IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 884 of 2009()
1. THE KERALA MINERALS & METALS LTD.,
... Petitioner
2. THE MANAGING DIRECTOR, THE KERALA
Vs
1. A.T.PREMACHANDRAN NAIR, SAFETY OFFICER,
... Respondent
2. THE DIRECTOR OF FACTORIES & BOLLERS,
For Petitioner :SRI.M.PATHROSE MATTHAI (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :28/05/2009
O R D E R
K. BALAKRISHNAN NAIR
&
C.T. RAVIKUMAR, JJ.
---------------------------------------------
W.A. NO. 884 OF 2009
---------------------------------------------
Dated this the 28th day of May, 2009
JUDGMENT
Balakrishnan Nair, J.
The appellants are respondents 1 and 2 in the Writ Petition. The
first respondent herein was the writ petitioner. The brief facts of the case
are as follows:
2. The first respondent/writ petitioner approached this Court
alleging that the direction of this Court in Ext.P2 judgment to appoint him
as Safety Officer with effect from 1.8.1994 and grant him all consequential
benefits has not been implemented. He also pointed out that the said
direction has been affirmed by a Division Bench of this Court as per
Ext.P3 judgment dated 29.9.2006 in W.A. No. 784 of 2002. The learned
Single Judge, after hearing both sides, allowed the Writ Petition with costs.
Aggrieved by the said judgment, this Writ Appeal is filed.
W.A. NO. 884/2009 2
3. Sri. M. Pathrose Mathai, the learned senior counsel who appeared
for the appellants submitted that after Ext.P2 judgment, the 5th respondent
therein filed W.A. No.784 of 2002 and obtained an order of status quo.
The said appeal was finally dismissed on 29.9.2006. Soon thereafter, the
first respondent was appointed. The main grievance raised in this appeal is
that the direction of the learned Single Judge to grant arrears of salary to
the first respondent herein is unjustified. Salary cannot be paid for the
period he has not worked and the principle of “no work, no pay” will
apply, it is submitted. In support of this submission, learned senior
counsel relied on the decision of the Apex Court in State of Haryana v.
O.P. Gupta, A.I.R. 1996 S.C. 2936. Learned senior counsel also pointed
out that the learned Single Judge directed that the first respondent need
report to the Chief Executive of the Company. But, in fact, the rules
provide for reporting to the Chief Executive of the factory concerned. To
that extent, the direction is liable to be interfered with, it is submitted.
4. We heard Sri. V. N. Achutha Kurup, the learned counsel for the
first respondent. He supported the decision of the learned Single Judge,
but added that the first respondent had only prayed for reporting to the
Chief Executive of the factory.
W.A. NO. 884/2009 3
5. The direction issued by the learned Single Judge in Ext.P2 reads
as follows:
“During the course of argument, it was
contended on behalf of the fifth respondent that
what is mentioned in Rule 31F(i) is “practical
experience of working in a factory in a
supervisory capacity for a period of not less than”
two years in the case of engineering graduates
and five years in respect of graduates in physics
and diploma holders and that supervisory
capacity and supervisory cadre are different.
Even though post of Inspector was in the
workmen cadre, according to him, he has the
capacity to work in supervisory cadre. It was
argued that experience in supervisory capacity as
held by the Supreme Court in C.E.S.C. Ltd. and
others v. Subhash Chandera Bose and others
((1992) 1 SCC 441) support his contentions. In
that case, Supreme Court held that consistency of
vigil over the employees is necessary for
supervision. Supervision is an act of overseeing;
having general oversight of, especially as an
officer vested with authority; oversight and
superintendence with authority to direct; power
of authority to check or restrain and mere
checking of work after its completion or
accepting or rejecting the same is not
supervision. This decision is not at all helpful to
the fifth respondent. There the Supreme Court
considered the meaning of the word
“supervision” as mentioned in Section 2(9)(ii) of
the Employees State Insurance Act, 1948 to find
out whether the principal employer has
‘supervision’ over the workers of a contractor.
Therefore, the above decision has no applicationW.A. NO. 884/2009 4
here and the observations in the impugned
judgment are against the fifth respondent. Fifth
respondent had no case that even though
Inspector Grade A is in the workmen category, he
had power or authority over other operators, he
has got power to initiate disciplinary action,
sanction leaves, and other supervisory functions
over his subordinates. His functions were more
technical. Even third respondent company has no
case that on 1.6.1993, the date of arising of
vacancy, or on 1.8.1994 the fifth respondent has
practical experience of five years in a supervisory
capacity. Mere capacity is not enough. By
Ext.P4 fifth respondent was appointed as
Assistant Safety Officer. According to the
management, it is a new post created. It’s
qualifications are not fixed by statute. Hence, I
decline to interfere in Ext.P4. But, since he was
not appointed as Safety Officer, Ext.P5 has no
effect. Ext.P6 was issued malafide to avoid a
claim of the petitioner. Ext.P8 is clearly illegal.
When fifth respondent was appointed by Ext.P8,
he had no qualification, but petitioner was fully
qualified. The experience required in
supervisory capacity is mentioned as “not less
than five years”. Therefore, a person without
required experience cannot be appointed. Hence,
I set aside Ext.P8 appointment order given to the
fifth respondent as Safety Officer. Petitioner was
fully qualified to hold that post in terms of the
statutory requirement on that date. The third
respondent has no case that his conduct and
character are not good. Therefore, petitioner is
entitled to get appointment from 1.8.1994 as
Safety Officer. He is entitled to get consequent
benefits.”
Going by the above direction, which has been affirmed by the Division
Bench in Ext.P3 judgment, we feel that the first respondent who joined as
W.A. NO. 884/2009 5
Safety Officer with effect from 1.8.1994 is entitled to get all consequential
benefits including arrears of salary. If the learned Single Judge in Ext.P2
had not intended to grant the prayer for arrears of salary, the direction
would have been to grant all consequential benefits except arrears of
salary. So, the view taken by the learned Single Judge in the judgment
under appeal that Ext.P2 confers on the first respondent herein the right
to get arrears of salary is perfectly legal and valid. The decision relied on
by the learned senior counsel for the appellants has no application to the
facts of this case. It was a case where the Apex Court ordered revision of
the seniority list and ordering of promotions in accordance with the rules
based on the revised seniority list. In that context, the Apex Court held
that persons found to be eligible to get promotion based on such seniority
list cannot claim arrears of salary. In this case, the learned Single Judge
found that the first respondent was denied appointment as Safety Officer
wrongly and deliberately and, therefore, it was ordered that he was entitled
to get all consequential benefits. Therefore, the principle laid down by the
Apex Court in the above decision can have no application to the facts of
this case. The challenge against the judgment under appeal to the extent it
directs payment of arrears of salary to the first respondent is repelled. But,
it is clarified that the direction of the learned Single Judge that the first
W.A. NO. 884/2009 6
respondent/writ petitioner shall report to the Chief Executive of the
company shall be read as to the Chief Executive of the factory concerned.
Subject to the above clarification, the Writ Appeal is dismissed.
(K. BALAKRISHNAN NAIR)
JUDGE
(C.T. RAVIKUMAR)
JUDGE
sp/
W.A. NO. 884/2009 7
K.BALAKRISHNAN NAIR
&
C.T. RAVIKUMAR, JJ.
W.A. NO. 884/2009
JUDGMENT
28th May, 2009
W.A. NO. 884/2009 8