P.S. GEORGE, SHAJAHAN A., CHANDRABOSE V.C. v TRACO CABLE COMPANY LIMITED and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM THURSDAY, THE 7TH DAY OF NOVEMBER 2013/16TH KARTHIKA, 1935 WP(C).No. 276 of 2012 (H) ------------------------------------- ## PETITIONERS : -------------------- ## 1. P.S. GEORGE, AGED 55 YEARS, TOKEN.NO.9, FOREMAN, TRACO CABLE COMPANY LIMITED, THIRUVALLA. ## 2. SHAJAHAN A., TOKEN NO.58, CHANRGEHAND, TRACO CABLE COMPANY LIMITED, THIRUVALLA. ## 3. CHANDRABOSE V.C., TOKEN NO.122, CHARGEHAND, TRACO CABLE COMPANY LIMITED, THIRUVALLA. BY ADV. SRI.P.RAMAKRISHNAN ## RESPONDENTS : ---------------------- ## 1. TRACO CABLE COMPANY LIMITED, IVTH FLOOR, KSHB , OFFICE COMPLEX, PANAMPILLY NAGAR, KOCHI 682 036, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR. ## 2. THE SENIOR MANAGER, TRACO CABLE COMPANY LIMITED, JFTC FACTORY, CHUMATHRA, THIRUVALLA 689 103. 3. TRACO CABLE EMPLOYEES ASSOCIATION (INTUC) TRACO CABLE COMPANY LIMITED, JFTC FACTORY, CHUMATHRA, THIRUVALLA 689 103, REPRESENTED BY ITS GENERAL SECRETARY. WP(C).No. 276 of 2012 (H) ------------------------------------- R1-R2 BY ADV. SRI.M.PATHROSE MATTHAI (SR.) R1-R2 BY ADV. SRI.SAJI VARGHESE, SC, TRACO CABLE COMPANY LIMITED, R3 BY ADV. SRI.ARUN B.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0711-2013, ALONG WITH WPC. 2733/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 276 of 2012 (H) ------------------------------------- ## APPENDIX PETITIONERS’ EXHIBITS : EXHIBIT-P1. COPY OF MEMO DATED 21/11/2011 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER. EXHIBIT-P2. COPY OF MEMO DATED 21/11/2011 ISSUEDBY THE 2ND RESPONDENT TO THE 2ND PETITIONER. EXHIBIT-P3. COPY OF MEMO DATED 21/11/2011 ISSUEDBY THE 2ND RESPONDENT TO THE 3RD PETITIONER. EXHIBIT-P4. COPY OF OFFICE ORDER DATED 5/12/2011 ISSUED BY THE 2ND RESPONDENT. EXHIBIT-P5. COPY OF OFFICE ORDER DATED 5/12/2011 ISSUED BY THE 2ND RESPONDENT. EXHIBIT-P6. COPY OF OFFICE ORDER DATED 5/12/2011 ISSUED BY THE 2ND RESPONDENT. EXHIBIT-P7. COPY OF JOINING REPORT DATED 7/12/2011 SUBMITTED BY THE 1ST PETITIONER. EXHIBIT-P8. COPY OF JOINING REPORT DATED 7/12/2011 SUBMITTED BY THE 2ND PETITIONER. EXHIBIT-P9. COPY OF JOINING REPORT DATED 7/12/2011 SUBMITTED BY THE 3RD PETITIONER. EXHIBIT-P10. COPY OF REPORT WHICH APPEARED IN MATHRUBHOOMI DAILY OF 8/12/2011. EXHIBIT-P11. COPY OF NOTICE DATED 7/12/2011 ISSUED BY THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS : EXHIBIT R3 (A) COPY OF REPRESENTATION DATED 03.11.2011 SUBMITTED BEFORE 1ST RESPONDENT. WP(C).No. 276 of 2012 (H) ------------------------------------- EXHIBIT R3 (B) COPY OF THE REPLY DATED 12.11.2011 ISSUED BY THE 1ST RESPONDENT. EXHIBIT R3 (C) COPY OF REPRESENTATION DATED 25.11.2011 SUBMITTED BEFORE 1ST RESPONDENT. EXHIBIT R3 (D) COPY OF THE MINUTES OF THE MEETING HELD ON 10.11.2011. EXHIBIT R3 (E) COPY OF THE PROMOTION POLICY WITH AMENDED CLAUSE NO.3. EXHIBIT R3 (F) COPY OF RELEVANT PORTION OF CLAUSE NO.3 OF PROMOTION POLICY WHICH EXISTED AS ON 31.10.2011. EXHIBIT R3 (G) COPY OF REPRESENTATION DATED 17.01.2012 SUBMITTED BEFORE THE 1ST RESPONDENT. // True Copy // P.A. To Judge DSV/02/01 ## C.K. ABDUL REHIM, J. ---------------------------------------- W.P.(C)Nos. 276 & 2733 OF 2012 ---------------------------------------Dated this the 7[th] day of November, 2013 ## JUDGMENT Since a common issue is involved in both these writ petitions they were considered together and disposed of through this common judgment. The petitioners in W.P.(C) 276/2012 are employees of the first respondent company, which is a public sector undertaking. The first petitioner was promoted as ‘Foreman’ and the petitioners 2 and 3 were promoted as ‘Charge Hand’ by virtue of Exhibits P4 to P6 orders. They were allowed to assume charges in the promoted posts as evident from Exhibits P7 to P9. But the 2[nd] respondent had issued Exhibit P11 order keeping in abeyance Exhibits P4 to P6 orders. Averments are to the effect that, Exhibit P11 was issued on the basis that the ~~3~~[r] d respondent trade union (who is the petitioner in W.P.(C). 2733/2012) under leadership of the MLA from the local constituency had staged a ‘Gherao’ in the office of the 2[nd] W.P.(C)Nos. 276 & 2733 OF 2012 2 respondent alleging that the promotions were given promotion overlooking seniority. It is alleged that, the 3[rd] respondent is not even a recognized trade union and it had failed in the ‘referendum’ conducted in February, 2008. Contention of the petitioners is that Exhibit P11 was issued in totally unreasonable and arbitrary manner and it is a highly cryptic order without assigning any reasons. According to the petitioners, the right accrued by way of Exhibits P4 to P6 to perform duties in the promoted posts cannot be withheld or negatived by virtue of Exhibit P11. Hence, the petitioners seek to quash Exhibit P11 and to direct the respondents 1 and 2 to permit the petitioners to perform duties in the promoted posts. When W.P.(C). 276/2012 came up for admission on 05.01.2012, this Court granted an interim stay against implementation of Exhibit P11. It is submitted that on the basis of the interim order the petitioners are performing duties in the promoted posts. 2. W.P.(C).2733/2012 is filed by the above said trade union challenging the orders of promotion granted to the W.P.(C)Nos. 276 & 2733 OF 2012 3 petitioners, mainly on the ground that those orders are issued in total violation of Exhibit P5 promotion policy. Inter alia, they seek directions for conduct of fresh selection and for preparation of a seniority list of workers of the company, in accordance with law. Referring to Exhibit P5 it is pointed out that, the criteria for promotion is to be based on the annual performance appraisal ratings, passing of practical or written tests where ever prescribed, attendance, discipline and seniority in service in the relevant grade and on the basis of competence found in the interview conducted by a duly constituted Departmental Promotion Committee (DPC). The contention of the petitioner trade union is that no seniority list was prepared in the cadre of workman and therefore the impugned promotions are affected without considering seniority of the persons promoted viz-a-viz other workers. 3. Another contention taken is that the selection was not conducted by a properly constituted DPC. Referring Clause III (6) of Exhibit P5, it is pointed out that the DPC W.P.(C)Nos. 276 & 2733 OF 2012 4 should generally consists of the Head of the Department to which the vacancy is to be filed up, Head of the Personnel Department and a Technical Member co-opted from any Department/Section which is conversant with the specific area of work, along with the chairman, who will be nominated by the Managing Director. It is alleged that with respect to the impugned promotion the DPC was not constituted with the Head of Department of the Production and Mechanical Maintenance Departments which is the relevant Department/Section. 4. It is also contended that an amendment was brought into the promotion policy, after notification of the vacancies, with an intention to promote persons upon whom the Management had vested interest. It is also pointed out that the petitioner trade union had submitted Exhibit P1 and P3 requests before the 1[st] respondent to stop the selection process. But the promotions were given without considering such requests. 5. In W.P(C).2733/2012, the respondents 1 and 2 had W.P.(C)Nos. 276 & 2733 OF 2012 5 filed counter affidavit contending that the writ petition is not filed by any affected person and the petitioner trade union has no locus standi to challenge the selection process. If any of the members of the petitioner trade union is affected, their remedy is only to raise an industrial dispute, and as such the writ petition is not maintainable. It is mentioned that for the purpose of selection, the company had received applications from 18 candidates to the post of ‘Charge Hand’ and from 6 candidates to the post of ‘Foreman’. The DPC had conducted interview of 16 candidates who were found eligible to the post of ‘Charge Hand’ and 6 candidates to the post of ‘Foreman’. The persons promoted were ranked top in the selection process and none of the candidates who lost selection had challenged the selection process. The allegation that the promotions were made in violation of the policy, is stoutly denied. 6. Fact that the petitioner trade union has not raised any Industrial Dispute itself reflects the lack of bonofides, is the contention. With respect to the amendment brought W.P.(C)Nos. 276 & 2733 OF 2012 6 into the promotion policy, it is mentioned that such an amendment was brought in after acceptance by all the recognized trade unions and the petitioner was not even a recognized trade union at that time. According to respondents 1 and 2, the written test was conducted only for assessment of suitability of the candidates. It is further stated that the DPC with respect to the present selection was consisted with the Senior Manager (Q,A & S), the Unit Head, and the Manager (P & A). The allegation that the Head of Department was not a member is without any basis. According to respondents 1 and 2 the promotions were given based on the selection and seniority is counted only for finding out suitability of the candidates. Merely because a persons is the senior most, he need not get selection, is the contention. When the promotion is based on a selection process there may be cases where the junior will march over the seniors on the basis of their competence in caliber. Therefore, the promotions cannot be challenged merely on the basis that it violates seniority position. The respondents W.P.(C)Nos. 276 & 2733 OF 2012 7 have produced Exhibit R1(a) which is the minutes of the meeting in which the amendment was accepted by the recognized trade unions. 7. Questions arising for consideration is two folded. At the first instance, challenge is against promotions given to the petitioners in W.P.(C).276/2012. The promotions are challenged in W.P.(C).2733/2012 on the basis of illegalities and irregularities alleged in the selection process. Secondly, the petitioner trade union is seeking direction for formulation of a seniority list in the cadre of workers in the first respondent company. Validity with respect to the selection process cannot be considered in this writ petition on the basis of grounds raised, especially when the petitioners is a trade union and no other persons who were defeated in the selection process had raised any complaint. The petitioner trade union cannot agitate personal grievance of any of its members in a representative capacity before this Court in a proceedings instituted under Article 226. If any of the workers has got grievance against the selection W.P.(C)Nos. 276 & 2733 OF 2012 8 process, they can resort to remedy provided under the Industrial Disputes Act either by themselves or through the trade union. No materials are produced to show that any malpractice has been committed in the selection process. There is no malafides alleged against any of the members of the DPC, who conducted the selection process. 8. The Honourable Supreme Court in the decision in UP State Bridge Corporation Ltd. and other v. UP Rajya Setu Nigam S. Karamchari Sangh [2004 (4) SCC 268] held that when the rights and obligations sought to be enforced by a trade union in a writ petition are created by virtue of provisions of the Industrial Disputes Act, then the remedy available is to adjudicate such dispute under the said Act. Even though there is no limitation on the courts power under Article 226, nevertheless there should be very strong case for the High Court to deviate from the principle that where a specific remedy is provided under a statute, the person who insist upon such remedy can avail the process provided under that statute itself and in no other manner. W.P.(C)Nos. 276 & 2733 OF 2012 9 9. This Court is of the considered opinion that in view of the legal position remaining settled the challenge raised by the trade union against the orders of promotion need not be considered in this writ petition. However, it is made clear that the rights, if any, vested on any of the workers or on the trade union itself, under the provisions of the Industrial Disputes Act against such orders are left open for agitation before the appropriate forum. 10. The petitioner trade union also seeks a relief to direct the respondents to formulate seniority list to enable proper evaluation and selection of candidates in different vacancies in accordance with the promotion policy. They have approached respondents 1 and 2 with such a request in the form of Exhibit P1 & P3 representations. It is for the respondents 1 and 2 to consider such requests and to take an appropriate decision, at the earliest. Needless to observe that if the respondents 1 to 2 fails in formulating any seniority list within a reasonable time, at any rate within two months from the date of receipt of a copy of this judgment, W.P.(C)Nos. 276 & 2733 OF 2012 10 the petitioner trade union will be at liberty to pursue appropriate remedy. However, this Court is not inclined to set aside the impugned promotions based on the allegation of lack of formulation of any seniority list. Under the above mentioned circumstances W.P.(C). 276/2012 is allowed and Exhibit P11 is hereby quashed. However, it is made clear that this judgment will not stand in the way of any affected persons invoking remedy against those promotions in appropriate proceedings. C.K. ABDUL REHIM, JUDGE. DSV/11/11 # W.P.(C)Nos. 276 & 2733 OF 2012 11 # W.P.(C)Nos. 276 & 2733 OF 2012 12