N. Radhakrishnan and N. Ramakrishnan v. Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 17TH DAY OF DECEMBER 2014/26TH AGRAHAYANA, 1936 WP(C).No. 33374 of 2014 (V) ---------------------------- PETITIONERS: ---------------- 1. N.RADHAKRISHAN, ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, NEAR VYDYUTHI BHAVAN, KANNUR 670 002 2. N.RAMAKRISHNAN, ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, 220 KV SUB STATION, AREACODE, MALAPPURAM 673 639 BY ADV. SRI.S.VISHNU RESPONDENTS: - ------------------ 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM 695 004. 2. THE CHIEF ENGINEER (HUMAN RESOURCE MANAGEMENT), VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM 695 004. R BY SRI.K.S.ANIL, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33374 of 2014 (V) ---------------------------- : 2 : ## **APPENDIX** PETITIONERS' EXHIBITS : ----------------------------- EXHIBIT P1: COPY OF THE JUDGMENT DATED 1/1/2002 IN OP NO. 21479/2000 OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P2: COPY OF THE ORDER NO.EB4-120(C)/1999 DATED 7/2/2003 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3: COPY OF THE JUDGMENT IN WPC NO.15995/2003 AND OP NO.8816/2003 AND CONNECTED CASES OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P4: COPY OF THE BOARD ORDER (CM) NO.2866/2009 (LAS.III/4152/2003) DATED 7/11/2009 ISSUED BY THE IST RESPONDENT. EXHIBIT P5: COPY OF THE COMMUNICATION NO.LAS.III/4944/03 DATED 14/6/2011 ISSUED BY THE IST RESPONDENT. EXHIBIT P6: COPY OF THE ORDER NO.EB.4(B)/CCC 1229/2009 DATED 7/6/2011 ISSUED BY THE 2ND RESPONDEDNT. EXHIBIT P7: COPY OF THE JUDGMENT DATED 2/7/2013 IN WPC NO.3672/2012 OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P8: COPY OF THE JUDGMENT DATED 4/11/2014 IN WPC . NO.28130/2014 OF THE HON'BLE HIGH COURT OF KERALA. RESPONDENTS' EXHIBITS : NIL ------------------------------ /True Copy/ P.A to Judge. rv ## **DAMA SESHADRI NAIDU, J.** --------------------------------------- ## **W.P.(c) No. 33374 of 2014** ---------------------------------------- Dated this the 17[th] day of December, 2014 ## JUDGMENT This writ petition is filed by the employees of the first respondent seeking monetary benefits with effect from 23.07.2000 consequent upon their promotion as Overseer (Electrical) with retrospective effect from 15.11.1999. Incidentally, owing to the subsequent developments, the petitioners were further promoted as Assistant Engineers (Electrical). In any event, the claim is concerning their position as Overseers. 2. Briefly stated, the petitioners were recruited as Meter Readers, the feeder category in the first respondent Board. Next promotion post being Overseer Grade II, it has four feeder categories; namely, (1) Meter Reader, (2) Lineman Grade I, (3) Lineman Grade II and (4) Electrical Worker/Mazdoor. The respondent Board effected promotions in the light of the judgment rendered by this Court in O.P.No.21479/2000. The judgment rendered on 01.01.2002, W.P.(C) No. 33374/2014 : 2 : directed the respondent Board to fill up the promotion vacancies. 3. Drawing up from all the four feeder categories, the respondents effected promotions through Exhibit P2 dated 07.02.2003. Later, there arose certain disputes regarding the _inter se_ seniority of the promoted employees. Accordingly, the disparity that is said to have crept in to Exhibit P2 was challenged in O.P.No.8816/2003, which was allowed by this court through Exhibit P3 judgment. Though the said judgment was appealed against in W.A. No. 447 of 2005, the same was dismissed by a learned Division Bench on 28.05.2009. In compliance with the direction given in Exhibit P3, the respondent Board re-cast the seniority list of the promoted employees through Exhibit P6 dated 07.06.2011. The note appended to Exhibit P6 reiterated that the promotions should have retrospective notional effect from 15.11.1999. But a specific reference to monetary benefits to be given with effect from 23.07.2000, as had been originally agreed to by the respondent Board, though found in Exhibit P2, has been omitted in Exhibit P6. Aggrieved thereby, the petitioners have W.P.(C) No. 33374/2014 : 3 : approached this Court by filing the present writ petition. 4. Essentially, the writ petitioners simply claimed the application to their case of Ext.P3 judgment, which was rendered at the behest of similarly placed employees. In that judgment, this Court has categorically observed that the financial benefit ought to be given with retrospective effect to the employees who had been promoted through Ext.P6. 5. The learned counsel for the petitioners has submitted that the petitioners have been identically placed along with those petitioners in W.P.(C) Nos. 5493 and 3672 of 2012 and 1004 and 9717 of 2014. He has brought to the notice of this Court that in all those cases, this Court issued directions through different judgments that the petitioners therein be paid salary with effect from 23.07.2000, though they had been actually promoted to the post of Overseer through order dated 07.06.2011. In the submission of the learned counsel, there is no differentiating element disentitling the petitioners to the same benefit retrospectively, as has been done in the case of the petitioners in the writ petitions referred to above. W.P.(C) No. 33374/2014 : 4 : 6. The learned Standing Counsel for the respondent Board has contended that there are about 375 persons, who have been seeking the same benefit retroactively. According to him, none of these persons actually worked in the cadre of Overseer between 23.07.2000 and 07.06.2011. Their claim to be given retroactive benefit is squarely hit by the well settled judicial dictum of “no work, no pay”, as has been laid down in _**Union of India v. B.M. Jaha**_ (2007(11) SCC 632). The learned Standing Counsel has further stressed that if the present writ petition is to be allowed, all the other employees, who are also similarly situated, would be knocking the doors of this Court seeking the same benefit, which, in turn, would impose a huge financial burden of ` 6,28,98,000/- on the Board. In this regard, the learned counsel has drawn the attention of this Court to a judicial observation in W.P.(C) No. 19133 of 2003, an unreported judgment dated 02.03.2009. 7. In the end, the learned Standing Counsel, addressing the issue of extending the benefits retroactively to the employees, who came before this Court in W.P.(C) No. 5493 of 2012 and connected writ petitions, has submitted that W.P.(C) No. 33374/2014 : 5 : they were paid only on account of the judgment rendered by this Court, but not for any other reason. 8. Heard the learned counsel for the petitioners and the learned Standing Counsel for the Kerala State Electricity Board. 9. It is too well established to be re-agitated that once an employee has a particular legal right to be asserted and a legal remedy to be taken recourse to, he shall not be denied the said benefit on the premise that it would entail hardship to his employer. In other words, the right of a person has to be recognised and upheld notwithstanding the consequences that flow therefrom. 10. The submission of the learned Standing Counsel that between 12.03.2000 and 07.06.2011, the petitioners had not been borne in the cadre of Overseer and as such, they would not be entitled to any benefit retroactively on the principle of 'no work, no pay', in my considered view, is fallacious. The doctrine of 'no work, no pay' finds place in service jurisprudence, especially in the realm of disciplinary proceedings. When a delinquent has been _prima facie_ charged W.P.(C) No. 33374/2014 : 6 : with misconduct, the subsequent exoneration would not wipe out the entire past and any restoration of the benefit would be in the discretion of the authorities or the court as the case may be. Thus, by weighing options and thereby adjusting the equities, the courts usually take recourse to the device of 'no work, no pay'. In the present instance, the petitioners, who had been eminently suited to be promoted to the post, were denied the said opportunity for no fault of theirs. It is a very well established principle of law that once a clear vacancy is in existence and a particular employee is entitled to be promoted, the denial of promotion owing to administrative laxity or some other supervening circumstance could not work to the prejudice of the employee, and at the end, if the promotion is to be effected, in the facts and circumstances, the benefit could be extended retroactively. That is what this Court has precisely done in the judgment rendered in W.P.(C) No. 5493 of 2004 and connected cases. 11. The other contention of the learned Standing Counsel for the respondent Board is that the petitioners in W.P.(C) No. 5493 of 2012 and connected cases have been W.P.(C) No. 33374/2014 : 7 : extended the benefit wholly based on the judgment. This contention is, to my mind, unsound. It is well to remember that a judicial decision is not legislative in nature. It only recognizes the rights that inhere in a person, or those that have been in existence, but not taken note of. In the batch of writ petitions referred to above, this Court has held that the petitioners therein were entitled to be promoted but were not promoted. Since the delay in effecting the promotion could not be attributed to the petitioners, this Court, thus, adjusting the equities, has directed the authorities to restore the benefits retroactively. As such, it is not correct to contend that the respondent authorities have been made to extend the benefit based on the judgment, but not otherwise. In the facts and circumstances, I do not see any discernible differentiation between the petitioners in the present writ petition on one hand and those in W.P.(C) No. 5493 of 2012 and batch, on the other, to deny what is otherwise a legitimate benefit to be given to the petitioners retroactively, though. Thus, the writ petition is allowed. No order as to costs. It is made clear that given the W.P.(C) No. 33374/2014 : 8 : administrative exigencies and inevitable delays, this Court desires to fix a time frame in this regard. Accordingly, this Court directs the respondent Board to pay all the monetary benefits to the petitioners with effect from 23.07.2000 within three months from the date of receipt of a copy of this judgment. **DAMA SESHADRI NAIDU JUDGE** rv