Dr.Benjamin Ratna Singh v. The Commissioner

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 05.12.2017

CORAM

THE HON'BLE MR. JUSTICE R.SURESH KUMAR W.P.No.37935 of 2004 and W.P.M.P.No.45479 of 2004 Dr.Benjamin Ratnasingh

...Petitioner

Vs.

1. The Commissioner, Milk Production & Diary Development, Madhavaram, Chennai - 51.

2. The Managing Director, The Nilgiris District Co-operative, Milk Producers Union Ltd., Ooty, Nilgiris District - 643 001.

3. The General Manager, Madurai District Co-operative Milk, Producers Union Limited, Madurai - 625 020.

...Respondents

Prayer:- Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus to call for the records relating to the Impugned order passed by the first respondent in Appeal No.1090/M1/2004 dated 30.08.2004, quash the same and consequently direct the respondents to promote petitioner to the post of Deputy Manager (Milk Production/Calf rearing scheme) in the Tamil Nadu Co-operative Milk Producers Federation Ltd., with effect from 28.12.1995 For Petitioner : Mr.K.S.Kumar For Respondents For R1 : Ms.T.Girija Government Advocate For R2 : Mr.K.Venugopal

O R D E R

The prayer made in this writ petition is for a writ of certiorarified mandamus to call for the records relating to the impugned order passed by the first respondent in Appeal

No.1090/M1/2004 dated 30.08.2004, and quash the same and consequently direct the respondents to promote the petitioner to the post of Deputy Manager (Milk Production/Calf rearing scheme) in the Tamil Nadu Co-operative Milk Producers Federation Ltd., with effect from 28.12.1995.

2. The very short facts, which are required to be noticed for disposal of this writ petition, are as follows :- The petitioner is a Veterinary Doctor. He was initially appointed as Junior Manager (Veterinary) in the Nilgiris District Co-operative Milk Producers Union Limited, Ooty on 13.02.1985. Subsequently, he was elevated to the post of Assistant Manager (Procurement and Input ie., P&I). The petitioner had been working in the second respondent Union from 1985 onwards and the petitioner was promoted as Selection Grade Assistant Manager (P&I) by the second respondent during the year 1995.

3. While so on 16.08.1995, the Tamil Nadu Co-operative Milk Producers Federation Limited had sent a circular in No.177668/Pers.Estt.1/95 to all the District Co-operative Milk Producers Union Ltd., to get application/representation from the eligible candidates to be called for an interview and subsequent selection for the post of Deputy Manager MP/P & I/CRS among the internal candidates. The said circular was purely internal and not published in any newspapers.

4. It is further submitted by the petitioner that on 16.08.1995, the petitioner was working under the control of the second respondent and his further claim is that the said notification had never been communicated to the petitioner either by the first respondent or by the second or third respondents enabling the petitioner to make application to attend the interview for selection and promotion to the post of Deputy Manager.

5. According to the petitioner, the entire exercise for selection and appointment to the post of Deputy Manager was over within a period of 40 days and the petitioner could not make any application pursuant to the notification dated 16.08.1995. Subsequently, the petitioner came to know about the notification issued by the first respondent and pursuant to the same, most of the candidates had applied and some of them had been selected and promoted as Deputy Manager.

6. Since the chance of the petitioner to be selected and appointed as Deputy Manager was deprived, by the manner in which, the notification was not being circulated among the internal candidates, the petitioner by raising objections, had sent a representation to the respondents. The first such

representation of the petitioner was made on 08.01.1996. Subsequently, the petitioner keep on sending the representations on various dates ie., 03.02.1996, 12.04.1996, 06.08.1996, 17.10.1996 etc. Thereafter, the petitioner had also sent a legal notice on 17.02.1997. None of the said representations has yielded any desirable result from the respondents' side. Hence, the petitioner had filed a petition raising an Arbitration Dispute under Section 90(9)(a)(ii) of the Tamil Nadu CoOperative Societies Act 1983 (herein after referred to as the "Act") on 27.11.2001.

7. The said request for raising the arbitration dispute filed by the petitioner was returned by the first respondent on 06.02.2002, stating that the said request was not in a proper format, as prescribed under Section 90 of the Act and the same should be represented in the proper format. In response to the said returning of the request of the petitioner for raising the arbitration dispute, the petitioner had re-submitted the Arbitration Petition in proper format on 22.04.2002. However, the said Arbitration Petition had been rejected outrightly, by the first respondent on 26.07.2002, stating that as per Section 90(9)(a)(ii) of the Act, there is a limitation period of six years from the date on which the act or omission with respect to the dispute arose/took place.

8. In this regard, the rejection order dated 26.07.2002, further stated that, the cause of action of the dispute arose on 29.12.1995, whereas the petitioner had filed Arbitration Petition only on 22.04.2002, ie., after te limitation period of six years and hence the same is barred by limitation. Aggrieved over the same, the petitioner had filed an appeal before the Appellate Authority. The said appeal has been considered and decided by the Appellate Authority by impugned order dated 30.08.2004, wherein the first respondent/Appellate Authority, not only on the ground of delay, but also on merits, has decided the same as against the petitioner and rejected the appeal filed by him. Aggrieved over the same the present writ petition has been filed by the petitioner with the aforesaid prayer.

9. The main ground urged by the learned counsel appearing for the petitioner is that, the initial rejection order passed by the first respondent office, viz., the Deputy Commissioner for Milk Production & Diary Development, in exercise of the power conferred on the him, by the order dated 26.07.2002, rejected the Arbitration Petition filed by the petitioner only on the ground of delay in making such petition. In this regard, the learned counsel appearing for the petitioner would invite the attention of this Court that pursuant to the notification dated 16.08.1995, after selection the promotion proceedings were issued on 29.12.1995, and after coming to know

the said formalities, the petitioner had sent representation on 08.01.1996 and thereafter had sent several letters in different dates, till the legal notice, which was issued on 17.02.1997. Therefore, it cannot be said that the dispute was raised by the petitioner with the delay and the same was beyond the limitation period.

10. The learned counsel appearing for the petitioner would also submit that, the Arbitration Petition has been filed by the petitioner on 27.11.2001, which is admitted fact. However, the said petition had been returned by the first respondent on the ground that it should be filed in a proper format. Thereafter, the Arbitration Petition was filed/represented by the petitioner in a proper format on 22.04.2002. By taking the said date i.e, on 22.04.2002, the Deputy Commissioner had rejected the Arbitration Petition filed by the petitioner by quoting Section 90(9)(a)(ii) of the Act. In this regard, the learned counsel appearing for the petitioner would submit that if the date, on which the Arbitration petitioner was originally filed, i.e, 27.11.2001, is taken into account, the said petition is well within the limitation period. Therefore, the outright rejection made by the Deputy Commissioner by his order dated 26.07.2002 is purely a wrong exercise and it cannot be sustained on the ground on which it was decided.

11. The learned counsel appearing for the petitioner would further submit that, when the appeal was filed against the order of the Deputy Commissioner, dated 26.07.2002, the first respondent/Appellate Authority has decided the appeal on the ground of delay as well as on merits. As far as the delay is concerned, the very same view taken by the Deputy Commissioner, in the Arbitration Petition ought not to have been adopted by the Appellate Authority. The learned counsel appearing for the petitioner would further submit that, however on the side of merit, it was decided by the appellate authority, by quoting the averments raised on the side of the second and third respondents, that, the notification dated 16.08.1995, had been widely circulated among the internal candidates and their respective offices.

In order to give knowledge to the eligible candidates, the said notification has been sent to at least four candidates including the petitioner, who were working far away from the local head quarters. The appeal has been decided on its own merits and hence the present petition has been filed by the petitioner.

12. In this regard, the learned counsel appearing for the petitioner would submit that, the petitioner had been working in the very remote village at Nilgiris District, during the relevant point of time, and according to which he visited the head quarters once in a fortnight. Therefore, the learned counsel appearing for the petitioner would submit that the

petitioner had no occasion to visit the headquarters and he was not aware of the said notification and to file application for the said post in time. More over, no communication has been received by the petitioner either by post or by any other mode of communication and the petitioner had not served the alleged document said to have been filed by the second respondent before the Appellate Authority, for the proof of service of the said notification. Such being the position, the findings given by the Appellate Authority in the order impugned are incorrect and the same are liable to be set aside.

13. I have heard Mrs.T.Girija, learned Government Advocate appearing for the first respondent and Mr.K.Venugopal, learned counsel appearing for the respondents 2 & 3. Relying upon the findings given by the first respondent/Appellate Authority, the learned counsel appearing for the respondents submitted that, the delay shall be calculated only from the date on which the application was originally filed by the petitioner in the prescribed format, which is specifically given under Section 90 of the Act. Accordingly, the date of filing Arbitration Petition was only on 22.04.2002 and not on 27.11.2001, as such the Arbitration Petition is certainly barred by limitation.

14. Insofar as the issuance of communication relating to the notification dated 16.08.1995, the learned counsel appearing for the respondents would submit that, apart from the notification having been shown in the notice board, enabling the eligible candidates to respond, at least for 4 candidates, the same has been sent specifically by post, out of which, some candidates who were working in the similar locality under the same headquarters, have responded. Therefore, the allegation raised by the petitioner with regard to non-communication of the notification dated 16.08.1995, has been denied with documents before the first respondent, who in turn, has rightly rejected the claim of the petitioner and it requires no interference of this Court.

15. I have considered the rival submissions made by both sides and perused the materials placed before this Court for consideration.

16. Insofar as the first ground relating to six years limitation period, as has been provided under Section 90(9)(a) (ii) of the Act, the words used in the same are "the period of limitation shall be six years from the date on which, the act or omission with regard to the dispute arose or took place." The words "dispute arose" and "took place", shall be clarified that from which date onwards the limitation period shall be calculated. In the case at hand, it is the definite case of the petitioner that, after selection process, promotion proceedings

was issued on 29.12.1995. On coming to the knowledge of the same, the petitioner made a representation on 08.01.1996 within the prescribed period. Though the said representation had been made, as claimed by the petitioner in the year 1996 , which was followed by further representations in the year 1997 including legal notice on 17.02.1997, no response seems to have been received by the petitioner from the respondents side and there is no proper explanation forth coming on those representations give by the petitioner.

17. Be that as it may. On 27.11.2001, admittedly, the petitioner had filed a petition raising arbitration dispute, which was returned by the first respondent on the ground that the petition was not filed in a proper format and the same was re-submitted by the petitioner on 22.04.2002. The rejection order was passed by the Deputy Commissioner on behalf of the first respondent only on the ground of limitation under Section 90(9)(a)(ii) of the Act.

18. Considering the facts and circumstances of the case, the reasoning given by the first respondent for rejecting the plea of the petitioner, in the opinion of this Court, is totally unjustifiable and on the ground of delay the petition should not have been rejected by the original authority. When the appeal was filed by the petitioner before the first respondent/appellate authority, the said authority had given findings with regard to the delay aspect as against the petitioner and in favour of the respondents 2 & 3. The said reasoning given by the Appellate Authority, in the opinion of this Court, cannot be sustained for the simple reason that, the date of the petition filed by the petitioner is admittedly on 27.11.2001 and the dispute arose on 29.12.1995, when the promotion proceedings was issued. As such the petitioner is certainly well within the period of six years and is covered under the provisions of Section 90(9)(a)(ii) of the Act and therefore, the first issue raised by the petitioner can only be decided in favour of the petitioner and against the respondents.

19. Next issue to be considered herein is that, the first respondent/appellate authority has also considered the appeal filed by the petitioner and decided the same on merits. In this regard, the first respondent/appellate authority has given the findings as extracted hereunder :- "It is seen from the records that the General Manager, Madurai District Cooperative Milk Producers' Union viz. the 2nd respondent union had communicated the said Federation circular dated 16.08.1995 along with his endorsement No.4775/95/Pers.1 dated 21.08.1995 to all the Assistant Managers (Veterinary), Assistant Managers (Dairying)

etc. The 2nd respondent had also requested the candidates to submit the application to the 2nd respondent's Office on or before 25.8.1995, to enable him in forward them to the Federation. The said Federation circular dated 16.08.1995 with the endorsement of 2nd respondent was communicated to 22 persons working under his control by post, personal messenger, etc. Out of 22, for the following persons the said communication was sent on 22.08.1995 by certificate of posting, since they were working for away from the 2nd respondent's office, vide page 57 of 2nd respondent Union Despatch Register for the period from 08.08.1995 to 22.11.1995.

1. Thiru. P.S.Sundara Mahalingam, Assistant Manager (Dairying), Tirumangalam, Madurai District.

2. Dr.P.Balaboopathy, Team Leader, Usilampatti, Madurai District.

3. Thiru. S.Benjamin Ratnasingh, Assistant Manager (Veterinary), Andipatty, Madurai District.

4. Thiru.K.V.Jeyarama Reddy, Assistant Manager (Veterinary), Andipatty, Madurai District.

The 2nd respondent had received 17 representations, including the representation of Thiru. P.S.Sundaramahalaingam, to whom the Federation communication was sent by the 2nd respondent by Certificate of Posting on 22.8.1995.

The 2nd respondent had forwarded the representation of 17 Assistant Managers including the representation of Thiru.

P.S.Sundara Mahalingam, Assistant Manager (Dairying) to who the reference was communicated by the Certificate of Posting.

It is evident from the above that the postal authorities had delivered the communication to the persons concerned. Hence it is considered that the 2nd respondent viz., the General Manager, Madurai District Cooperative Milk Producers' Union had communicated the Federation circular dated 16.8.1995 to the appellate in time and that the appellant had failed to send his representation to the 2nd respondent for onwards transmission tot he Federation for further action. Had the

appellant submitted his application to the 2nd respondent, it would have been forwarded to the Federation and the appellant's name would have been included in the list of eligible candidates.

It is therefore considered that the appellant's contention that his name was not included in the list of eligible candidates either by his parent employer (viz) the 1st respondent or by the foreign employer (viz., the 2nd respondent) is not in order."

20. On a perusal of the above reasons, it could be seen that, in the Union Despatch Register for the period from 08.08.1995 to 22.11.1995, at page No.57, the letter carrying the notification dated 16.08.1995, had been sent to the four Officials including the petitioner. Interestingly, all the four Officials including the petitioner, had been working in a particular locality coming under the jurisdiction of the second respondent. If the claim of the petitioner that he had been working in the remote village and he had to return to the headquarters only once in the fortnight and therefore he had not come across to see the notification dated 16.08.

1995, is accepted, the same defence is available to every one and at least, some out of the four officials, who had been served with this notification by way of certificate of posting had responded to the notification and participated in the selection processes. Therefore, it cannot be presumed that the petitioner alone was not received the said notification, who had been working in the remote area. More over, 142 candidates were available at the time of selection to the post of Deputy Manager. Pursuant to the notification dated 16.08.1995, at least 125 candidates had applied or responded. If the argument advanced by the learned counsel appearing for the petitioner that the notification dated 16.08.

1995 had not been widely circulated to all the candidates, enabling them to respond, is accepted, then 125 persons out of 142 had been in response to the notification, could not be considered as true. However, the fact remains that 125 candidates have applied and they were participated in the selection process. When that being the position, the argument advanced by the learned counsel appearing for the petitioner cannot be accepted.

21. The further argument advanced by the learned counsel appearing for the petitioner is that, the petitioner was not given a chance of personal hearing and the documents, said to have been in support of their case, which were taken into account by the first Appellate authority, was not served on the petitioner is concerned, the only question that arises for consideration is whether the notification had been served or

not. It is the definite case of the respondents that four such officials had been served with the communication and on receipt of such communication, one had responded and proof of service was available in the second's respondent despatch register at page number 57. Taking note of these facts, the first respondent has decided the appeal against the petitioner.

22. Here the case in hand, the materials produced by the respondents side have been taken note of by the first respondent/appellate authority and therefore, the findings given with regard to the merits of the case by the Appellate Authority in the order impugned has to be accepted. Though the first issue with regard to delay is answered in favour of the petitioner, on merits, the rejection of the petitioner case by the first appellate Authority requires no interference of this Court.

23. Therefore this Court feels that the writ petition fails, accordingly, the same is dismissed. Consequently, connected miscellaneous petition is closed. No costs. -s/d- Assistant Registrar(CS-IV) True Copy Sub-Assistant Registrar rts To

1. The Commissioner, Milk Production & Diary Development, Madhavaram, Chennai - 51.

2. The Managing Director, The Nilgiris District Co-operative, Milk Producers Union Ltd., Ooty, Nilgiris District - 643 001.

3. The General Manager, Madurai District Co-operative Milk, Producers Union Limited, Madurai - 625 020.

4. The Public Prosecutor, High Court, Madras.

+1 CC to Mr.G. Muniratnam, Advocate sr 86174. +1 CC to Mr.K.S. Kumar, Advocate sr 86204.

+1 cC to Mr.P. Narayanamoorthy, Advocate sr 86781. +1 CC to Govt. Pleader sr 86810.

W.P.No.37935 of 2004 and W.P.M.P.No.45479 of 2004 NRK(CO) SP(22/02/2018)