C. Antony v. Kerala Health Research and Welfare Society and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **MONDAY ,THE 08TH DAY OF OCTOBER 2018 / 16TH ASWINA, 1940** ## **WP(C).No. 11484 of 2011** ## **PETITIONER/S:** **C.I.ANTONY, AGED 55 YEARS S/O.ITTOOP.C.I., CHALISSERY HOUSE,, RESIDING AT ARPOOKARA EAST.P.O., KOTTAYAM-686 008.** **BY ADVS. SRI.SANTHOSH G. PRABHU SRI.S.KANNAN SRI.S.KRISHNA MOORTHY(ERNAKULAM)** ## **RESPONDENT/S:** **1 THE KERALA HEALTH RESEARCH AND WELFARE SOCIETY, GENERAL HOSPITAL CAMPUS, RED CROSS ROAD, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR, PIN-695 037. 2 STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT, HEALTH DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **BY ADVS. SRI.M.AJAY SC KERALA HEALTH RESEARCH & WELFARE SOCIETY** ## **OTHER PRESENT:** **GOVT.PLEADER SMT.POOJA SURENDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).11484/2011 2 ## **JUDGMENT** The petitioner entered the service of the Kerala Health Research and Welfare Society (first respondent herein) as a House Keeper in the year 1970. While working as Pay Ward Keeper Grade I, he was retired from service on attaining 55 years of age. He was so retired on 30.11.2008. Prior to the date of his retirement, he had submitted Ext.P2 representation on 10.11.2008 pointing out that the pensionary benefits due to the employees of the first respondent were to be paid under the Employees Provident Fund Pension Scheme. The said Scheme is applicable only to persons whose retirement age is 58 years. Since the first respondent organization was one to which the provisions of the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as 'the Standing Orders Act') was applicable, he contended that he was entitled to continue in W.P.(C).11484/2011 3 service until he attained 58 years of age. However, there was no response to Ext.P2. 2. Since there was no action on the part of the first respondent, the petitioner approached this Court by filing W.P.(C) No. 35061 of 2008 with the respondent herein on the party array. The said writ petition was allowed by this Court by Ext.P3 judgment dated 29.3.2010 holding that the retirement age of the employees like the petitioner was 58 years. Thereafter the petitioner submitted Ext.P4 representation dated 8.1.2011 seeking permission to report for work. Thereupon, the first respondent informed him by Ext.P5 dated 20.1.2011 that, his request for continuance in service upto 58 years could not be accepted since he had already retired from service. It is further pointed out in Ext.P5 that as per a Government Notification SRO 344/2010 dated 31.3.2010 the first respondent has been exempted from the provisions of the Standing Orders Act. This W.P.(C).11484/2011 writ petition has been filed in the above context challenging the action of the respondents. Ext.P6 is a copy of the Government Notification exempting the first respondent from the provisions of the Standing Orders Act. 3. According to the petitioner, Exts. P5 and P6 are unsustainable. This Court has already found that the petitioner was entitled to continue in service upto 58 years. Ext.P3 has been rendered following the decision in W.P.(C) No. 9707 of 2006 which was also rendered on the same day. In view of the above pronouncements of this Court, it is contended that there is no justification for not permitting the petitioner to continue in service till the age of 58 years since he has been always willing and ready to work. He claims that he is entitled to be paid all his monetary benefits for the period upto the date on which he attained 58 years of age. It is also pointed out that, four employees who had retired from service under similar W.P.(C).11484/2011 5 circumstances have been permitted to rejoin duty as per Ext.P8 dated 10.5.2011. Therefore, he contends that he has been discriminated. 4. A counter affidavit has been filed on behalf of the second respondent. The contention raised is that, the first respondent, though an instrumentality of the State, is a Society constituted and registered under the Travancore-Cochin Literary Scientific and Charitable Societies Registration Act, 1955, and that, separate service rules are applicable to the service of the petitioner and other employees of the first respondent. As per the Rules applicable, the retirement age of employees like the petitioner is 55 years. Though this Court has declared in Ext.P3 judgment that the petitioner was entitled to continue in service upto the age of 58 years, it is contended that, since he had retired from service, he could not be permitted to be continued. Another contention put forward is that, as per Ext.P6 W.P.(C).11484/2011 6 Notification, the first respondent has been exempted from the provisions of the Standing Orders Act. Since the Government is empowered by Section 14 of the said enactment to issue such Notifications, it is contended that the action is perfectly in order. As per I.A. No. 3277 of 2012 the petitioner has produced additional documents that include Ext.P10, copy of the letter dated 30.3.2010, the very next day after Ext.P3 judgment was pronounced, requesting the second respondent to issue a Notification exempting the first respondent from the provisions of the Standing Orders Act. It has been further requested therein that such Notification be issued prior to the passing of any order by this Court. The petitioner points out that it was in pursuance to Ext.P10 that Ext.P11 has been issued. My attention is drawn to a further development that has taken place in the form of Ext.P12. As per the said order dated 7.5.2011, recognizing the fact that retirement of the employees of the first respondent at W.P.(C).11484/2011 7 the age of 55 would not entitle them to the benefits of the Employees Provident Fund Pension Scheme, the retirement age has been enhanced to 58 years, with the rider that the order shall have effect only from 31.3.2011. According to the counsel for the petitioner, this Court has by Exts. P3 and P9 judgments declared the rights of the employees of the first respondent to continue in service up to the age of 58 years. The first respondent was a party to both the writ petitions. The said judgments have become final. Therefore, it was incumbent on the respondents to abide by the judgments and to permit the petitioner to continue in service upto the age of 58 years. The petitioner was at all times ready and willing to work and had sought permission to do so by submitting Ext.P4. However, by Ext.P5, such permission was not granted. Thus, the respondents have flouted the directions of this Court. They have also caused substantial prejudice and injury to the petitioner. W.P.(C).11484/2011 8 The monetary benefits upto the date of completion of 58 years has been denied to him without any justification. As a consequence, the petitioner is not able to claim the benefits of the Employees Provident Fund Pension Scheme also. For all the above consequences, it is contended that, the respondents are liable. Therefore, according to the learned counsel, this writ petition is only to be allowed. 5. According to the counsel for the first respondent, though this Court had by Exts.P3 and P9 judgments declared the rights of the employees to continue in service upto the age of 58 years, by the issue of Ext.P6 Notification exempting the first respondent from the provisions of the Standing Orders Act, the said judgments have become inoperative. It is contended that the substratum of the judgments has been removed by Ext.P6 Notification which is an exercise of a legislative power. Reliance is placed on decisions of the Apex Court also on the point. W.P.(C).11484/2011 Therefore, according to the learned counsel, this writ petition is only to be dismissed. Government Pleader supports the contentions of the counsel for the first respondent and contends that by the issue of Ext.P6 Notification, the situation has undergone a change and the basis on which the judgment was rendered by this Court has ceased to exist. 6. Heard. It is not in dispute that the petitioner while working as an employee of the first respondent had been retired from service on completion of the age of 55 years on 30.11.2008. Well before his retirement, he had submitted Ext.P2 representation contending that he was entitled to continue in service upto the age of 58 years. However, there was no response to the same. As per Ext.P3 judgment rendered following Ext.P9 judgment pronounced on the same date, this Court had held that the provisions of the Standing Orders Act were applicable to the establishment of the first respondent and W.P.(C).11484/2011 10 that for the said reason, the petitioner and other employees were entitled to continue in service upto the age of 58 years. The first respondent herein was the first respondent in the said writ petitions also. Therefore, Ext.P3 judgment is binding inter parties. It was therefore necessary for the first respondent to have permitted the petitioner to rejoin duty and continue in service until he attained 58 years of age. Such a course was not adopted though Ext.P4 request was submitted by the petitioner. The response to Ext.P4 is found in Ext.P5 issued by the first respondent, which says that since the establishment has been exempted from the provisions of the Standing Orders Act, the request of the petitioner could not be considered. The question is whether the said stand is correct or not. 7. The stand of the first respondent has to be rejected for more reasons than one. In the first place, as pointed out above, the first respondent was a party to Ext.P3, which W.P.(C).11484/2011 11 judgment had admittedly become final. The said judgment is binding inter parties. Therefore, it was necessary for the first respondent to have abided by the terms of the said judgment. With respect to the contention that it was not necessary for them to comply with Ext.P3 in view of Ext.P6 Notification, what looms large is that the said Notification was issued only on 31.3.2010 whereas the judgment is dated 29.3.2010. The Notification Ext.P6 can have only prospective operation. Therefore, the said Notification would apply only from 31.3.2010, the date of issue thereof. It is also necessary to notice that, the fact that the first respondent has been exempted from the provisions of the Standing Orders Act presupposes the further fact that the provisions of the said enactment were applicable to the first respondent until the date of issue of the exemption Notification. Therefore, it is clear that the provisions of the said enactment were applicable to the case of the petitioner as on 29.3.2010 and W.P.(C).11484/2011 12 that the declaration had only authoritatively restated the said legal position. In the above view of the matter, the contention on the basis of Ext.P6 is rejected. 8. The larger contention that is put forward by the counsel for the first respondent is that, the legislature has the power to remove the substratum of the decision in exercise of the legislative power. As per Ext.P6, it is contended that the substratum of the decision Ext.P3 has been removed. Reliance is placed on the decisions in State of Tamil Nadu v. K. Shyam Sunder ((2011) 8 SCC 737), particularly paragraphs 60 to 65 and 84, State of Kerala v. Krishna Lkumar T.G. (2009 (3) KHC 137 (DB)), particularly paragraph 21 to contend that in this case the applicability of the provisions of the enactment on the basis on which this Court had granted the declaration itself has been taken away by the issue of the Notification evidenced herein by Ext.P6. It is contended that in such cases, the judgment of this W.P.(C).11484/2011 13 Court had become incapable of being enforced. 9. However, I am not satisfied that the decisions on which reliance has been placed has any application to the facts of the present case. As already noticed above, the first respondent was a party to Ext.P3 judgment. Immediately on the next day of pronouncement of the judgment, as evident from Ext.P10, the first respondent has addressed a communication to the second respondent seeking the issue of a Notification exempting the Society from the provisions of the Standing Orders Act. The said conduct on the part of a responsible Government functionary is, to say the least, unacceptable. On the basis of Ext.P10, a Notification has been issued, on 31.3.2010. The said Notification does not purport to have any retrospective operation. Therefore, the same can apply only prospectively. For the said reason, issue of Ext.P6 Notification cannot and does not remove the substratum of the decision Ext.P3. At the risk of W.P.(C).11484/2011 14 repetition, it is necessary to notice that the necessity to issue Ext.P6 Notification had arisen only because of the fact that the provisions of the Standing Orders Act had been applicable to the first respondent all along. Therefore, in the case of persons who had retired prior to 31.3.2010 the provisions of the Standing Orders Act has to apply as declared by this Court in Ext.P3. The subsequent events show that by the issue of Ext.P12 dated 7.5.2011, the age of retirement of the employees of the first respondent has been enhanced to 58 years. Therefore, the effect of the Notification Ext.P6 dated 31.3.2011 has come to an end on 7.5.2011. Even as on 7.5.2011, the first respondent did not consider it fit to reinstate the petitioner though he had not completed the age of 58 years on the said date. At the same time, Ext. P8 shows that other retired employees had been permitted to rejoin duty. Taking into account all the above facts, I am constrained to find that the conduct of the first respondent W.P.(C).11484/2011 15 in this case has been absolutely lacking in good faith and unbecoming of the office of the Director of the first respondent. As a responsible functionary of the first respondent, it was incumbent on the said authority to have implemented the judgment of this Court in letter and spirit. The conduct of the first respondent has all along been aimed only to somehow set at naught the effect of Ext.P3. The said conduct is deprecated. In the result, the writ petition is allowed with the following directions: i) The petitioner shall be granted his salary and all other monetary benefits due to him, treating him as a person who had continued in service upto the date on which he attained the age of 58 years. He shall also be entitled to have his pensionary benefits computed afresh, on the said basis. ii) The petitioner shall be paid all the monetary benefits due to him in accordance with the above direction, with W.P.(C).11484/2011 16 interest thereon at the rate of 9% per annum till the date of payment and such payment shall be made as expeditiously as possible and at any rate, within a period of two months of the date of receipt of a copy of this judgment. iii) The petitioner shall be entitled to the costs of this litigation which is quantified and fixed as Rs.25,000/-. Sd/JUDGE K. SURENDRA MOHAN sb ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 13.2.2006 WITH THE TRADE UNIONS OF THE 1ST RESPONDENT WITH A FORWARDING LETTER DATED 24.2.2006 OF THE 1ST RESPONDENT** **EXHIBIT P2 A TRUE COPY OF THE REPRESENTATION DATED 10.11.2008 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT** **EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 29.3.2010 IN WRIT PETITION (C) NO.35061/2008** W.P.(C).11484/2011 17 |**EXHIBIT P4**|**A TRUE COPY OF THE REPRESENTATION DATED**| |---|---| ||**8.1.2011 SUBMITTED BEFORE THE 1ST RESPONDENT**| |**EXHIBIT P5**|**A TRUE COPY OF THE COMMUNICATION NO.A6-**| ||**133/11/KHRWS, DATED 20.1.2011**| |**EXHIBIT P6**|**A TRUE COPY OF EXTRA ORDINARY GAZETTE**| ||**NOTIFICATION SRO 344/2010, DATED 31.3.2010**| |**EXHIBIT P7**|**TRUE COPY OF THE INTERIM ORDER OF THIS**| ||**HON'BLE COURT IN WPC.18013/2007 DATED**| ||**12.6.2007**| |**EXHIBIT P7 A**|**TRUE COPY OF THE INTERIM ORDER OF THIS**| ||**HON'BLE COURT IN WPC.12262/2008 DATED**| ||**2.6.2008**| |**EXHIBIT P8**|**A TRUE COPY OF THE COMMUNICATION NO.A6-**| ||**1120(1)/10/KHRWS DATED 10.5.2011**| |**EXHIBIT P9**|**A TRUE COPY OF THE JUDGMENT DATED 29.3.2010**| ||**IN WRIT PETITIONER (CIVIL) NO.9707/2006**| |**EXHIBIT P10**|**A TRUE COPY OF THE COMMUNICATION NO.MD (PRL)**| ||**10/KHRWS DATED 30.3.2010 ISSUED BY THE 1ST**| ||**RESPONDENT TO THE 2ND RESPONDENT**| |**EXHIBIT P11**|**A TRUE COPY OF THE EXPLANATORY NOTE ATTACHED**| ||**TO EXT. P6 GAZETTE NOTIFICATION**| |**EXHIBIT P12**|**A TRUE COPY OF THE GO(MS) NO.297/2011/H**| ||**DEPT., DATED 7.5.2011**| //true copy// Sd/P.S. TO JUDGE