IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 831 of 2010()
1. JAGADISH K.N., S/O.K.K.N.NAMBIAR,
... Petitioner
Vs
1. HMT LTD., REPRESENTED BY ITS
... Respondent
2. THE GENERAL MANAGER,
3. UNION OF INDIA, REPRESENTED BY THE
For Petitioner :SRI.ANTONY M. AMBAT
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :25/05/2010
O R D E R
J.Chelameswar, C.J. & P.N.Ravindran, J.
------------------------------------------
W.A.No.831 of 2010
------------------------------------------
Dated this the 25th 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 1st 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 12th 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 State of W.B. and others v. 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 non-
arbitrary 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
