Natha Singh vs Principal Secretary, Irrigation Department Punjab Govt. and Others

Tejinder Singh Dhindsa, J.—The instant writ petition has been filed praying for the issuance of a writ of mandamus for directing the respondent-Authorities to promote the petitioner as Project Foreman Special w.e.f. 1.11.1991 i.e. a date when his junior Bishan Dass was so promoted along with all consequential benefits. Brief facts emanating from the pleadings on record and which would require notice are that the petitioner was initially appointed as Gauge Reader at Thein Dam (re-named as Ranjit Sagar Dam Project), Irrigation Department, State of Punjab on 6.8.1974 on work charged basis. He was promoted to the post of Work Mistry w.e.f. 1.11.1978. Services of the petitioner were terminated on 1.1.1980. Such action of termination was impugned by the petitioner and the matter finally culminated in the passing of order dated 24.3.1988 by the Hon''ble Supreme Court of India in Civil Appeal No. 519 of 1988, in terms of which, he was directed to be re-instated in service with continuity but his back-wages were restricted to 25%. Accordingly, the petitioner was permitted to join back his duty on 19.12.1988. Thereafter, he was placed under suspension on 28.8.1991 and after a period of almost three years, the suspension order was revoked and he was re-instated on 20.10.1994 with all consequential benefits of service. It has been pleaded that in the interregnum, persons junior to the petitioner had been promoted to the post of Assistant Foreman Special, Foreman Special and Project Foreman Special. Accordingly, upon having been re-instated in service on 20.10.1994, the petitioner submitted representations to the employer to be promoted to the higher post(s) with effect from the date his juniors had been so promoted. Having evoked no response, the petitioner through the Union served a demand notice upon respondents No. 2 and 3 under Section 2-K of the Industrial Disputes Act, 1947. Conciliation proceedings having failed, the Labour Commissioner, Punjab referred the dispute to the Industrial Tribunal, Punjab, Chandigarh.

An award dated 4.11.1999 was passed by the Presiding Officer, Industrial Tribunal, Chandigarh in reference No. 24 of 1998 in favour of the petitioner and he was found entitled to be promoted as Assistant Foreman Special w.e.f. 1.5.1989 i.e. the date his junior had been promoted and he was further held entitled to be considered for promotion for the next higher post(s) or grade(s) according to such seniority as Assistant Foreman Special. The operative part of the award dated 4.11.1999 roads as under:

"The dispute under reference is, therefore, decided in accordance with the aforesaid finding that the workman concerned Natha Singh is entitled to the anti-dating of his promotion as Assistant Foreman Special with effect from 1st May 1989 with the benefit of seniority but the arrears of wages on fixation of pay in higher posts shall be payable only with effect from 1st January, 1993 and his further promotion to the next higher grade/category/scale shall be considered according to his seniority as Assistant Foreman Special with effect from 1st May, 1989 and matter of promotion to the next higher grade will also be considered likewise. The management of RSD shall take necessary steps to give effect to the aforesaid directions and to pass formal orders within a period of three months from the date of publication of award."

The Department preferred Civil Writ Petition No. 12002 of 2000 impugning the award dated 4.11.1999, but no interim directions were issued as regards the staying of the operation of award. The petitioner is stated to have approached the Department a number of times to implement the award and to promote him to the post of Assistant Foreman Special and Project Foreman Special w.e.f. 1.5.1989 and 1.11.1991, respectively, at par with his juniors. It is further pleaded that the respondent- Department having taken no action, the Punjab Government through Labour Department even prosecuted two Officers of the respondent-Department i.e. Shri R.C. Jain, the then Chief Engineer and Shri Rajinder Singh, the then Superintending Engineer for non-implementation of the award under Section 29 of the Industrial Disputes Act. Finally, office order dated 20.10.2006 at Annexure P11 was issued, in the light of which, the petitioner was promoted to the post of Assistant Foreman Special w.e.f. 1.5.1989 and Foreman Special w.e.f. 1.2.1994. In the light of such order, further promotion to the post of Project Foreman was denied to the petitioner on the basis that no such post is available.

The petitioner preferred a Civil Suit against the order dated 20.10.2006 in the Court of Additional Civil Judge (Senior Division), Pathankot impugning the action of denying him promotion to the post of Project Foreman Special w.e.f. 1.11.1991. The respondent-Department raised a preliminary objection that the Civil Court had no jurisdiction to try the suit and, accordingly, the suit was withdrawn by the petitioner. Thereafter, a demand notice was served upon the Department and after complying with the provisions of law, a reference was made to the Industrial Tribunal, Gurdaspur, vide reference No. 66 of 2009.

In the meanwhile, Civil Writ Petition No. 12002 of 2000 that had been preferred by the Department impugning the award dated 4.11.1999 passed by the Industrial Tribunal, Punjab, Chandigarh, came to be disposed of by this Court vide order dated 22.9.2009 at Annexure P3. A perusal of such order reveals that the learned Single Judge took notice of the fact that orders dated 20.10.2006 have been passed by the respondent- Department in the light of which the petitioner had been promoted as Assistant Foreman Special w.e.f. 1.5.1989 and as Foreman Special w.e.f. 1.2.1994. This Court while disposing of the writ petition and affirming the award dated 4.11.1999 specifically took notice of the fact that claim of the workman (present petitioner) for further promotion had already been raised and the matter was pending before the Industrial Tribunal, Gurdaspur and, accordingly, observed that the decision to be taken by the Tribunal would not, in any way, be effected on account of the disposal of the writ petition.

In reference No. 66/2009 that was pending before the Industrial Tribunal, Gurdaspur, the following crucial issue was framed:

"Whether workman Shri Natha Singh is entitled to be promoted as Project Foreman Special? If so, from which date and to what benefit he is entitled to?"

The reference was answered in favour of the workman (present petitioner) in the light of award dated 25.10.2011 at Annexure P15 and the respondent-Department was directed to consider his case for promotion to the post of Project Foreman Special w.e.f. 1.11.1991 when Bishan Dass, junior to him, was promoted.

An order dated 1.11.2012, Annexure P16, has been passed by the Chief Engineer, Ranjit Sagar Dam, Irrigation Works, Punjab in terms of which the claim of the petitioner seeking promotion to the post of Project Foreman Special w.e.f. 1.11.1991 has been declined.

It is against such factual backdrop that the present petition has been filed.

The petitioner who has appeared in person has argued that he has been victimized all through his service on account of having been involved in the Union activities of which he had been elected as President in the year 1979. The petitioner submits that solely on such basis, his services were terminated in the year 1980 and he had secured re-instatement with continuity in service upon the intervention of the Hon''ble Apex Court. Thereafter, he had been placed under suspension in the year 1991 and a false case had been registered against the leaders of the Union including the petitioner, but the criminal case was ultimately filed as untraced and consequently, the Department had been left with no option but to re-instate him in the year 1994 with all service benefits. The petitioner contends that it is during such time that his juniors have earned promotions to the higher posts and to which the petitioner has a vested right to be considered and so promoted. The petitioner has argued that in the light of the fact that an employee who is, admittedly, his junior, namely, Bishan Dass having been promoted to the post of Project Foreman Special w.e.f. 1.11.1991, it is not open for the respondent- Department to deny the same benefit to him on the ground of parity.

It is further submitted by the petitioner that even the reasoning of there being no sanctioned post so as to deny promotion is factually mis-leading and incorrect and in this regard would advert to the pleadings/documents on record. Violation of the certified standing orders applicable to the work-charged staff has also been alleged.

Per contra, learned State counsel would, at the very outset, raised a preliminary objection that a specific prayer as regards issuance of a writ of certiorari seeking quashing of the speaking order dated 1.11.2012 at Annexure P16 in terms of which the claim of the petitioner has been declined, has not been raised. Learned State counsel would contend that in the absence of such specific prayer, the relief sought for by the petitioner cannot be granted in the instant writ petition. On merits, learned State counsel would support the passing of the speaking order in terms of the reasoning furnished therein. It is submitted that there is no sanctioned post of Project Foreman Special at the Ranjit Sagar Dam Project which is currently at the maintenance stage and in such situation, his case for promotion cannot be considered. Even the minutes of the meeting of the Promotion Review Committee dated 7.9.2012 appended at Annexure R3 along with the written statement have been adverted to in the light of which it has been recommended that Bishan Dass who had been promoted to the post of Project Foreman Special w.e.f. 1.11.1991 be reverted to his original post. Accordingly, it is submitted that in the light of such recommendation, the plea of discrimination would not be available with the petitioner. The ground of delay has been cited by contending that the petitioner had approached the Industrial Tribunal, Gurdaspur in the year 2009 raising a claim for promotion to the post of Project Foreman Special w.e.f. 1991 and there has been a delay of 18 years. Learned State counsel would argue that mere eligibility does not confer upon any employee an indefeasible right for promotion. On the basis of such submissions, prayer for dismissal of the writ petition has been raised.

Having heard the petitioner in person, learned State counsel and having perused the pleadings on record, this Court is of the considered view that the prayer made in the present petition deserves acceptance.

The petitioner has raised a specific prayer for the issuance of writ, order or direction to the respondents to grant to him benefit of promotion as Project Foreman Special w.e.f. 1.11.1991 along with all consequential benefits. That apart, in para 24 of the petition, it has been categorically averred that the office order dated 1.11.2012, Annexure P16, passed by respondent No. 2 is unconstitutional, illegal as also punitive in nature. The petitioner has also prayed for the issuance of any other writ, order or direction which this Court may deem fit in the facts and circumstances of the case. In the light of such factual position, the preliminary objection raised on behalf of the State that no relief can be granted to the petitioner on account of having not prayed for the issuance of a writ of certiorari seeking quashing of the order dated 1.11.2012, Annexure P16, is wholly mis-conceived. This Court would not dwell on technicalities and would not feel constrained insofar as the exercise of judicial review against administrative action in a case where challenge to the same has been set up on cogent and tenable grounds.

On merits, the claim of the petitioner seeking promotion to the post of Project Foreman Special w.e.f. 1.11.1991 stands declined in the light of speaking order dated 1.11.2012, Annexure P16, on three grounds i.e. (i) there being no sanctioned post of Project Foreman Special on Ranjit Sagar Dam Project; (ii) in making appointments by way of promotions to a higher post merit would assume more significance and merely on account of the petitioner being senior to Bishan Dass does not mean that he can claim promotion to the higher post as a matter of right and (iii) the petitioner had approached the Industrial Tribunal only in the year 2009 and there was an inordinate delay of 18 years in agitating his claim.

All the three afore-noticed grounds are untenable in the light of the detailed discussion to be made hereinafter.

The finding as regards there being no sanctioned post of Project Foreman Special on the Ranjit Sagar Dam Project and thereby denying to the petitioner his right for promotion to such post w.e.f. 1.11.1991, is perverse and contrary to the record. In the award dated 25.10.2011 passed by the Presiding Officer, Industrial Tribunal, Gurdaspur in favour of the petitioner, it was clearly observed in para 11 that:

"The plea of the respondent is that at present no post of Project Foreman Special is in existence, but the respondent could not produce any record in this regard."

Placed on record at Annexure P7 is letter bearing No. 14426-31 dated 27.4.2005 from the Chief Engineer/RSDC, Irrigation Works, Punjab, Shahpurkandi Township and addressed to the Chief Engineer/KAD, Irrigation Works, Punjab, Chandigarh on the subject of ''Implementation of the decision of Award dated 4.11.99 by Industrial Tribunal, Punjab, Chandigarh'' in which it has been clearly stated in the following terms:

"An application alongwith its enclosures, in respect of Sh. Natha Singh A.F.S. (Regular) requesting therein to implement the award dated 4.11.99 the Industrial Tribunal, Chandigarh w.e.f. 1.5.1989 alongwith this office letter endorsement No. 7315-16/6- RSDA dated 3.3.2005 is sent herewith for further necessary action.

In the application the above named workman has claimed that junior to him Sh. Bishan Dass has been promoted as Asstt. Foreman Special w.e.f. 1.1.1990 and as Project Foreman w.e.f. 1.11.1991.

In this connection the Superintending Engineer, Admn. Circle, RSD, Shahpurkandi vide his letter No. 239/7-E/P dated 4.4.2005 (Copy enclose) has stated that Sh. Kartar Singh and Bishan Dass Project Foreman have retired from Govt. service on 31.1.2005 and 31.3.2005 respectively. It is stated that 2 Nos. posts of Project Foreman have been sanctioned in the SNE/TNS for the year 2005-06 by the Punjab Govt. Irrigation Department."

A reference has also been made to letter bearing No. 775-76/6-E dated 27.9.2005 at Annexure P10 from the Executive Engineer, Field Mechanical, Concrete Production Division, RSD-Shahpukandi and addressed to the Superintending Engineer, RSD-Mechanical Circle, Shahpurkandi Township which was again with regard to implementation of the award dated 4.11.1999 (Shri Natha Singh v. Punjab State) and was in the following terms:

"The promotion case as per award dated 4.11.99 was submitted to the Executive Engineer, Personnel Division, RSD-Shahpurkandi, for taking up the case before the promotion Review Committee, constituted by the Chief Engineer/RSDC, Irr. Works, Punjab, Shahpurkandi, for implementation of the award in true spirit. In this connection, also refer to Executive Engineer, Personnel Divn. RSD letter No. 3385-85/CC Dt. 9/2005 (Photo copy enclosed), wherein it has been informed that 2 Nos. Project Foreman Special namely Sh. Kartar Singh and Sh. Bishan Dass have already retired on 31.1.2005 and 31.3.2005 respectively and one No. post of Project Foreman exists for Operation & Maintenance in the S.N.E. for the year 2005-06.

In view of the factual position explained above, this office is also in the opinion that Shri Natha Singh, may be considered for promotion, in view of the award pronounced by the Industrial Tribunal, Punjab, Chandigarh, on dated 4.11.1999, as Assistant Foreman Special w.e.f. 1.5.89 and Project Foreman Special w.e.f. 1.1.91 after getting the seniority testified with regard to the junior workman (Sh. Bishan Dass, Project Foreman Special, stand promoted) from the Executive Engineer, Personnel Division, RSD - Shahpurkandi Township, against the existing post of Operation & Maintenance to implement the award dated 4.11.99 in true spirit subject to final decision of Civil Writ Petition No. 12002, pending in the Hon''ble Punjab & Haryana High Court, Chandigarh."

These documents would clearly show the existence of the post of Project Foreman Special. Issuance of such letters have not been denied in the written statement. It would be apposite at this stage to even take note of the reply dated 8.9.2008 submitted by the Chief Engineer/RSDC, Irrigation Works, Punjab to the Labour Commissioner, Punjab, Chandigarh in response to the demand notice under Section 2-K of the Industrial Disputes Act and appended as Annexure R1 along with the written statement filed to the writ petition on behalf of respondents No. 1 and 3 and in para 5 of such reply, following stand was taken in respect of the claim of the workman (present petitioner) as regards promotion to the post of Project Foreman:

"There is only one post of Project Foreman existing at Ranjit Sagar Dam Project and hence the case of the workman will be considered for promotion to the post of Project Foreman in the light of the seniority list of the Foreman Special."

The documents at Annexures P7 and P10 appended along with the writ petition and Annexure R1 appended along with the reply clearly falsify the stand of the respondent-Department insofar as existence of the post of Project Foreman Special.

The next issue before this Court is as to whether the petitioner has been given a fair consideration insofar as promotion to the post of Project Foreman Special is concerned. It is well settled principle of service jurisprudence that the right to be considered for promotion on fair and equal basis without discrimination can be claimed as a legal and fundamental right under Articles 14 and 16 of the Constitution of India. A reference in this regard may be made to the decisions of the Hon''ble Supreme Court of India in Dwarka Prasad and Others Vs. Union of India (UOI) and Others, and Union of India and others v. Sangram Keshri Nayak, 2007(3) SCT 512.

Clause 18 of the Certified Standing Orders under the Industrial Employment (Standing Orders) Act, 1946 reads in the following terms:

"18. PROMOTION

A certain percentage of workmen in different trades may be promoted to a higher time-scale of pay, grade or post against vacancies on seniority-cum-merits basis.

Note:- If a workman refuses his promotion he shall be debarred for a year for promotion besides he will loose his seniority for promotion."

In the award dated 4.11.1999 at Annexure P2, clause 18, as re-produced hereinabove, was specifically noticed and the principle of seniority-cum-merit was found to be applicable. A finding was also recorded that there was no adverse entry in the service book of the petitioner. Even the admission of Piare Lal Kaul, Executive Engineer had been recorded to the effect that there was no adverse entry or comments as regards work and conduct of the petitioner. Such findings contained in the order dated 4.11.1999 in reference No. 24 of 1998 stand affirmed in the light of dismissal of Civil Writ Petition No. 12002 of 2000, vide order dated 22.9.2009 passed by this Court in which the award dated 4.11.1999 was a subject matter of challenge. Resultantly, the reasoning furnished in the order dated 1.11.2012, Annexure P16, as regards merit assuming more significance and the petitioner having no right to be appointed by way of promotion to the higher post inspite of being senior to Bishan Dass cannot hold any water. Further more, in the speaking order dated 1.11.2012, Annexure P16, the deliberations of the Promotion Review Committee held on 7.9.2012 have been referred to in which it was recommended that the junior, namely, Bishan Dass be reverted to his original post i.e. Assistant Foreman Special. In this regard, a specific query was put to the learned State counsel and it was conceded that the junior, namely, Bishan Dass had superannuated on 31.5.2005 and no action had been taken in pursuance to the recommendations of the Promotion Review Committee. A clear case of discrimination and violation of Articles 14 and 16 of the Constitution of India is made out whereby the senior, namely, the present petitioner inspite of possessing a good service record has been denied promotion and, on the other hand, an employee admittedly junior, namely, Bishan Dass having been promoted to the post of Project Foreman Special on 1.11.1991.

This Court is further of the view that the reasoning cited in the speaking order dated 1.11.2012, Annexure P16, as regards an inordinate delay of 18 years attributed to the petitioner is a mere continuation of the policy of harassment and victimization meted out towards a poor employee. The facts and sequence of events spell out a different story. In the first instance, services of the petitioner were terminated in the year 1980. Such act of termination was held to be bad in law and the petitioner was re-instated in the year 1988. In the year 1991, he was placed under suspension and a false case was registered against him on account of his involvement in the Union activities. Such criminal case was ultimately filed as untraced and he was re-instated on 20.10.1994 along with all service benefits. It is during such period that the petitioner was deprived of promotion to the higher post(s). Immediately upon re-instatement, the petitioner agitated his claim but the same was not acceded to by the respondent-Department. After following due process of law, the matter was referred to the Industrial Tribunal, Punjab, Chandigarh and an award dated 4.11.1999 was passed in his favour. It took the respondent-Department seven long years to pass an office order dated 20.10.2006 in the light of which partial relief was granted by promoting him to the post of Assistant Foreman Special w.e.f. 1.5.1989 and Foreman Special w.e.f. 1.2.1994. Promotion to the post of Project Foreman Special was still denied to him inspite of his junior having been so promoted w.e.f. 1.11.1991. This led to yet another bout of litigation which fructified in passing of award dated 25.10.2011 by the Presiding Officer, Industrial Tribunal, Gurdaspur at Annexure P15. The respondent-Department was again directed to consider the claim for promotion of the petitioner to the post of Project Foreman Special w.e.f. 1.11.1991 i.e. the date his junior had been so promoted. In such glaring facts, the order dated 1.11.2012, Annexure P16, denying to the petitioner his claim for promotion to the higher post by citing the ground of delay cannot sustain. The entire action smacks of arbitrariness.

For the reasons recorded above, present petition is allowed. The order dated 1.11.2012, Annexure P16, is set aside. The petitioner be considered to have been promoted to the post of Project Foreman Special w.e.f. 1.11.1991 and to have held such post till his date of superannuation i.e. 30.6.2012. The petitioner is also held entitled to all admissible consequential benefits except for complete arrears of salary on such promoted post of Project Foreman Special. On this count, this Court would endeavour to strike a balance. On the one hand, it is on account of the fault of the respondent-Department that the petitioner has been deprived of promotion to the higher post, on the other hand, the petitioner has not discharged the job and responsibilities of such higher post for the period in question from 1.11.1991 till his date of superannuation. In my view, the ends of justice would be met by granting arrears of salary of the post of Project Foreman Special for the period in question limited to 1/3rd. Petition is allowed in the aforesaid terms.