{"id":55882,"date":"2007-02-28T00:00:00","date_gmt":"2007-02-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-tamil-nadu-civil-supplies-vs-the-tamil-nadu-civil-supplies-on-28-february-2007"},"modified":"2015-09-08T10:36:05","modified_gmt":"2015-09-08T05:06:05","slug":"the-tamil-nadu-civil-supplies-vs-the-tamil-nadu-civil-supplies-on-28-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-tamil-nadu-civil-supplies-vs-the-tamil-nadu-civil-supplies-on-28-february-2007","title":{"rendered":"The Tamil Nadu Civil Supplies … vs The Tamil Nadu Civil Supplies … on 28 February, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
The Tamil Nadu Civil Supplies … vs The Tamil Nadu Civil Supplies … on 28 February, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n           IN THE HIGH COURT OF JUDICATURE AT MADRAS\n                              \n                      DATED:28.02.2007\n                              \n                           CORAM:\n\n          THE HONOURABLE MR. JUSTICE V. DHANAPALAN\n\n                              \n                    W.P. No.28555 of 2004\n\n\nThe Tamil Nadu Civil Supplies Corporation Limited\nRepresented by the Regional Manager\nVellore Region\nVellore                                                ..Petitioner\n\n\n                             vs.\n\n\n1. The Tamil Nadu Civil Supplies Corporation Employees'\nUnion represented by its General Secretary\n(in the matter of Mr. P. Subramanian)\n\n2.   The Labour Court\n     Vellore                                           ..Respondents\n\n\n\n       Writ   Petition  filed  under  Article  226  of   the\n\nConstitution  of India praying for a writ of  certiorari  as\n\nstated therein.\n\n\n               For petitioner           Mr. J.A. Selvakumar\n\n               For 1st respondent       Mr. S. Venkataraman\n                          - - - - -\n\n\n\n                          O R D E R\n<\/pre>\n
      The Tamil Nadu Civil Supplies Corporation Limited  (in<\/p>\n
short  “the  Corporation”)  has  filed  this  writ  petition<\/p>\n
seeking a writ of certiorari to call for the records of  the<\/p>\n
second  respondent in I.D. No.234 of 2001  dated  19.12.2003<\/p>\n
and to quash the same.\n<\/p>\n<\/p>\n
      2.    The  case  of the petitioner Corporation,  in  a<\/p>\n
nutshell, as culled out from the affidavit, is as below:<\/p>\n<\/p>\n
           a.    One P. Subramanian, a member of  the<\/p>\n
     first respondent Union (in short “the employee”)<\/p>\n
     joined  the Corporation on 15.04.1976 as  Junior<\/p>\n
     Assistant   and due to some dispute with  regard<\/p>\n
     to  his age, his promotion was kept pending  and<\/p>\n
     his  immediate  Junior by name S. Annamalai  was<\/p>\n
     promoted   as   Assistant   with   effect   from<\/p>\n
     04.12.1981 and thereafter, as Superintendent  on<\/p>\n
     09.01.1987.     The   employee    submitted    a<\/p>\n
     representation dated 11.11.1982 to the  Chairman<\/p>\n
     &  Managing Director of the Corporation  against<\/p>\n
     the fixation of his seniority and on 16.03.1994,<\/p>\n
     the  latter  passed an order in Appeal  Petition<\/p>\n
     directing   the  Corporation  to   promote   the<\/p>\n
     employee   as   Assistant   with   effect   from<\/p>\n
     04.12.1981  and  as Superintendent  with  effect<\/p>\n
     from 09.01.1987 on par with his immediate junior<\/p>\n
     and  accordingly,  he was promoted  but  without<\/p>\n
     monetary benefits.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
           b.    Though  the  employee  accepted  the<\/p>\n
     notional  promotion granted to him  and  started<\/p>\n
     working  as Superintendent, the first respondent<\/p>\n
     union  filed  I.D.  No.234 of  2001  before  the<\/p>\n
     Labour  Court,  Vellore, the second  respondent,<\/p>\n
     after a delay of over 7 years, claiming monetary<\/p>\n
     benefits  for  the  period  from  04.12.1981  to<\/p>\n
     06.10.1994.   The Labour Court,  on  19.12.2003,<\/p>\n
     passed  an  order directing the  Corporation  to<\/p>\n
     calculate  the monetary benefits for the  period<\/p>\n
     as  claimed by the employee and also to pay  him<\/p>\n
     the  same.  Questioning the legality of the said<\/p>\n
     order  of  the  second  respondent,  this   writ<\/p>\n
     petition has been filed by the Corporation.<\/p><\/blockquote>\n
      3.   The main grounds of challenge in this writ<\/p>\n
petition   are  that:  (i)  the  industrial   dispute<\/p>\n
preferred  by  the Union on behalf of  the  employee,<\/p>\n
that  too, after a delay of over seven years, is  not<\/p>\n
maintainable,  especially  when  the   employee   has<\/p>\n
accepted  the notional promotion and  (ii)  when  the<\/p>\n
employee has not shouldered any higher responsibility<\/p>\n
in  the  promoted posts, the claim of the  union  for<\/p>\n
payment of differential wages is not maintainable.<\/p>\n
      4.    The employee, who has since retired  from<\/p>\n
service,  has  filed his counter  and  his  case,  in<\/p>\n
brief, is as under:\n<\/p>\n<\/p>\n
           a.    As the subject matter of the dispute<\/p>\n
     fell  under the definition of industrial dispute<\/p>\n
     under Section 2K of the Industrial Disputes Act,<\/p>\n
     1947  and was not an individual dispute  and  as<\/p>\n
     such, the Union was competent in sponsoring  the<\/p>\n
     dispute.   As per the seniority list, he  should<\/p>\n
     have  been  given  promotion  as  Assistant   on<\/p>\n
     04.12.1981  and as Superintendent on  09.01.1987<\/p>\n
     but  not  so.   His appeal to the  Chairman  cum<\/p>\n
     Managing Director in this regard was allowed  on<\/p>\n
     16.03.1994, nearly twelve years from the date of<\/p>\n
     his  appeal but without eligibility for  arrears<\/p>\n
     of  pay  and  allowances for the period  between<\/p>\n
     04.12.1981  to  06.10.1994.  His representations<\/p>\n
     for   re-consideration  of   the   order   dated<\/p>\n
     16.03.1994  were  rejected  by  an  order  dated<\/p>\n
     19.04.1995. To get his right enforced, he raised<\/p>\n
     a    dispute   before   the   Labour    Officer,<\/p>\n
     Conciliation  with  the  strength  of  G.O.  Ms.<\/p>\n
     No.977 P & A R Department dated 06.11.1986 which<\/p>\n
     was  resisted by the Corporation on  the  ground<\/p>\n
     that  only  G.O. Ms. No.905 (P & A.R.  (Pension)<\/p>\n
     (M)   Department  dated  19.09.1981   would   be<\/p>\n
     applicable to him and that the Corporation would<\/p>\n
     place  the  Government Order relied  on  by  him<\/p>\n
     before   the  Board  of  Directors   for   their<\/p>\n
     acceptance and adoption to the employees of  the<\/p>\n
     Corporation.  This submission of the Corporation<\/p>\n
     was recorded by the Labour Officer, Conciliation<\/p>\n
     who  closed the dispute with a direction to  the<\/p>\n
     Corporation to take steps for approval  of  G.O.<\/p>\n
     Ms.  No.977  by  the Board of Directors  and  to<\/p>\n
     confer  the  benefit  on the  employee  on  such<\/p>\n
     approval.   The  Labour  Officer,  Conciliation,<\/p>\n
     further  gave liberty to the employee  to  renew<\/p>\n
     his  plea if no positive action was taken by the<\/p>\n
     Corporation  and accordingly, since no  positive<\/p>\n
     action  emanated  from  the  Corporation  for  a<\/p>\n
     considerable period of time, he renewed his plea<\/p>\n
     before  the  Labour  Officer,  Conciliation  and<\/p>\n
     since   the   Corporation   pleaded   that   the<\/p>\n
     employee’s  claim  could  be  granted  only   if<\/p>\n
     G.O.Ms.No.977  was  adopted  by  the  Board   of<\/p>\n
     Directors,  the  dispute was closed  and  hence,<\/p>\n
     reference  was  made by the  Government  to  the<\/p>\n
     Labour  Court, the second respondent  herein  in<\/p>\n
     I.D. No.234 of 2001.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
           b.    Before the Labour Court, though  the<\/p>\n
     Corporation admitted the factual position of the<\/p>\n
     retrospective  grant of promotion  initially  as<\/p>\n
     Assistant and subsequently as Superintendent, it<\/p>\n
     resisted  the  claim  on  the  ground  that  the<\/p>\n
     cumulative  effect of G.O.Ms.  Nos.905  and  977<\/span><\/p>\n
     does  not  confer the right to claim arrears  of<\/p>\n
     pay  on  retrospective promotions.   The  Labour<\/p>\n
     Court, on 19.12.2003, considering the fact  that<\/p>\n
     G.O.Ms.No.977  was approved and adopted  by  the<\/p>\n
     Corporation  vide  its Circular  No.74  of  2001<\/p>\n
     dated 13.09.2001, upheld the employee’s claim as<\/p>\n
     against which, the present writ petition by  the<\/p>\n
     Corporation.<\/p><\/blockquote>\n
      5.    Mr.  J.A. Selvakumar, learned counsel  for  the<\/p>\n
Corporation  has  contended that  the  employee  could  not<\/p>\n
satisfactorily account for the fact that he was in due  age<\/p>\n
for  employment  and  lost a considerable  period  in  that<\/p>\n
process and in view of that, his promotion got delayed  and<\/p>\n
not  due  to any lapse on the part of the Corporation.   He<\/p>\n
has  further  contended that the employee’s claim  was  not<\/p>\n
considered  favourably in the light of twin  G.Os.  in  Ms.<\/p>\n
Nos.905   and   977   dated   19.09.1981   and   16.10.1986<\/p>\n
respectively which cumulatively are to the effect  that  an<\/p>\n
employee overlooked for promotion cannot demand arrears  of<\/p>\n
pay  from  the date of deemed promotion but only  from  the<\/p>\n
date  of  actual assumption of charge and this  aspect  was<\/p>\n
totally  overlooked by the Labour Court and that being  the<\/p>\n
case,  the  impugned order passed by the second respondent-<\/p>\n
Labour  Court  has  to  be quashed and  the  writ  petition<\/p>\n
allowed.\n<\/p>\n<\/p>\n
       6.     Mr.   Selvakumar,  learned  counsel  for   the<\/p>\n
Corporation, in support of his arguments, has  relied  on  a<\/p>\n
judgment of the Supreme Court reported in (1990) 4  SCC  744<\/p>\n
in  the  case  of Bank of India vs. T.S. Kelawala  &  Others<\/p>\n
(para 25)<\/p>\n
               “Apart from the aforesaid ratio of the
\n          decisions and the provisions of the Payment
\n          of  Wages Act and similar statutes  on  the
\n          subject,  according  to  us,  the  relevant
\n          provisions   of   the   major   legislation
\n          governing  the  industrial disputes,  viz.,
\n          the Industrial Disputes Act, 1947 also lend
\n          their  support to the view that  the  wages
\n          are  payable pro rata for the work done and
\n          hence,  deductible for the work  not  done.
\n          Section  2(rr)  of  the  said  Act  defines
\n          “wages”  to  mean  “all remuneration.  .  .
\n          which   would,  if  terms  of   employment,
\n          expressed  or  implied, were fulfilled,  be
\n          payable  to  workman  in  respect  of   his
\n          employment   or   work   done    in    such
\n          employment…” while Section  2(q)  defines
\n          “strike”  to  mean “cessation of  work”  or
\n          “refusal  to  continue to  work  of  accept
\n          employment  by workman”.  Reading  the  two
\n          definitions  together,  it  is  clear  that
\n          wages  are payable only if the contract  of
\n          employment  is fulfilled and not otherwise.
\n          Hence,  when the workers do not put in  the
\n          allotted  work  or refuse to  do  it,  they
\n          would   not   be  entitled  to  the   wages
\n          proportionately.”\n<\/p>\n<\/p>\n
      7.  In response, Mr. S. Venkataraman, learned counsel<\/p>\n
for  the first respondent union has contended that  by  the<\/p>\n
time the Industrial Dispute was taken on file by the second<\/p>\n
respondent-Labour Court, G.O. Ms.No.977  was  approved  and<\/p>\n
adopted  by  the  Board of Directors of the Corporation  on<\/p>\n
which  basis,  the Corporation should have  considered  the<\/p>\n
employee’s claim for arrears of pay favourably.   Secondly,<\/p>\n
it his argument that when the employee’s plea for promotion<\/p>\n
was  considered  after a long span of 12 years  due  to  no<\/p>\n
fault  of  his  but  on  the part of the  Corporation,  the<\/p>\n
contention of the Corporation that the employee’s claim for<\/p>\n
arrears  of pay and allowances cannot be considered  as  he<\/p>\n
was given only notional promotion, cannot be sustained.<\/p>\n
      8.    While replying to the contention of the counsel<\/p>\n
for the Corporation that the cumulative effect of two G.Os.<\/p>\n
namely,  G.O.Ms.No.905 and 977 does not permit  arrears  of<\/p>\n
pay  and  allowances, the counsel for the first  respondent<\/p>\n
has   contended  that  when  admittedly  G.O.  Ms.   No.977<\/p>\n
supersedes G.O. Ms. No.905, the latter automatically  loses<\/p>\n
its value and when the Corporation has approved and adopted<\/p>\n
G.O.  Ms.No.977  in the Meeting of its Board  of  Directors<\/p>\n
held  on 03.09.2001, the same holds good and on that basis,<\/p>\n
the   Corporation   should  have   given   its   favourable<\/p>\n
consideration to the employee’s claim.<\/p>\n
      9.    It is the further contention of the counsel for<\/p>\n
the  first respondent that had the Corporation promoted the<\/p>\n
employee at the time when his promotion fell due, he  would<\/p>\n
have   shouldered  higher  responsibility  and  would  have<\/p>\n
accordingly  discharged his duties and in that  sense,  the<\/p>\n
contention  of  the  counsel for the Corporation  that  the<\/p>\n
arrears of pay and allowances cannot be granted for  higher<\/p>\n
responsibility not shouldered by him, does not have legs to<\/p>\n
stand.   Finally, it is the contention of the  counsel  for<\/p>\n
the  respondent that the second respondent-Labour Court has<\/p>\n
rightly  taken into consideration the approval and adoption<\/p>\n
of G.O. Ms. No.977 by the Board of Directors while deciding<\/p>\n
the  dispute  in favour of the employee and  as  such,  the<\/p>\n
present writ petition has to be dismissed as it deserves no<\/p>\n
consideration.\n<\/p>\n<\/p>\n
      10.  In support of his contentions, Mr. Venkataraman,<\/p>\n
learned  counsel for the first respondent has relied  on  a<\/p>\n
judgment of this Court reported in 1986 WLR 291 in the case<\/p>\n
of  G. Maria Selvaraj vs. The Joint Manager<\/a>(Port Operation)<\/p>\n
Food  Corporation  of India Madras – 1 and  Zonal  Manager,<\/p>\n
Food Corporation of India, Madras – 6 (paras 2, 3 and 5)<\/p>\n
                    “.  .  .Hence,  it  is  contended
\n         that,  consequent to a change of declaration
\n         of  law,  petitioner  having  succeeded,  he
\n         could  only  secure  the notional  promotion
\n         from  the retrospective date, but in so  far
\n         as  the pay and emoluments are concerned, as
\n         per   the  Circular  dated  11.02.1986,  the
\n         monetary  benefits could be  only  from  the
\n         actual  date  from  which the  employee  has
\n         joined the higher post.\n<\/p>\n
                The   sole   point   which   requires
\n         consideration  is,  whether  in   spite   of
\n         securing  promotion, from a date from  which
\n         he  ought  to have been allowed to  function
\n         in  the said post, should he be rest content
\n         with  the  seniority being refixed from  the
\n         date  on which he had been deprived to  hold
\n         the  promotional post or could he also claim
\n         the monetary benefits which are attached  to
\n         the said promotional post.\n<\/p>\n
                    It would be wrong to hold that it
\n         is  only by the pronouncement of a judgment,
\n         a  right  accrues  for the  first  time.   A
\n         right   which   had   already   existed   is
\n         recognised  when a judgment  is  pronounced.
\n         Equally,  when the scope of a Constitutional
\n         provision  is  interpreted,  it   would   be
\n         erroneous to construe as if it is only  from
\n         the  date  of judgment such a Constitutional
\n         provision had come into existence.  What  is
\n         spelt   out  in  a  decision  is   only   in
\n         recognition  of  what had been  contemplated
\n         under the law from the date on which it  had
\n         been brought into force. . .”\n<\/p>\n<\/p>\n
      11.   Further reliance has been placed by the counsel<\/p>\n
for the first respondent on a judgment of the Supreme Court<\/p>\n
reported in 1998 SCC (L & S) 1273 in the case of Secretary-<\/p>\n
cum-Chief Engineer, Chandigarh vs. Hari Om Sharma &  Others<\/a><\/p>\n
(para 8)<\/p>\n
                     “Learned  counsel   for   the
\n         appellant attempted to contend that  when
\n         the  respondent was promoted in  stop-gap
\n         arrangement as Junior Engineer-I, he  had
\n         given  an  undertaking to  the  appellant
\n         that    on    the   basis   of   stop-gap
\n         arrangement,   he   would    not    claim
\n         promotion as of right nor would he  claim
\n         any  benefit  pertaining  to  that  post.\n<\/p>\n
         The  argument,  to  say  the  least,   is
\n         preposterous.  Apart from the  fact  that
\n         the  Government  in  its  capacity  as  a
\n         model  employer  cannot be  permitted  to
\n         raise  such  an argument, the undertaking
\n         which  is said to constitute an agreement
\n         between  the  parties cannot be  enforced
\n         at   law.    The  respondent   being   an
\n         employee  of the appellant had  to  break
\n         his period of stagnation although, as  we
\n         have  found  earlier,  he  was  the  only
\n         person  amongst  the  non-diploma-holders
\n         available  for promotion to the  post  of
\n         Junior  Engineer-I  and  was,  therefore,
\n         likely to be considered for promotion  in
\n         his  own right.  An agreement that  if  a
\n         person is promoted to the higher post  or
\n         put to officiate on that post, or, as  in
\n         the  instant case, a stop-gap arrangement
\n         is  made to place him on the higher post,
\n         he  would  not  claim  higher  salary  or
\n         other   attendant   benefits   would   be
\n         contrary  to law and also against  public
\n         policy.    It   would,   therefore,    be
\n         unenforceable  in view of Section  23  of
\n         the Contract Act, 1872.”\n<\/p>\n<\/p>\n
      12.   Mr.  Venkataraman  has  relied  on  yet  another<\/p>\n
judgment  of the Supreme Court reported in AIR 1977  Supreme<\/p>\n
Court  1868 in the case of S. Krishnamurthy vs. the  General<\/p>\n
Manager, Southern Railway (paras 2 and 5):<\/p>\n
                “The  appellant joined  the  Southern
\n          Railway as a clerk way back in October 1948
\n          and  was confirmed as train clerk on  April
\n          1, 1949.  He worked his way up and became a
\n          wagon   chaser   in  an  ex   cadre   post.\n<\/p><\/blockquote>\n
          Thereafter,  he  was  entitled  to   become
\n          Assistant  Yard  Master  but,  for  reasons
\n          which we need not go into, he continued  as
\n          wagon  chaser.   The  promotion  post   for
\n          Assistant  Yard Master is that  of  traffic
\n          inspector.   Unfortunately,  the  appellant
\n          was  not  considered for that post although
\n          others  similarly situated  like  him  were
\n          absorbed   as   traffic  inspectors.    The
\n          Railway   Administration   discovered   the
\n          injustice  and set right the error  of  not
\n          treating the appellant as an Assistant Yard
\n          Master  by  its  order dated  November  10,
\n          1965;  but  by  this time others  had  been
\n          absorbed  as  traffic  inspectors  and  the
\n          appellant   was  not.   His  representation
\n          proving  unsuccessful, he  moved  the  High
\n          Court  under  Art. 226 for  the  relief  of
\n          being  treated  as traffic  inspector  with
\n          effect  from 1st January, 1959  when  those
\n          others similarly situated were so absorbed.
\n          The  conflicting fortunes of the case  have
\n          already been indicated and all that we need
\n          say  is  that in the light of the order  of
\n          the  Railway Administration dated  November
\n          10,  1965,  there  has  been  an  injustice
\n          inflicted on the appellant.\n<\/p><\/blockquote>\n
                5.   Yet another point that arises is
\n          as  to  what  is  to happen  regarding  his
\n          arrears  of salary from December  20,  1967
\n          and for the post-writ petition period.   We
\n          make it clear that while seniority is being
\n          notionally extended to him from 01.01.1959,
\n          the  appellant will not be entitled to  any
\n          salary qua traffic inspector prior to  20th
\n          December,  1967.   However,  he   will   be
\n          entitled  to salary on the terms  indicated
\n          above  from  20th December 1967 as  traffic
\n          inspector  that  is  to  say,  he  will  be
\n          eligible  to  draw  the difference  between
\n          what  he  has  drawn and what  he  will  be
\n          entitled  to  on the basis we have  earlier
\n          indicated in this judgment.”<\/p><\/blockquote>\n
      13.   I have given heedful thought to the case of  the<\/p>\n
parties, the rival contentions of the counsel on either side<\/p>\n
and the judgments relied on by them.\n<\/p>\n<\/p>\n
      14.   The  date  of  joining of the  employee  in  the<\/p>\n
petitioner Corporation and the dates on which his  promotion<\/p>\n
as  Assistant and Superintendent fell due, are not disputed.<\/p>\n
This  is  clear from the order of the Chairman and  Managing<\/p>\n
Director  of  the  petitioner Corporation  dated  16.03.1994<\/p>\n
granting  him  promotion with effect from the date  it  fell<\/p>\n
due.   Since  the  employee  was  not  given  promotion   as<\/p>\n
“Assistant”  on  the date it fell due, he  had  addressed  a<\/p>\n
representation dated 11.11.1982 to the Chairman and Managing<\/p>\n
Director of the petitioner Corporation and the same has been<\/p>\n
considered  only on 16.03.1994, nearly after 12  years.   In<\/p>\n
that  order  dated 16.03.1994, the employee has been  denied<\/p>\n
the eligibility to get arrears of pay and allowances for the<\/p>\n
period  04.12.1981  to 06.10.1984.  His representations  for<\/p>\n
reconsideration of the order dated 16.03.1994 were  rejected<\/p>\n
by  an  order  dated 19.04.1995 and in order to enforce  his<\/p>\n
right,  he  had  raised  a case with the  second  respondent<\/p>\n
Labour  Court in I.D. No.234 of 2001 under Section  2(k)  of<\/p>\n
the  Industrial  Disputes Act through the  first  respondent<\/p>\n
union.\n<\/p>\n<\/p>\n
      15.   Before the second respondent Labour  Court,  the<\/p>\n
first respondent union has marked as many as 20 exhibits and<\/p>\n
no  exhibit  has been marked by the petitioner  Corporation.<\/p>\n
Ex.A.12 marked on the side of the first respondent union  is<\/p>\n
the G.O.Ms.No.977 dated 16.10.1986 which has been issued  by<\/p>\n
the  Government  in amendment of Fundamental  Rule  27  with<\/p>\n
regard  to  fixation of pay on promotion or  appointment  to<\/p>\n
higher  post  after restoration of original  seniority.   In<\/p>\n
that  Government  Order, a reference has been  made  to  the<\/p>\n
earlier  G.O.Ms.No.905  dated  19.09.1981  and  also  to   a<\/p>\n
subsequent  letter of the Department dated  08.06.1982.   In<\/p>\n
other  words,  while issuing G.O. Ms.No.977, the  Government<\/p>\n
has  given  due consideration to the earlier G.O.  Ms.No.905<\/p>\n
and  also  its subsequent communication. The amendment  made<\/p>\n
through G.O.Ms.No.977 is as under:\n<\/p>\n
                         “AMENDMENT<\/p>\n
           In  the said Fundamental Rules under  Rule
\n     27,  after ruling (16), the following  shall  be
\n     added, namely:\n<\/p><\/blockquote>\n
            \"(17)      In  case  where  a  Government\n     servant     has     been     overlooked      for\n<\/pre>\n
     promotion\/appointment to the  next  higher  post
\n     but   subsequently  promoted\/appointed  to  that
\n     higher  post  after restoration of his  original
\n     seniority on appeal, his pay shall be  fixed  on
\n     the  date of assumption of charge in the  higher
\n     post  on par with the pay of his junior provided
\n     he  has drawn the same rate of pay as his junior
\n     in  the lower post from time to time; if he  has
\n     not drawn the same rate of pay as his junior  in
\n     the  lower post, his pay shall be fixed, on  the
\n     date  of  assumption of charge, at the stage  at
\n     which  he would have drawn pay on that date  had
\n     he  been  promoted\/appointed to the higher  post
\n     along with his junior.  In cases where seniority
\n     has  been  restored on or after  15th  September
\n     1981, arrears of pay and allowance consequent on
\n     fixation of pay shall be admissible with  effect
\n     from  the  date of assumption of charge  in  the
\n     higher  post; in cases where seniority has  been
\n     restored  prior to 19th September 1981,  arrears
\n     shall  be  admissible only with effect from  the
\n     above date”.\n<\/p><\/blockquote>\n
                 (By order of the Governor)<\/p>\n
\t\t\t\t\t   Sd\/-(P.Eswaramurthi)
\n                                           Deputy  Secretary
\n                                           to Government”<\/p><\/blockquote>\n
      16.  The above Government Order has been placed in the<\/p>\n
331st  Meeting  of the Board of Directors of the  petitioner<\/p>\n
Corporation and the same was resolved to be adopted for  the<\/p>\n
petitioner  Corporation and the petitioner  Corporation  has<\/p>\n
also  issued a Circular dated 13.09.2001 to the effect  that<\/p>\n
G.O.Ms.No.977  has been approved by the Board  of  Directors<\/p>\n
and  adopted  for the Corporation.  Al already stated,  this<\/p>\n
Government  Order is for amendment of the Fundamental  Rules<\/p>\n
in  fixation  of pay on promotion or appointment  to  higher<\/p>\n
post  after  restoration  of the  original  seniority.   The<\/p>\n
object of the amendment is sought to be achieved through the<\/p>\n
respective  rule  and  having adopted the  above  Government<\/p>\n
Order,  the  petitioner  Corporation  cannot  interpret  the<\/p>\n
Government Order to the disadvantage of the employee who has<\/p>\n
been  denied  his  due promotion.  Even  before  the  Labour<\/p>\n
Officer,  Conciliation, it was the stand of  the  petitioner<\/p>\n
Corporation  that  only  G.O.Ms.No.905  is  applicable   and<\/p>\n
G.O.Ms.No.977  would be applicable only after  approval  and<\/p>\n
adoption  of  the  Board of Directors.   Before  the  second<\/p>\n
respondent  Labour Court, though the petitioner  Corporation<\/p>\n
has  admitted  that G.O.Ms.No.977 has been approved  by  the<\/p>\n
Board  and  adopted by the Corporation, it has resisted  the<\/p>\n
claim  on  the ground that a cumulative reading of  the  two<\/p>\n
Government Orders would not entitle the employee to  receive<\/p>\n
arrears of pay and allowances.  This makes it clear that the<\/p>\n
petitioner Corporation took two different stands before  the<\/p>\n
Labour  Officer,  Conciliation and the  Labour  Court.   The<\/p>\n
contention  of  cumulative reading of the Government  Orders<\/p>\n
raised by the petitioner Corporation cannot be sustained for<\/p>\n
the  reason  that once an amendment to Fundamental  Rule  is<\/p>\n
made  through G.O.Ms.No.977 by referring to G.O.  Ms.No.905,<\/p>\n
G.O.Ms.  No.977, which is issued subsequently in furtherance<\/p>\n
to  G.O.Ms.  No.905  gets  the superseding  power  and  puts<\/p>\n
G.O.Ms.No.905 in nullity and in that view of the matter,  no<\/p>\n
need  whatsoever arises to give a cumulative reading of  the<\/p>\n
two Government Orders.\n<\/p>\n<\/p>\n
     17.  The other contention on the side of the petitioner<\/p>\n
Corporation   is  that  the  first  respondent   union   has<\/p>\n
approached  the  Labour Court with a delay of  nearly  seven<\/p>\n
years and by this long gap itself, the claim of the employee<\/p>\n
should  be  denied.  As the claim itself is for  the  period<\/p>\n
04.12.1981 to 06.10.1994 during which the employee ought  to<\/p>\n
have  been promoted and not for the period after 06.10.1994,<\/p>\n
the  contention  of the petitioner Corporation  cannot  have<\/p>\n
legs to stand.  For the delay on the part of the employee in<\/p>\n
approaching the Labour Court, the only claim he cannot  make<\/p>\n
is  with  regard to interest for seven years and it  is  not<\/p>\n
justifiable  to  say that he is not entitled  to  the  claim<\/p>\n
itself.\n<\/p>\n<\/p>\n
      18.  In addition to the above, there is one more point<\/p>\n
to  be  considered  in  regard to the  matter.   Though  the<\/p>\n
petitioner Corporation has contended the employee could  not<\/p>\n
account  for his age and on account of that, there was  some<\/p>\n
delay  in his promotion, the long span of twelve years taken<\/p>\n
by  the  Chairman and Managing Director to  dispose  of  the<\/p>\n
representation  of  the  employee  in  connection  with  his<\/p>\n
seniority,  is  too  big  a pill to  swallow  and  for  this<\/p>\n
inordinate delay, there has been no explanation on the  side<\/p>\n
of the petitioner Corporation.\n<\/p>\n<\/p>\n
     19.  Thus, having regard to the facts and circumstances<\/p>\n
of  the  case and the judgments relied on by the counsel  on<\/p>\n
either side and considering the fact that G.O.Ms.No. 977 has<\/p>\n
been  approved  by the Board of Directors of the  petitioner<\/p>\n
Corporation and adopted by the petitioner Corporation, I  am<\/p>\n
of  the  considered view that the conclusion of  the  second<\/p>\n
respondent   Labour  Court  in  directing   the   petitioner<\/p>\n
Corporation  to  calculate  the  monetary  benefits  of  the<\/p>\n
employee for the period 04.12.1981 to 06.10.1994 and also to<\/p>\n
pay him the same, is perfectly in order and does not warrant<\/p>\n
any sort of interference by this Court.<\/p>\n
     In view of the above findings, the writ petition, which<\/p>\n
is  devoid  of  any merit, does not deserve  any  favourable<\/p>\n
consideration  and is liable to be dismissed.   Accordingly,<\/p>\n
it is dismissed without any order as to costs.<\/p>\n
cad<\/p>\n
To<\/p>\n
The Labour Court
\nVellore<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Tamil Nadu Civil Supplies … vs The Tamil Nadu Civil Supplies … on 28 February, 2007 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:28.02.2007 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN W.P. No.28555 of 2004 The Tamil Nadu Civil Supplies Corporation Limited Represented by the Regional Manager Vellore Region Vellore […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-55882","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Tamil Nadu Civil Supplies ... vs The Tamil Nadu Civil Supplies ... on 28 February, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-tamil-nadu-civil-supplies-vs-the-tamil-nadu-civil-supplies-on-28-february-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Tamil Nadu Civil Supplies ... vs The Tamil Nadu Civil Supplies ... on 28 February, 2007 - 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