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Jagadish K.N. vs Hmt Ltd. on 25 May, 2010

Kerala High Court
Jagadish K.N. vs Hmt Ltd. on 25 May, 2010
       

  

  

 
 
  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

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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

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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

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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

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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

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