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Chairman, CochIn Port Trust Vs. M.N. Sukumaran Nair and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1979)ILLJ242Ker
AppellantChairman, CochIn Port Trust
RespondentM.N. Sukumaran Nair and ors.
Cases Referred and Ranjit Singh v. President of India and Ors.
Excerpt:
.....in that form again, is well-supported by authority. assuming the chairman's authority and jurisdiction to deal with the matter and to resolve the conflict or the division of opinion as between the members of the grievance committee, we should expect him to act on his own judgment and give a decision finally and clearly one way or the other......already referred to. these make it impossible to hold that what happened was only the correction of a mistake. on these grounds we should think that the order passed by the learned judge quashing exts. p2 and p4 must be sustained.6. however, the fact remains that the 3rd respondent had filed a grievance petition which has not been given a proper disposal. he is entitled to a disposal of it in accordance with law, and we direct that this be done.7. we modify the judgment to the above extent, and dismiss the appeals, otherwise, but make no order as to costs.
Judgment:

V.P. Gopalan Nambiyar, C.J.

1. These two writ appeals are against the judgment of a learned Judge allowing O.P. No. 490 of 1977 and quashing Exts. P2 and P4 orders. The learned Judge, after a long and elaborate discussion, found that these orders offended the principles of natural justice in not giving notice or affording the writ petitioner an opportunity for explanation. Respondents 1 and 2 in the writ petition, viz., the Chairman of the Cochin Port Trust and the Chief Engineer of the Port Trust. have filed W.A. No. 30 of 1978; and the 3rd respondent in the writ petition--the rival candidate, if we may so call him--has filed W.A. No. 48 of 1978.

2. The writ petitioner was a Junior Marine Surveyor, The next promotion was as Sounding Foreman. He was promoted to this post on 20-7-1973 and regularised in the said post on 27-8-1973. The qualification need for the said post, as seen from Ext. R1 filed by the 3rd respondent, is the possession of a Diploma in Civil Engineering, or a Group Certificate in Survey with 1st Class (Higher). On 13-11-73, the 3rd respondent seems to have filed a petition to the Chief Engineer under the Grievance Procedure--as it is called--that the writ petitioner was not qualified to be promoted. A reminder was sent on 4-12-1973 to the Chairman of the Trust. This resulted in Ext. P2 dated 2-11-1976 by which the petitioner's promotion was treated as on an ad hoc basis. The question of examining whether the writ petitioner was possessed of the requisite qualification or not, was then referred to the Grievance Committee. The Committee was evenly divided on the question, and the matter was referred to the Chairman, who, directed that the Departmental Promotion Committee should go into the matter afresh. Exhibit R1 filed with the counter-affidavit of the 1st and the 2nd respondents, is a copy of the Chairman's order on the grievance petition, where he holds that the writ petitioner is clearly not qualified for the post, as he does not have 'group certificate' in surveying and levelling with 1st Class. He then directed reconsideration by the Departmental Promotion Committee de novo. Exhibit R2 to the same counter-affidavit is the proceedings of the Departmental Promotion Committee in pursuance of the Chairman's direction contained in Ext. R1. They decided to get clarification regarding the equivalence or otherwise of the qualifications from the Director of Technical Education. The Director of Technical Education replied by Ext. R3 as follows:

With reference to the above, I am to inform you that the qualification held by the individual in question, namely, Group Certificate in surveying and levelling is not equivalent to any of the qualifications prescribed for the post. But if his marks indicate that he has secured First Class for Survey and Levelling (Higher) K.G.T.E. he may be considered qualified.

(If equivalence cannot be posted, it is difficult to understand how a First Class can make any difference, but we need not express ourselves). It was after referring to this reply also, that the Departmental Promotion Committee gave its de novo decision that the writ petitioner was not qualified for the post. It was in such circumstances that the petitioner moved the writ petition to quash Exts. P2 and P4.

3. The learned Judge has very elaborately discussed the aspects dealing with the principles of natural justice, and stressing the need of requirement of affording opportunity for explanation and giving notice to the writ petitioner before an order of promotion is set aside or a person is reverted. We do not consider it necessary to run the entire gamut of these decisions, as we are satisfied that on the facts presented, the conclusion of the learned Judge should be sustained. That the writ petitioner cannot be demoted without affording him notice or opportunity for explanation, was not disputed, and indeed we should think, cannot be disputed. It was argued that in the instant case the reversion was ordered in exercise of the inherent right of correcting a mistake that had occurred in directing promotion, and that in such a case there can be no question of notice or of affording opportunity for explanation. The proposition stated in that form again, is well-supported by authority. It is enough to cite the dscision of the Supreme Court in The State of Punjab v. Jagdip Singh : (1966)ILLJ749SC and S.K. Bhate and Ors. v. Union of India and Ors. A.I.R. 1976 S.C. 353 and Ranjit Singh v. President of India and Ors. (1971) 2 Service Law Reports 561.

4. The question then is: Was the order in question an order which corrected or rectified an error. We should think, not. The fact is undisputed that the writ petitioner squatted on the superior post for over three years. The attack on his promotion came from a grievance petition filed by the 3rd respondent (the appellant in W.A. No. 46 of 1978). In such circumstances, it appears to us that it was not only fair and proper but very necessary, that the writ petitioner should have been given notice of the grievance petition and afforded an opportunity for explanation in regard to the matters contained in the said petition. We cannot agree with the Port Trust or the Chief Engineer that what happened was the correction of a mistake or rectification of an error. As will be seen the error, if any, seems to have required microscopic or expert examination.

5. There is again considerable difficulty in accepting and passing the action of the Port Trust and the Chairman in dealing with the grievance petition submitted by the 3rd respondent. We were shown a set of what we might describe as 'Rules' prescribing the modus operandi for dealing with and disposing of the grievance petition. We find that the petition is to be dealt with by the Departmental Head, the Labour Officer and two representatives of the workmen. There is no provision for any resolution of a conflict or division of opinion as between the members of the grievance committee. But we notice that in the instant case the matter was referred to the Chairman as the Grievance Committee was evenly divided. How the Chairman came into the picture has not been satisfactorily explained. Assuming the Chairman's authority and jurisdiction to deal with the matter and to resolve the conflict or the division of opinion as between the members of the grievance committee, we should expect him to act on his own judgment and give a decision finally and clearly one way or the other. Instead of that, he seems to have put the ball back in the Court of the Departmental Promotion Committee, asking it to go into the question de novo. This, we think was unjustified and improper, and amounted to an abdication of the powers, if any, of the Chairman. And the Committee itself, found it necessary to make a reference to the Director of Technical Education, whose opinion we have already referred to. These make it impossible to hold that what happened was only the correction of a mistake. On these grounds we should think that the order passed by the learned Judge quashing Exts. P2 and P4 must be sustained.

6. However, the fact remains that the 3rd respondent had filed a grievance petition which has not been given a proper disposal. He is entitled to a disposal of it in accordance with law, and we direct that this be done.

7. We modify the judgment to the above extent, and dismiss the appeals, otherwise, but make no order as to costs.


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