IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16293 of 2010(J)
1. A.T.PREMACHANDRAN NAIR,
... Petitioner
Vs
1. THE KERALA MINERALS AND METALS LTD.,
... Respondent
2. THE MANAGING DIRECTOR,
3. THE DIRECTOR OF FACTORIES AND BOILERS,
4. STATE OF KERALA REPRESENTED BY
5. THE DIRECTORATE GENERAL,
For Petitioner :DR.K.P.KYLASANATHA PILLAY (SR.)
For Respondent :SRI.E.K.MADHAVAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :28/06/2010
O R D E R
ANTONY DOMINIC, J
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W.P.(C).16293/2010
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Dated this the 28th 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 5th 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
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(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
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“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 1st 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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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