Karnataka High Court
Abdul Hameed Bismilla Saheb Taddol vs The Karnataka Power Transmission on 12 August, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 12TH DAY OF AUGUST, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO.2064/2008 (S-RES)
BETWEEN
ABDUL HAMEED BISMILLA SAHEB TADDOL
S/O SRI. BISMILLA
AGED ABOUT 55 YEARS, WORKING AS SENIOR
MECHANIC O & M UNIT I GADAG
R/AT C/O DAYAMMANAVARA, ADVOCATE
D.V. JAKIR HUSSAIN COLONY, NEAR MAHAVEER
CIRCLE, MULGUND NAKA,
GADAG-582 103. ..... PETITIONER
(BY SRI V.R. DATAR, ADVOCATE)
AND
1. THE KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
REP. BY THE CHIEF MANAGING DIRECTOR
CAUVERY BHAVAN
BANGALORE-560 009
2. THE HUBLI ELECTRIC SUPPLY COMPANY LTD
REP. BY ITS MANAGING DIRECTOR
CORPORATED OFFICE
NAVANAGAR, HUBLI-580 025
3. THE EXECUTIVE ENGINEER
O & M DIVISION
HESCOM, GADAG-582 103. ..... RESPONDENTS
(BY SRI B S KAMATE, ADV.)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE PART OF ANNEXURE-
C TO THE EXTENT AGGRIEVED AND STRIKE DOWN THE WORD
"NOTIONALLY" AS THE SAME IS VIOLATIVE OF ARTICLES 14, 16 AND 21
OF THE CONSTITUTION AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING 'B'
GROUP AND THE SAME HAVING BEEN RESERVED FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Though matter is listed in preliminary hearing 'B' group, by consent of learned advocates appearing for the parties, the matter is taken up for final disposal.
2. I have heard the arguments of Sri.V.R.Datar, learned counsel appearing for the petitioner and Sri.B.S.Kamate learned counsel appearing for the respondent.
3. Petitioner is seeking for quashing of part of Annexure-C dated 02.12.2005 whereunder petitioner has been equated to Mechanic Grade II from Mechanic Grade III with effect from 18.12.1974 by re-fixing his pay notionally from the said date, contending that people with lesser qualification have been designated as Mechanic Grade II or equivalent post by extending pay :3: and other allowances with effect from 18.12.1974. It is contended that when persons with lesser merit could be fitted in Grade II and extended with all benefits, petitioner being more qualified and entitled to be in Grade II has been wrongly deprived of the said benefit for no fault and as such not granting the arrears despite fixing his pay to Mechanic Grade II with effect from 18.12.1974 is in violation of Article 14, 16 and 21 of the Constitution of India. Hence, petitioner seeks for a direction to respondents to strike down the word 'notionally' as stated in Annexure-C and extend him the revised pay by directing the respondents to pay the arrears with effect from 18.12.1974 with interest at 12% p.a.
4. Statement of objections have been filed by the respondents denying the averments made in the writ petition contending interalia that petitioner had not passed SSLC examination and on absorption of his service he was equated to Mechanic Grade III. It is contended at :4: the time of absorbing the petitioner into service, the Screening Committee while determining the suitability to equate appropriate post in the Karnataka Electricity Board (hereinafter referred to as 'KEB') had given due regards to the age, experience, length of service and service records by taking into consideration the services rendered earlier. It is further contended that petitioner joined the service in M/s.Manvi Brothers, Gadag, which company was acquired by the Government of Karnataka in the year 1972 and as on the date of taking over, he was working as a 'Wireman' and the length of service in the Company which was taken over was only two years and as such he was eligible to be fitted to the post of Mechanic Grade III appropriate to his eligibility as opined by the Screening Committee and hence, he was accorded the post of Mechanic Grade III. It is further contended that KEB ensured there was no monetary loss to petitioner and his pay under the ex- licensee (M/s.Manvi Brothers, Gadag) was also protected and revision of pay scales was periodically extended to :5: him. It is further contended the equation of the post was decided by the Committee by following the broad guidelines such as norms laid down in Rule 6 of Karnataka Electricity Supply Undertaking (Equation) Rules, 1976, like age, experience, qualification and previous records. It is admitted by the respondents that equating the petitioner from Mechanic Grade III to Mechanic Grade II with effect from 18.12.1974 and re- fixation of his salary has been notionally fixed by keeping in mind his experience, qualification post and pre- acquisition of M/s.Manvi Brothers, Gadag. The averment made in the petition that persons with lesser qualification and lesser basic pay on absorption in KEB have been designated as Mechanic Grade II on equivalent post is denied. On these grounds, respondents have prayed for dismissal of the writ petition.
5. Having heard the learned advocates appearing for the parties and on perusal of the case papers, it indicates that petitioner had approached this court on earlier :6: occasion by filing a writ petition in W.P.No.18719/1989 seeking for equating his initial appointment from Mechanic Grade III to Mechanic Grade II. This court by order dated 17.11.1998 directed the petitioner to submit a detailed representation to the respondents, with a further direction to the respondents to examine the same and take a decision without being influenced by earlier opinion expressed in various orders issued. An endorsement came to be issued rejecting the request of the petitioner and confirmed the earlier endorsements issued. Subsequently, petitioner approached this Court in W.P.No.24929/1999 seeking reconsideration of his prayer and for quashing of the endorsement dated 09.03.1999 whereunder petitioner's prayer had been turned down by the respondents. This court by order dated 04.04.2005 allowed the writ petition, quashed the endorsement dated 09.03.1999 and remitted the matter back to the competent authority of respondent for re-consideration afresh in the light of direction issued on 17.11.1998 in :7: W.P.No.18719/1989. It is pursuant to this direction, the respondent-authority on detailed examination of the petitioner's claim afresh decided to re-equate the petitioner from Mechanic Grade III to Mechanic Grade II with effect from 18.12.1974 and re-fixed his pay from the said date notionally.
6. In the instant case, it is noticed that petitioner was working in M/S/.Manvi Brothers, Gadag, and he had been appointed in the said company in the year 1972. Said company was acquired by the Government of Karnataka under the Karnataka Electricity Supply Undertakings (Acquisition) Act, 1974, and the service of the petitioner was transferred to KEB in terms of the provisions of the said Act. A Screening Committee examined the claims of the employees working in the erstwhile companies to fix their grades in KEB by taking into consideration the broad guidelines laid down under Rule 6 of Karnataka Electricity Supply Undertaking (Equation) Rules, 1976, like age, :8: experience, qualification, number of years of service already put in, number of years of service available and the previous records. Undisputedly, as on the date of taking over of said company by KEB petitioner was working as a wireman and had put in two years of service. There was no post of wireman in the cadre of KEB as on 18.12.1974 and as such he was accorded the post of Mechanic Grade III. The said Committee which was the competent Committee consisted of experts and decided to accord such grade to the petitioner. It is to be noticed further that on re-consideration of the claim of the petitioner the respondent-authorities decided to re-equate the petitioner from Mechanic Grade III to Mechanic Grade II with effect from 18.12.1974 by fixing his pay notionally. There is no dispute that for the said period the petitioner has not worked in Mechanic Grade II and the employer in such circumstances is empowered to fix the pay of a employee and deny the claim for arrears of pay from the date of re-fixation of the grade. The principle of 'no pay no :9: work' would squarely apply to the facts of hand. This view is fortified by the following decisions of the Apex Court.
i) In STATE OF HARYANA AND ANOTHER Vs. S.K. KHOSLA AND OTHERS (2007 (15) SCC 777), the Apex Court has held as under:
"2. Heard the learned counsel for the appellants. He brought to our notice a decision of this Court in State of Haryana v. O.P.Gupta whereunder in respect of an identical matter arising out of similar proceedings of even date this Court while setting aside the decision of the High Court allowed the appeal at the instance of the State and held that in the circumstances noticed in that case which are identical as well in the cases before us, the question of payment of arrears of salary with retrospective effect from the notional dates does not arise since, indisputably the respondents had never worked during that period in the promotional post, the settled principle in such cases being, "no work, no pay". The said principle applies with equal force to the cases before us too. Applying the ratio of the said decision these appeals are also allowed and the orders of the High Court are set aside and the writ petitions before the High Court shall stand dismissed. No costs.": 10 :
ii) In SUKHDEO PANDEY VS. UNION OF INDIA (UOI) AND ANOTHER (2007 (7) SCC 455) the Apex Court has held as under:
"17. Before parting with the matter, however, we may make one thing clear. From the record, it appears that after the appellant was reverted from the cadre of Postman to his substantive post of EDBPM, he has not joined duty and has not worked. No interim relief was granted by any court including this Court in his favour. In the circumstances, it was obligatory on him to report for duty as EDBPM. He, however, failed to do so. We, therefore, hold that if the appellant has not worked, he will not be paid salary for the period for which he has not worked. It is well-settled principle in service jurisprudence that a person must be paid if he has worked and should not be paid if he has not. In other words, the doctrine of 'no work, no pay' is based on justice, equity and good conscience and in absence of valid reasons to the contrary, it should be applied. In the present case, though the appellant ought to have joined as EDBPM, he did not do so. He, therefore, in our considered opinion, cannot claim salary for that period. But he will now be allowed to work as Postman. He will also be paid salary as Postman : 11 : but we also hold that since the action of the respondent authorities in reverting him to his substantive post of EDBPM was strictly in consonance with law, the appellant would be entitled to pensionary and other benefits not as Postman but as EDBPM which post he was holding substantively."
iii) In UNION OF INDIA AND OTHERS VS RAJINDER SINGH RAWAT (AIR 1999 SCW 4873) the Apex Court has held as under:
"2. The short question that arises for consideration is whether the High Court was justified in granting relief of payment of backwages to the respondent for the period he has not actually served. There is no dispute that the respondent's case (supra) was omitted from consideration on the ground that his chest was short by 2 cms and as such he did not have the necessary physical standard, but, similar departmental candidates were considered and got the relief. The respondent's case (supra) was, therefore, appropriately considered by the appropriate authority and by letter dated 21st December, 1995, it was conveyed that the respondent would be entitled to the rank of Assistant Sub-Inspector (Clerk/Typist) from 3-8-1992 the date on which panel of 1992 was released, with the further : 12 : direction that his seniority would be protected on notional basis, but he would not be entitled to any pay and allowances of the Asst. Sub-Inspector (Clerk/Typist) for the back period and would be entitled to the same only from the date he assumes the charge physically.
3. In the teeth of the aforesaid order, the High Court was not justified in granting the payment of backwages for the period for which the appellant has not actually assumed the charge. In the aforesaid premises, we set aside the impugned order of the High Court and allow this appeal. There shall be no order as to costs."
iv) In UNION OF INDIA VS B.M. JHA (2007 (11) SCC
632) the Apex Court has held as under:
"We have heard learned counsel for the parties. It was argued by learned counsel for the respondent that when a retrospective promotion is given to an incumbent normally he is entitled to all benefits flowing therefrom. However, this Court in the case of State of Haryana & Ors. v. D.P. Gupta & Ors., [1996] 7 SCC 533 and followed in the case of A.K. Soumini v. State Bank of Travancore JT (2003) 8 SC 35 has taken the view that even in case of a notional : 13 : promotion from retrospective date, it cannot entitle the employee to arrears of salary as the incumbent has not worked in the promotional post. These decisions relied on the principle of no work no pay. The learned Division Bench in the impugned judgment has placed reliance on the case of State of Andhra Pradesh v. K.V.L. Narasimha Rao & Ors., (1999) 3 SC 205. In our view, the High Court did not examine that case in detail. In fact, in the said judgment the view taken by the High Court of grant of salary was set aside by this Court. Therefore, we are of the view that in the light of the consistent view taken by this Court in the abovementioned cases, arrears of salary cannot be granted to the respondent in view of the principle of no work no pay in case of retrospective promotion. Consequently, we allow this appeal and set aside the impugned order of the High Court dated 17.5.2000 passed by the Division Bench of the High Court as also the order dated 11.1.2000 passed by the Central Administrative Tribunal, Principal Bench.": 14 :
v) In STATE OF HARYANA AND OTHERS VS O.P.GUPTA (AIR 1996 SC 2936) the Apex Court has held as under:
"6.This Court in Paluru Ramakrishnaiah vs. Union of India [(1989) 2 SCR 92 at page 109] considered the direction issued by the High Court and upheld that there has to be "no pay for no work", i.e., a person will not be entitled to any pay and allowance during the period for which he did not perform the duties of higher post, although after due consideration, he was given a proper place in the gradation list having been deemed to be promoted to the higher post with effect from the date his junior was promoted. He will be entitled only to step up the scale of pay retrospectively from the deemed date but is not entitled to the payment of arrears of the salary. The same ratio was reiterated in Virender Kumar vs. Avinash Chandra Chand [(1990) 3 SCC 472] in paragraph 16."
In the light of the contours defined by the Apex Court in the above judgments when facts on hand are re- examined it would indicate that the Screening Committee : 15 : had placed the petitioner in Mechanic Grade III by taking into consideration the broad guidelines prescribed under Rule 6 of the Karnataka Electricity Supply Undertaking (Equation) Rules, 1976, and on account of extending the benefit of re-fixing his grade to Mechanic Grade II in the year 2005 would not entitle the petitioner for claiming arrears of salary that too with effect from 18.12.1974 the date on which his post was re-equated inasmuch as petitioner has not worked in the said post at any point of time and only on the ground of notional promotion having been extended from deemed date retrospectively would not entitle the petitioner to claim arrears of salary. Arrears of salary cannot be granted to the petitioner in view of the principle of 'no work no pay' in case of retrospective promotion.
For the reasons aforestated following:
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ORDER Writ petition is hereby dismissed and parties are directed to bear their respective costs.
SD/-
JUDGE Jm/-