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2025 DIGILAW 1950 (KER)

B. K. Geetha v. Union Of India

2025-07-11

HARISANKAR V.MENON

body2025
JUDGMENT : HARISANKAR V. MENON, J. These connected writ petitions are with reference to certain claims made by the petitioner in W.P(C) No.35517 of 2019. The petitioner in W.P(C) No.35517 of 2019 is stated to have joined the service of the 2 nd respondent company in the year 1983 and continued to work there till 31.07.2019 when she retired as General Manager (Construction). The petitioner is stated to belong to the Scheduled Caste community. It is the case of the petitioner that while she was working as the Chief Manger (Construction) and co-ordinating as DGM (projects) in FEDO- an organ of the 2 nd respondent- she was transferred and posted to National Institute of Technology (NIT), Chumukedema in Dimapur District, Nagaland pursuant to Ext.P1 order dated 27.09.2014, where she joined on 15.10.2014. It is further stated that the petitioner was Diabetic and suffering from Vertigo and since the place to which she was transferred was a hilly area, her medical condition aggravated, that she was under treatment as borne out of Ext.P2 and that she had to take leave from 15.12.2014 to 31.12.2014 based on the medical advice. She further contends that she had to undergo treatment at the Christian Institute of Sciences and Research, Nagaland, as evidenced by Ext.P6. She states that she could not continue in the hilly terrain and sought for a transfer to a non-hilly area with the 5 th respondent herein. Petitioner further contends that with respect to her request for long leave due to her medical condition pursuant to Ext.P10, she was asked to appear before the Government Medical Board. She refers to Ext.P23, the decision of the Medical Board dated 20.06.2015 to contend that the medical problems faced by her have been endorsed by the Board, finding that the petitioner can resume her duties in any non-hilly area. She further contends that even on the face of the afore; pursuant to Ext.P25 dated 13.03.2017, the 3 rd respondent has decided to sanction leave as per the leave policy of the 2 nd respondent, and her salary/allowances for the period from 04.03.2015 to 25.08.2016 would be disbursed only as per the afore policy. She further contends that even on the face of the afore; pursuant to Ext.P25 dated 13.03.2017, the 3 rd respondent has decided to sanction leave as per the leave policy of the 2 nd respondent, and her salary/allowances for the period from 04.03.2015 to 25.08.2016 would be disbursed only as per the afore policy. In the afore order, the 3 rd respondent has further observed that no evidence has been produced to prove that the place to which the petitioner was transferred in Nagaland is a hilly area, and therefore the petitioner’s contentions on that basis are unacceptable . To the same effect are the findings in Ext.P30 of the 5 th respondent dated 06.08.2015. In the meantime, pursuant to Ext.P45 order dated 24.08.2016, the petitioner was transferred back to Kochi, where she has taken charge at FEDO on 26.08.2016. 2. Later, the petitioner submitted Ext.P46 representation before the 2 nd respondent Company, pointing out as under: - “13. Since I am transferred to FEDO Kochi office vide the above referred office order, I am requesting you to take necessary action for disbursement of my salary from 04-03-2015 onwards as given below. i. The salary from 04-03-2015 to 20-06-2015 is to be paid based on the Medical Certificates submitted by me. ii. As I was physically fit for working in areas other than hilly areas as per the Medical Board report dated 20-06-2015, salary from 20-06-2015 to 25- 08-2016 is to be paid without deducting any leave from my credit.” This is followed by various other representations, including the one at Ext.P52 dated 18.04.2017. The afore request at Ext.P52 is disposed of by Ext.P53 communication dated 09.05.2017 by the 7 th respondent informing the petitioner as under:- “With reference to your letter cited above, please note that as per the orders of CMD dated 13.3.2017 issued pursuant to the judgement of the Hon’ble High Court of Kerala in WP (C) No 25121/2015, "Leave shall be sanctioned as per FACT Leave Policy", and "Salary/ allowances for the period 4.3.2015 to 25.8.2016 shall be disbursed as per the policy of FACT". In accordance with the above mentioned direction to sanction leave as per FACT leave policy, the leave applications submitted by you for the period 4.3.2015 to 25.8.2016 have been considered by your leave sanctioning authority and the leave for the period has been sanctioned on 5.4.2017 subject to eligibility. In accordance with the above mentioned direction to sanction leave as per FACT leave policy, the leave applications submitted by you for the period 4.3.2015 to 25.8.2016 have been considered by your leave sanctioning authority and the leave for the period has been sanctioned on 5.4.2017 subject to eligibility. Accordingly, after reckoning the leaves available in your credit, the balance period remains on loss of pay. On the above basis, salary/allowances have been paid on 29.4.2017. Details furnished from Finance Department is attached.” Along with Ext.P53, a table was also attached providing the leave history of the petitioner as under:- ABSENCE MANAGEMENT - ISSUE PERIOD PL DAYS 04.03.2015 ?? 31.08.2015 149 LOP DAYS 01.09.2015 ?? 20.05.2016 263 ML DAYS-21.05.2016 ?? 25.08.2016 97 TOTAL DAYS COVERED EXCLUDING OFF DAYS & HOLIDAYS IN THE CASE OF PL 509 As against afore the petitioner submitted Ext.P54 representation and pursuant to the directions of this Court in W.P(C) No.36845 of 2017, the 3 rd respondent issued Ext.P63 order dated 05.10.2019 finding as under:- “Your contentions were examined with reference to leave rules applicable to managerial employees of the Company. As per the leave rules, the sanctioning authority has the discretion to refuse, revoke or curtail leave at any time based on exigencies of work. Further, leave sanctioned will be subject to eligibility as per leave rules including to the extent of balance leave standing in credit that can be availed during the period applied. No employee is eligible for any pay if leave is not eligible or not available in their credit. In such cases they will be treated as on loss of pay. Further, transfer is not a right of the employee. Transferring an employee and deciding the place of posting is the discretion of the management. Mere production of a medical certificate or report of a medical board does not entitle for a transfer and if transfer is not granted on request it will not result in the proposition that during the period he/she is not reporting for duty, he/she is eligible for salary. This is the basic principle of no work no pay, where no one can claim wages for the period that he/she remained absent without leave. In view of the above, the CMD’s proceedings dated 13-3-2017 cannot be interpreted as that you are eligible for wages the period you remained absent without leave. This is the basic principle of no work no pay, where no one can claim wages for the period that he/she remained absent without leave. In view of the above, the CMD’s proceedings dated 13-3-2017 cannot be interpreted as that you are eligible for wages the period you remained absent without leave. It was only to sanction you leave during the period of absence subject to leave rules of the Company which also includes to the extent you have available leave in your credit. Therefore, I hold that you cannot be paid salary for the period you have not worked. The Ext P18 representation is accordingly disposed of” 3. It is challenging the afore order at Ext.P63, W.P(C) No.35517 of 2017 is filed by the petitioner. She has also sought for a direction for payment of full salary/allowances with interest for the period from 04.03.2015 to 25.08.2016. Further, directions with respect to her Provident Fund eligibility and compensation is also sought from respondents 5 to 8, pointing out that the petitioner, belonging to the Schedule Caste community, has been harassed by the said respondents. 4. In the meantime, on 12.07.2017, the petitioner has filed Ext.P62 petition before the State Commission for Scheduled Caste and Scheduled Tribes for compensation from respondents 5 to 8 herein. When notices were issued on the basis of the complaint lodged as above, respondents 5 to 8 have sought to challenge the maintainability of the very application filed by the petitioner before the Commission. However, in spite of the above, when the proceedings were continued by the Commission, they sought to institute W.P(C) No.32945 of 2019, arraying the complainant (petitioner in W.P(C) No.35517 of 2019) as the 3 rd respondent. The said writ petition was admitted by this Court staying all further proceedings pursuant to Ext.P2 notice issued by the Commission. Insofar as the complaint filed by the petitioner in W.P(C) No.35517 of 2019 has led to the issue of notices as above, this writ petition is also tagged along with the main case and heard. 5. I have heard Sri. Gopalakrishnan, the learned counsel for the petitioner in W.P(C) No.35517 of 2019, Sri.Benny Thomas, the learned senior counsel for the petitioners in W.P(C) No.32945 of 2017, and Sri.Jai Mohan, the learned counsel for the 2 nd respondent – FACT. 6. 5. I have heard Sri. Gopalakrishnan, the learned counsel for the petitioner in W.P(C) No.35517 of 2019, Sri.Benny Thomas, the learned senior counsel for the petitioners in W.P(C) No.32945 of 2017, and Sri.Jai Mohan, the learned counsel for the 2 nd respondent – FACT. 6. The main issue arising for consideration in these writ petitions is as regards the sustainability of Ext.P63 issued by the Chairman and Managing Director of the 2 nd respondent Company, as noticed earlier. Hence, I proceed to consider W.P(C) No.35517 of 2019 at first. The petitioner’s case was that she was transferred to Nagaland and on account of her medical condition, she could not continue there and sought for medical leave. However, the leave sought was denied for the reasons noticed earlier. 7. It is not in dispute that the petitioner, while working at Kochi, was transferred to Nagaland and that she joined duty on 15.10.2014. A reference to Ext.P2 medical records would show that within no time, the petitioner’s medical condition aggravated, and the petitioner was advised to consult a more specialised centre for further management. The petitioner, after taking leave from 15.12.2014 to 31.12.2014 on the basis of the afore, had rejoined at Nagaland. However, the medical condition continued to persist, and the petitioner sought for further leave. But the Management sanctioned leave for only 10 days. The petitioner even thereafter sought for further extension on medical grounds supported by a medical certificate. The matter was referred to the Medical Board. It is only pursuant to Ext.P23 decision that the Medical Board gave its opinion on 20.06.2015, wherein the Medical Board has categorically found the petitioner fit to resume her duties in places “other than hilly areas”. The fact that the location to which the petitioner has been transferred is a hilly one has been accepted even by the 2 nd respondent Company, as seen from Ext.P24 communication as under:- “3. The location of the site being in Nagaland is very remote and access is very difficult. The terrain is hilly, rugged and mountainous.” A perusal of the afore would show that the stand taken by the petitioner from day one, that since the site to which she was transferred was hilly, it was not possible for her to work, was correct. The terrain is hilly, rugged and mountainous.” A perusal of the afore would show that the stand taken by the petitioner from day one, that since the site to which she was transferred was hilly, it was not possible for her to work, was correct. However, the petitioner’s leave application was rejected since, according to the 2 nd respondent, the concerned site was not a hilly area. It is further stated in Ext.P25 that the petitioner did not produce any evidence to show that the site concerned is a hilly terrain. But at the very same breath, the 3 rd respondent in Ext.P25 has decided to drop all the disciplinary proceedings taken against the petitioner for not joining duty at Nagaland. When it has been decided to drop the disciplinary proceedings, naturally, the petitioner’s request for leave on the basis of medical reasons ought to have been accepted. In the impugned order at Ext.P63, the 3 rd respondent has come to the conclusion that merely by placing reliance on the report of the Medical Board, the petitioner cannot seek a transfer back to Kerala. It is further observed that the principle “no work, no pay” would apply. 8. I am of the opinion that, though transfer is not the right of the employee, the question arising for consideration in the case at hand is entirely different. When the petitioner was transferred to Nagaland, without raising any objection, she joined there. It was only after joining that the problems arose, as seen from Ext.P2 and the petitioner was advised to obtain a specialised evaluation. Even thereafter, the situation continued to be the same, and during January 2015, when the petitioner applied for leave on medical grounds, the company took the stand that the request cannot be considered without referring the petitioner to the Medical Board. When that be so, it goes without saying that the 2 nd respondent admits that the opinion of the Medical Board would decide the claim. But when the Medical Board issues its opinion as seen from Ext.P23, the company takes the stand that the site to which the petitioner was transferred is not a hilly area. This goes against the admission of the 2 nd respondent in Ext.P24 with specific reference to the allowance granted with respect to the NIT site at Nagaland. But when the Medical Board issues its opinion as seen from Ext.P23, the company takes the stand that the site to which the petitioner was transferred is not a hilly area. This goes against the admission of the 2 nd respondent in Ext.P24 with specific reference to the allowance granted with respect to the NIT site at Nagaland. Substantial allowance is seen ordered pursuant to Ext.P24, taking note of the nature of the terrain and the risk involved. It is even on the face of the benefits, so provided that the petitioner could not continue in Nagaland. When that be so, the ultimate findings in Ext.P63 cannot be sustained. This is all the more so, when the disciplinary proceedings have been dropped unconditionally, as noticed earlier. In such circumstances, the principle “no work, no pay” would have no application to the facts and circumstances of this case. In this connection, I notice the principle laid down by the Apex Court in State of Uttar Pradesh v. Dayanand Chakrawarty and Others [ (2013) 7 SCC 595 ] that “no work no pay” would not apply to a case, where the employee is prevented by the employer from performing the duty, as also the judgment in Shiv Nandan Mahto v. State of Bihar [ (2013) 11 SCC 626 ] wherein, it is held that the employee, who is illegally kept out of service, is entitled to full back wages. 9. Therefore, I am of the opinion that W.P(C) No.35517 of 2019 is only to be allowed as under:- i. Ext.P63 issued by 3 rd respondent is set aside ii. There will be a direction to the 2 nd respondent to sanction the leave applied for by the petitioner on medical grounds on the basis of the medical certificate/opinion of the Medical Board. iii. The respondent to pay full salary/allowance for the period from 04.03.2015 to 25.08.2016 with interest at four percent. iv. The respondent company to remit the PF contribution also for the afore period so as to enable the petitioner to avail pension. v. However, I am of the opinion that the petitioner is not to be granted any compensation as prayed for, since I notice that the respondents were proceeding on the basis of certain orders issued, which are the subject matter of challenge in this writ petition. v. However, I am of the opinion that the petitioner is not to be granted any compensation as prayed for, since I notice that the respondents were proceeding on the basis of certain orders issued, which are the subject matter of challenge in this writ petition. The petitioner cannot contend that she is harassed merely on account of the refusal to grant leave, even if she belongs to the Scheduled Caste Community. 10. As regards W.P(C) No.32945 of 2017, I notice that the contention raised by the petitioners is essentially as regards the maintainability of Ext.P1 complaint filed by the 3 rd respondent employee before the 2 nd respondent Commission. A reading of the complaint at Ext.P1 shows that it is essentially the reproduction of various averments contained in the writ petition filed by the 3 rd respondent. No specific case as regards complaints against the petitioners with respect to harassment of the 3 rd respondent is made out in the complaint. Provisions of Section 9 of the Kerala State Commission for Scheduled Castes and Scheduled Tribes Act, 2007 (hereinafter referred to as “Act” for short), reads as under: - “ 9. No specific case as regards complaints against the petitioners with respect to harassment of the 3 rd respondent is made out in the complaint. Provisions of Section 9 of the Kerala State Commission for Scheduled Castes and Scheduled Tribes Act, 2007 (hereinafter referred to as “Act” for short), reads as under: - “ 9. Functions of the Commission The Commission shall have the following functions, namely:- (a) to investigate and examine the working of various safeguards provided in the Constitution of India or under any other law for the time being in force or under any order of the Government for the welfare and protection of the Scheduled Castes and the Scheduled Tribes in Kerala; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes and the Scheduled Tribes in Kerala and to take up such matters with the appropriate authorities; (c) to participate and advise on the planning process of socio- economic development of the Scheduled Castes and the Scheduled Tribes and to evaluate the progress of their development in the State; (d) to make recommendations as to the measures that should be taken by the Government for the effective implementation of safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes and Scheduled Tribes and to make report to the Government annually and at such other time, as the Commission may deem fit; (e) to discharge such other functions in relation to the protection, welfare, development and advancement of the Scheduled Castes and the Scheduled Tribes, as may be prescribed: Provided that if any matter specified in this section is dealt with by the National Commission for Scheduled Castes and the Scheduled Tribes established under Article 338 of the Constitution of India, the State Commission for the Scheduled Castes and the Scheduled Tribes shall cease to have jurisdiction on such matter.” A reading of the afore would show that it is only on account of “specific complaints” as regards the rights and safeguards of Scheduled Caste and Scheduled Tribes, that the Commission would be entitled to proceed against the petitioners. This Court further notices that essentially the dispute is as regards the denial of the leave applied for by the 3 rd respondent. The said denial has been challenged by the respondent employee in the connected writ petition. This Court further notices that essentially the dispute is as regards the denial of the leave applied for by the 3 rd respondent. The said denial has been challenged by the respondent employee in the connected writ petition. I also notice the judgment of the Delhi High Court in State Bank of India vs. The National Commission for Scheduled Castes and Ors. [ MANU/DE/2547/2016 ] wherein almost identical situation was dealt with, holding that the complaint is not entertainable in terms of Article 338 of the Constitution of India. In that case, instead of challenging the order of penalty imposed by the disciplinary authority on the employee, a complaint was lodged under the Act before the National Commission. The High Court found that ideally, the employee has to challenge the proceedings imposing penalty against him, instead of approaching the Commission. Hence, I am of the opinion that the principle laid down in the afore judgment would also apply to the facts and circumstances of the case at hand. 11. In such circumstances, I am of the opinion that this writ petition is only to be allowed. This is all the more so, in view of the prayer for compensation in the writ petition filed by the employee being rejected as found above. Resultantly, W.P(C) No.32945 of 2017 would stand allowed by quashing the proceedings initiated pursuant to Ext.P2 notice.