Smt Shamimunnisa vs The Karnataka Power Transmission ...
2021 Latest Caselaw 557 Kant

                           1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 11TH DAY OF JANUARY, 2021

                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             WRIT PETITION No.7337/2017 (S - R)

BETWEEN

SMT. SHAMIMUNNISA
W/O SADIQ MUNAWAR,
AGED ABOUT 64 YEARS,
FORMERLY WORKING AS JUNIOR ASSISTANT,
SHIVAJI NAGAR, BESCOM,
BENGALURU AND RESIDING AT
NO.9/13, ANTHAPPA BLOCK,
2ND CROSS, J.C.NAGAR,
BENGALURU - 06.
                                              ... PETITIONER
(BY SRI SUBRAMANYA BHAT M., ADVOCATE (VIDEO
  CONFERENCING))

AND

1.    THE KARNATAKA POWER TRANSMISSION
      CORPORATION LIMITED,
      KAVERI BHAVAN,
      BENGALURU - 01
      REPRESENTED BY
      THE MANAGING DIRECTOR.

2.    SUPERINTENDING ENGINEER (ELCL)
      BENGALURU EAST CIRCLE,
      5TH FLOOR, BESCOM,
      CORPORATE OFFICE,
      K.R.CIRCLE, BENGALURU - 01.
                              2



3.   EXECUTIVE ENGINEER (ELCL)
     BESCOM, SHIVAJI NAGAR DIVISION,
     NO.12, CURVE ROAD,
     TASKAR TOWN, SHIVAJI NAGAR,
     BENGALURU - 51.

4.   THE BOARD OF DIRECTORS
     KARNATAKA POWER TRANSMISSION
     CORPORATION LIMTIED,
     KAVERI BHAVAN, BENGALURU - 01
     REPRESENTED BY THE CHAIRPERSON.
                                               ... RESPONDENTS

(BY SRI VARUN GOWDA, ADVOCATE FOR R1 & R4 (VIDEO
  CONFERENCING);
  SMT.GIRIJA PATIL, ADVOCATE FOR R2 & R3 (PHYSICAL
  HEARING))

      THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS
PERTAINING TO THE CASE OF THE PETITIONER; QUASH THE
RESOLUTION PASSED BY THE R-4 IN SUBJECT NO.82/A04 WHICH
IS PRODUCED AT ANNEXURE-G AS THE SAME IS IN
CONTRAVENTION OF RULE 222 OF THE KEBESR BESIDES BEING
VIOLATIVE OF ARTICLES 14 AND 21 OF THE CONSTITUTION AND
ETC.,


     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
                       ORDER

The petitioner in this writ petition has called in question

the resolution passed by the fourth respondent denying

pension to the petitioner and has sought an amendment to

raise challenge to the order at Annexure R7 dated 27.02.2012.

2. Petitioner joined the services of the erstwhile

Karnataka Electricity Board as a Second Division Clerk. She

was placed on probation by an order dated 22.07.1974. On

16.10.1998 the respondent-Board had issued a clarification

regarding fixation of pay of employees who have not passed

Kannada language examination, as required under the

regulations, employees who have crossed 45 years of age

such employees should be granted increment prospectively

from the date on which they crossed 45 years of age. Owing

to this clarification dated 16.10.1998, petitioner was also

given annual increment with effect from 05.03.1998 i.e., the

date on which she has attained or crossed 45 years of age by

an order of the second respondent dated 9.11.1998.

3. The petitioner continued to work in the cadre that she

was appointed to and retired on attaining the age of

superannuation on 31.7.2011. At the time of retirement of

the petitioner, the annual increment that was granted to her in

the year 1998 was withdrawn by an order dated 27.02.2012

and her pay was fixed at the bottom of the pay scale obtaining

in the cadre of Second Division Clerk which would mean, the

pay of the petitioner was revised with effect from 22.07.1974,

the date on which she was appointed in the services of the

erstwhile Board.

4. The petitioner has approached this Court in writ

petition seeking a direction for payment of appropriate pension

and other terminal benefits taking her last drawn pay at

Rs.11,413/- as against Rs.9050/- taken by the first

respondent.

5. The respondent-Board has filed its statement of

objections placing on record the reason for reduction of basic

pay in determination of pension, which is withdrawal of the

annual increment that was granted in the year 1998 to the

petitioner. It is in this light the petitioner has raised a

challenge to the said order as well by way of an amendment.

Therefore, the order dated 27.02.2012 is also called in

question in the writ petition.

6. Heard Sri.Subramanya Bhat.M., learned counsel

appearing for petitioner, Sri.Varun Gowda, learned counsel

appearing for respondent Nos.1 and 4 and Smt.Girija Ptil,

learned counsel appearing for respondent Nos.2 and 3.

7. Learned counsel for the petitioner would submit that

the petitioner though joined the services on 25.07.2014 and

was placed on probation for a period of two years, no order of

confirmation of services was passed in favour of the petitioner

for the entire service she rendered in the Corporation which is

from 1974-2011 for about 37 years.

8. The Board had issued a clarificatory note that

employees who have crossed 45 years of age without passing

Kannada language examination as is required under the

regulation, such employees should be granted increments that

they are entitled to, prospectively, from the date on which

they attain the age of 45 years.

9. It is in pursuance of this clarification, annual

increments were granted to the petitioner. That could not

have been withdrawn after about 13 years of its grant and

reduced the pension payable to the petitioner on two counts,

namely, the petitioner was not entitled to said annual

increment and the petitioner had not been confirmed in the

services of the Board.

10. On the other hand, learned counsel for the first

respondent-Corporation would concede that the action taken

against the petitioner is after 37 years of her service as the

pay of the petitioner is sought to be altered in the year 2011 is

with effect from 25.07.1974, the date on which she entered

service. But would submit that they were entitled to undo the

increment that was granted in the year 1998 on the score that

the petitioner had not passed the requisite Kannada language

examination as mandated in the rules.

11. Learned counsel appearing for the respondents 2 and

3 would submit that a clarification was issued by the KPTCL in

the year 2005 with regard to the increment that had been

granted to the petitioner and it is continuous and therefore, no

fault can be laid with the action taken by BESCOM in

submitting the papers to the first respondent for disbursement

of pension in the manner it is done.

12. I have given my anxious consideration to the

submissions made by the learned counsel for the parties and

perused the material on record.

13. The petitioner though was placed on probation on

22.07.1974, was never confirmed in services for 37 years and

was granted annual increment in terms of a clarification issued

by the erstwhile Board on 16.10.1998 with effect from

05.03.1998 and the petitioner had a particular pay scale in

terms of the said order of release of annual increment from

the date on which she attained 45 years of age. The

respondents after the retirement of the petitioner have now

sought to undo the grant of annual increment with effect form

9.11.1998 by an order passed on 27.02.2012.

14. The order dated 27.02.2012 revises the pay scale of

the petitioner obtaining from 25.07.1974 and on withdrawal of

the increment that is granted from 01.04.1998, both of which

are 37 and 14 years respectively, from the pay that was

granted to the petitioner and the increment in the year 1998.

15. The said alteration of pay that was granted to the

petitioner is unavailable in law notwithstanding that the

petitioner was not confirmed in the services of the

Corporation. It is apposite to refer to the judgment of the

Apex Court in the case of Chief Engineer/Operation,

Dakshini Haryana Bijli Vitran Nigam Limited and

Another Vs. Mauj Khan and others reported in (2009)7

SCC 355, dealing with similar kind of a situation where the

employee was not confirmed in the services till retirement.

The relevant paragraphs of the judgment of the Apex Court

referred (supra) reads as follows:

"19. The purported clarification issued by the State of Haryana to which our attention has been drawn, in our opinion, is also not relevant. The clarification furnished by the State Government was in relation to those employees who were not being promoted to the next higher post. The same must have reference to those Junior Clerks whose services were confirmed but who had not been promoted to the post of UDC or higher posts. Once the services

are confirmed, an employee would be borne on the regular cadre. He thus being in the regular service, satisfactory completion of the stipulated period therein would entitle him to the benefits thereof.

20. We, therefore, are of the opinion that the impugned judgment cannot be sustained. The question, however, remains that the appellants deliberately or otherwise despite a clear provision contained in the Rules did not terminate the services of Respondent 1. He was allowed to continue in service.

21. It is neither denied nor disputed that despite the fact that the respondent did not pass the Departmental Accounts Examination, he was otherwise a competent officer. In fact, he has been permitted to officiate on a higher post. In a situation of this nature, in our opinion, the appellants had a duty to give him a warning. His case should have been treated in terms of the Rules. Failure on the part of the State to do so, in our opinion, has seriously prejudiced him. Had such warning been given, he could have appeared in the examination.

22. It is the case of the appellants that Respondent 1 did not appear at the examination at all. It has been held that the respondent is not entitled to the benefit claimed. He was bound to pass the test within the prescribed period. On failure to pass the test, his services were liable to be terminated. Under the Rules, he was not entitled to any warning regarding the failure to pass the test. However, he was allowed to continue in service and received the salary. What is denied is only the benefit of additional increment which can be granted on fulfilling certain conditions.

23. In such circumstances, there may not be justification for payment of compensation. Instead, the appellants should be directed not to deny pensionary benefits to the respondent on the ground that his services were not regularised/confirmed. Such direction is necessary only if there is a move to deny pensionary benefits."

(emphasis supplied)

The Division Bench of this Court in

W.P.No.37861/2009 disposed on 05.01.2010, on

consideration of grant of annual increments to an employee

who had attained the age of 45 years and its validity, has held

as follows:

"4. The Tribunal has examined the case of the respondent and rightly placed reliance on the Sub-rule (3) of the Rule 3 of the Rules.

Having regard to the fact that the respondent crossed the age of 45 years on 03.12.1986, the Tribunal has held that the respondent is entitled to claim annual increments though she has not passed the Kannada language Examination and further rightly made an observation that though the respondent had been granted usual increment due on 01.12.1987, the subsequent increments that fell due on 01.12.1988 had not been granted on the ground that she has not passed the Kannada Language Examination. After careful perusal of the aforesaid proviso to Sub- rule (3) of the Rule 3 of the Rules, the view taken by the Tribunal is in order and further, the

statutory benefit of granting annual increments to the respondent is the statutory liability upon the petitioner herein. Therefore, the stand taken by the Government that the claim of the respondent before the Karnataka Appellate Tribunal suffers from delay and laches cannot be accepted by this Court. The statutory entitlement or the monetary benefit under the provisions of the Rules is required to be paid by the petitioner herein which has not been paid to the respondent. Therefore, she has rightly approached the Tribunal. The Tribunal after examining the legal aspects with reference to the statutory provisions of Sub-Rule (3) of Rule 3 of the Rules has rightly exercised its power and granted the relief."

(emphasis supplied)

16. The Apex Court has clearly held that pension should

not be effected/applicable to an employee who has not been

confirmed in his service on the ground that he is not confirmed

in service or did not pass requisite language examination

under the Rules. So is the order of the learned Division Bench

with regard to grant of increments after 45 years.

17. Therefore, in the light of the facts and the law laid

down by the Apex Court and that of the learned Division

Bench, the following:

ORDER

(i) The writ petition is allowed.

(ii) Order dated 27.02.2012 is quashed and the

respondents are directed to pay pension to the

petitioner taking into consideration her last

drawn basic pay and grant all other

consequential benefits within six months from

date of receipt of a copy of the order.

Sd/-

JUDGE

bkp CT:MJ