A.T. Premachandran Nair v. Kerala Minerals and Metals Ltd. (KMML) & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 WP(C).No. 16293 of 2010(J) -------------------------- ## PETITIONER(S): - --------------- A.T.PREMACHANDRAN NAIR, DEPUTY MANAGER (SAFETY) THE KERALA MINERALS AND METALS LTD., CHAVARA, KOLLAM. BY ADV. DR.K.P.KYLASANATHA PILLAY, SENIOR ADVOCATE SMT.SREEDEVI KYLASANATH SMT.V.J.SAFEENA RESPONDENT(S): - --------------- 1. THE KERALA MINERALS AND METALS LTD., CHAVARA, KOLLAM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE MANAGING DIRECTOR, THE KERALA MINERALS AND METALS LTD., CHAVARA, KOLLAM. 3. THE DIRECTOR OF FACTORIES AND BOILERS, KERALA STATE, THIRUVANANTHAPURAM. 4. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY FOR INDUSTRIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 5. THE DIRECTORATE GENERAL, FACTORY ADVICE SERVICE AND LABOUR INSTITUTES, MINISTRY OF LABOUR, GOVERNMENT OF INDIA, SION, MUMBAI-400 022. - ADV. SRI.E.K.MADHAVAN FOR R1,2 SRI.V.KRISHNA MENON FOR R1,2 GOVERNMENT PLEADER SRI.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J ------------------W.P.(C).16293/2010 -------------------Dated this the 28[th] day of June, 2010 ## JUDGMENT Petitioner entered the services of the respondent Company as Plant Engineer on 14.3.1990. On his request, thereafter, he was transferred to the Safety section of the Company. While so, with the permission of the Company, petitioner underwent Diploma course in Safety Engineering and rejoined the Company in May 1994. 2. A vacancy in the post of Safety Manager arose on 31.5.1993 consequent on the retirement of the then incumbent. Petitioner claimed appointment to that vacancy of Safety Officer. However one Mr. K.Bhanu was appointed as Safety Officer with effect from 1.8.1994. Petitioner challenged the appointment of Mr. Bhanu in O.P.14447/1996. That O.P was disposed of by Ext.P1 judgment, where this Court set aside the appointment order of Mr. Bhanu, the 5[th] respondent therein and held that the petitioner herein was fully qualified to hold the post of Safety Officer in terms of Rule 81F of the Kerala Factories Rules, 1957 2 W.P.(C).16293/10 (in short 'the Rules'). On that basis, it was held that the petitioner was entitled to get appointment as Safety Officer with effect from 1.8.1994 with consequential benefits. 3. Mr.Bhanu filed W.A.784/2002 against Ext.P1 judgment. By Ext.P2, the Division Bench dismissed the appeal. Thereafter Ext.P3 order dated 29.11.2006 was issued by the Company appointing the petitioner as Safety Officer with effect from 1.8.1994 and directing that he shall report to the AGM (P&S). Immediately after his appointment, petitioner represented by Ext.P3(a) complaining that his appointment and the designation were not in compliance with Rule 81F (2)(b) and (c) of the Rules. That request of the petitioner was rejected by the Company by Ext.P3(b) order. Further, representation made vide Ext.P3(c) was also rejected by Ext.P3(d) order. Petitioner challenged the aforesaid proceedings in W.P.(C).15594/2007. By Ext.P5 judgment, this Court disposed of the writ petition with the following directions. W.P.(C).16293/10 3 “The tune and spirit of Ext.P6 and Ext.P8 is Crystal clear. The attempt was made somehow or other malafidely to defeat the valuable rights of the petitioner agitated and established in a court of law. The act of the respondent company's officers in passing Ext.P6 and P8 is deliberate and intentional. The same is also intended to flout the orders of this Court. The respondent company shall pass appropriate orders in terms of the judgments stated above, passed by this Court. The consequential orders to be passed includes appointment as Safety Officer in the Status of Senior Executive and appropriate direction asking the petitioner to report before the Chief Executive of the company. Therefore considering his status as Senior Executive, it is declared that the petitioner need report only to the Chief Executive of the company and that he is entitled to salary and allowances treating him as Senior Executive of the 1[st] respondent company with effect from 1.8.1994 and disburse the arrears due to him within a period of one month from the date of receipt of a copy of this judgment. Exts.P6 and P8 orders are therefore quashed. The petitioner W.P.(C).16293/10 4 shall report before the Chief Executive of the company. In the circumstances and for the reasons stated in the preceding paragraphs the petitioner is entitled to the reliefs prayed for in this writ petition. 1 fix Rs.10,000/- as cost to the petitioner. The cost shall also be paid along with the monetary benefits with 9% interest from the date of Ext.P3 judgment till payment within a period of one month from the date of receipt of a copy of this judgment.” 4. Against the judgment of the learned single Judge, Company filed W.A.884/2009. That writ appeal was disposed of by Ext.P6 modifying the direction of the learned single Judge that the petitioner shall report to the Chief Executive of the Company to be read as to the “Chief Executive of the Factory”. In all other respects the judgment was upheld. In the writ petition and the writ appeal petitioner placed considerable reliance on Ext.P4, a letter issued by the Director of Factories & Boilers stating that on inspection, it was found that the conditions of service which are provided to the petitioner were not in compliance with Rule 81F (2)(b) and (c) of the Rules. W.P.(C).16293/10 5 5. Against Exts.P5 and P6 judgments, the Company filed S.L.P. (Civil).No.15405/2009, a copy of which is Ext.P6(b). Leave was granted and the appeal was disposed of by Ext.P7 order. After narrating the facts, the Apex Court issued the following directions. “We direct the appellant Kerala Minerals & Metals Ltd, to give all consequential benefits and promotion to respondent No.1, if not already given, under the rules of the Company, within two months from today. No further directions are necessary.” 6. In pursuance to the above, petitioner submitted Ext.P8 representation to the Company. The representation was considered and Ext.P8(a) order dated 29.4.2010 was issued rejecting the representation. In this order, the Company took the stand that in Ext.P7 order, the Apex Court had ordered that under the rules of the Company, if any benefits are due to the W.P.(C).16293/10 6 petitioner, it shall, if not already given, be given to him. It is stated that since all the benefits due to him have already been given, nothing further was due. Further in Ext.P8(a), Company also stated thus:- “You are to report directly to the Chief Executive of the factory. Your claim for being appointed to the rank of Assistant General Manager was considered and rejected by the Honourable Supreme Court. The requirement of being conferred the status of “a Senior Executive” under the Factories Act and rules made thereunder is only to facilitate the smooth functioning of the Safety aspects of the factory and thereby ensuring that the Safety Officer is reporting directly to the Chief Executive of the factory. Such a provision cannot be utilized to circumventing the service rules of the Company. The Honourable Supreme Court of India in the decision reported in BHEL and another v. B.K.Vijay and other (2006 (2) SCC 654) has very clearly held that even after being appointed as Safety Officer an employee of the Company will continue to be governed by the service rules of W.P.(C).16293/10 7 the company for purposes of promotion salary etc. The concept of giving “status” to an employee for a particular object to be achieved under the Factories Act is clearly explained in the said judgment and the said judgment was specifically pressed into service in support of the SLP filed by the Company. It is in this background that the Honourable Supreme Court clearly held that you will get consequential benefits under the Companies Rules which position you have yourself accepted in your counter affidavit referred to herein above. It is therefore informed that you are not entitled to further relief as claimed in your representation. As far as the KMML is concerned there is only the post of “Senior Managerial Executive Cadre 'from E-1 to E-5”. Even according to your own showing you are not entitled to the same on being appointed as Safety Officer. The Rules made under the Factories Act has loosely used the expression the status of a “Senior Executive” only to convey the meaning that for purposes of the discharge of the duties of Safety Officer the incumbent should get an appropriate status as understood in the ordinary parlance in which that W.P.(C).16293/10 8 expression is understood. It is not a tool for the Safety Officer to claim promotion which he is no entitled under the Service Rules of the Company. Your representation is most mischievous and unfounded and consequently the same is rejected.” 7. Thereafter, the Company issued Ext.P10, an order requiring the petitioner to report to the Executive Director, (Manager under the Factories Act, 1948) and to co-ordinate in consultation with the DGM(F&S) in regard to the routine functions of the Section. It is on receipt of Ext.P8(a) and P10, this writ petition is filed seeking to quash these orders and to direct the respondents to give the petitioner status, scale of pay and other monetary benefits of senior managerial Executive level of at least that of the Assistant General Manager with effect from 1.8.1994 with all consequential benefits. 8. In sum and substance, the contention of the petitioner is that the conditions of service of a Safety Officer appointed in terms of Rule 81F (2)(b) of the Rules provide that the Safety W.P.(C).16293/10 9 Officer shall be given the status of Senior Executive and that he shall work directly under the control of the Chief Executive of the Factory. According to the petitioner, in terms of the hierarchy in the Company, the lowest post in the Senior Managerial Cadre (Executive Cadre) is that of Assistant General Manager at E-5 level. Therefore, since he is entitled to the status of a Senior Executive, he is entitled to the designation of Assistant General Manager at E-5 level and all consequential benefits. 9. The contention of the learned counsel appearing for the respondent Company is that although it has recognized the claim of the petitioner for appointment as Safety Officer with effect from 1.8.1994, the entitlement of the petitioner for designation within the executive hierarchy of the Company will depend upon the rules laid down in the Company in that behalf. According to the Company, it is precisely for that reason that in Ext.P7 order, the Apex Court directed that the benefits due under Rules of the Company shall, if not already given, be given W.P.(C).16293/10 10 to the petitioner. Counsel therefore, contends that at the time when the petitioner was appointed as Safety Officer, he was an Officer in the rank of Plant Engineer at E-8 level and that an Officer in E-8 level, on completion of the prescribed period of service in that level, will be eligible for the higher post of Deputy Manager in E-7 level. It is stated that the petitioner completed the prescribed period and was given the higher grade as applicable and was promoted as Deputy Manger(Safety) by order dated 19.4.2007. In other words, according to the Company, petitioner's promotion from the post of Plant Engineer at E-8 level to the higher grades will be governed by the eligibility as laid down by the Company in its promotion policy and there cannot be a jump directly from E-8 level to E-5 level. It is contended that benefits which are admissible under the Rules have all been given to the petitioner. It is also contended that if the claim of the petitioner for Assistant General Manger is conceded, petitioner will be getting a jump from E-7 to E-5 level without serving in E-6 level. Learned counsel for the respondents also relied on the principles laid down by the Apex W.P.(C).16293/10 11 Court in BHEL and another v. B.K.Vijay and others (2006 (2) SCC 654) to sustain the impugned action of the Company. 10. From the rival submissions made by the learned senior counsel for the petitioner and the learned counsel appearing for the respondents, the issue that arises for consideration is whether by virtue of the provisions contained in Rule 81F of the Rules, on his appointment as the Safety Officer, the petitioner ought to have been given the status and designation of Assistant General Manager at E-5 level for the reason that under the Rules he is entitled to the status of a Senior Executive in the Company. Rule 81F(2)(b) of the Kerala Factories Rules provide that the Safety Officer shall be given the status of Senior Executive. Interpreting a similar provision contained in the U.P.Factories (Safety Officers) Rules, 1984, framed under the Factories Act, 1948, the Apex Court held in the judgment in BHEL's case (supra), that a Safety Officer is appointed for the purpose of the Factories Act only and that a Safety Officer is given the status of a Senior Executive in the factory because he would be posted W.P.(C).16293/10 12 under the Chief Executive of the factory and would report only to him and on Safety aspects, other officers would be bound by his direction. After referring to the meaning of the expression “status”, it was also held that “it is one thing to say that under the Act, a status is conferred for the purpose thereof but it would be another thing to say that pay, allowances and other benefits are not to be paid in terms of contract of employment or the statute operating in the field.” Thereafter it was held that promotions within the hierarchy of the Company will depend upon the rules framed by the Company and that even in the case of a Safety Officer appointed in terms of the provisions of the Factories Act and Rules, promotion is not automatic. 11. In this case, petitioner was a Process Engineer when he was appointed as Safety Officer. As per the Rules of the Company, Process Engineer, is at E-8 Level. Subsequent to his appointment as Safety Officer, on completing the prescribed period of service, the petitioner was promoted to Level 7. what is claimed by the petitioner is that on his appointment as Safety Officer, he ought W.P.(C).16293/10 13 to have been given the designation, status and all benefits due to an Assistant General Manager in E-5 level and that consequential benefits should also be given. 12. The Rule and the claim considered by the Apex Court are similar in all respects and therefore, the principle laid down in the judgment in 'BHEL's case is applicable to the facts of this case. If the principles laid down by the Apex Court are to be applied to the facts of this case, the petitioner should rise in the hierarchy from E-7 to E-6 Level, and cannot straightway get himself lifted and planted into E-5 level, for the only reason that he is appointed as a Safety Officer. In my view, the status of Senior Executive, which is ordered to be given by virtue of the provisions contained in the Kerala Factories Rules, is intended to give certain extent of autonomy to the Safety Officer in order to enable him to efficiently discharge the statutory duties attached to that post. The designation or status is not meant or intended to enable the Safety Officer to claim any higher post in the hierarchy or to advance his carrier bypassing the conditions of W.P.(C).16293/10 14 service laid down by the Company for appointments and promotions. This precisely is why in Ext.P7 order, the Apex Court has only ordered to give him benefits due under the rules framed by the Company. Therefore, unless the petitioner satisfies the eligibility conditions laid down in the Company's promotion policy, he cannot claim the post of Assistant General Manager. In that view of the matter, the claim made by the petitioner for posting him as Assistant General Manager has been rightly rejected by the Company. Therefore, Ext.P8(a) order is not vitiated for any reason warranting interference by this Court. 13. Insofar as the challenge against Ext.P10 is concerned, by this order, Company has directed the petitioner to report to the Executive Director who is the Manager of the Factory under the Factories Act, 1948. In Ext.P6 judgment, a Division Bench of this Court clarified that the petitioner shall report to the Chief Executive Officer of the Factory. According to the Company, Executive Director is the Chief Executive of the factory. There is W.P.(C).16293/10 15 no material available to conclude that this is factually erroneous. If that be so, the direction in Ext.P10 requiring the petitioner to report to the Executive Director cannot be faulted. Insofar as the grievance that the petitioner is asked to co-ordinate in consultation with the Deputy General Manager is concerned, it is only a working arrangement and I do not find any illegality in such a working arrangement made by the Company. Writ petition is without any merit and is accordingly dismissed. ANTONY DOMINIC, Judge mrcs