Saturday, November 3, 2012

TA No.394/2010 on ?????????? -2012



DATED THIS THE     TH  DAY OF .............. ,  2012

HON'BLE Dr. K.B. SURESH          ...         MEMBER(J)


1. Sri M.R. Siddagangaiah,
   Aged about 46 years,
   S/o Sri C. Ramaiah,
   Staff No.4490,
   Deputy Manager (Civil),
   Tender and Claims Department,
   Kudremukh Iron Ore Company Limited,
   Kudremukh 577 142.

2. Sri N. Mallikarjuna Swamy,
   Aged about 45 years,
   Staff No.4491,
   Deputy Manager (Civil),
   Pollution Control Department,
   Kudremukh Iron Ore Company Limited,
   Kudremukh 577 142.                   ...                                 Applicants

(By Advocates M/s. Subba Rao & Co.)


1. Kudremukh Iron Ore Company Limited,
   Registered Office at II Block,
   Koramangala, Bangalore – 560 034.

2. The General Manager
   (Personnel & Administration),
   Kudremukh Iron Ore Company Limited,
   II Block, Koramangala,
   Bangalore – 560 034.

3.The Director,
   (Production and Projects,
   Kudremukh Iron Ore Company Ltd.,
   Kudremukh 577 142.

4. The Union of India,
   represented by its Secretary
   Ministry of Steel & Mines,
   "Udyog Bhawan",
    New Delhi – 110 001.                              ...                     Respondents

(By Advocate Smt. Subha Ananthi for R-1 to 3 )


Hon'ble Smt.Leena Mehendale, Member (A) :

            This TA No.394/2010 has been earlier filed before the Hon'ble High Court of Karnataka as Writ Petition No.25273/2005 and on 09.03.2010, the Hon'ble High Court observed that both the learned counsels have submitted that the matter be transferred to the CAT as the CAT is vested with the powers to adjudicate the issues involved in this case.  Accordingly, the matter was directed to be tansferred to CAT.  Thus, this TA No.394/2010 has come up to be heard by this Bench.

2.         The Respondent, KIOCL (Kudremukh Iron Ore Company Limited), is a public sector undertaking and the 2 applicants M.R. Siddagangaiah and N. Mallikarjuna Swamy, seek appointment on superannuation terms at par with other comparable employees.  The Respondent KIOCL, is engaged in the work to exploit Iron ore in Chickmagalur District.  Its second important mandate is of exporting Iron Ore.  It was set up in 1976.

3.         The applicants were appointed as Junior Manager (Civil), through an open advertisement and the conditions of appointment is at Annexure-'C'.  Initially, they were placed on probation and later were issued an order of confirmation as seen at Annexure-'F', dated 9.2.1993.  This order states that all the terms and conditions of their appointment in the company shall remain unaltered.  This would imply that the appointment of both the applicants in the company was only for 3 years as seen from Annexures-'D' and 'E'.  It would also imply that as per clause 13 of Annexure-'D', they would be eligible for leave, LTC, Provident Fund, Gratuity, medical benefits, etc.

4.         It is the claim of the applicants that although their original appointment with the respondents was a contract appointment and was to terminate on 19.1.1995, they were, in the meanwhile, given a letter dated 28.6.1994, to say that the contract period was extended upto 31.3.1996, as at Annexure-'G'.  Thereafter, the 2 applicants were promoted to the next higher post of Assistant Manager vide order dated 12.3.1996 (Annexures-'J' and 'J-I') in the scale of Rs.5400-9050/-.  Here, once again they were to be treated as on probation for an initial period of 12 months or till actual confirmation in writing.  Thereafter, once again another promotion was given to the post of Deputy Manager (Civil) in the scale of Rs.14500-18700/- by order dated 02.7.2001 at Annexures-'K' and 'K-1' and their seniority was to count from 1.7.2001.  By an exactly similar order, the competent authority had also promoted 9 officers to the cadre of Deputy Manager (including the 2 applicants) and several Junior Managers to the post of Assistant Managers and Junior Engineers to Assistant Engineers or junior officers or Private Secretaries, etc. (Annexure-'L').

5.         Thereafter, similar orders as the original terms were issued to extend the contract period from time to time and the last contract was to end on 31.12.2005.

7.         It is the case of the applicants that on 23.3.1996, that the Respondent PSU had issued appointment orders on superannuation terms in some cases. This meant that in the earlier contractual appointment which had a time limit of 3 years as sampled at Annexure-'E', clause 16 would stand modified to the following extent:
"....your services in the company shall stand terminated as and when you complete 58 years age, provided always that your services shall be liable for termination at any time before you attain 58 years of age, by giving 3 months notice, in writing of by paying 3 months basic pay in lieu thereof."

8.         Thus, the applicants pointed out 4 cases at Annexures-'S','S-1',    'S-2' and 'S-3' of 4 junior persons, who were no longer required to get their term renewed after every 3 years of contract, but could carry on till the age of 58, subject to termination by giving a 3 months notice.  Those 4 Assistant Managers were given Superannuation Terms  just 10 days after the present applicants had also received their promotions as Assistant Managers.  It is seen from Annexures-'T', 'T-1' and 'T'2' that similar service condition was also given to 3 other employees as back as in 1985-86.    Thus, it is obvious that such superannuation term was not givn to all employees, but, only to a few selected employees  and as a rare occassion.  Hence, we feel that applicants cannot claim any benefit..

9.         The 2 applicants also gave representation for considering their cases for conversion of their appointment on superannuation basis.  While the first applicant gave his representation on 13.4.2004, the 2nd applicant submitted his representation on 17.2.2005 as seen from Annexures-'B' when they were both already promoted to the post of Deputy Manager (Civil) on a time bound contract basis.

10.       Since, both the applicants did not receive any reply from the respondent PSU on their representations dated 13.4.2004 and 17.2.2005, they filed Writ Petition No.25273/2005 on 21.11.2005, seeking the remedy that the respondent employer should grant them the benefit of appointment on superannuation terms.  Further, they have also prayed for an interim order directing the respondent PSU not to terminate their services.

11.       We find that both the applicants who were appointed as Deputy Managers on probation on 2.7.2001, were confirmed for a 3 year period by order dated 6.7.2002 at seen at Annexure-'P'.  The name of the 1st applicant is seen at Sl. No.1, but, not the name of the 2nd applicant and the learned counsel has not thrown any light on it.

12.       While the matter was thus lying before the Hon'ble High Court, the Respondent PSU, having realised that the appointment of the applicants as Deputy Managers by order dated 6.7.2002 (Annexure-'D') was only for a period of 3 years as per the initial terms and conditions of appointment, issued orders dated 3.1.2006 (Annexure-'W') which reads thus:
            "Sub: Cancellation of allotment of Quarter No.487/                  FC/II of Kudremukh Township.

                        -  Notice for Vacation & Surrender of Co's

            We have been informed by the Personnel Department/KIOCL vide its Office Order No.239/2005 dated 30.12.2005 that "in pursuance of letter No.Pers/ 014/260/2033 dated 19.05.2005 the tenure of contract appointment of Shri M.R. Siddagangaiah, Staff No.4490, Dy. Manager (Civil), Maintenance Planning Department, KIOCL, Kudremukh stands automatically terminated with effect from 31.12.2005 (AN).

            Accordingly Shri M.R. Siddagangaiah stands released from the services of the Company with effect from 31.12.2005 (AN)."

            As per the provisions of the Estate Manual, the allotment of Quarter will also stands cancelled with effect from the day, such persons ceases to be on rolls of the Company.  Hence, the allotment of  Co's Quarter No.487/FC-type/Sector II made in your favour vide Allotment Order No.43/04 dated 08.12.2004 is stands CANCELLED and you are advised to vacate and surrender the above Quarters under occupation by you to Land & Estate Section/KIOCL, immediately, failing which you will be treated as an Unauthorised Occupant and apart from levying the Commercial rental & other charges at the prevailing tariff/rates, legal action will be also taken against you to take bak the above quarters, under the Public Premises (Eviction of Unauthorised Occupant) Act, 1971."

13.       The order itself implied that the applicants having stood released from the services of the company with effect from 31.12.2005, they were to vacate the company quarters allotted to them.  This order dated 3.1.2006 was once again taken up before the Hon'ble High Court by way of IA-1/2006 in which, it was prayed that the Respondents had refused employment from 1.1.2006, but, since the petitioners had been staying in the company quarters for 13 years and at the stage of the the notices for vacation by way of Annexure-'W' and 'W-1', they were concerned about their children who were studying and their School certificates, examinations, etc., they prayed for an interim stay of the order dated 3.1.2006 for vacation of the quarters.  To this, the Hon'ble High Court has ordered thus:
            "After hearing the learned counsel for the petitioners and the learned counsel for the respondents on IA-1/2006 for stay, the respondents are hereby directed not to implement the threatened action under letters dated 3.1.2006, addressed to the petitioners vide Annexure-W and W-1 to IA-1/2006, for a period of four months, pending for the orders in this petition.  IA-1/2006 is ordered accordingly."

It is therefore, obvious that the applicants had stood disengaged by the PSU w.e.f. 31.12.2005 and did not succeed in getting stay of termination but persuaded only the question of vacating company quarters.

14.       Thus, we see that the interim prayer made in Writ Petition has neither been pressed nor been granted by the High Court during the perion 2005-2010, when the matter was lying before the Hon'ble High Court.  The interim prayer was to direct the respondents not to terminate the services of the applicants.  This was not granted.  The main prayer is to grant an appointment to the applicants on superannuation basis.  As explained earlier, the appointment on superannuation basis would mean that there would be no break in service after every 3 years from time to time.  This prayer has already become infructuous as the Respondent PSU has not extended the contract period of the 2 applicants which has come to an end on 31.12.2005.  By the time, the writ petition was filed on 21.11.2005, the applicants knew that their contract was to end on 31.12.2005.  We therefore, see no merit in the OA.

15.       The tenor of IA-1/2006 also makes it clear that the applicants had accepted as fate accompli, the fact of the end of their contract on 31.12.2005 and that their prayer in Writ Petition along with I.R. For not ending the contract has become infructuous and hence IA 1/2006 has remained restricted only to the extent of retaining the quarters. 

15.       In view of the above, we also hold that the said interim order of stay has come to an end with this order and the applicants should vacate the quarters within the next 2 months failing which, the respondents shall be entitled to take necessary legal action including imposition of penalty rent. 

15.       With the above observations, the OA is dismissed.  No order as to costs.

                    (LEENA MEHENDALE)                          (Dr. K.B. SURESH)
                           MEMBER (A)                                             MEMBER (J)


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