B. Mary v. State of Kerala (KSEDC/Keltron) and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944** **WP(C) NO. 2108 OF 2012** ## **PETITIONER:** B. MARY AGED 57 YEARS FOREMAN, KELTRON EQUIPMENT COMPLEX, KARAKULAM, THIRUVANANTHAPURAM. BY ADVS. SRI.P.N.SANTHOSH SMT.K.P.GEETHA MANI ## **RESPONDENTS:** 1 STATE OF KERALA (KELTRON), KELTRON HOUSE, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS MANAGING DIRECTOR. 2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. PIN-695 001. 3 KHADEEJA.P.I JUNIOR ENGINEER GRADE,(NOW ON DEPUTATION TO KSBC LTD), THE KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION LTD.,(KELTRON), KELTRON HOUSE, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033. 4 PHILOMINA.P.J JUNIOR ENGINEER GRADE,(NOW ON DEPUTATION TO KSBC LTD), THE KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION LTD.,(KELTRON), KELTRON HOUSE, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033. BY ADVS. SRI.P.BENNY THOMAS GOVERNMENT PLEADER SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.K.JOHN MATHAI BY SRI.SUNIL KUMAR KURIAKOSE-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.2108 OF 2012 2 ## **JUDGMENT** ## **Dated this the 17[th] day of October, 2022** ## This writ petition is filed seeking the following ## relief: _“a) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exhibit P-10 Order issued by the first respondent and to quash the same:_ _b) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exhibit P-6 MOS dated 3-2 11 and set aside the same to the extent it gives weightage of the past service given to the KPDL employees or in the alternative give weightage to the past service rendered by the KCL employees and give promotion accordingly._ _c) Declare that the petitioner is entitled to get promotion to the post of Deputy Engineer by taking into consideration the service rendered by her in the post of Foreman for the last 14 years in the KCL and 4 years of service in the KELTRON:_ _d) Issue a writ of mandamus or any appropriate writ, order or direction directing the first respondent_ W.P.(C)No.2108 OF 2012 3 _to give the petitioner promotion to the post of Deputy Engineer with effect from the date on which her juniors were given promotion:_ _e) Issue a writ of mandamus or any other appropriate writ, direction or order declaring that the respondents 3 and 4 are not entitled to get promotion in preference to their senior employees came from erstwhile KCL or in the alternative declare that the service rendered by the erstwhile employees of KCL are also to be taken into account for the purpose of giving promotion in KSEDC;_ _f) Call for the records leading to Exhibit P-2 G.O. and Exhibit P-3 Memorandum of Settlement and set aside the same to extent it denying past service rendered by the petitioner for higher promotion in the parent company.”_ 2. Heard the learned counsel for the petitioner, the learned Standing Counsel appearing for the 1[st] respondent as well as the learned Government Pleader. Though notice was taken out to respondents 3 and 4, there is no appearance for the said respondents. 3. It is submitted by the learned counsel for the petitioner that the petitioner was initially employed as Operator Gr-II under the Keltron W.P.(C)No.2108 OF 2012 4 Counters Limited (hereinafter referred to as KCL) which was a subsidiary unit of Kerala State Electronics Development Corporation (KSEDC). It is submitted that the petitioner was entitled to promotions on the basis of the promotion policy of the KCL. The petitioner had been promoted to the post of Foreman in the pay scale of Rs.1340-1990 with effect from 21.01.1995 and was entitled for promotion as Senior Foreman with effect from 21.01.2001. 4. In the year 2006 the KCL was declared as a sick unit and a voluntary retirement scheme was brought into operation. Many of the employees left the unit taking voluntary retirement and there were only 34 employees left in the KCL. In the year 2006, Government directed that the existing employees of KCL would be deployed to Keltron on deputation as a temporary arrangement by Exhibit W.P.(C)No.2108 OF 2012 5 P1 Government Order. It is submitted that thereafter, Exhibit P2 Government Order was issued directing absorption of the erstwhile KCL employees with effect from 01.04.2008, on certain conditions. Pursuant thereto, Exhibit P3 Memorandum of Settlement was entered into between the KSEDC and its Unions which is under challenge in this writ petition. 5. It is submitted by the learned counsel for the petitioner that the Keltron Power Devices Ltd. [KPDL], which was also a subsidiary unit of the KSEDC was declared as a sick unit by the Board for Industrial Financial Reconstruction and the employees of the Keltron Power Devices Ltd. were also offered with VRS and the remaining employees were absorbed into the KSEDC by Exhibit P5 Government Order and Exhibit P6 Memorandum of Settlement. W.P.(C)No.2108 OF 2012 6 6. Learned counsel for the petitioner submits that the terms of absorption as contained in Exhibits P2 and P5 Government Orders as also in Exhibit P3 and P6 Memorandum of settlement are so disparate as to be discriminatory as against the employees of the KCL. It is contended that the petitioner had approached the KSEDC with request for consideration of the issue as also for the grant of the same benefits as was given to the employees of the KPDL. But the claim has been rejected by Exhibit P10 proceedings stating that the service conditions and seniority of the absorbed employees has been settled by the Memorandum of Settlement dated 03.02.2011 and since the petitioner had not been denied any promotions in the KSEDC in terms of the settlement, the petitioner's representation cannot be considered. 7. Learned counsel for the the petitioner W.P.(C)No.2108 OF 2012 7 submits that the petitioner was not a signatory to Exhibit P3 settlement. It is contended that the discrimination between similarly situated employees is against the mandate of Articles 14, 15 and 16 of the Constitution of India and that even the power to enter into contracts should be informed by reason and the principles of non-arbitrariness and fairness. 8. Counter affidavits have been placed on record by the Government as well as the 1[st] respondent. It is specifically stated that the conditions of services and the promotion policies in the KCL and the KPDL were separate and distinct and that the wage revision agreements and promotion policy for the workmen in the KCL was different from those in the 1[st] respondent company. It is submitted that pursuant to Exhibit P2, the employees of the KCL were absorbed in the 2[nd] respondent company with effect from 01.04.2008 W.P.(C)No.2108 OF 2012 8 and the Government Order itself clearly states that the period of service in the KCL will be reckoned only for the purpose of payment of gratuity as and when due. It is contended that Exhibit P3 was not a unilateral exercise and that it was an agreement entered into between the management and the recognized trade unions on 03.02.2011. It is contended that since KPDL was a different subsidiary company and since there were several other factors to be taken into account while passing the Government Order and signing the Memorandum of Settlement, separate and distinct agreements were entered into by the same Unions with regard to the employees of the KCL as well as the KPDL. It is contended that Exhibit P3 settlement which is entered into at the instance of the management as well as the recognized unions is binding on all the employees and in case of any W.P.(C)No.2108 OF 2012 9 complaint with regard to the same, the petitioner ought to have raised the same before the adjudicatory Forums under the Industrial Disputes Act at the relevant time. It is contended that a writ petition seeking the reliefs as sought for is not maintainable. 9. The learned Government Pleader would also contend that since Exhibits P2 and P5 were Government Orders passed in respect of different institutions and since the challenge is raised to the Government Order by amending the writ petition only in the year 2017, the challenge is highly belated and cannot be considered. It is further contended that the reasons for the different terms of the Memorandum of Settlement, in the case of employees in KCL and KPDL, are best known to the Unions which have signed the memorandum and that without the Unions on the party array, this writ W.P.(C)No.2108 OF 2012 10 petition would not be maintainable. 10. The learned counsel for the 1[st] respondent would also place reliance on a decision of the Apex Court in **ITC Ltd. Workers' Welfare Association and Another v. Management of ITC Ltd and Another** [2002 (3) SCC 411] to contend that the challenge against a Memorandum of Settlement before a constitutional court should be considered only with much caution, since the agreement is, obviously one entered into on behalf of all the employees and an individual employee cannot challenge the same on the ground that her interest were not properly served. 11. Having considered the contentions advanced, I notice that the writ petition was originally filed in the year 2012 with the afore mentioned prayers. It appears that the writ petition was amended in the year 2017 incorporating a W.P.(C)No.2108 OF 2012 **==> picture [13 x 8] intentionally omitted <==** challenge to Exhibit P2 Government Order and Exhibit P3 Memorandum of Settlement as well. The writ petition, as originally filed, could not succeed in view of the fact that Exhibit P2 Government Order and Exhibit P3 Memorandum of Settlement specifically lead by the conditions under which the petitioner among other employees in the KCL was entitled to absorption in the KSEDC. As rightly pointed out by the learned counsel for the respondent, the petitioner was served with Exhibit P4 Office Memorandum, offering her appointment in terms of Exhibits P2 and P3, which appears to have been accepted by the petitioner without any reservation. It is, thereafter, that the petitioner has raised the contentions with regard to the illegality in the matter of grant of promotions which apparently is completely covered by Exhibit P3 Memorandum of Settlement. W.P.(C)No.2108 OF 2012 12 12. With regard to the contention of the petitioner that the petitioner was not aware of the terms of Exhibit P2 Government Order or that she is not a signatory to the settlement, I am of the opinion that the judgment of the Apex Court concludes the issue. It has been held that the settlement which is a product of collective bargaining is to be given due weight and consideration, more so when a settlement is arrived at in the course of conciliation proceedings. A settlement can only be ignored in exceptional circumstances, if it is demonstrably unjust, unfair or the result of malafides such as corrupt motives on the part of those who were instrumental in effective settlement. That apart, the settlement has to be judged as a whole, taking an overall view that various terms and process of settlement cannot be examined. W.P.(C)No.2108 OF 2012 13 13. In the instant writ petition, it is pertinent to note that apart from the company and state, none of the Unions which were a signatory to Exhibit P3 settlement are made a party. Apart from stating that there is a discrimination in the Government Orders and in the settlements, the petitioner has not pleaded that there are any malafides involved in the execution of the settlement. It is also clear that the petitioner had not challenged the settlement or raised any objection to it before the appropriate authorities under the Industrial Disputes Act or sought a proper adjudication in accordance with law. In the above view of the matter, I am of the opinion that the contention that the petitioner was not personally a signatory to Exhibit P3 cannot detract from the fact that the settlements were entered into by the Unions and the management, W.P.(C)No.2108 OF 2012 14 accepting different terms with regard to the employees of different Unions . In the above view of the matter, I am of the opinion that the prayers as sought for cannot be granted. The writ petition fails and the same is, accordingly dismissed. **Sd/ANU SIVARAMAN JUDGE** SSK/17/10 W.P.(C)No.2108 OF 2012 15 ## **APPENDIX** ## PETITIONER EXHIBITS |EXHIBIT P1|A TRUE COPY OF THE OFFICE ORDER DATED 14-9-| |---|---| ||2006 ISSUED BY THE FIRST RESPONDENT.| |EXHIBIT P2|A TRUE COPY OF THE G.O. (MS) NO.| ||233/2010/ID DATED 19-11-2010 ISSUED BY THE| ||2ND RESPONDENT ABSORBING 34 EMPLOYEES OF| ||ERSTWHILE KCL TO KELTRON| |EXHIBIT P3|A TRUE COPY OF THE MEMORANDUM OF SETTLEMENT| ||DATED 3-2-2011 ALONG WITH THE LIST OF| ||EMPLOYEES.| |EXHIBIT P4|A TRUE COPY OF THE OFFICE MEMORANDUM DATED| ||8-4-2011 ISSUED BY THE 1ST<br>RESPONDENT| ||APPOINTING THE PETITIONER AS FOREMAN.| |EXHIBIT P5|A TRUE COPY OF THE G. O (MS) NO.45/2010/ID| ||DATED 1-3-2010 ISSUED BY THE 2 RESPONDENT| ||ABSORBING 19 EMPLOYEES OF KPDL TO THE| ||KSEDC.| |EXHIBIT P6|SETTLEMENT DATED 3-2-2011 ARRIVED AT| ||BETWEEN KSEDC AND ITS EMPLOYEES UNIONS.| |EXHIBIT P7|A TRUE COPY OF THE REPRESENTATION DATED 5-| ||9-2011 SUBMITTED BY THE PETITIONER BEFORE| ||THE MANAGING DIRECTOR OF KSEDC LTD...| |EXHIBIT P8|A TRUE COPY OF THE NOTICE DATED 7 10-2011| ||ISSUED BY THE KELTRON PUBLISHING THE| ||CATEGORY WISE SENIORITY LIST OF WORKMEN IN| ||GRADE VIII.| |EXHIBIT P9|A TRUE COPY OF THE GRADE AND ITS SCALE OF| ||PAY PUBLISHED BY THE FIRST RESPONDENT IN| ||RESPECT OF WORKMEN CATEGORY.| |EXHIBIT P10|A TRUE COPY OF THE REPLY DATED 15 10-2011| ||GIVEN TO THE PETITIONER BY THE 1ST| ||RESPONDENT.| SSK //TRUE COPY// PA TO JUDGE