OP(KAT).No. 61 of 2016 (Z)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 24TH DAY OF MAY 2016/3RD JYAISHTA, 1938 **OP(KAT).No. 61 of 2016 (Z) ---------------------------** AGAINST THE ORDER IN TA 3872/2012 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 21-03-2016 PETITIONER/APPLICANT: ---------------------------------- K.ACHUTHAN NAIR S/O. LATE KRISHNA PILLAI, AGED 85 YEARS, RETIRED JAIL WELFARE OFFICER GRADE-1, ADVOCATE, 1/4646, P.M.KUTTY ROAD, ERANHIPALAM P.O., KOZHIKODE-673006. BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN SRI.K.SUDHINKUMAR SRI.ELIAS KURIAN SMT.SHYNI GEORGE RESPONDENTS/RESPONDENTS: ---------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF PRISONS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE ADDITIONAL DIRECTOR GENERAL OF POLICE (PRISONS) OFFICE OF THE ADDITIONAL DIRECTOR GENERAL OF POLICE (PRISONS), POOJAPPURA, THIRUVANANTHAPURAM-695012. BY GOVERNMENT PLEADER Shri K.C.VINCENT THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 24-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 61 of 2016 (Z) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXT.P1 TRUE COPY OF THE ORDER NO.E1-30443/83 DATED 19-10-87 ISSUED BY THE INSPECTOR GENERAL OF PRISONS, KERALA, THIRUVANANTHAPURAM. EXT.P2 TRUE COPY OF THE NOTIFICATION NO. 58844(I)/B3/89/HOME PUBLISHED BY THE GOVERNMENT IN THE KERALA GAZETTE DATED 4-4-1990. EXT.P3 TRUE COPY OF THE PROCEEDING NO. 13628/B3/94/HOME DATED 11-11-94 ISSUED BY THE FIRST RESPONDENT. EXT.P4 TRUE COPY OF G.O.(RT)NO. 2423/2008/HOME DATED 30-07-2008 ISSUED BY THE FIRST RESPONDENT. EXT.P5 TRUE COPY OF THE REPRESENTATION DATED 14-08-2008 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P6 TRUE COPY OF THE JUDGMENT DATED 22-5-2009 IN WPC NO. 12626/2009. EXT.P7 TRUE COPY OF THE G.O.(RT)NO. 3797/2009/HOME DATED 18-12-2009 ISSUED BY THE FIRST RESPONDENT. RESPONDENT(S)' EXHIBITS :NIL ----------------------- /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON** ## **& ANIL K. NARENDRAN, JJ.** .............................................................................. **O.P.(KAT)No.61 of 2016** ......................................................................... **Dated this the 24[th] May , 2016** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Petitioner was the applicant before the Kerala Administrative Tribunal. The grievance is against dismissal of T.A.No.3872 of 2012, declining to grant the reliefs sought for, so as to have the promotion re-assigned w.e.f. 01.05.1982, instead of 01.02.1983, and to give consequential benefits with interest. The contention is that, benefit was given to the immediate junior of the petitioner who was wrongly superseded; adding that there was absolutely no fault on the part of the petitioner, but for the lapse on the part of the department; under which circumstance, the petitioner is entitled to have the seniority re-fixed and promotion re-assigned with effect from an anterior date, with all consequential benefits. 2. Heard Dr. K.P.Satheesan, the learned senior counsel appearing for the petitioner and Mr.K.C.Vincent, the learned **2** ## **O.P.(KAT)No.61 of 2016** Sr.Government Pleader appearing for the State/respondents.. 3. Sequence of events revealed from the proceedings is that the petitioner, who is a Law Graduate, having Post Graduate qualification in Arts, was selected and appointed as Assistant Jailor, who joined service way back on 01.10.1956. He was promoted to the post of Jailor in the year 1957 and retired from the service on 30.04.1986, on attaining the age of superannuation. As a matter of fact, he was working as Welfare Officer, which is stated as equivalent to the post of Jailor. The next post in the hierarchy for promotion is that of the Jail Superintendent. It is stated that a vacancy in the said cadre arose on 01.05.1982; but ignoring the better credentials of the petitioner, the immediate junior of the petitioner by name E.M.Narayana Kurup, who was 'not even a Graduate' was given provisional promotion, superseding the petitioner. 4. The petitioner's service as Jailor was regularised as per Ext.P1 order dated 19.10.1987, i.e. much after his retirement on 30.04.1986. It is stated that the petitioner has been shown at Sl.No.14 in Ext.P1, whereas the immediate junior of the **3** ## **O.P.(KAT)No.61 of 2016** petitioner, by name Narayana Kurup was shown at Sl.No.16. The select list to the post of 'Jail Superintendent' was finalised as per Ext.P2 dated 04.04.1990. i.e. years after the retirement of the petitioner, wherein also, the eligibility of the petitioner has been clearly shown as in respect of the year **1982-83;** whereas the junior by name Narayana Kurup was shown as having eligibility only in respect of the subsequent year i.e. **1983-84.** It was without any regard to the actual facts and figures, that the eligibility of the petitioner was superseded, for no reason at all and undue benefit was extended to the junior by name E.M. Narayana Kurup, which anomaly was sought to be rectified by filing a representation in the year 1993-94, as discernible from Ext.P3 reply dated 11.11.1994, pointing out that the grievance was being considered and that the outcome would be let known at the earliest. Much later, the petitioner filed some other representations as well, in the year 2005 and 2008, which were considered and Ext.P4 order came to be passed on 30.07.2008. It was observed by the first respondent in Ext.P4, that regularisation stated as given w.e.f. 01.02.1983 to the petitioner **4** ## **O.P.(KAT)No.61 of 2016** in tune with the date of provisional promotion was in fact a mistake, in so far as no provisional promotion was actually given to the petitioner and in the said circumstance, the same was cancelled. In the last paragraph of the said order, notional promotion was ordered to be given with effect from 01.02.1983. This, according to the petitioner, is not at all correct or proper; firstly for the reason that eligible promotion was denied to the petitioner, while giving the same to the junior w.e..f. 01.05.1982 and further, despite the proven credentials and subsequent corrective measures reckoning the seniority, notional promotion was given only w.e.f. 01.02.1983, at the same time denying the consequential benefits, i.e. arrears of pay and allowances. This naturally will have a bearing on the pensionary benefits as well. Hence the grievance was sought to be rectified by filing further representations. Since nothing had turned out in the positive, the petitioner approached this Court by filing W.P.(C)No.12626 of 2009, which was disposed of as per Ext.P6 judgment dated 22.05.2009, directing the Government to consider and pass appropriate orders in the said representation. Pursuant to the **5** ## **O.P.(KAT)No.61 of 2016** said verdict, the matter was considered and Ext.P7 order was passed by the Government on 18.12.2009, virtually reiterating its stand, declining the reliefs sought for. This made the petitioner to approach this Court again by way of W.P.(C)No.4376 of 2010, which came to be transferred to the Tribunal, where it was renumbered as T.A.No.3872 of 2012. 5. A detailed counter affidavit was filed by the first respondent pointing out that there was absolutely no lapse or fault on the part of the department and that non consideration of the petitioner for provisional promotion, when his junior was considered, was only because of the deeds and misdeeds of the petitioner himself. It is pointed out in paragraph 2 of the said counter affidavit, that the petitioner was also included in the feeder category for selection to the post of 'Jailor' and the Departmental Promotion Committee which met on 10.03.1981 had considered the merits and service details of the petitioner as well; when it was noted that he was placed under suspension for the period from 18.02.1974 to 30.04.1976. It is further stated **6** ## **O.P.(KAT)No.61 of 2016** that the petitioner was again placed under suspension w.e.f. 31.07.1982 and was continuing so, even as on the date of his retirement in the year 1986. As stated in paragraph 3 of the counter affidavit, the disciplinary proceedings ordered as per G.O. (Rt)No.1903/82/Home dated 31.07.1982 were dropped only as per G.O.No.(Rt)No.2093/86/Home dated 25.07.1986 and G.O. (Rt)No. 1488/88/Home dated 02.04.1988, after his retirement. The vacancy of 'Superintendent' had occurred only on ' ' 01.05.1982 . The pendency of the disciplinary proceedings was never brought to the notice of the Tribunal as pleaded in the proceedings, which has been taken note of by the Tribunal. On the contrary, the petitioner was consistently and repeatedly asserting that there was absolutely no necessity or occasion for initiating any disciplinary proceedings against him at any point of time, thus trying to project that he was having an unblemished track record, despite which he was denied promotion, while selecting a junior. These aspects have been considered by the Tribunal and it has been held that, non-granting of provisional promotion was not due to any fault on the part of the **7** ## **O.P.(KAT)No.61 of 2016** Department. It was after considering the facts and figures, that the petitioner was given notional promotion w.e.f. 01.02.1983. Finding that the petitioner having not worked in the office of the promoted post, Rule 23(a), Part I K.S.R. would come into play, by virtue of which, no arrears of salary was held as payable under any circumstance. Accordingly, interference was declined and the O.A. was dismissed, which is under challenge in this Original Petition. 6. During the course of hearing, the learned Sr.Counsel appearing for the petitioner sought to place reliance on the judgment rendered by a Single Bench of this Court in **Narayana Menon vs. State of Kerala** ( **1978 KLT 29** ) and in **Soman vs. State of Kerala** ( **1992 (1)KLT 83** ) to the effect that, if promotion was delayed due to a mistake by the Government and later, on giving notional promotion with retrospective effect, the Government servant is entitled to get back wages. Reliance is also sought to be placed on the verdict passed by the Supreme Court in **Ramesh Kumar vs. Union of India and others** . ( **AIR 2015 SC 2904)** . The verdict rendered by the Supreme Court, **8** ## **O.P.(KAT)No.61 of 2016** holding that the principle of “No work no pay” cannot be taken as a rule of thumb, [as held in **State of Kerala and others vs.E.K. Bhaskaran Pillai** ( **AIR 2007 SC 2645** )] and the decision of the Apex Court in **Union of India vs. K.V. Janakiraman** ( **AIR 1991 SC 2010** ) are sought to be pressed into service. 7. The learned Sr. Government Pleader, submits that there is no dispute with regard to the proposition laid down by the Apex Court or by this Court. But, to have the benefits flowing there from, it has to be established that there was no fault on the part of the petitioner and that the fault/lapse, if at all any, was solely on the part of the Department. In the instant case, as specifically pleaded, non-granting of provisional promotion to the petitioner in the year 1982 was only because of the adverse factual position prevailing on the relevant date; in so far as the petitioner was placed under suspension for different spells and the said proceedings came to be dropped only after/because of his retirement. It is also relevant to note that, even if disciplinary proceedings had been initiated before retirement of any person, it can be pursued after the date of retirement only **9** ## **O.P.(KAT)No.61 of 2016** for the limited purpose so as to fix the loss, if at all any, and to have the same recovered from the employee. In other words, after the date of retirement, the disciplinary proceedings cannot be pursued further for inflicting any punishment upon the delinquent employee, as the master-servant relationship is cut off for ever. Coming to the case in hand, the fact that the petitioner was placed under suspension and he was continuing under suspension even on the date of his retirement, is not disputed. 8. The proceedings, which were originally filed before this Court by way of writ petition came to be transferred to the Tribunal, where it was re-numbered as T.A.3872 of 2012. No specific pleading, controverting the facts and figures in the counter affidavit, was brought out in the rejoinder filed before the Tribunal. Yet another important aspect to be noted is that, the so called supersession, granting promotion to the immediate junior by name Narayana Kurup was in the year 1982-83. This was never sought to be challenged by the petitioner then and there and even the first representation was filed in the year 1992-93 (dated 20.02.1993) as referred to in Ext.P3. In other words, ## **O.P.(KAT)No.61 of 2016** ## **10** denial of promotion, virtually had become a 'stale cause of action' and the same was never sought to be acted upon at any point of time, impleading Naryana Kurup in the party array, if at all any such grievance was there. On the other hand, the petitioner suffered the same without demur and the matter was sought to be taken up only much after his retirement from the service. As such, interference is not possible at this stage holding that the petitioner was never at fault with regard to the cause of action projected herein . 9. The gist of the decisions rendered by this Court as per the decisions cited supra and the position made clear by the Apex Court as per the verdict reported in **AIR 2015 SC 2904** as mentioned already, is to the effect that lapse of the respondent/State cannot be a ground to deny the salary benefits on subsequent notional promotion, if there was no fault on the part of the employee. The observations made by the Supreme Court in paragraphs 12 and 13 of **AIR 2015 SC 2904** are relevant, which hence are extracted below: - _“12. In normal circumstances when retrospective_ ## **O.P.(KAT)No.61 of 2016** ## **11** _promotions are effected, all benefits flowing therefrom, including monetary benefits, must be extended to an employee who has been denied promotion earlier. So far as monetary benefits with regard to retrospective promotion is concerned that depends upon case to case. In State of Kerala & Ors. v. E.K. Bhaskaran Pillai [(2007) 6 SCC 524:(AIR 2007 SC 2645), this Court held that the principle of “no work no pay” cannot be accepted as a rule of thumb and the matter will have to be considered on a case to case basis and in para (4), it was held as under:-_ _“....We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned , that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent. of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. 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 sometimes full benefits with retrospective effect and sometimes it may not._ **12** ## **O.P.(KAT)No.61 of 2016** _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 nay change in law or some other supervening factors However, it is very difficult to to set down any hard-andfast 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._ _13. We are conscious that even in the absence of statutory provision, normal rule is “no work no pay”. In appropriate cases, a court of law may take into account all the facts in their entirety and pass an appropriate order in consonance with law. The principle of “no work no pay” would not be attracted where the respondents were in fault in not considering the case of the appellant for promotion and not allowing the appellant to work on a post of Naib Subedar carrying higher pay scale. In the facts of the present case when the appellant was granted promotion w.e.f. 01.01.2000 with the ante-dated seniority from 01.08.1997 and maintaining his seniority along with his batchmates, it would be unjust to deny him higher pay and allowances in the promotional position of Naib Subedar.”_ 10. The question to be considered is whether the petitioner can assert that there was no fault on his part or as to whether ## **O.P.(KAT)No.61 of 2016** ## **13** any fault was there on the part of the department. In so far as initiation of disciplinary proceedings against the petitioner is not disputed and the factum of continued suspension even on the date of retirement is not sought to be challenged and also in view of the admitted or undisputed position that the supersession of the petitioner/notional promotion given to the junior way back in the year 1983 had not been subjected to challenge, this Court cannot but answer the question in the 'negative' and it is held accordingly. 11. With regard to the dictum **AIR 1991 SC 2010** (cited supra), reliance is sought to be placed mainly on paragraph 7; relevant portion of which is extracted below: _“We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/ criminal proceedings. However, there may be cases where the proceedings, whether disciplinary_ **14** ## **O.P.(KAT)No.61 of 2016** _or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated from disciplinary/ criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the, administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:_ _"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion_ **15** ## **O.P.(KAT)No.61 of 2016** _preceding the date of actual promotion, and if so to what extent will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."_ _To this extent we set aside the conclusion of the Tribunal on the said point.”_ 12. It is true that the Apex Court has made it clear that “no work-no pay” principle cannot be treated as the 'rule of thumb' and that it will depend upon the facts and circumstances of each case. The crux of the observations made by the Apex Court in the above decision is to the effect that, once there is complete exoneration from the alleged misconduct, the subsequent 'notional promotion' alone is not enough. It is with this intent, that the concept of 'sealed cover procedure' was explained, so that it will not adversely affect the rights and liberties of the parties concerned. The Apex Court made it clear that there is nothing wrong in proceeding with further steps, even if disciplinary proceedings are pending against the ## **O.P.(KAT)No.61 of 2016** ## **16** concerned official, who happens to be an aspirant/contestant, but the outcome shall be kept in a 'sealed cover' and on conclusion of the proceedings, it can be opened and further steps can be pursued based on the 'fate' enclosed in the sealed cover. The said decision does not come to the rescue of the petitioner in any manner. The petitioner was continuing on suspension and the proceedings came to be dropped only by virtue of the subsequent orders dated 25.07.1986 and 02.04.1988 , i.e. much after the date of retirement, as the enquiry could not have been proceeded with so as to have imposed any punishment upon him, by virtue of severance of master–employee relationship. As such, no finding could be rendered as to exoneration from the guilt. 13. The learned Sr. Counsel points out that, by virtue of the contents of paragraph 4 of the affidavit, the period of suspension was ordered to be treated 'as duty' for all purposes, though it was ordered after retirement of the petitioner. The scope of the said order is discernible from the order itself, whereby it has been made clear that, it will be subject to the fact ## **O.P.(KAT)No.61 of 2016** ## **17** no salary or arrears will be payable in respect of the period of notional promotion, but for the extent of subsistence allowance granted in accordance with law. Even otherwise, as made it clear already, the instant case is not analogous to the situation dealt with by the Supreme Court in the verdicts discussed above, to arrive at a conclusion that there was no lapse/fault on the part of the petitioner; or that the fault was solely on the part of the department. This being the position, this Court finds that application of Rule 23(a) Part I K.S.R. and denial of salary arrears for the period in question are not liable to be interfered. It is ordered accordingly. No tenable ground is raised to call for interference with Ext. P1 order passed by the Tribunal. The Original Petition stands dismissed as devoid of any merit. ## **P.R. RAMACHANDRA MENON, JUDGE** ## **ANIL K. NARENDRAN, JUDGE** lk