IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 WA.No. 884 of 2009() -------------------- AGAINST THE JUDGEMENT IN WPC.15594/2007 Dated 16/02/2009 .................... APPELLANT(S): RESPONDENTS 1 AND 2 ------------------------- 1. THE KERALA MINERALS & METALS LTD., CHAVARA,KOLLAM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE MANAGING DIRECTOR, THE KERALA MINERALS & METALS LTD.,CHAVARA,KOLLAM. BY ADVS. SRI.M.PATHROSE MATTHAI, SENIOR ADVOCATE SRI.E.K.MADHAVAN RESPONDENT(S): PETITIONER AND 3RD RESPONDENT: ------------------------- 1. A.T.PREMACHANDRAN NAIR, SAFETY OFFICER, THE KERALA MINERALS 7 METALS LTD., CHAVARA, KOLLAM. 2. THE DIRECTOR OF FACTORIES & BOILERS, KERALA STATE, THIRUVANANTHAPURAM. ADV. SRI. V. N.ACHUTHA KURUP -R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 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 application W.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