Sengamuthu N. vs Management of Neyveli Lignite Corporation Ltd. and Others

M. Venugopal, J.

W.P. No. 7808/2003:

The Petitioner has filed this writ petition praying for an issuance of a writ of certiorarified mandamus in calling for the records pertaining to the

order dated August 28, 1999 in Memo No. 144-24/Disc/SO(TS)/99, passed by the 2nd Respondent imposing a punishment of stoppage of two

increments with cumulative effect and the order dated September 27, 1999 in Memo No. 20(22)/144-24/Disc/CSO/99 and the order dated

October 13, 1999 in Memo No. 20(24)/144-24/Disc/CSO/99 passed by the 1st Respondent, modifying the punishment into stoppage of one

increment with cumulative effect and to quash the same and also to direct the Respondents, to pay all arrears and attendant benefits.

The Petitioner on December 27, 1961 joined as a Security Guard (Sainik) in the 1st Respondent Corporation. He was promoted as Hawildar in

the year 1979. Later, he was promoted as a Jamedar in the year 1990. He was promoted as an Assistant Inspector in the year 1992 and as senior

Inspector in the year 1994.

The Petitioner served in the Special Branch Security Force for 15 years and in the Vigilance Department for 8 years.

According to the Petitioner, he was given the meritorious Awards onseveral occasions in appreciation of his good Vigilance work. He was given

a cash Award of Rs. 45/- in appreciation of his meritorious service as per proceedings dated April 21, 1983. Likewise, he was given the cash

Award of Rs. 45/- for his meritorious service as per proceedings dated January 25, 1986. Also, by means of proceedings dated July 17, 1989, he

was given a cash Award of Rs. 60/- in appreciation of his meritorious service. The Petitioner on August 19, 1999 was working in 3rd shift at

TPTC Office Security point. One S. Palanivel, was working in TPTC Office as indcoserve worker. It is the case of the Petitioner that the said

Palanivel was informed by the Chief Engineer to stay in the office with the Security Personnel during night hours in order to help them and that he

was allowed to stay for several years and this fact was known to all the higher officials in the Security Department. Even as per practice in force

and as usual S. Palanivel was allowed to stay in the office during the night on August 19, 1999. Palanivelu''s son Sasikumar studying in 10th

standard came to the office to see his father for taking treatment as he was not well. Since there was no bus to his native village Muthandi

Kuppam, he also stayed with his father on that day.

When the Petitioner was on duty during 3rd shift at TPTC Security Point, the Deputy Security Officer R. Sundaram and the senior Inspector S.

Bharatha Mani came on rounds and visited his duty point and on their arrival, he received them with salute and was doing his duty with care and

diligence. While this being so, the 2nd Respondent issued a charge memo dated August 23, 1999 to the Petitioner alleging that he was sleeping in

the office when they came on rounds and also allowed a society worker and his son to stay with him in the office unauthorisedly.

When the charge memo was served on August 24, 1999, he informed the officials that he would receive the memo after consulting the

Association of security staff, since the office bearers of their Association informed him that they would meet and talk to the Deputy Chief Security

Officer. Before ever, the office bearers of the Union could meet him and talk to the Deputy Chief Security Officer and before the receipt of the

charge memo and submission of his explanation, the 2nd Respondent straight away passed final orders imposing the punishment of stoppage of

two increments with cumulative effect.

The stand of the Petitioner is that, in the order, it was mentioned that he refused to receive the charge memo dated August 23, 1999 when it was

served on him on August 24, 1999 and August 25, 1999 and therefore, he was voluntarily deprived of the opportunity to furnish his explanation on

the charges and also on the purported refusal to receive the charge memo. Further, the 2nd Respondent, without conducting any enquiry to prove

the charges levelled against him, has passed straight away a final order dated August 28, 1999 awarding the punishment of stoppage of two

increments with cumulative effect by not following the principles of natural justice and the procedures established by law.

The Petitioner filed an appeal to the 1st Respondent through his letter dated September 13, 1999 as against the order passed by the 2nd

Respondent dated August 28, 1999 with a request to set aside the punishment imposed by the, 2nd Respondent. The 1st Respondent, through his

order dated September 27, 1999, altered the punishment as stoppage of one increment with cumulative effect. The 1st Respondent/Appellate

Authority had failed to provide an opportunity to the Petitioner to project his case by ordering for an enquiry.

The 1st Respondent, in its counter, has taken a stand that the punishment in question has been imposed during 1999 and that the Petitioner has

filed the present writ petition in the year 2003, after a delay of nearly 4 years and also that the Petitioner has sought for voluntary retirement in the

year 2001 and accordingly, he has been relieved on voluntary retirement from September 30, 2001 and therefore, the writ petition is to be

dismissed.

The 1st Respondent also contends that on August 19/20, 1999 the Writ Petitioner has been posted at Thermal Power Station Training Centre

on 3rd shift duty and during the night inspection at 00.35 hours, the Deputy Security Officer, Sundaram along with Bharatha Mani, Senior

Inspector found the writ Petitioner sleeping, while on duty, along with unauthorised individuals S. Palanivel and his son P. Sasikumar, at the

location, after locking the Main Gate from inside. That apart, he was improperly dressed, such as with slippers and no head gear. When he was

woken up, he had no explain to answer for permitting a Society Worker and his son to stay and sleep with him unauthorisedly along with his two

bi-cycles with all utensils and two gas stoves and two highly inflammable L.P. Gas cylinders, inside the restricted areas. The Inspection Team also

obtained a statement from the Society Worker who along with his son unauthorisedly was sleeping with the writ Petitioner. The aforesaid acts

constituted misconduct punishable under the Sub-rule XXV, read with Sections Xii, Xiii, Xiv, Xvi of Rule 18(i)2 of Chapter VII of the NLC

Security Force Regulations. A charge memo dated August 23, 1999 has been issued to the Petitioner calling for written explanations.

The charge memo dated August 23, 1999 was endeavoured to be served on the Petitioner on August 24, 1999 and August 25, 1999 at his

duty point, but he refused to receive the same and endorsements have been made by the Superintendents on duty on August 24, 1999 and August

25, 1999. Inasmuch as the Petitioner wantonly and knowingly refused to receive the charge memo dated August 23, 1999, he is deemed to have

voluntarily given up the opportunity to offer explanation to the charge memo. Being a member of the Security Force, refused to receive

communication from the superiors also amounted to misconduct and unbecoming of member of the Security Force.

The Disciplinary Authority proceeded, as per the NLC Security Force Regulations, and passed a final order dated August 28, 1999 based on

the available materials awarding a punishment of ''stoppage of two increments with cumulative effect'' and also specified that an Appeal will lie

against the final order to the Deputy Chief Security Officer within 14 days from the date of receipt of the order.

The writ Petitioner on September 13, 1999 preferred an Appeal to the Appellate Authority and as a matter of fact, he has not denied the fact

that he has refused to receive the charge memo dated August 23, 1999. In the Appeal, the Petitioner has not challenged the final order dated

August 28, 1999 on the basis of procedural defects or that no enquiry has been conducted before passing the final order of punishment. But the

Appellate Authority on humanitarian grounds, while considering the Appeal, reduced the punishment awarded to one of ''stoppage of one

increment with cumulative effect'' by order dated September 27, 1999.

The Second Appeal dated October 9, 1999 has been filed by the Petitioner before the Deputy Chief Security Officer and the Appeal has been

considered by the Chief Security Officer in detail and the same has been rejected confirming the punishment of stoppage of one increment with

cumulative effect as per proceedings dated October 13, 1999.

The 1st Respondent has taken a specific plea that NLC Security Force Regulations does not require or contemplate any enquiry before

imposing any penalty, except in case of dismissal and removal. Indeed, Regulation 20 speaks as follows:

ii) The Disciplinary Authority or any other authority superior to it, shall, at its discretion, institute an enquiry against any member of the Security

Force before imposing on him any of the punishments listed in Regulation 18(ii) above.

iii) No order of dismissal or removal shall be made, except after holding an enquiry against a member of the Security Force concerned in respect of

the alleged lapse on his part.

and in and by which no enquiry is visualised before awarding the punishment of ''stoppage of one increment with cumulative effect''.

It is the case of the 1st Respondent that the Petitioner has been imposed with the punishments for various misconducts committed by him, ever

since he joined the Corporation and the same runs as below:

1) Fined Rs. 5/- for sleeping (Proc. No. 218/DSO-H/65, Dt. October 15, 1965) **

2) Fined Rs. 7/- for sleeping (Proc. No. 257/DSO-H/65, Dt. November 29, 1965)**

3) Fined Rs. 10/- for sleeping (Dt. February 22, 1966)

4) Fined Rs. 10/- (Proc. No. 49/DSO-II/66, Dt. July 15, 1966)

5) Fined Rs. 3/- for deserting duty place (Proc. No. 58/DSO-II/66, Dt. July 8, 1966)

6) Fined Rs. 5/- for deserting duty place (Proc. No. PR/200/DSO-II/68, Dt. November 15, 1968)

7) Fined Rs. 10/- for sleeping (Proc. No. 41/DSO-E/68-2, Dt. January 30, 1969)

8) Stoppage of one increment for sleeping (Proc. No. 04/Disc/SO/M-1/89, Dt. August 1, 1989)

9) Stoppage of one increment with cumulative effect for sleeping permitting to keep Gas Cylinder and other utensils and permitted unauthorised use

of Company''s property and violation of instructions vide Memo No. 144-24/Disc/SO(TS)/99, Dt. August 22, 1999 read with Memo No.

20(22)/144/24/Disc/CSO/89, Dt. September 27, 1999.

(**During 1965 his basic pay was Rs. 85/-only).

Moreover, only on two occasions during the year 1983 and 1986, he has been given cash rewards for meritorial service along with others.

The main contention of the 1st Respondent is that the Petitioner has approached this Court with unclean hands in the year 2003 after retiring

from service voluntarily in the year 2001 and that the impunged orders are based on materials and there is no illegality or arbitrariness while passing

the said orders.

W.P. No. 7809/2003:

The Petitioner has filed another writ petition praying for an issuance of certiorarified mandamus in calling for the records, pertaining to the order

in Memo No. 111/CCR/Rmks/A4/CSO/97 dated July 27, 1998. passed by the 3rd Respondent, and communicating the adverse remarks and the

order in Memo No. 111/CR Remarks/CSO/99 dated July 30, 1999 passed by the 2nd Respondent rejecting the appeal and confirming the order

of the 3rd Respondent and to quash the same. Further, the Petitioner has consequently prayed for issuance of direction to the Respondents to give

him Time Bound Promotion as Superintendent Grade-II with effect from March 1, 1998, with all arrears and consequential benefits upto the date

of his retirement.

According to the Petitioner, he was given Time Bound Promotions from one post to other upto the post of Senior Inspector in time and in

accordance with the Time Bound Promotion Scheme in force, he was eligible and entitled to the Time Bound Promotion to the post of

Superintendent Grade-II, which carry higher scale of pay with effect from March 1, 1998. But he was not given the promotion to the post of

Superintendent Grade-II with effect from March 1, 1998. He made a representation to the authorities concerned in this regard. However, by a

proceeding dated July 27, 1998 of the Assistant Personnel Manager/S & FS, he was informed that an adverse remarks have been entered into his

service record for the period from April 1, 1997 to March 31, 1998. In fact, he was informed in the aforesaid proceedings that his conduct during

the period from April 1, 1997 to March 31, 1998 was highly unreliable. No knowledge of security. Does not command respect from his

subordinates. Rumour Monger.''

The stand of the Petitioner is that he was not given any notice before the adverse remarks being entered into his service record and also that he

was not provided with any opportunity, he preferred an Appeal dated September 21, 1998 to the Chief Security Officer and requested him to

expunge the above aforesaid adverse remarks. He explained in detail how the adverse remarks were not correct and stated that it was a motivated

one. He made a representation dated January 29, 1999, since there was no reply from the Chief Security Officer and made a request for Time

Bound Promotion granted to him as Security Superintendent Grade-II, inasmuch as his juniors were given Time Bound Promotions. Again, he

made a representation dated June 25, 1999 praying for his Time Bound Promotion, as there was no reply from the Chief Security Officer. The

Deputy Chief Security Officer rejected his appeal, by means of an order, dated July 30, 1999.

The Petitioner made a representation dated February 1, 2000 to the General Manager (TA), Security and Fire Services with a request to set

aside the punishment and also to grant him the promotion to the post of Superintendent Grade-II which was due from March 1, 1998. He

submitted a mercy petition dated April 4, 2000 to the Director (Personnel), to set aside the punishment and also with, a request to promote him to

the post of Superintendent Grade-II. Further, he submitted his representation dated August 9, 2001 and November 15, 2002 for which no reply

was given.

The Respondents, in its counter, have taken a plea that the present writ petition suffers from the principles of delay and latches and that the

impugned order communicating the adverse remarks was of the year 1998 and the same was confirmed in Appeal in the year 1999 and that the

present writ petition has been filed by the Petitioner in the year 2003 after a delay of nearly 5 years and that too after the voluntary retirement of

the Petitioner in 2001 based on the Voluntary Retirement Scheme and hence, the writ petition is to be dismissed.

The Respondents'' case is that the writ Petitioner was relieved from the services of the 1st Respondent Corporation on voluntary retirement on

his own accord without any protest or claim with effect from September 30, 2001 and when the Petitioner opted for voluntary retirement without

reserving any claim whatsoever, he has no right to make any claim in regard to his past service, that too after his retirement. After the Petitioner''s

voluntary retirement under the Voluntary Retirement Scheme, there was no master-servant relationship existed between the Petitioner and the

Respondents on the date of filing of the writ petition. The Petitioner joined the 1st Respondent Corporation in the year 1961 as a Security Guard

and was promoted under the Time Bound Promotions from time-to-time subject to eligibility and satisfying the norms and in the year 1994, the

Writ Petitioner was promoted as senior Inspector. His services were normal duties as rendered by any member of the Corporation Security Force

and there was nothing extraordinary in his service career. In fact, his service record contains several punishments for various misconducts

committed by him.

The Respondents project a stand that the Time Bound Promotions to the Employees are not automatic and the Time Bound Promotions are

given to the employees based on completion of prescribed period in a particular post in a lower grade subject to satisfying other conditions such as

performance during the qualifying period, good rating in Annual Performance Appraisal for preceding 3 years from the date of eligibility and

disciplinary proceedings were pending at the time of consideration for promotion.

According to the Respondents, Annual Performance Report pertaining to the period from April 1, 1997 to March 31, 1998 in respect of the

Petitioner was initiated by the then Deputy Security Officer in June 1998, wherein it was recorded in an overall appraisal column ""Spreading

rumors. Petition writer Under observation"". The 2nd Respondent (Reviewing Authority) had recorded his overall rating on June 9, 1998 as ""Highly

unreliable. No knowledge of security. Does not command respect from his subordinates. Rumour monger"". The adverse remarks, in the Annual

Performance Report, were communicated to the Petitioner as per proceedings dated July 27, 1998 by the 3rd Respondent. The Petitioner

received the impugned order dated July 27, 1998 and acknowledged the same. Later, the Petitioner preferred an Appeal dated June 25, 1999 to

the 2nd Respondent. The 2nd Respondent, by proceedings dated July 30, 1999, had rejected the Appeal. The Petitioner has not challenged the

order dated July 27, 1998 in the appeal dated June 25, 1999 on the basis of procedural defects or no notice was given to him before passing the

order dated July 27, 1998.

The substance of the contention of the Respondents, as seen from the counter, is that the rules governing the Performance Appraisal do not

require or contemplate that an individual must be given an opportunity prior to the recording of adverse remarks. However, as per the rules, the

Petitioner filed an appeal dated June 25, 1999 and the same was considered and rejected by proceeding dated July 30, 1999. The adverse

remarks made against the Petitioner were justified and was based on the record in the performance of duties and behavior during the course of his

duty. Since he suffered adverse remarks during the period April 1, 1997 to March 31, 1998 in his Annual Performance Appraisal, the claim for

promotion to the post of Superintendent Grade-II with effect from March 1, 1998 on time scale is not tenable.

The Petitioner, who joined in the year 1961 in the 1st Respondent Corporation, on two occasions during the year 1983 and 1986, was given

the Cash Rewards for the meritorious along with others. He was awarded with 9 punishments which were made mention of in the counter filed by

the Respondents in W.P. No. 7808/2003 for the various misconducts committed by him.

In short, the stand of the Respondents is that the proceedings of the 3rd Respondent dated July 27, 1998 and the proceedings of the 2nd

Respondent dated July 30, 1999 are legal and valid and further that the adverse remarks to the Petitioner were communicated within a reasonable

time of recording the same.

W.P. No. 7808/2003:

Contentions, Discussions and Findings:

According to the Learned Counsel for the Petitioner, the Respondents cannot impose a punishment of increment cut with cumulative effect,

which is a major penalty without holding an enquiry and without giving an opportunity to the Petitioner and as such, the impugned orders have been

passed in violation of the principles of fact, the orders so passed are arbitrary and violative of Article 14 of the Constitution of India.

It is the further contention of the Learned Counsel for the Petitioner that the Respondents, after holding that the charges levelled against the

Petitioner were serious in nature, cannot pass final orders imposing the penalty of stoppage of increment with cumulative effect and without getting

an explanation from the Petitioner and without holding enquiry and proving the charges, as visualised under the certified Standing Orders as well as

the Security Force Regulations. The Learned Counsel for the Petitioner submits that the allegation that the Petitioner refused to receive the charge

memo is not true and correct one and also the Petitioner has not been given any opportunity to rebut this allegation and also by referring this

allegation in the final order, the entire procedure for disciplinary action has been dispensed with without any basis or justification.

Expatiating his arguments, it is the contention of the Learned Counsel for the Petitioner that even assuming without admitting that the Petitioner

refused to receive the charge memo, it may give raise to another charge memo and it cannot be a ground to dispense with an enquiry, without

resorting to other modes of service and without receiving an explanation.

The Learned Counsel for the Petitioner urges before this Court that even the purported refusal to receive the charge memo will not amount to

waiver or giving up of an opportunity on his own and indeed, when no explanation has submitted by the Petitioner and when he does not

participate in the enquiry, it will not amount to admission of guilt so as to pass a final order and even such a case, the Respondents shall pass an ex

parte enquiry and prove the charges in the manner known to law before awarding any punishment, but the Respondents have not resorted to this

kind of procedure established by law.

That apart, the Learned Counsel for the Petitioner submits that the Director (Personnel) has called for remarks on Petitioner''s Mercy Petition

dated August 9, 2001, from the Deputy Chief Security Officer, who has submitted his remarks mentioning that his services were meritorious and

that he was honest and sincere and also recommended to revoke the punishment order and to give him the promotion to the post of Superintendent

Grade-II and even after the report, the punishment orders have not been set aside and that the Petitioner has not been given the promotion.

Continuing further, the Learned Counsel for the Petitioner brings it to the notice of the Court that the Petitioner has retired from service under

Voluntary Retirement Scheme and due to the punishment, he has suffered enormous loss and also in his terminal and V. benefits.

Advancing his arguments, the Learned Counsel for the Petitioner submits that only after serving the charge memo to the Petitioner, the

authorities concerned can take a decision in the matter and the certified Standing Order speaks of service by RPAD and without serving a charge

memo, no punishment can be awarded by the authorities concerned and if any punishment is awarded without serving the charge memo, then the

same is not acceptable, legal evidence in the eye of law.

The Learned Counsel for the Petitioner contends that for the charge memo dated August 23, 1999 issued to the Petitioner, when it has been

sought to be served on him, his statement has been, that he will receive the charge memo after consulting the office bearers of his Union and in

reality, no charge memo has been served on the Petitioner and no explanation has been received from him by the authorities concerned and in the

absence of refusal to receive the charge memo by the Petitioner, the authorities might have issued another charge memo, but they have not issued

the same. Also, it is the submission of the, learned Counsel for the Petitioner that even by RPAD the charge memo dated August 23, 1999 might

have been served on the Petitioner and also the other mode of serving the charge memo may also be published in the Newspaper by means of an

advertisement and the authorities, in short, cannot cut-short the procedure for their convenience.

To lend support of his contention that no workmen shall be punished without issuance of charge memo issued to him and the receipt of

explanation submitted by him after providing due opportunity thereto, the Learned Counsel for the Petitioner refers to Standing Order 47 1(a)(b)

pertaining to major punishments which runs as follows:

No workman shall be punished till a written memorandum of charges, setting forth the circumstances appearing against him and the nature of the

misconduct involved and requiring his explanation, has been issued to him, and he has been afforded a reasonable opportunity to submit his

explanation in writing.

It is the contention of the Learned Counsel for the Petitioner that if no charge memo would serve on the Petitioner, then, no punishment can be

imposed upon him and the authorities cannot presume guilt and therefore, the orders of the Respondents are not in accordance with law.

The Learned Counsel for the Petitioner submits that the Management has to prove the charges beyond doubt and in the instant case, the

punishment awarded by the 2nd Respondent imposing a stoppage of two increments with cumulative effect is a major penalty and in the present

case, the Management has not given opportunity to the Petitioner to examine the witness and therefore, the orders of both the Respondents are

vitiated in law.

In support of his contention the Learned Counsel for the Petitioner relies on the decision of this Court in K. Govindaswamy V. I. Tamil Nadu

Civil Supplies Corporation Limited represented by its senior Regional Manager, Madras 600 086 and Anr. 1998 Writ L.R. 486 wherein this

Court has held as follows:

withholding of increments of pay simpliciter without any hedge over it, certainly comes within the meaning of 16(1) (b) of the said Rules. But, when

penalty was imposed withholding two increments, i.e., for two years with cumulative effect, it would indisputably mean that the two increments

earned by the employee would be cut off as a measure of penalty for ever in his upward march of earning higher scale of pay.

The punishment imposed on the Petitioner, would attract Rule, 16(2) of the said Rules. Accordingly, as per the procedure, the Petitioner shall be

given opportunity for personal hearing and to examine witnesses specified by him and he shall be permitted to submit his explanation thereafter.

Admittedly no one was examined on the side of the Corporation/Management and no opportunity was given to the Petitioner to examine his

witnesses as claimed by him in the Questionnaire form. Hence the contention of the learned Counsel for the Petitioner is well founded and the

punishment imposed on the Petitioner is vitiated.

He also relies on the decision of the Honourable Supreme Court in 1996 VII AD 821 (SC) wherein it is laid down as follows:

Though the Respondent had been avoiding to give his reply the Appellants have not conducted any enquiry. Since the Respondent had avoided to

submit the reply, he has forgone his right to submit his reply. Nonetheless, the Appellants are absolved of the duty to hold an ex parte enquiry to

find out whether or not the charge has been proved. In the event of the Enquiry Officer finding that the charge is proved, he would submit his

report to the disciplinary authority. The disciplinary authority should communicate the copy of the enquiry report to the Respondent and seek an

explanation for the proposed action thereon. If the Respondent submits any explanation the same may be taken into consideration and appropriate

order may be passed according to law. Until then, the Respondent must be deemed to be under suspension.

The Learned Counsel for the Petitioner seeks in aid of the decision of this Court in K. Lakshmanan v. Government of Tamil Nadu and Anr.

1992 I LLJ 380 wherein it is held that ''...It is elementary that in case the department wishes to rely upon the statement of a witness, an opportunity

must be granted to the employee concerned to subject that witness to cross-examination. The Appellate Authority has merely reproduced the

show cause notice in toto exept to say that there were no new tacts to mitigate the charges. This is wholly an uneatisxactoxy way of dealing with

the appeal against punishment by the Appellate Authority.

Besides the above, it is the contention of the Learned Counsel for the Petitioner that one who makes an allegation against the particular person

must prove the case. Also, it is the contention of the Learned Counsel for the Petitioner that the Petitioner went on voluntary retirement and the

present writ petition has been filed in the year 2003 and really, the Petitioner has waited for the orders from the Director (Personnel) for his

representation dated August 9, 2001 and since no reply has been forthcoming, the Petitioner has filed the writ petition and there is no limitation

under Article 226 of the Constitution of India for filing of the writ petition by the Petitioner and since the. Petitioner has assigned reasons in the writ

petition, W.P. No. 7808/2003 filed by him is perfectly maintainable in law.

In this regard, the Learned Counsel, for the Petitioner relies on the decision of the Honourable Supreme Court in Ajaib Singh Vs. The Sirhind

Co-Operative Marketing Cum-Processing Service Society Limited and Another, wherein it is held that ''Reference of industrial dispute to Labour

Court is not subject to limitation under Article 137 of the Limitation Act and further it is laid down that burden to raise the plea of delay/latches lies

on the Management etc.''

Per contra, the Learned Counsel for the Respondents submits that the Petitioner belongs to Security Branch and his duty is to gone the entire

area and he along with two outsiders was found sleeping on August 19, 1999 around 00.35 hours while doing duty on 3rd shift at Thermal Power

Station Training Centre and by the Deputy Security Officer Sundaram along with Senior Inspector Bharathamani, who were on inspection round

and since sleeping on duty was a grave charge, he was given the charge memo dated August 23, 1999 to be served on him and when the charge

memo was sought to be served on him on August 24, 1999 and August 25, 1999 at his duty point, he refused to receive the same and to that

effect endorsements were made by the Superintendents on duty on August 24, 1999 and August 25, 1999 and since the Petitioner refused to

receive the charge memo dated August 23, 1999, he was deemed to have given up his right of opportunity to submit his explanation to the charge

memo and that as per NLC Security Force Regulations, the Disciplinary Authority had passed the final order dated August 28, 1999 and imposed

the punishment of stoppage of two increments with cumulative effect and later on, an Appeal being preferred by the Petitioner, the Appellate

Authority reduced the punishment to one of stoppage of one increment with cumulative effect by order dated September 27, 1999 and moreover,

the Petitioner has filed a Second Appeal dated. October 9, 1999 to the Deputy Chief Security Officer and the said Appeal was rejected as per

proceedings of the Chief Security Officer dated October 13, 1999.

It is the contention of the Learned Counsel for the Respondents that when the Petitioner was very much available at duty point on August 24,

1999 and August 25, 1999, he refused to receive the charge memo dated August 23, 1999 and therefore, there was no need for the Respondents

to serve the charge memo dated August 23, 1999 to the Petitioner by RPAD or serving the charge memo at his residence does not arise and that

too when he was not suspended from service.

The contention of the Respondents is that the Petitioner is governed by Security Force Regulations of Neyveli Lignite Corporation and the

Petitioner is bound to receive the charge memo dated August 23, 1999 when it was endeavoured to be served on him on August 24, 1999 and

August 25, 1999 respectively and it is not open to the Petitioner to say that he will receive the charge memo after consulting the Association of

Security Staff and office bearers thereto and inasmuch as the refusal to receive the charge memo by the Petitioner has been endorsed by the

Superintendents on duty on August 24, 1999 and August 25, 1999, then, the conduct of the Petitioner in refusing to receive the charge memo in

the presence of Superintendents on duty who made necessary endorsements thereto amounted to ''refusal of service'' and hence, the Authorities

were correct in proceeding further and awarding the punishments impugned in the writ petition.

The Learned Counsel for the Respondents submits that Regulation 20 of NLC Personnel Manual Volume-I speaks of Procedure for imposing

penalties and only in case of dismissal or removal and enquiry is contemplated as per Regulation 20(a)(ii).

The Learned Counsel for the Respondents projects a plea that the Petitioner is a senior Inspector and he is not a workman and since; he has

refused to receive the charge memo dated August 23, 1999 on August 24, 1999 and August 25, 1999 respectively, he has not submitted his

explanation and since the Petitioner committed misconduct of sleeping while on duty, the same was punishable u/s 18(i)2, Xii, Xiii, Xiv, Xvi of

Chapter VII of the NLC Security Force Regulations and a charge memo was issued to him calling for his written explanation but he has refused to

receive the same and therefore, the Disciplinary Authority proceeded in the matter as per NLC Security Force Regulations and passed the final

order dated August 28, 1999 of imposing the punishment of stoppage of two increments with cumulative effect and later, in Appeal, the Appellate

Authority reduced the punishment from ''stoppage of two increments with cumulative effect'' to ''stoppage of one increment with cumulative effect''

etc.

The forcible contention of the learned Counsel for the Respondents is that the NLC Security Force Regulations empowers the Disciplinary

Authority or any other authority superior to it, to exercise his discretion in the matter of conducting an enquiry before imposing punishment of

stoppage of increments with cumulative effect except in case of dismissal or removal and therefore, the contention of the Petitioner is that no

enquiry was conducted as against the Petitioner in regard to the refusal of charge memo dated August 23, 1999 is untenable in law and equally, it

cannot be contended on behalf of the Petitioner that there was a violation of principles of natural justice.

In short, the contention of the Learned Counsel for the Respondents is that the Authorities concerned had passed a valid and just order in the

eye of law and therefore, the same need not be interfered with by this Court.

It is not out of place for this Court to make a relevant mention that Section 2(b) of the Industrial Employment (Standing Orders) Act, 1946 (20

of 1946) speaks of ""appropriate Government"" and the same is as follows:

''appropriate Government'' means in respect of induatrial establishments under the control of the Central Government or a (Railway administration)

or in a major port, mine or oil-field, the Central Government, and in all other cases, the State Government:

(Added by Act 18 of 1982, Section 2 (w.e.f. May 17, 1982) (Provided that where any question arises as to whether any industrial establishment

is under the control of the Central Government, that Government may, either on a reference made to it by the employer or the representative body

of the workmen, or on its own motion and after giving the parties an opportunity of being heard, decide the question and such decision shall be final

and binding on the parties.)

Also, the Tamil Nadu Industrial Employment (Standing Orders) Rules, 1947 Section 16(n) speaks of ''sleeping while on duty''.

It is to be borne in mind that, the Industrial Employment (Standing Orders) Act, Section 13B speaks of the ""(Ins. By Act 36 of 1956, Section

32 (w.e.f. 10.3.1957)) (Act not to apply to certain industrial establishments insofar as the workmen employed therein one person to whom the

Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules,

Revised Leave Rules, Civil Service Regulations, Civilians in Defence Service (Classification, Control and Appeal) Rules or the Indian Railway

Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette,

apply.)"" Furthermore, Section 14 of the Act speaks of the power of the appropriate Government by notification in the Official Gazette to exempt,

conditionally or unconditionally, any industrial establishment or class of industrial establishments from all or any of the provisions of this Act.

The main aim of requiring an employee to answer to the show cause or to the charge sheet is not only to find out whether the allegations

referred to or charges framed are admitted or not. But also to provide the employee concerned an opportunity to project his case or line of

defence and to enable the authorities concerned to see whether the delinquent employee or the accused officer can be exonerated straight away on

the basis of his explanation, if it was satisfactory or if there was put an enquiry to limit its purview to the defence actually set up. Soon after the

receipt of explanation or the charge sheet, it is necessary for the Disciplinary Authority to decide whether or not to initiate a departmental enquiry.

Generally, the discretion of the Disciplinary Authority cannot be questioned.

Generally speaking, if an Employee does not accept the delivery of the show cause notice/charge sheet, by hand, it ought to be sent as per

Registered Post Acknowledgment Due and displayed on the notice board, if so provided in the Standing Orders, as opined by this Court.

However, if an Employee refuses to take delivery of the letter, there must be a recording to this fact with endorsements/ signatures of the persons

effecting the delivery and the witnesses thereto and an additional charge sheet ought to be issued for the misconduct of ''willful subordinates'' (sic)

(subordination) by refusing to accept the show cause notice/charge sheet issued by the Employer/Management. As a matter of fact, the position

will be different if provision is made in the Standing Orders to the effect that if an Employee refuses to accept a show cause/charge sheet, then, he

shall be deemed to have been informed in writing and in that case, the Employer/Management or the Enquiry Officer can proceed without making

another attempt to serve the show cause notice or the charge sheet.

A perusal of the Standing Order 47(1)(a)(iii) of the 1st Respondent prefers to ''Stoppage of increments, (including stoppage at an efficiency

bar) with or without cumulative effect'' is a minor punishment.

At this juncture, this Court points out the case of Batta Shoe Company Pvt. Ltd. v. Gangully, which will be applicable when the workman had

refused to accept the show cause notice, it cannot be said that he had no notice of the enquiry, Dhondiran Narain v. Rayon Textile Mills (P) Ltd.,

Mah. G&z., dated July 23, 1970 P.4184(IC-Bom).

In the instant case on hand, the 1st Respondent/ Management has not issued a second show cause notice to the Petitioner mentioning that he

has refused to receive the show cause notice. It is to be pointed out pertinently that refusing to receive a show cause notice or a charge sheet is a

separate/distinct charge. However, in the present case, the 1st Respondent/Management has not resorted to the course of issuing a second show

cause notice for refusing to receive the earlier show cause notice. But, it has proceeded further as per NLC Security Force Regulations and passed

the final order dated August 28, 1999 awarding the punishment of stoppage of two increments with cumulative effect and later, the Appellate

Authority, on an Appeal being filed by the Petitioner, through his order dated September 13, 1999, has reduced the order of punishment from

''stoppage of two increments with cumulative effect'' to ''stoppage of one incitement with cumulative effect''.

A perusal of the Standing Orders of the 1st Respondent/Management indicates that it does not speak of issuance of second show cause

notice/charge memo, in case the first show cause notice/charge memo has been refused to be received by an Employee/ Workmen.

It is evident from Regulation 21 of Security Force Regulations (NLC Personnel Manual) that ''a member of the Force may appeal against an

order imposing upon him any of the penalties mentioned in Regulation 18(ii) to the appellate authority within a period of 14 days from the date on

which the Appellant receives a copy of the order of the punishment appealed against etc. and there shall be no second appeal''.

In the present case before us, the Writ Petitioner has not received the charge memo dated August 23, 1999, which has been attempted to be

served on him on August 24, 1999 and August 25, 1999 and the endorsements have been made by the Superintendents on duty on August 24,

1999 and August 25, 1999 and therefore, the 1st Respondent/Management has left with no other option to proceed further in the matter and

accordingly, proceeded further as per NLC Security Force Regulations and passed the final order dated August 28, 1999 imposing the

punishment of stoppage of two increments with cumulative effect and later, on Appeal, the Appellate Authority has reduced the order of

punishment from ''stoppage of two increments with cumulative effect'' to ''stoppage of one increment with cumulative effect which in the considered

opinion of this Court cannot be found fault with on the ground that punishment has been awarded to the Petitioner without serving the charge memo

and receiving his explanation thereto etc.

Coming to the plea of the Petitioner that there has been a violation of principles of natural justice and that the Petitioner has been meted out

with a penalty of stoppage of increment cut with cumulative effect without holding an enquiry and without providing opportunity to him, it is to be

pointed out that the object of the rules of natural justice is to secure justice or to prevent miscarriage of justice. The term ''Natural Justice'' is

known as ''common sense justice''. Justice is based on natural ideals and human values substantially. Natural justice relieves legal justice from

unnecessary technicality, grammatical pedantry or logical prevarication. In short, the principles of natural justice are not a codified set of rules.

However, they are ingrained into the conscience of a homo-sapien.

It is a rudimentary plea that an individual who is required to answer a charge must know not only by the acquisition but also the testimony

which the acquisition is supported he ought to be given a fair chance to hear the evidence in support of charge and to put such pertaining questions

by means of cross examination as he wishes. To put it precisely, the rules of natural justice do not supplant the law but supplement it. If there is an

omission to provide an opportunity to an employee to vindicate his stand, to produce witnesses or to lead evidence it will vitiate the proceedings.

For the term ''reasonableness'' the Court of Laws judicially conscious and to be satisfied that the person against whom action is proposed had

a fair chance of convicing the authority who proposed to take action against him that the grounds on which the action is proposed or nor in existent

or if they exists, they do not justify the proposed action.

In H.C. Sarin Vs. Union of India (UOI) and Others, , the Honourable Supreme Court has quoted the following passage in the judgment, of

LORD DENNING, M.R., in R. v. Secretary of State for the Home Department (1973) 3 All ER 796 which runs as follows:

The rules of natural justice must not he stretched too far. Only too often the people who have done wrong seek to invoke the rules of natural

justice so as to avoid the consequences.

The rules of Natural Justice cannot be put on any rigid formula. It is well settled that a notice is refused to be accepted by the addressee can be

presumed to have been served on him as per the decision in Harcharan Singh Vs. Smt. Shivrani and Others, .

In the present case, the 1st Respondent/Management has attempted to serve the charge memo dated August 23, 1999 on the Petitioner, on

August 24, 1999 and August 25, 1999 at his duty point, but he refused to receive, the same and that the endorsements have been made by the

Superintendents on duty and therefore, it is quite clear that the 1st Respondent/management has offered to the writ Petitioner an opportunity to

receive the charge memo dated August 23, 1999 but that has not been received by the Petitioner (though he has assigned the reason he informed

the officials that he will receive the charge memo after consulting the Association for Security staff etc.) and since the Petitioner has refused to

receive the charge memo, it is deemed that he has given up his right to offer explanation to the charge memo and it is not open to the Petitioner to

complain that there has been a violation in regard to the adherence of principles of natural justice and that he has not been provided with an

opportunity to explain his stand and the contra plea of the Petitioner in this regard is not accepted by this Court. Equally, the Petitioner cannot

complain that the action of the 1st Respondent/Management in proceeding further and awarding punishment etc. is in violation of Article 14 of the

Constitution of India.

In the instant case, the Petitioner has refused to receive the charge memo dated August 23, 1999, when it has been attempted to be served on

him on August 24, 1999 and August 25, 1999 respectively and the endorsements have been made on these two days by the Superintendents on

duty will go to prove that he has refused to accept the delivery of show cause notice/charge memo and the facts of the present case clearly point

out that refusal to accept service of charge memo/show cause notice amounts to service in law and in that view of the matter, this Court negatives

the plea of the Petitioner that the 1st Respondent/Management has violated Article 14 of the Constitution of India.

In regard to the contention of the Learned Counsel for the Petitioner that the purported refusal of charge memo dated August 23, 1999 will not

amount to waiver or coming up of opportunity and even when no explanation is submitted by an employee and also when he does not participate in

the enquiry, it will not amount to his admission of guilt or end of the matter so as to pass final order and even in such matters, an ex parte enquiry

will have to be conducted and the charges to be proved in the manner known to law, it is to be pointed out that the NLC Personnel Manual

Security Force Regulations Section 20(a)(ii) enjoins the disciplinary authority or any other authority superior to it, to exercise its discretion in the

matter of conducting enquiry before imposing punishment of stoppage of increment with cumulative effect except in the case of dismissal or

removal and hence, the procedure to conduct an enquiry before awarding punishment is wholly at the discretion of the Disciplinary Authority or

any other authority and therefore, the plea for conduct of an ex parte enquiry as projected by the Petitioner side is of little avail, in the considered

opinion of this Court.

As regards the power of Judicial Review in Article 226 of the Constitution of India enabling the Petitioner to file the writ petition, this Court

pertinently points out that a judicial review of voluntary retirement under Article 226 of the Constitution of India is maintainable on the grounds

hereunder:

(a) If the Employer is an authority under the State;

(b) The action, of such authorities should pass the tests of Article 14 of the Constitution of India; and

(c) The right of an Employee in employment under Article 21 of the Constitution of India, will not be taken away except in accordance with law.

The V.R.S. Scheme is like or similar to resignation of an Employee rather than superannuation. The object of V.R.S, Scheme is an invitation to

make an offer by the Employees to avail the benefit under it. Containing consideration e.g. An Employee is forming his left over service period for

which an Employer pay some money as per Scheme, in the considered opinion of this Court. A V.R.S. Scheme takes the form of rules and unlike

statutory rules, they are not to be strictly interpreted by a Court of Law.

It is to be pointed out that the moment an Employer/Government acpepted the notice of voluntary retirement, then, the retirement becomes

effective and the relationship of master and servant stands severed.

A refusal to entertain a belated cause is only a rule of discretion and not law. If a person makes repeated representations after the

representation of one, the same will not exonerate delay in moving the Court, the proper test to find out whether a writ petition suffers from

latches/delay is whether in the circumstances of the case, the time has elapsed, can be set to be a reasonable one.

As per NLC Personnel Manual Security Force Regulations, Section 21, ''a member of the Force may appeal against an order imposing upon

him any of the penalties mentioned in Regulation 18(ii) to the appellate authority within a period of 14 days from the date on which the Appellant

receives a copy of the order of the punishment appealed against etc. and the said Section clearly postulates that there shall be no second appeal

and in the instant case on hand, after the appeal being filed by the Petitioner on September 13, 1999 as against the final order dated August 28,

1999 passed by the Disciplinary Authority imposing the punishment of stoppage of two increments with cumulative effect, the Appellate Authority

on September 27, 1999, while considering the Appeal, has reduced the punishment to one of stoppage of one increment with cumulative effect and

thereafter, the writ Petitioner filed a Second Appeal dated October 9, 1999 to the Deputy Chief Security Officer, who has also rejected the appeal

and confirmed the punishment of stoppage of one increment with cumulative effect by proceeding dated October 13, 1999 and the repeated

representations made by the writ Petitioner, will not provide him with any cause of action, in the considered opinion of this Court.

As far as the present case is concerned, the Petitioner has approached this Court after a lapse of four years from the date of passing of the

orders on appeal by the Appellate Authority dated September 13, 1999 and also after the rejection of the Petitioner''s appeal by the Appellate

Authority as per proceedings dated October 13, 1999 confirming the punishment of stoppage of one increment with cumulative effect.

Admittedly, the Petitioner on September 30, 2001 on his own accord has opted for the voluntary retirement and has gone on voluntary

retirement and when the proposal of an Employee to opt for V.R.S. has been accepted by the Employer an enforceable contract is concluded

because of the simple fact that an offer made by the Employee to opt for V.R.S. Scheme does not amount to resignation in praesenti, as opined by

this Court. Therefore, when the 1st Respondent/Management has accepted the voluntary retirement of the Petitioner and when the fact remains

that the writ Petitioner has retired on voluntary retirement on September 30, 2001, this Court is of the considered view that his voluntary retirement

has come into force and the master-servant relationship has ceased to exist and as such, the Petitioner is not entitled to approach this Court for a

discretionary relief under Article 226 of the Constitution of India and resultantly, W.P. No. 7808/2003 fails.

W.P. No. 7809/2003:

Contentions, Discussions and Finding:

The Learned Counsel for the Petitioner submits that the Petitioner is eligible and entitled to get the Time Bound Promotion to the post of

Superintendent Grade-II, which carry higher scale-of pay, with effect from March 1, 1998, as per the Time Bound Promotion Scheme in vogue

and the Petitioner made a representation to the concerned authorities, inasmuch as he has not been given the promotion to the post of

Superintendent Grade-II with effect from March 1, 1998 and the Assistant Personnel Manager/S & FS sent a communication dated July 27, 1998

that adverse remarks have been entered in his service record for the period from April 1, 1997 to March 31, 1998 and in the said proceedings,

the Petitioner''s conduct has been mentioned during the aforesaid period as ''Highly unreliable. No knowledge of security. Does not command

respect from his subordinates. Rumour Monger.''

It is the specific contention of the Learned Counsel for the Petitioner that before an adverse entry is recorded he has not been provided with

any notice and also any opportunity to present his stand and therefore, the adverse entry recorded against the Petitioner is a motivated and false

one.

Continuing further, the Learned Counsel for the Petitioner contends that there have been no remarks whatsoever before or after the period

between April 1, 1997 to March 31, 1998 as regards the Petitioner and in any event, the Respondents cannot deny promotion to the Petitioner in

view of his meritorious service for more than 37 years as on March 1, 1998 and as such, the Respondents should have granted the promotion to

the Petitioner at least from March 1, 1999.

The Learned Counsel for the Petitioner also submits that to the Mercy Petition dated August 9, 2001 of the Petitioner, the Director (Personnel)

has called for remarks from Deputy Chief Security Officer who has submitted his remarks stating that the Petitioner services have been meritorious

and that he has been honest and sincere and also recommended to revoke the punishment order and also to give him the promotion to the post of

Superintendent Grade-II and even after the said report, the punishment orders have not been set aside and that the Petitioner has not been given

the promotion.

The other contention of the Petitioner is that he has retired from service under Voluntary Retirement Scheme and due to the punishment, he

suffered a huge loss during his service and also in regard to the terminal and V.R.S. benefits.

The reason assigned by the Petitioner in not filing the writ petition immediately is due to the fact that since the Director (Personnel) has called

for remarks on his representation dated August 9, 2001 from the Deputy Chief Security Officer and further the said officer has also submitted his

remarks recommending to consider his grievance, he has been waiting for a favourable reply from the Director (Personnel) of the 1st

Respondent/Management and since there has been no reply or order from the Director (Personnel) even after a long lapse of time, he has filed this

writ petition. The Learned Counsel for the Respondents submits that the Time Bound Promotions to the Employees are not as a matter of routine

and automatic but such promotions are given to the Employees based on completion of prescribed period in a certain post in a lower grade,

subject to satisfying other conditions like performance during the qualifying period, good rating in Annual Performance Appraisal for the

proceeding 3 years prior to the date of eligibility and if no disciplinary proceedings are pending at the time of consideration for promotion.

The Learned Counsel for the Respondents contends that in the Annual Performance Report in respect of the Petitioner, for the period from

April 1, 1997 to March 31, 1998, it has been recorded in an overall appraisal column ''Spreading rumours. Petition writer. Under observation''

and also the 2nd Respondent (Reviewing Authority) has also recorded his overall rating on June 9, 1998 as ""Highly unreliable. No knowledge of

security. Does not command respect from his subordinates. Rumour monger"" and the said adverse remarks have been communicated to the

Petitioner as per proceedings dated July 27, 1998 by the 3rd Respondent and the appeal filed by the Petitioner before the 2nd Respondent has

been rejected on July 30, 1999 and there is no procedural infirmity or procedural illegality in the orders passed by the Respondents.

In regard'' to the contention that the Petitioner must be given an opportunity of hearing before an adverse entry is recorded in his Annual

Performance Report, it is the contention of the Learned Counsel for the Respondents that the rules governing the Performance Appraisal do not

require that the Petitioner will have to be given an opportunity before recording adverse remarks.

The next limb of submission of the Learned Counsel for the Respondents is that because of the fact that the Petitioner has suffered adverse

remarks pertaining to the period from April 1, 1997 to March 31, 1998, in the Annual Performance Appraisal, his claim for promotion to the post

of Superintendent Grade-II with effect from March 1, 1998 on time scale is not sustainable in the eye of law.

Lastly, it is the plea of the Learned Counsel for the Respondents that the Petitioner has been punished by way of fine ranging from Rs. 5/- to

10/- for sleeping, for deserting duty place etc. on 7 occasions from the year 1965 to 1969 and also he has been imposed with punishment of

stoppage of one increment for sleeping as per Proceedings No. 04/Disc/ SO/M-1/89, dated August 1, 1989 and finally, he has been awarded with

a punishment of Stoppage of one increment with cumulative effect for sleeping permitting to keep Gas Cylinder and other utensils etc. as per

proceedings of the Appellate Authority dated September 27, 1999.

In the affidavit filed, in W.P. No. 7809/2003, by the Petitioner has stated that he has made a representation to the concerned authorities to

give him the promotion and only thereafter, by a proceeding dated July 27, 1998, the Assistant Manager/S & FS has communicated that an

adverse remarks have been entered into service record for the period from April 1, 1997 to March 31, 1998 etc.

In support of the contention that non communication of an entry in Annual Confidential Report is violative of Article 141 of the Constitution of

India and the same being an arbitrary one, the Learned Counsel for the Petitioner cites the decision of the Honourable Supreme Court in Dev Dutt

Vs. Union of India (UOI) and Others, wherein it is observed as follows:

The non communication of an entry in the Annual Confidential Report of a public servant in arbitrary because it deprives the concerned employee

from making a representation and praying for its upgradation. That will amounts to violation of principles of natural justice. Even an outstanding

entry should be communicated since that would boost the morale of the employee and make him work harder.

To lend support to the contention that even though the Petitioner has retired from service under Voluntary Retirement Scheme in the year

2001, yet, he can maintain a writ petition to quash the order dated July 27, 1998 passed by the 3rd Respondent by communicating the adverse

remarks and also to quash the order of the 2nd Respondent dated July 30, 1999 in rejecting the appeal thereby confirming the order of the 3rd

Respondent and further to direct the Respondents to give him Time Bound Promotion as Superintendent Grade-II with effect from March 1, 1998

etc. , the Learned Counsel for the Petitioner relies on the decision of the Honourable Supreme Court in A. Satyanarayana Reddy and Others Vs.

The Presiding Officer, Labour Court, Guntur and Others, wherein it is held that ''If the claim has no nexus with the Voluntary Retirement Scheme, it

is to be held that a proceeding u/s 33C(2) of Industrial Disputes Act, 1947 is maintainable'' Referred to larger Bench.''

To prevent recourse to lengthy procedure, the Petitioner is entitled to file a writ petition, the Learned Counsel for the Petitioner cites the

decision of the Honourable Supreme Court in National Building Construction Corporation Vs. Pritam Singh Gill and Others, wherein at paragraph

12, it is, among other things, observed as follows:

...The propriety or necessity of thus construing the word ""workman"" is obvious because all parts of the Act have to be in harmony with the

statutory intent. Keeping this in mind we may turn to the purpose and object of Section 33C of the Act. This Section was enacted for the purpose

of enabling individual workman to implement, enforce or execute their existing individual rights against their employers without being compelled to

have recourse to Section 10 by raising disputes and securing a reference which is obviously a lengthy process. Section 33C of the Act has

accordingly been described as a provision which clothes the Labour Court with the powers similar to those of an executing Court so that the

workman concerned receives speedy relief in respect of his existing individual rights. The primary purpose of the Section being to provids the

aggrieved workman with a forum similar to the executing Courts, it calls for a broad and beneficial construction consistently with other provisions

of the Act, which should serve to advance the remedy and to suppress the mischief. It may appropriately be pointed out that the mischief which

Section 33C was designed to suppress was the difficulties faced by individual workmen in getting relief in respect of their existing rights without

having ""resort to Section 10 of the Act. To accept the argument of the Appellant, it would always be open to an unfair, unsympathetic and

unscrupulous employer to terminate the services or his employee in order to deprive him of the benefit conferred by Section 33C and compel him

to have resort to the lengthy procedure by way of reference u/s 10 of the Act thereby defeating the very purpose and object of enacting this

provision.

On the contrary, the learned Counsel for the Respondents cites the decision in Jayakodi Jacob D. Vs. Presiding Officer, Labour Court and

Another, wherein it is held that ''Once Voluntary Retirement Scheme is exercised and benefits received nothing remains to be done''. Further, the

Learned Counsel for the Respondents draws the attention of this Court to the decision of the Honourable Supreme Court in A.K. Bindal and

Another Vs. Union of India (UOI) and Others, wherein it is laid down as follows:

Once employees opt to retire under V. and accept the benefits thereunder their rights as employees come to an end and thereafter they cannot

again assert their rights and reagitate their claim for pay revision for pre-retirement period and nor can they contend that they opted for Voluntary

Retirement Scheme under compulsion.

Yet another decision of the Honourable Supreme, Court, in HEC Voluntary Retd. Emps. Welfare Soc. and Another Vs. Heavy Engineering

Corporation Ltd. and Others, , is relied on the side of the Respondents to the effect that ''The effect of a Voluntary Retirement Scheme is cessation

of the jural relationship between employer and employee.''

In service jurisprudence, the term ''Promotion'' is a positive act of higher in status conveyed by an Employer by a written order issued in favour

of the person promoted and communicated to him. An Employee has no right to a promotion. However, he has a basic right to be considered for

promotion, if he satisfies the required eligibility conditions. This Court aptly points, out that the entries in Annual Confidential Report of an

Employee reflected the subjective assessment though required to be made on objective yardsticks by the authorities concerned. They are

administrative in character and cannot be subject to the scrutiny of a judicial forum except on the grounds of malice, mala fide and perversity.

An Employee has a remedy against adverse entries in Annual Confidential Report by way of submitting his representation or memorial and

where he is dissatisfied with the treatment of his representation, he has a right to seek judicial review. An assessment of performance in the past

year may become a criterion affecting the future prospects of an Employee. In fact, a scrutiny of the Annual Confidential Report of an Employee

over a period will provide a clear impression about the quality of service rendered by an Employee.

It is an axiomatic principle in law that an uncommunicated entries in Annual Confidential Report of an Employee cannot be used to deny

service benefit like confirmation, promotion and opportunity for deputation etc.

Dealing with the plea of the Petitioner that before entering adverse entries in his Annual Confidential Report, the authorities concerned have not

provided him with an opportunity to project his stand, this Court points out that if the rules do not require that an opportunity to be heard is to be

provided to the Petitioner before adverse entries are made against him in his Confidential Report or if the rules do not provide that adverse entries

amount to a penalty for misconduct, it is not essential to make an enquiry or to provide a reasonable opportunity of hearing to the Petitioner before

making adverse entries in his character roll/Annual Confidential Report. Also, it cannot be brushed aside that making of adverse entries are not

equivalent to awarding of a penalty which necessitates an enquiry or a reasonable opportunity of being heard.

One cannot loose sight of the fact that an adverse entries ought to be communicated to the particular Employee. Adverse entries in Annual

Confidential Report place, a significant role in deciding the suitability of an Employee at that stage. Consistent adverse entries depict the picture of

handicap suffered by the administration because of him who made himself a burden and has not either, cared to improve upon or has not

possessed the capability to do so.

In the present case on hand, the rules of the 1st Respondent/Management do not provide for an opportunity being given to the Petitioner to

hear him before the adverse entries are recorded.

It cannot be gainsaid that the adverse entries in Annual Confidential Report of the Petitioner made by the Deputy Security Officer in June

1998 and also the adverse entry recorded by the 2nd Respondent (Reviewing Authority) on June 9, 1998 are based on subjective assessment and

these are all executive function of the concerned authorities and the said adverse remarks have been communicated to the Petitioner within the

reasonable point of time by the 3rd Respondent as per proceedings, dated July 27, 1998 and also the Appeal filed by the Petitioner has been

rejected by the 2nd Respondent as per order dated July 30, 1999 and the adverse entries have been made by the Superior Officers of the

Petitioner on an objective criterion though it is based on subjective assessment. However, the Petitioner, after being relieved from the services of

the 1st Respondent Corporation on Voluntary Retirement Scheme with effect from September 30, 2001, has ceased to have any relationship with

the 1st Respondent as Master and Servant and suffice it for this Court that he has obtained all the benefits flowing from the Voluntary Retirement

Scheme and nothing more remains to be done by the 1st Respondent/Management and further that since the Petitioner has earned the adverse

remarks for the period from April 1, 1997 to March 31, 1998 is ineligible for the Time Bound Promotion as otherwise due on March 1, 1998 and

viewed in that perspective, W.P. No. 7809/2003 filed by the Petitioner fails.

For the foregoing detailed reasonings/discussions, W.P. Nos. 7808 and 7809/2003 filed by the Petitioner are dismissed, leaving the parties to bear

their own costs.