OP(KAT) No. 345 of 2017

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 6TH DAY OF JUNE 2018 / 16TH JYAISHTA, 1940** **OP(KAT).No. 345 of 2017** **AGAINST THE ORDER/JUDGMENT IN TA 7478/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER(S)/RESPONDENTS IN O.A.** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001, KERALA.** **2 DIRECTOR OF AGRICULTURE, DIRECTORATE OF AGRICULTURE, THIRUVANANTHAPURAM, PIN-695033, KERALA.** **3 THE PRINCIPAL AGRICULTURAL OFFICER, OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICER, ERNAKULAM, KOCHI, PIN-682030, KERALA.** **BY GOVERNMENT PLEADER SRI A J VARGHESE** ## **RESPONDENT(S)/APPLICANT IN O.A:** **K J. IGNACIOUS PERMANENT LABOURER, SOIL TESTING LABORATORY, VYTTILA, KERALA.** **R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R1 BY ADV. SMT.N.SANTHA R1 BY ADV. SRI.S.A.ANAND R1 BY ADV V. VARGHESE** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 06-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **kkj** **OP(KAT).No. 345 of 2017 (Z)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** |**ANNEXTURE A1-**|**PHOTOCOPY OF THE TA ALONG WITH EXHIBITS**| |---|---| |**EXHIBIT P1**|**TRUE COPY OF THE JUDGMENT DATED 28.09.2005 IN**| ||**O.P.NO.14974/1999 G OF THE HON'BLE HIGH COURT OF**| ||**KERALA.**| |**EXHIBIT P2**|**TRUE COPY OF THE ORDER DATED 04.11.2005 ON**| ||**I.A.NO.15949/05 IN O.P.NO.14974/99 OF THE HON'BLE HIGH**| ||**COURT OF KERALA.**| |**EXHIBIT P3**|**TRUE COPY OF THE LETTER DATED 08.11.2005**| ||**FORWARDED BY THE PETITIONER TO THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P4**|**TRUE COPY OF THE ORDER NO.LW 1/38001/99 DATED**| ||**18.05.2006 OF THE 2ND RESPONDENT.**| |**EXHIBIT P5**|**TRUE COPY OF THE REPRESENTATION DATED 15.03.2007**| ||**SUBMITTED BY THE PETITIONER TO THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P6**|**TRUE COPY OF THE LETTER NO.LW(1)74543/07 DATED**| ||**30.04.2008 OF THE 2ND RESPONDENT ADDRESSED TO**| ||**THE 3RD RESPONDENT.**| |**EXHIBIT P7**|**TRUE COPY OF THE REPRESENTATION DATED 23.06.2008**| ||**SUBMITTED BY THE PETITIONER TO THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P8**|**TRUE COPY OF THE LETTER NO.LW(1)33664/08 L.DIS**| ||**DATED 30.07.2008 OF THE 2ND RESPONDENT ADDRESSED**| ||**TO THE 3RD RESPONDENT.**| |**EXHIBIT P9**|**TRUE COPY OF THE REPRESENTATION DATED 02.04.2009**| ||**SUBMITTED BY THE PETITIONER TO THE 1ST**| ||**RESPONDENT.**| |**EXHIBIT P10**|**TRUE COPY OF THE LETTER NO.E(1)3104/09 DATED**| ||**10.04.2009 OF THE 2ND RESPONDENT ADDRESSED TO**| ||**THE 3RD RESPONDENT.**| - **ANNEXURE A2: PHOTOCOPY OF THE REPLY STATEMENT FILED BY THE 1ST PETITIONER/1ST RESPONDENT** - **ANNEXURE A3: PHOTOCOPY OF THE MISCELLANEOUS APPLICATION TO ACCEPT ADDITONAL DOCUMENTS** - **ANNEXURE MA1: G.O.RT NO.1722/2012/AD DATED 27.08.02012 ANNEXURE A4: PHOTOCOPY OF THE ORDER DATED 03.08.2016 IN T.A.NO.7478/2012** ## **RESPONDENTS' EXIBITS** ## **NIL** **// TRUE COPY // Sd/PA TO JUDGE** ## **K.SURENDRA MOHAN & ANNIE JOHN, JJ. --------------------------------------------O.P.(KAT) No.345 of 2017 ---------------------------------------------Dated this the 6[th] day of June, 2018** ## **J U D G M E N T** ## Surendra Mohan, J. The State is before us challenging an order of the Kerala Administrative Tribunal (KAT for short) dated 03.08.2016 allowing T.A.No.7478 of 2012 evidenced in these proceedings by annexure A4. As per the impugned order, a casual labourer has been directed to be granted all service benefits including monetary benefits, upon regularisation as a permanent labourer. The respondent herein is the applicant before the KAT. 2. The facts of this case fall within a narrow compass. The respondent was a casual labourer in the Soil Testing Laboratory, Vytilla under the 3[rd] petitioner. The post of permanent labourer in the Laboratory is filled up by casual labourers in accordance with their seniority. While so, on 31.07.1992, the post of Permanent Labourer in the laboratory fell vacant on the retirement of one Vasantha ## -:2:- ## O.P.(KAT) No.345 of 2017 Sakhan who attained superannuation. Instead of appointing the respondent who was the senior, his junior one Mr.Michale Karolla was appointed. The appointment was challenged by the respondent before this Court in O.P.No.14974 of 1999. By exhibit P1 judgment dated 28.09.2005, this Court directed the question of seniority between the two persons to be considered. Accordingly, the Director of Agriculture considered the question and found that the respondent was the senior who was entitled to appointment as permanent labourer. Pursuant to exhibit P4, the respondent was appointed as permanent labourer with effect from 18.06.2006. The respondent thereupon requested that he should be granted appointment with effect from 01.08.1992, which was objected. Therefore, the respondent again approached this Court by filing W.P.(C) No.32068 of 2009. The said Writ Petition was subsequently transferred to the KAT and renumbered as T.A.NO.7478 of 2012, in which the impugned order has been passed. ## -:3:- ## O.P.(KAT) No.345 of 2017 During the pendency of the proceedings before the KAT, Annexure MA1 order dated 27.08.2012 was issued by the Government granting retrospective effect to the appointment of the respondent as permanent labourer in the Soil Testing Laboratory, Vytilla from 01.08.1992 but, on condition that the appointment shall be notional without the benefit of arrears of pay and other allowances. 3. Thereafter, the matter was considered by the KAT. It was found that, appointment as permanent labourer had been denied to the respondent due to no fault on his part and that he had been agitating for his rights ever since. Therefore, it was found that there was no justification for denying to him the arrears of wages, denied to him by the wrongful acts of the appellants. It is aggrieved by the said order that this Original Petition is filed. 4. According to the learned Government Pleader, Sri AJ Varghese there is no justification for the order of the KAT directing backwages to be paid from 01.08.1992. It is -:4:- ## O.P.(KAT) No.345 of 2017 pointed out that the respondent had not worked during the said period and therefore he was not entitled to pay. It is also contended that, as evident from exhibit P4, the number of days worked by the respondent during each year does not satisfy the requirements of being treated as service over an year. Therefore, it cannot be presumed that the respondent was entitled to pay for the entire year. At any rate, this is a case in which the provisions of the Limitation Act applies, according to the learned Government Pleader and therefore, the KAT erred in directing payment of arrears of pay from 01.08.1994 onwards. We have also heard Advocate S.P.Aravindakshan Pillai who appears for the respondent also. 5. The learned counsel points out that, the respondent had been denied appointment to the post that was legitimately due to him by the wrongful acts of the appellants. Consequently, the wrongful act had denied to him the pay that was due to him. He is only a labourer and ## -:5:- ## O.P.(KAT) No.345 of 2017 there is no justification for denying to him the said benefits. There is no change in the duties of a casual labourer as well as a permanent labourer are concerned. In view of the above, it was only appropriate that he was granted the pay with effect from the date from which he was denied appointment. It is therefore contended that there are absolutely no grounds to interfere with the impugned orders. 6. Heard. It cannot be disputed at this stage that the respondent was the rightful claimant to the post of permanent labourer as on 01.08.1992. This is for the reason that, as per exhibit P4, the Director of Agriculture has found that the petitioner was senior to the person who was originally appointed on 01.08.1992. Thereafter, by the proceedings evidenced herein by annexure MA1 dated 27.08.2012, the Government have given retrospective effect to the appointment of the respondent from 01.08.1992. In view of the above, the short question that remains is ## -:6:- ## O.P.(KAT) No.345 of 2017 whether the respondent should be entitled to pay for the period from 01.08.1992. Though the learned Government Pleader has placed reliance on decisions in **Sakal Deep Sahai Srivastava v. Union of India** [AIR 1974 SC 338] and **Anand Swarup Singh v. State of Punjab** [AIR 1972 SC 2638] to contend that the Limitation Act is applicable in such cases, we are not satisfied that the said question arises in this case. In this case, the respondent has been agitating his claim throughout in various proceedings before this Court and later before the KAT. The KAT has placed reliance on the decision in **State of Kerala v. Bhaskaran Pillai** [2007(3) KLT 711 (SC)]. We find that the dictum laid down in the said case squarely applies in this case also. For the sake convenience of reference, the conclusion in the said decision is extracted hereunder. “Sometimes in the matter, when the person is superseded and he has challenged the same before Court or Tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the Court may grant ## -:7:- ## O.P.(KAT) No.345 of 2017 sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due, then in that case he should be given full benefits including monetary benefit, subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard and fast rule. The Principle 'no work no pay' cannot be accepted as a rule of thumb. There are exceptions where Courts have granted monetary benefits also”. In the present case, the KAT has taken note of the entire situation, directed the grant of monetary benefits also to the respondent. We find no infirmity in the said action warranting an interference under Article 227 of the Constitution. For the forgoing reasons, this Original Petition fails and is accordingly dismissed. ## Sd/- ## **K.SURENDRA MOHAN JUDGE** Sd/- **ANNIE JOHN JUDGE** kkj