Suresh Babu P. v Travancore Titanium Products Limited

1 _**WP(C).30749/18**_ ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941** ## **WP(C).No.30749 of 2018** ## **PETITIONER/S:** **SURESH BABU.P AGED 58 YEARS WORKING AS DEPUTY GENERAL MANAGER (SD) TRAVANCORE TITANIUM PRODUCTS LIMITED KOCHUVELI THIRUVANANTHAPURAM PIN-695021 RESIDING AT TC34/652 ANRA-113 ASWATHY VATTIYOORKAVU P.O THIRUVANANTHAPURAPIN-695013** **BY ADV. SMT.M.C.SINY** ## **RESPONDENT/S:** |**1**|**TRAVANCORE TITANIUM PRODUCTS LIMITED**| |---|---| ||**KOCHUVELI**| ||**THIRUVANANTHAPURAM**| ||**695021**| ||**REP. BY ITS**| ||**MANAGING DIRECTOR**| |**2**|**MANAGING DIRECTOR,**| ||**TRAVANCORE TITANIUM PRODUCTS LIMITED**| ||**KOCHUVELI,THIRUVANANTHAPURAM-695021**| |**3**|**GENERAL MANAGER (FINANCE)**| ||**TRAVANCORE TITANIUM PRODUCTS LIMITED**| ||**KOCHUVELI,THIRUVANANTHAPURAM 695021**| ||**BY ADV. SMT.LATHA ANAND**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.05.2019, THE COURT ON 20.6.2019 DELIVERED THE FOLLOWING:** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 30749 of 2018** ## **----------------------------------------------Dated this the 20[th] day of June, 2019** ## **JUDGMENT** The petitioner, who was a Deputy General Manager in the 1[st] respondent Company, has approached this Court challenging Exhibit P8 order by which the petitioner's request for extension of service has been rejected. The petitioner has also sought regularisation of the period from 1.6.2017 to 13.6.2018 with all consequential benefits as also promotion to the post of General Manager which arose in the meanwhile. 2. Heard Sri.N.Nandakumara Menon, the learned Senior Counsel appearing for the petitioner and Sri.K.Anand, the learned Senior Counsel appearing for the respondents. 3. It is submitted that the petitioner attained the age of 58 years in May, 2017. By Exhibit P1, the petitioner was intimated that he would be relieved from service on 31.5.2017. The petitioner approached this Court and by Exhibit P2 judgment dated 12.12.2017, this Court found that all the employees of the 1[st] respondent had been invariably granted extension till the age of 60 years and the denial of the benefit to the petitioner was completely arbitrary and discriminatory. 3 _**WP(C).30749/18**_ The issue was directed to be reconsidered. The writ appeal preferred by the Company against the said judgment was dismissed. By Exhibit P4, the petitioner was required to rejoin duty and continued in service till 31.5.2019. He submitted Exhibit P6 representation seeking regularisation of service from 1.6.2017 to 13.6.2018 and all consequential monetary benefits. The same has been rejected by Exhibit P8. It is submitted that the petitioner's request for promotion as Managing Director has also not been considered in spite of existence of vacancies. 4. A counter affidavit has been placed on record by respondents 1 to 3. It is stated that the petitioner had rejoined duty on 14.6.2018 pursuant to Exhibit P4 and that there was absolutely no delay on the part of the respondents in considering the request of the petitioner for extension after the writ appeal was dismissed. It is further contended that the petitioner had completed the qualifying service in the post of Deputy General Manager Grade-I for being considered for promotion as General Manager on 24.7.2016. However, the post of General Manager (Technical) was occupied by one K.Raghavan, Assistant General Manager of Head of Department on working arrangement basis with effect from 23.10.2015. It is stated that on 11.5.2018, one Royson V.Luke was appointed as General Manager (Technical) after due recruitment process. Sri.Sreekumaran Nair, Deputy General Manager (Finance) was promoted as General Manager (Finance) on 10.5.2018. It 4 _**WP(C).30749/18**_ is contended that the petitioner did not have the qualification for appointment to the post of General Manager (Finance) as is evident from Exhibit R1(b) promotion policy and as such, his claim that he is entitled for promotion as General Manager from the date when Sri.Sreekumaran Nair was appointed as General Manager (Finance) is completely untenable. It is further stated that the petitioner had proceeded on long leave from 25.6.2018 to 13.10.2018 without taking up the critical duties assigned to him and that as such, his claim that he is entitled to full pay and benefits for the period he is kept out of service is untenable. 5. The learned Senior Counsel appearing for the petitioner would contend that the petitioner had been kept out of service for the period from 1.6.2017 to 13.6.2018 for absolutely no fault of his and that as such, he is entitled to all the benefits which would have been accrued to him had he not been so kept out of service illegally. The decisions of the Apex Court in _**State of Kerala v. E.K.Bhaskaran Pillai**_ [(2007)6 SCC 524] and _**Union Public Service Commission v. A.K.Salim**_ [(2008)11 SCC 495] are relied on by the learned Senior Counsel appearing for the petitioner to contend that where a promotion is denied for no fault of the incumbent, the principle of no work no pay cannot be applied and the employee would be entitled to the benefits which had been wrongfully denied to him. 5 _**WP(C).30749/18**_ 6. The learned Senior Counsel appearing for the respondents would, on the other hand, contend that the petitioner had been kept out of service, since his claim for extension had not been favourably considered. It is stated that though the petitioner had approached this Court and had obtained Exhibit P2 judgment requiring a reconsideration of the issue of extension of the service of the petitioner afresh, no directions had either been sought for or obtained with regard to the treating of the period of service. It is stated that by Exhibit P4 proceedings, the petitioner had been permitted to rejoin duty. This was immediately after the dismissal of the writ appeal by Exhibit P3 judgment. It is stated that thereafter, Exhibit P5 contempt of court case was closed. It is stated that Exhibit P8 proceedings specifically states that though the petitioner had rejoined the Company on 14.6.2018, he had proceeded on leave from 25.6.2018 to 13.10.2018 without accepting the duties assigned to him. It is therefore contended that the petitioner, who had not worked in the post from 1.6.2017 to 13.6.2018, would not be entitled to the benefits. The learned Senior Counsel would place reliance on the decision of the Apex Court in _**D.C.Aggarwal (Dead) by Lrs. v. State Bank of India**_ [AIR 2006 SC 2105]. It is stated that in that case, where the petitioner's request for extension had been turned down, the said decision was reconsidered and the extension was granted. The monetary benefits which were sought for by the legal heirs had been 6 _**WP(C).30749/18**_ specifically denied on the principle of no work no pay. It is stated that the claim for promotion was also negatived in the said case on the ground that what, at best, could have been ordered was the consideration of the question of promotion and no direction for promotion could have been issued by this Court. 7. I have considered the contentions advanced. It is apparent that this Court in Exhibit P2 judgment had interfered with the decision of the respondents not to extend the services of the petitioner. The decision was found to be illegal and the same was quashed and a reconsideration was ordered. However, this Court did not make any observation as to the treating of the period when the petitioner remained out of service. Exhibit P2 judgment was confirmed in Exhibit P3 and immediately thereafter, the petitioner was reinstated. However, in view of the fact that Exhibit P2 judgment had found that the petitioner had been denied the benefit of extension arbitrarily and due to discrimination as against a scheduled caste employee, I am of the opinion that the issue whether the petitioner would be entitled to at least partial back wages for the period he was kept out of service is to be considered by the respondents afresh. Since the petitioner could not point out before this Court that any junior of his in the direct line of promotion had been appointed to the higher post overlooking the petitioner's claim, I am of the opinion that the claim for promotion as General Manager cannot be considered. 7 _**WP(C).30749/18**_ There will accordingly be a direction to the respondents to take up the question of grant of back wages in respect of the period spent by the petitioner out of service and to pass appropriate orders thereon after hearing the petitioner also. Orders as directed above shall be passed within two months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** _vgs_ 8 _**WP(C).30749/18**_ ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE PHOTOSTAT COPY OF NOTICE NO PL/A/RET/1657/2017(1) DATED 31.5.2017 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P2 THE PHOTOSTAT COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN WPC NO 19948 OF 2017 DATED 12.12.17** - **EXHIBIT P3 THE PHOTOSTAT COPY OF THE JUDGMENT OF THE DIVISION BENCH OF THE HON'BLE COURT OF KERALA IN WA NO 304 OF 2018 DATED 7.6.18** - **EXHIBIT P4 THE PHOTOSTAT COPY OF THE LETTER NO PL/A/PER/1657/2018 DATED 12.6.2018 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P5 THE PHOTOSTAT COPY OF JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN CONTEMPT CASE NO 776 OF 2018 DATED 14.6.18** - **EXHIBIT P6 THE PHOTOSTAT COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 23.6.18** - **EXHIBIT P7 THE PHOTOSTAT COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 31.7.18** **EXHIBIT P8 THE PHOTOSTAT COPY OF THE COMMUNICATION NO PL/A/PER/1657/2018 DATED 14.8.18 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P9 THE PHOTOSTAT COPY OF THE LEAVE APPLICATION OF THE PETITIONER DULY SANCTIONED BY THE 3RD RESPONDENT.** - **EXHIBIT P10 THE PHOTOSTAT COPY OF THE LEAVE RECORD-2018 IN THE 1ST RESPONDENT COMPANY PERTAINING TO THE PETITIONER.** **EXHIBIT P11 THE PHOTOSTAT COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 10.9.16** **EXHIBIT P12 THE PHOTOSTAT COPY OF THE RELEVANT EXTRACT OF THE RECRUITMENT AND PROMOTION POLICY FOR MANEGERIAL CADRE IN THE 1ST RESPONDENT COMPANY.** 9 _**WP(C).30749/18**_ **EXHIBIT P13 THE PHOTOSTAT COPY OF THE MEMO DATED 11.5.18 ISSUED BY THE 2ND RESPONDENT STATING THE JOINING OF ROYSON V LUKE IN THE COMPANY AS GENERAL MANAGER (TECHNICAL) IN SPECIAL GRADE** **EXHIBIT P14 THE PHOTOSTAT COPY OF THE MDS ORDER NO 20/2018 DATED 10.5.18** **EXHIBIT P15 THE PHOTOSTAT COPY OF THE NOTE SENT BY THE PETITIONER TO GM(F)/MD ON 18/06/2018** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(A)** TRUE COPY OF MEMO DATED 12/06/2018 **EXHIBIT R1(B)** A TRUE COPY OF THE RELEVANT PAGE OF THE PROMOTION POLICY OF HOD FINANCE ERSTWHILE FINANCE CONTROLLER.