P SHANMUGAM v. THE GENERAL MANAGER

(BY SRI JOSEPH ANTHONY, ADVOCATE FOR R1; SRI GACHCHINAMATH, ADVOCATE FOR R2) …RESPONDENTS 2 THIS W.P.IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ANNX-F THE COMMUNICATION BY DIRECTOR, ADMINISTRATION AND HRD TO EXECUTIVE ENGINEER, ELECTRICAL O & M, CHAMUNDI ELECTRICAL SUPPLY COMPANY VIDE BEARING NO.KPTCL/ B16/31813/2012-13 DT.17.8.2012 IN SO FAR AS APPLICATION OF LAW OF LIMITATION AND DENYING THE ARREARS OF SALARY AND THE RESPONDENTS TO DRAW & PAY ARREARS OF SALARY AND REVISE AND REFIX THE PENSION OF THE PETITIONER CONSEQUENT UPON REVISION OF PAY AND DRAW AND PAY ARREARS OF PENSION ALONG WITH INTEREST AT THE RATE OF 18% OF P.A. AND COST OF THE WRIT PETITION AND ISSUE SUCH OTHER DIRECTION. FURTHER DIRECTION ISSUE TO THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 14.03.2024, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The captioned petition filed assailing communication dated 17.08.2012, wherein petitioner’s request to consider his representation and re-fix his salary with effect from 01.01.1998 is rejected by the respondent No.2/Company.

2. The facts leading to the case are as under: The case on hand involves the petitioner’s request for re-fixation of his salary to align with that of his junior 3 colleague by name R.Sridharan. Petitioner submitted a representation to the respondents to consider his case for re-fixation of pay in the year 2008. Alleging inaction on the part of the respondent No.2/company, petitioner filed petition before this Court in W.P.No.5898/2009. The respondent No.2/company in the light of Circular dated

21.05.1997 made a concession and agreed to step-up petitioner’s salary for a period of approximately three years prior to date of age of superannuation.

3. It would be useful for this Court to extract para 3 of the order passed by this Court in W.P.No.5898/2009, which reads as under: “3. Though the learned counsel for the respondents, had initially resisted the present petition, on the further assertion of the petitioner that the anomaly that was complained of was created in the year 1986 itself and the comparison sought to be made by the learned counsel for the respondents to the pay of the petitioner and the said Shridharan to point out that the pay of the petitioner 4 being more than that of the said Sridharan, is misleading since there was indeed an anomaly even prior to the dates mentioned by the learned counsel for the respondents. Thereafter, the learned counsel respondents having obtained further instructions, brings to the attention of this Court, an order dated 6th July 2009 under similar circumstances where the comparable employees have been given Time Bound increments by virtue of which, if such an employee is drawing as larger pay than his junior, the pay of the senior requires to be stepped-up and accordingly, he would concede that insofar as the petitioner also such stepping-up is warranted for a period of approximately three years, the details of which shall be worked out in due course and he submits that the respondents shall pass appropriate orders to step-up the pay. Recording this submission, the petition stands disposed of.”

4. It would necessary to cull out the Circular issued by the Karnataka Electricity Board dated 21.05.1997, which reads as under: “No.KEB/B16/2031/83-84/II. 5 Board Secretariat, Cauvery Bhavan, Bangalore-560009. CIRCULAR Sub: Application of ‘Law of Limitation’ in respect of employees’ claims – Regarding. Ref: This office Circular of even No. dated 26.9.1996. injustice the employees To avoid any Controlling / Drawing Officers may consider refixation of pay if there are any wrong fixations or if they had difficulty in interpreting the orders of the Board issued from time to time, based on the facts and merits of each case and not on general grounds, only to the extent of refixation. So far as payment of arrears accruing due to such refixation, the same shall be limited to a period of three years only. This is in modification of Circular dated 26.9.1996 cited above. Sd/- Secretary, KEB”

5. On bare perusal of para 3 of the judgment rendered in earlier round of litigation, this Court is of the view that principle of estoppel serves as a legal doctrine preventing the present petitioner from asserting a claim contrary to what was implied by his previous actions. In 6 previous judgment rendered in W.P.No.5898/2009 in 2011, certain facts of legal interpretation have been established that still impact the current case. If the petitioner’s representation that case contained assertions or concessions regarding the period for salary re-fixation and if respondent No.2/company relied on these assertions or concessions, the principle of estoppel is applicable and petitioner cannot be permitted to re-agitate on same cause of action by launching second round of litigation.

6. Upon careful consideration of presented, the petitioner’s contention for salary re-fixation from 01.01.1998 cannot be considered in the light of concession made by respondent No.2/company in earlier round of litigation. If the petitioner’s representation in previous case implied a limitation on the period for salary re-fixation, the principle of estoppel will prevail the petitioner from asserting a different position. The respondent No.2/company initially conceded to petitioner’s 7 request but limited the re-fixation period to three years prior to petitioner’s retirement in 2004. This Court taking cognizance of the statement made by the parties, allowed this limited re-fixation and respondent No.2/company calculated and paid the difference amount to the petitioner. Therefore, petitioner having received this payment could not have submitted a fresh representation to respondent No.2 contending that he is entitled to salary re-fixation from 01.01.1998.

7. The Department circular imposing limitation on claims made by retired employees is deemed valid and enforceable to that extent when the Circular is not under challenge. Therefore, petitioner who has attained the age of superannuation in 2004 has not retained his rights to pursue further claims and has lost his right to seek remedies contrary to the concession given before this Court in earlier round of litigation and also contrary to the Circular. This Court has also taken cognizance of the fact 8 that petitioner has neither filed a review petition seeking clarification at the hands of this Court post judgment rendered in W.P.No.5898/2009 nor an appeal is filed.

8. Therefore, the writ petition is devoid of merits and accordingly, stands dismissed. Sd/- JUDGE CA