Jagadish K.N. v. HMT Ltd. and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 WA.No. 831 of 2010 ---------------------AGAINST THE JUDGEMENT IN WPC.159/2010 Dated 01/02/2010 .................... ## APPELLANT/PETITIONER --------------------------- JAGADISH K.N., S/O.K.K.N.NAMBIAR, AGED 53 YEARS, "MAKUNY", PALAPPARAMBU ROAD, ELAMAKKARA P.O., KOCHI 682 026 ERNAKULAM DISTRICT (NOW WORKING AS DEPUTY CHIEF ENGINEER IN THE JOB ORDER DEPARTMENT) BY ADV. SRI.ANTONY M. AMBAT ## RESPONDENTS/RESPONDENTS ---------------------------------- 1. HMT LTD., REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, HMT BHAVAN, 59, BELLARY ROAD, BANGALORE - 560 032. 2. THE GENERAL MANAGER, HMT MACHINE TOOLS LTD., HMT COLONY P.O., KALAMASSERY 683 503. 3. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF INDUSTRY, DEPARTMENT OF PUBLIC ENTERPRISES (WC) 14 CGO COMPLEX, LODI ROAD, NEW DELHI - 110 003. R1 & R2 BY ADV.SRI.SAJI VARGHESE R3 BY SRI.T.P.M.IBRAHIM KHAN, ASST. SOLICITOR GENERAL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **J.Chelameswar, C.J. & P.N.Ravindran, J.** ------------------------------------------ **W.A.No.831 of 2010** -----------------------------------------Dated this the 25[th ] day of May, 2010 ## **JUDGMENT** ## **J.Chelameswar, C.J.** The unsuccessful petitioner in W.P.(C) No.159 of 2010 which was dismissed by the judgment dated 1[st] February, 2010 is the appellant herein. 2. For the purpose of this judgment the full factual details of this appeal are not necessary. So we state only the bare essential facts. 3. The appellant joined the service of the second respondent some time in the year 1981. The second respondent is a subsidiary of the first respondent company which is a declared sick industry within the meaning of the said expression under the Sick Industrial Companies (Special Provisions) Act, 1985. 4. For the various reasons stated in Ext.P1, the second W.A. No.831 of 2010 - 2 - respondent formulated a Scheme by which certain classes of employees of the second respondent company were entitled to seek employment elsewhere with lien on their post and subject to the various conditions specified in the said Scheme. 5. The appellant availed the benefit of the abovementioned Scheme and joined employment of a company called Electronic Controls and Discharge Systems Private Limited on 11.1.2007. The second respondent permitted the appellant to avail the benefit of the abovementioned Scheme for a period of three years though the Scheme itself contains a clause that such a benefit is available for a period ranging . between 3 and 5 years 6. The appellant secured employment with the abovementioned private limited company. One of the terms of the contract between the appellant and the abovementioned private limited company is that the appellant is required to serve the abovementioned private limited company for a period of five years and in the event of failure on the part of the appellant in so W.A. No.831 of 2010 - 3 - serving for a period of five years, the appellant would be liable to pay to the said company an amount of Rupees five lakhs apart from various other consequences, details of which may not be necessary. 7. On the expiry of the period of three years tenure of service with the abovementioned private limited company, the appellant herein applied to the second respondent seeking an extension of the benefit of the abovementioned Scheme by two more years. The request of the appellant was rejected by the second respondent company by the order impugned in the writ petition, i.e. Ext.P8 dated 9.12.2009. 8. By the judgment under appeal, the learned Judge of this Court declined to interfere with Ext.P8 and hence the present appeal. 9. Apart from the various other reasons recorded by the learned Judge, one specific reason recorded by the learned Judge is that a person identically situated as the appellant herein had earlier approached this Court by way of W.P.(C) No.22839 W.A. No.831 of 2010 - 4 - of 2009 seeking substantially the same relief as the one sought in the instant writ petition, but the said writ petition was dismissed by this Court by judgment dated 12[th] November, 2009 and, therefore, for the same reasons, the instant writ petition also is to be dismissed. 10. We have heard Sri.Antony M.Ambat, learned counsel appearing for the appellant and Sri.Saji Varghese, learned standing counsel appearing for respondents 1 and 2. 11. Learned counsel for the appellant strenuously argued that the appellant was encouraged by the second respondent to take up employment elsewhere by propounding Ext.P1 Scheme. Though the second respondent initially granted lien for a period of three years only in favour of the appellant to join the service of the abovementioned private limited company, the appellant was having a legitimate expectation that the lien would be extended for a further period of two more years in view of the fact that the Scheme itself enables the second respondent company to grant lien for a maximum period of five W.A. No.831 of 2010 - 5 - years and, therefore, the decision of the second respondent not to grant such extension of the lien is wholly illegal. 12. We regret our inability to accept the submission made by the learned counsel for the appellant for the reason that the reliance placed upon the doctrine of legitimate expectation by the appellant is wholly misconceived. We are of the opinion that the doctrine has no application to the case such as the one on hand. In _Bannari Amman Sugars Ltd._ v. _Commercial Tax Officer and others_ [(2005) 1 SCC 625] the Supreme Court stated the contours of the doctrine of legitimate expectation thus: “8. A person may have a “legitimate expectation” of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. The doctrine of legitimate expectation has an important place in the developing law of judicial review. It is, however, not necessary to explore the doctrine in this case, it is enough merely to note that a legitimate expectation can provide a sufficient interest to enable W.A. No.831 of 2010 - 6 - one who cannot point to the existence of a substantive right to obtain the leave of the court to apply for judicial review. It is generally agreed that “legitimate expectation” gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is given. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words, where a person's legitimate expectation is not fulfilled by taking a particular decision then the decision-maker should justify the denial of such expectation by showing some overriding public interest. (See Union of India v. Hindustan Development Corpn. [(1993) 3 SCC 499].” In v. _State of W.B. and others Niranjan Singha_ [(2001) 2 SCC ## 326] at paragraph 4, the Supreme Court held as follows: “ ....................... The doctrine of “legitimate expectation” is only an aspect of Article 14 of the Constitution in dealing with the citizens in a nonarbitrary manner and thus, by itself, does not give W.A. No.831 of 2010 - 7 - rise to an enforceable right but in testing the action taken by the government authority whether arbitrary or otherwise it would be relevant. The decision in _Food Corpn. of India_ v. _Kamdhenu Cattle Feed Industries_ [(1993) 1 SCC 71] does not lay down any principle which detracts from what we have stated now. In a case where the agency is granted for collection of toll or taxes, as in the present case, it can be easily discerned that the claim of the respondent for extension of the period of the agency would not come in the way of the Government if it is economically more beneficial to have a fresh agreement by enhancing the consideration payable to the Government. In such an event, it cannot be said that the action of the Government inviting fresh bids is arbitrary.” 13. No such practice is either pleaded or established. On the other hand, similarly situated employees who made similar requests to secure extension of lien were denied extension and whose claims have already been rejected by this Court as noticed earlier. In the circumstances, we do not see any merit in the appeal and the same is, therefore, liable to be dismissed at the admission stage. W.A. No.831 of 2010 - 8 - 14. Sri.Antony M.Ambat, learned counsel for the appellant prayed in view of the conclusion of this Court that the second respondent may, atleast, be directed to give the appellant some reasonable time to report to the service of the second respondent. Heard learned standing counsel for respondents 1 and 2. In the circumstances, we deem it appropriate to direct the respondents to permit the appellant to join the service of the second respondent within a period of four weeks from today and on such joining, the period from the date of expiry of the lien to the date of joining referred to above shall be regularised subject to the principle of no work no pay. **J.Chelameswar, Chief Justice** **P.N.Ravindran, Judge** vns