary
proceedings in time in future and improve the discipline in the office.
Thus, the learned Senior Counsel endeavoured to substantiate that the
Director had powers to terminate the employee.
13.The Writ Petition was allowed setting aside the termination order
placing reliance of the Hon'ble Apex Court in Krishna
Kumar Vs. The Divisional Assistant Electrical Engineer, Central
Railway reported in AIR 1979 SC 1912, which reads as follows:-
“5.In defence of the legality of the order of removal,
counsel for the respondents relies on paragraph 2 of respondent
1's affidavit, dated January 7, 1978, wherein he has stated that
the power to make appointments to the post of the Train
Lighting Inspector was delegated to certain other officers
including the Divisional Assistant Electrical Engineer. It is urged
that since the Div. Asstt. Elect. Engineer has been given the
power to make appointments to the post of the Train Lighting
Inspector, he would have the power to remove any person
from that post. We cannot accept this contention. Whether or
not an authority is subordinate in rank to another has to be
determined with reference to the state of affairs existing on the
date of appointment. It is at that point of time that the
constitutional guarantee under Art.311(1) becomes available to
the person holding, for example, a civil post under the Union
Government that he shall not be removed or dismissed by an
authority subordinate to that which appointed him. The
subsequent authorization made in favour of respondent 1 in
regard to making appointments to the post held by the
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W.A(MD)No.1215 of 2020 & Cont.P(MD)No.144 of 2020
appellant cannot confer upon respondent 1 the power to
remove him. On the date of the appellant's appointment as a
Train Lighting Inspector, respondent 1 had no power to make
that appointment. He cannot have, therefore, the power to
remove him.
6.Besides, delegation of the power to make a particular
appointment does not enhance or improve the hierarchical
status of the delegate. An Officer subordinate to another will
not become his equal in rank by reason of his coming to
possess some of the powers of that another. The Divisional
Engineer, in other words, does not cease to be subordinate in
rank to the Chief Electrical Engineer merely because the latter's
power to make appointments to certain posts has been
delegated to him.”
13.The above dictum was considered by the learned Single Judge
even in the order passed in the Review Application and held as follows:-
“The said ratio is applicable to the facts of the present
case and contention of the learned counsel appearing for the
review petitioner that the said judgment is applicable only to
Civil Servant as per Article 311(i) of the Constitution of India
and not applicable to the review petitioners, which was
registered as per the provisions of Societies Registration Act,
is without merits......... I am of the view that the earlier
order of the Court can be reconsidered only if there is an
error apparent on the face of record and in that event, the
said error can be rectified. Otherwise, a Review Application
is not all maintainable. In the present case on hand, the
Review Applicant has not pointed out any error in the order
of this Court. The review petitioners cannot re-argue the
matter raising new points in the review petition.”
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W.A(MD)No.1215 of 2020 & Cont.P(MD)No.144 of 2020
14. As admittedly, the writ petitioner was appointed by the
President though it has been argued that the Director was authorized to
act as a disciplinary authority by the Managing Committee and also the
President, the termination of the writ petitioner by the President other
than the appointing authority is held to be illegal in view of the above
ratio. However, the labour Court has not properly appreciated the
contention raised by the employee/writ petitioner.
15. As stated earlier, the learned Single Judge also in paragraph 11
of the order has stated that “the Labour court has committed perversity in
not considering all the issues raised by the petitioner and failed to give a
finding.” Therefore, we are of the opinion that the matter requires
consideration afresh by the Labour Court to decide as to whether the
Director of National Horticulture Research & Development Foundation
(NHRDF), has power to initiate disciplinary proceedings. On all other
aspects, the findings of the learned Single Judge is confirmed.
16. In the result, the Writ Appeal is partly allowed and the order of
the learned Single Judge dated 28.11.2019 made in
W.P(MD)No.25060 of 2018, is hereby set aside, except the extent
indicated above and the matter is remanded back to the Labour Court,
Trichirappalli, for fresh consideration.
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W.A(MD)No.1215 of 2020 & Cont.P(MD)No.144 of 2020
17. In view of the order passed in W.A(MD)No.1215 of 2020, the
Contempt Petition stands closed.
[P.S.N.,J] [S.K.,J.]
01.04.2021
Index :Yes/No
Internet :Yes/No
pm
Note :
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the
order that is presented is the
correct copy, shall be the
responsibility of the advocate /
litigant concerned.
To:
The Labour Court,
Trichirappalli.
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W.A(MD)No.1215 of 2020 & Cont.P(MD)No.144 of 2020
PUSHPA SATHYANARAYANA,J.
and
S.KANNAMMAL,J.
ps
W.A(MD)No.1215 of 2020
and
Cont.P(MD)No.144 of 2020
01.04.2021
http://www.judis.nic.in
