Abi Cheriyan and James Babu v State of Kerala & Kerala State Beverages (M&M) Corporation Ltd & Managing Director, Kerala State Beverages (M&M) Corporation Ltd

``` WA NO. 1613 OF 2024 1 2025:KER:30742 ``` **==> picture [57 x 58] intentionally omitted <==** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S. ``` ``` THURSDAY, THE 10[TH] DAY OF APRIL 2025 / 20TH CHAITHRA, 1947 ``` ``` WA NO. 1613OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 25.06.2024 IN WP(C) NO.29983 OF 2019 OF HIGH COURT OF KERALA ``` ## **`APPELLANTS/PETITIONERS:`** - **`1 ABI CHERIYAN AGED 50 YEARS S/O. CHERIYAN, ASSISTANT, KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LTD., RESIDING AT MUTHUKADAN HOUSE, PUKKATTUPADY, EDATHALA P.O., ERNAKULAM, PIN - 683561`** ``` 2 JAMES BABU AGED 50 YEARS S/O. D. PETER, ASSISTANT, KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LTD., RESIDING AT JUDE DALE, AMBILI JUNCTION, NEENDAKARA, KOLLAM, PIN - 691582 ``` ``` BY ADVS. C.UNNIKRISHNAN (KOLLAM) VIJAYKRISHNAN S. MENON SRUTHI SINDHU M.R.RADHAKRISHNAN ARJUN HARIKUMAR VIVEK NAIR P. ``` ``` WA NO. 1613 OF 2024 2 2025:KER:30742 ``` **==> picture [57 x 58] intentionally omitted <==** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY, FINANCE (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN - 695001`** - **`2 KERALA STATE BEVERAGES (M AND M) CORPORATION LTD REPRESENTED BY ITS MANAGING DIRECTOR, BEVCO TOWER, VIKAS BHAVAN PO, PALAYAM, THIRUVARIANTHAPURAM, PIN - 695033`** - **`3 THE MANAGING DIRECTOR KERALA STATE BEVERAGES (M AND M) CORPORATION LTD. BEVCO TOWER, VIKAS BHAVAN PO, PALAYAM, THIRUVANANTHAPURAM, PIN - 695033`** ``` SMT.NISHA BOSE, SR G.P SRI.NAVEEN T, STANDING COUNSEL, BEVERAGES CORPORATION ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2025, ``` ``` THE COURT ON 10.04.2025 PASSED THE FOLLOWING: ``` ``` WA NO. 1613 OF 2024 3 2025:KER:30742 ``` **==> picture [57 x 58] intentionally omitted <==** ## **JUDGMENT** ## Muralee Krishna, J. This writ appeal is filed under Section 5(i) of the Kerala High Court Act, 1958, by the petitioners in W.P.(C) No.29983 of 2019. The said writ petition was one filed under Article 226 of the Constitution of India by the appellants who are the employees in the 2[nd] respondent Kerala State Beverages (M & M) Corporation Ltd (‘Corporation’ in short), being aggrieved by the non-payment of their salary for the period from 30.12.2013 to 10.02.2015, during which they were kept out of service. 2. The appellants were appointed as L.D Clerks in the 2[nd] respondent Corporation under the physically handicapped (deaf) quota pursuant to the advice letters dated 01.01.2013. The appointment was through a common order dated 07.03.2013 and the appellants joined duty on 14.03.2013. The appellants were terminated by the order dated 30.12.2013 as the Kerala Public Service Commission (‘PSC’ in short) decided to cancel the advice given to them. The termination was challenged by the appellants before this Court by filing W.P.(C)No.661 of 2014 and 3584 of 2014 ``` WA NO. 1613 OF 2024 4 2025:KER:30742 ``` **==> picture [57 x 58] intentionally omitted <==** and vide; Ext.P1 judgment dated 21.11.2014 this Court held the termination as illegal and directed to reinstate the appellants. Though the PSC filed W.A. No.403 of 2015 and 550 of 2015, the same were dismissed vide; judgment dated 06.01.2016. Meanwhile, the appellants were reinstated in service on 11.02.2015. After rejoining duty on 11.02.2015, the 2[nd] appellant submitted Ext.P2 representation dated 21.02.2015 claiming salary and other benefits. The 1[st] appellant also submitted a similar representation. As per Ext.P3 proceedings dated 10.11.2017, PSC informed the 2[nd] respondent that the seniority of the appellants needs to be restored from their original advice dated 01.01.2013. Since the appellants were not given pay revision benefits or salary for the period of termination and most of their juniors were promoted as U.D Clerks, they filed W.P.(C)No.33836 of 2018 before this Court. As per Ext.P6 judgment dated 16.11.2018, this Court directed the 2[nd ] respondent Corporation to grant all admissible benefits including promotion, to the appellants. Thereafter as per the order dated 05.02.2019 of the 2[nd] respondent, the appellants were given seniority, promotion and ``` WA NO. 1613 OF 2024 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 5 2025:KER:30742 ``` the benefits of pay fixation and pay revision. However, the salary for the period during which they were kept out of service was not sanctioned. Such denial was based on Ext.P10 clarification dated 30.04.2019 issued by the 1[st ] respondent to the 3[rd] respondent stating that there is no provision in the Service Rules enabling such payment. Subsequently, the appellants filed the present writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P10 clarification; to declare that the appellants are legally entitled to get their salary and all other benefits for the period they were kept out of service, ie, from 30.12.2013 to 10.02.2015 along with the interest at the rate of 12% per annum by treating the said period as duty; a writ of mandamus commanding respondents 1 and 2 to disburse salary and all other benefits due to the appellants for the period they were kept out of service; and also a writ of mandamus commanding respondents 1 and 2 to grant pay revision arrears, promotion arrears, arrears of ex-gratia, arrears of annual leave surrender and holiday wages for the aforesaid period. 2.1. After hearing both sides and on appreciation of ``` WA NO. 1613 OF 2024 6 2025:KER:30742 ``` **==> picture [57 x 58] intentionally omitted <==** materials on record, the learned Single Judge dismissed the writ petition for the reason that the termination of the appellants by the 2[nd] respondent was consequent on cancellation of advice by the PSC and therefore it cannot be said that there was any illegal termination of service by the 2[nd] respondent. In such circumstances, the learned Single Judge found that the 2[nd] respondent cannot be held liable for such action and be mulcted with the liability to pay salary for the period during which the appellants were not in service. The learned Single Judge further noted that the PSC is not a party to the writ petition. However, the writ petition was dismissed without prejudice to the right of the appellants. 3. Heard the learned counsel for the appellants, the learned Standing Counsel for the respondents 2 and 3 and the learned Senior Government Pleader. 4. The learned counsel for the appellants submitted that the appellants were kept out of service during the period from 30.12.2013 to 10.02.2015, not due to their fault. In fact, they were inducted in service after following all the procedures of ``` WA NO. 1613 OF 2024 7 2025:KER:30742 ``` **==> picture [57 x 58] intentionally omitted <==** selection and their appointment was a regular appointment. By relying on the judgment of the Apex Court in **Commissioner, Karnataka Housing Board v. C.Muddaiah [(2007) 7 SCC** **689]** the learned counsel argued that if the employee is kept out of service for not of his fault, the principle ‘no work no pay’ is not applicable and in appropriate cases and court of law must take into account the facts in their entirety and pass an appropriate order in consonance with law. By relying on the judgment of the Apex Court in **J.N Srivastava v. Union of India [(1998) 9 SCC** **559]** the learned counsel argued that the appellants were ready and willing to work and respondents did not allow them to work during the interregnum and hence they cannot be denied salary and other benefits during that period. 5. On the other hand, the learned Standing Counsel for the Corporation as well as the learned Senior Government Pleader argued that the appellants were kept out of service during the period from 30.12.2013 to 10.02.2015, not due to the fault of the employer Corporation but as advised by the PSC. There is no provision to grant the pay and allowances during that period and ``` WA NO. 1613 OF 2024 8 2025:KER:30742 ``` **==> picture [57 x 58] intentionally omitted <==** hence the appellants were granted all other service benefits including seniority, except pay during that period. This was clarified by the Government in Ext.P10. In the writ petition, the PSC was not made a party by the appellants. Therefore, no interference is needed to the impugned judgment. 6. The appointment of the appellants in the 2[nd] respondent Corporation was as per the advice of the PSC. Subsequently, PSC cancelled the advice resulting the termination of service of the appellants with effect from 30.12.2013. It is due to the interference of this Court in W.P.(C)No.661 of 2014, the appellants were reinstated in service on 11.02.2015. It is patently clear that the termination of service of the appellants during the interregnum was not due to the fault of the 2[nd] respondent Corporation, but as advised by the PSC. In the judgments of the Apex Court in **C.Muddaiah [(2007) 7 SCC 689]** and **J.N Srivastava [(1998)** **9 SCC 559]** the service of the employees were terminated by the employer themselves. But the facts of the instant case are different. Therefore, the judgments in **C.Muddaiah [(2007) 7 SCC 689]** and **J.N Srivastava [(1998) 9 SCC 559]** are not ``` WA NO. 1613 OF 2024 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 9 2025:KER:30742 ``` applicable to the instant case. Since the termination of service of the appellants was not on the basis of a decision taken by the employer, 2[nd] respondent herein, the employer cannot be fastened with the liability to pay salary to the appellants for that period, as rightly found by the learned Single Judge. Moreover, to decide the issue of illegality, if any, on the advice, PSC was not made a party in the writ petition. In such circumstances the learned Single Judge cannot be found fault in dismissing the writ petition. Having considered the pleadings and materials on record, and the submissions made at the Bar, we find no ground to interfere with the impugned judgment of the learned Single Judge. In the result, the writ appeal stands dismissed. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** **Sd/MURALEE KRISHNA S., JUDGE** sks