Wednesday, November 7, 2012

TA No.550/2011 on ????-2012



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

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


Sri L.S. Ravindranath Patel,
S/o Late Sri L.P. Subba Rao,
Aged about 44 years,
W/a Senior Store Keeper,
Central Stores Department,
Kudremukh Iron Ore Company Limited,
Panambur, Mangalore-575 010.               ...                                 Applicant

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

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

2. Kudremukh Iron Ore Company Limited,
   rep. By its Chairman & Managing Director,
   II Block, Koramangala,
   Bangalore – 560 034.

3. The General Manager (P & A),
   Kudremukh Iron Ore Company Limited,
   II Block, Koramangala,
   Bangalore – 560 034.                               ...                                 Respondents

(By Advocate Smt. Subha Ananthi)


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

            This Writ Petition was filed in the High Court of Karnataka on 30.08.2006 under WP No.12068/2006.  Since KIOCL (Kudremukh Iron Ore Company Limited), which is a PSU, was brought under the purview of CAT, the Writ Petition was tansferred to this Tribunal on 03.03.2011, and is taken up under Section 19 of the Administrative Tribunals, Act, 1985.  Applicant's prayer is for promotion to the post of  SO (Section Officer Stores) in terms of clause 6.3 of the Promotion Policy dated 18.7.1996, with effect from the date on which he became entitled for such promotion.  (No date mentioned in the application).

2.         It is seen at the outset that the Respondent PSU had floated a Scheme for Voluntary Retirement in July, 2006, to which the applicant must have opted and his request for voluntary retirement along with some more employees was apparently accepted by order dated 22.08.2006 and the actual voluntary retirement was to be effective from 31.08.2006.  Thus, the Writ Petition has been filed one day before he stood voluntarily retired on his own choice.  But, this fact has not been disclosed in the Writ Petition.  Even if on the date of filing the WP the applicant had actually not retired voluntarily, he was fully aware of his option for voluntary retirement and its implementation w.e.f. 31.08.2006, and it was his bounden duty to disclose this fact before the Hon'ble High Court of Karnataka.  It is seen from the list of Annexures which are numbered upto Annexures-'K' series, that he has neither mentioned any documents about the scheme floated by the respondents, nor disclosed his request for voluntary retirement nor mentioned the order passed by the respondents on 22.8.2006.  This order of the respondents at Annexure-R/1, begins as under:

No.PERS/16/11                                                  Date : 22.08.2006

OFFICE ORDER No.125/2006

            The requests of the following employees seeking Voluntary Retirement under the Voluntary Retirement Scheme circulated vide G.O. No.S/BC/7(19)/2006, dated 10.07.2006 have been accepted by the Competent Authority and they will be released from the services of the Company with effect from 31.08.2006 (AN)."

making it clear that the request was from applicant.

3.         The applicant primarily agitates that his case shoud be considered for promotion to the post of Section Officer (Stores) in terms of clause 6.3 of the Promotion Policy dated 18.07.1996 which is marked as Annexure-'C', with effect from the date on which he became entitled for such promotion.  He also prays for consequential benefits or some alternative remedy.

4.         The applicant joined the Respondnts KIOCL with effect from 16.04.1979, initially as Store man and received his promotions from time to time such as Assistant Store Keeper in 1982,  then Assistant Store Keeper Gr.I., in 1985,  then  redesignated as Store Keeper IN 1990, then given higher scale of pay Rs.2585 to 4132/- as personal to him by orde dated 1.7.1996, (for which notional seniority was given with effect from 01.01.1996) - Annexure-'A'.

5.         Finally, he was given yet another promotion on 02.11.1999 (Annexure-'B'), for the post of Senior Store Keeper in the scale of Rs.4950-8640/-.  

6.         However, all these orders always indicated that he would be on probation for a period of 12 months which may be curtailed or extended at the discretion of the management and that he would continue to be on probation till he is confirmed in writing and that all otehr terms and conditions of his initial appointment would remain in tact.  The particular para of the order at Annexure-'A' reads as under:
"You will be on probation for a period of 12 months which may be curtailed or extended at the absolute discretion of the management.  In case your performance is found to be not satisfactory during the robationary period, you will be reverted to the original scale.  Please send a joining report in the prescribed format to the undersigned with a copy to Accounts Department.

            All other terms and conditions of your appointment in the company shall remain unaltered."

These original terms would imply that he would continue to be on probation till he is confirmed in writing.  They would also imply that every order of appointment was only for 3 years from the date of confirmation.

7.         The grievance of the applicant is the non consideration of his case for promotion to the post of Section Officer (Stores) in the scale of Rs.7800-13680/- after completing 5 years in the Grade of Senior Store Keeper.  Such a promotion was extended to some other employees,  but, not to him.  He, therefore, made consecutive representations as seen at Annexure-'H', dated 3.6.2006, Annexure-'J', dated 1.7.2006 and Annexure-'K', dated 14.7.2006. Therein, he also referred to clause 6.4 of the Promotion Policy which states that an employees who has put in at least 9 years of service in one grade and has not been promoted to the next higher grade either due to non-availability of the vacancy or lack of technical qualification or for any other reason would be considered for placement in the second next available grade on the date of the completion of qualifying service of 9 years. The applicant points out to the case of one Vishwanath, who was working as Store keeper and was given promotion under clause 6.4. straightaway to the post of Section Officer in the scale of Rs.6400-10000/- (pre-revised).  These representations were not answered favourably.

8.         The applicant claims that the question of his promotion is governed by a policy framed by the said PSU as seen at Annexure'C' and more particularly clauses 6.2, 6.3 and 6.4.  Clause 6.3 specifies the qualifying service for promotion from one post to the next higher post in the ministerial  cadre which covers the promotion of Senior Store Keeper to Section Officer and the qualifying service is 5 years.  The applicant claims that this promotion is time bound and hence, having completed 5 years as Senior Store Keeper, he was automatically entitled to a promotion as Section Officer, but, was not given so even after 7 years because of the reason that the Respondent PSU took a decision to stop all promotions from 2003 for all the non-executive categories.  Hence, a Writ Petition was filed by the KSSS (Kudremukh Shram Shakti Sangathan), which was a recognised Union under WP No.44699/2004 and 44787/2004.  The petitions were allowed by an order dated 10.03.2005 and various directions were given to the PSU as at Annexure-'D'.  One such direction was as under:
"12(c) the 1st respondent management is directed to grant promotions due to the non-executives in terms of Promotion Rules contained in Annexure – F with effect from 2003 as expeditiously as possible, but not later than the end of April, 2005."

This direction was further supported by another direction given by the High Court in Writ Appeal No.2524/2005 to finalise the Promotion Policy and implement the same at the earliest.  Pursuant to this, the Respondent PSU entered into a settlement with the Union on 06.01.2006 and effected some promotions of the technical as well as managerial staff as at Annexure-'G'.

9.         Throughout these details, we find that the applicant has not disclosed 2 aspects – one about the Scheme of Voluntary Retirement floated in July, 2006 and his option.  Second is the existence of a Scheme which can be called superannuation term according to which appointment of some employees was modified "upto superannuation" and did not have to be re-extended after every 3 years.  He did not belong to the said superannuation term, hence his contract would automatically end at 3 years, if not extended. 

10.       The respondents point out that the applicant having opted for voluntary retirement under the Scheme that was circulted on 12.7.2006 and his option for voluntary retirement having been accepted on 22.8.2006, with effect from 31.08.2006, the OA is infructuous.  However, on the factual side, respondents state that the Store Keepers were brought under the managerial category in 1990 at which time, he had not completed his graduation which was the minimum qualification rquired for promotion to higher grade in the Stores Department.  Hence, the wording "the pay scale is personal to you" as in para .   supra is important.  In 1996, he acquired the graduate qualification and therefore, was promoted to the substantive post of Senior Store keeper with effect from 2.11.1999 as mentioned at Annexure-'B' of the OA.  That being so, his promotion as Section Officer, if at all, would fall due only in 2004.  As per the supplementary memorandum of settlement between KIOCI and the KSSS, dated 14.08.2003 (Annexure-R/4), promotion of eligible batches prior to 14.8.2003, were completed based on non-executive Promotion Policy prevailing then.  However, since, the correction to the pay scales on par with NMDC was introduced and so also two new pay scales were introduced as a part of settlement between the KIOCL and the KSSS, the modalities of implementation regarding these scales, designations and qualifying service was to be discussed and finalised as part of the ProMotion policy as early as possible under Clause 6.3 of the said settlement.  The modalities have been finalized only during January 2006 through a tripartite setletment dated 06.01.2006.  As such, no promotion to the employees from October, 2003 to October, 2005 batch was granted.  These promotions were finalised only in February, 2006.

11.       Thus, it is noted that if the applicant was agitating about his promotion, then the cause of action arose in 2006 itself and there is nothing on record to show that he made any effort in that direction between February, 2006 till August, 2006.  Thereafter, had he not taken voluntary retirement and approched a judicial forum on 30.8.2006, as he has actually done, his application would have to be as per due process of law, his application being in time.  However, given the fact that some time in July, 2006, the scheme for voluntary retirement was floated and that he opted for it (he has not denied this) and that his name was included in the list of persons to be retired, issued on 22.08.2006, which itself would have become effective from 31.8.2006, his petition to the High Court dated 30.8.2006 which now comes before us as TA No.550/2011 has no merit. 

11.       The OA is therefore, dismissed with a token cost of Rs.500/- on the applicant, for non disclosure of the fact of his retirement.  The cost should paid to the Legal Aid Cell of the High Court of Karnataka and compliance of the same should be reported to the Registry within a month.

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


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