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2005 DIGILAW 546 (KER)

K. K. Haridasan Nair v. Kerala State Electricity Board

2005-08-16

K.A.ABDUL GAFOOR, K.HEMA

body2005
Judgment :- Abdul Gafoor, J. Writ petitioner is the appellant. The challenge against Ext.P6 order of termination was upheld by the learned single Judge as per the impugned judgment and directed his reinstatement. But the learned single Judge made it clear that the “petitioner will not be entitled to get salary from 22.11.2003 till the date of reinstatement.” Of course, the learned single Judge made it further clear that there shall not be any break in service and the period that he remained out of duty shall be treated as duty “for all purposes, except the actual salary.” 2. The facts are simple. The appellant entered service as Peon in the Kerala State Electricity Board on 4.8.1972. While working so, the post of Peon was redesignated as Office Attendant. While working as Office Attendant, he was detailed for duty as Electricity Worker. He was all the while considered as Office Attendant and was awarded higher scales on two occasions as that were applicable to Office Attendant. He continued in service even beyond the age of 55 years obviously because going by the bipartite settlement between Union representing the workmen and the Kerala State Electricity Board provided that those who entered service prior to 1.7.1972 shall be superannuated only at the age of 60 years. In Ext.P6, the Board came to the conclusion that the appellant was not entitled to the benefit of such continuance. Accordingly, his services were terminated as per Ext.P6 with effect from 21.11.2003. 3. The contention of the appellant was that though he was detailed for duty as Electricity Worker, he had been all the while treated as Office Attendant, a category to which he was appointed in the services of Electricity Board. Even if he had been an Electricity Worker, going by clause 21(i) of the bipartite settlement. Electricity Workers in wage groups I, II, III and IV who entered service prior to 1-9-1972 can continue in service until they attain the age of 60. 4. This contention was resisted by the Electricity Board on the ground that the appellant became an Electricity Worker later than the said date. 5. The learned single Judge examined this aspect and noticed that the appellant did not enter service as electricity Worker but as Peon on 4.8.1972. Even if he had been detailed to work as Electricity Worker his lien was in the category of Office Attendant. 5. The learned single Judge examined this aspect and noticed that the appellant did not enter service as electricity Worker but as Peon on 4.8.1972. Even if he had been detailed to work as Electricity Worker his lien was in the category of Office Attendant. So he was entitled to continue in service until he attains 60 years of age. It was in that circumstances, Ext.P6 was quashed and reinstatement was directed. But, as already mentioned above, the salary payable between the date of termination and reinstatement was denied to him. This is not justified. Counsel for the appellant mainly relied on the decision reported in A.L. Kalra v. Project and Equipment Corporation of India Ltd. [(1984) 3 SCC] and Manorama Verma v. State of Bihar [1994 Supp (3) SCC 671] 6. It is contended by the counsel for the respondent Electricity Board that the learned single Judge had exercised discretion, while granting the relief of reinstatement, to deny the salary. It is further submitted that the normal principle shall be ‘no work’ ‘no pay’. Therefore, there is no reason for interference. 7. Entitlement to continue in service is based on the rules governing the conditions of service. Those include the terms in bipartite settlement as well. It provides that all those who joined service prior to 1.9.1972 will retire at the age of 60. Merely because, for the convenience sake, the Electricity Board had assigned him duties as Electricity Worker, he cannot be denied the benefit arising out of the settlement, based on the date of entry in service. No other disqualification is pointed out. He continued in that cadre without any promotion. It has been revealed that inspite of such posting as Electricity Worker he had been granted higher grade twice as if he had been posted as Office attendant. Therefore his permanent lien was as Office Attendant. Even if he is termed as Electricity Worker, as contended by the electricity Board, he comes within the wage group mentioned in Clause 21(1) of the bipartite settlement. He is a person who entered service on 4.8.1972, which is earlier than the cut off date mentioned in the said clause in the bipartite settlement. Consequently, on that ground also, he cannot be denied of the benefit of continuance in service until the age of 60 years. His termination as per Ext.P6 was arbitrary and unreasonable. 8. He is a person who entered service on 4.8.1972, which is earlier than the cut off date mentioned in the said clause in the bipartite settlement. Consequently, on that ground also, he cannot be denied of the benefit of continuance in service until the age of 60 years. His termination as per Ext.P6 was arbitrary and unreasonable. 8. Exhibit P6 order reveals that it was a unilateral order terminating his services based on intra-departmental classifications. The appellant is not seen asked to show cause at least. When the right of one to hold a post has been interfered with illegally and contrary to the conditions of service, and, when such termination is found bad in law, he shall have to be restored to his full position. Arbitrary and unilateral termination of service contrary to law when declared illegal shall result in payment of salary during the period one had been kept out of duty illegally. This is the normal rule. There should be strong reasons to depart from this rule, at least in a case like this where the termination of service was per se illegal. In the case of Manorama Varma (supra), the Apex Court held as follows: “We do not see any justification for the High Court not allowing the appellant back wages after it came to the conclusion that the termination was illegal. Ordinarily, the consequential order of grant of back wages must follow, unless there are reasons on record which would justify a departure from the normal order. We do not see any reasons on record to come to the conclusion that the appellant was not entitled to back wages. There is also nothing on record to show that during the period she was out of service, she was gainfully employed elsewhere. In the circumstances we allow this appeal and set aside that part of the High Court’s order by which the appellant was denied back wages and award her back wages from the date of termination of service till she was reinstated in service under the impugned order of the High Court.” 9. The Electricity Board did not contend before us that he was gainfully employed during the period in question. In this regard it is worthwhile to refer to the observation of the apex Court in A.L. Kalra’s case. It reads: “33. The Electricity Board did not contend before us that he was gainfully employed during the period in question. In this regard it is worthwhile to refer to the observation of the apex Court in A.L. Kalra’s case. It reads: “33. When removal from service is held to be illegal and invalid, the next question is whether: the victim of such action is entitled to back wages. Ordinarily, it is well-settled that if termination of service is held to be bad, no other punishment in the guise of denial of back wages can be imposed and therefore, it must as a necessary corollary follow that he will be entitled to all the back wages on the footing that he has continued to be in service uninterruptedly.” Therefore, we are of the view that denial of back wages to the appellant is not justified. The Electricity Board shall, therefore, pay the salary as applicable to him during the period between 22.11.2003 and 13.7.2004 when he was kept out of service. Writ Appeal is allowed as above.