C. Mohanan v KSRTC and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **WEDNESDAY, THE 2ND DAY OF JULY 2014/11TH ASHADHA, 1936** ## **WP(C).No. 6401 of 2014 (A)** ## **---------------------------** **PETITIONER(S): --------------------------** **C. MOHANAN, AGED 48 YEARS, S/O. SANKARAN, CHIRAYIL HOUSE, PATHIRIPPATTA, KAKKATTIL VILA, KOZHIKODE-673 507. (DRIVER (EMPANELLED), KERALA STATE ROAD TRANSPORT CORPORATION, THOTTILPALAM DEPOT.)** **BY ADV. SRI.K.P.JUSTINE (KARIPAT).** **RESPONDENT(S):** **----------------------------** **1. THE CHAIRMAN & MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM-695 023.** **2. THE EXECUTIVE DIRECTOR (ADMINISTRATION), KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM-695 023.** **3. THE ASSISTANT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, THOTTILPALAM, PIN-673 507.** ## **BY ADV. SRI.BABU JOSEPH KURUVATHAZHA, SC, KSRTC.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 6401 of 2014 (A)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **P1 : COPY OF THE CERTIFICATE NO.E2/652/11/TPM DATED 25.03.2011 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **P2 : COPY OF THE DUTY PASS OF THE PETITIONER ISSUED BY THE RESPONDENT CORPORATION.** - **P3 : COPY OF GO(MS)NO.78/2011/TRAN. DATED 22.12.2011 ISSUED BY THE GOVERNMENT OF KERALA.** - **P4 : COPY OF THE CERTIFICATE REGARDING DUTIES FROM 3/2000 TO 30.12.2011 ISSUED BY THE 3RD RESPONDENT.** - **P5 : COPY FO THE ORDERNO.PL.16/014915/12 DATED 08.10.2012 ISSUED BY THE RESPONDENT CORPORATION.** - **P6 : COPY OF THE JUDGMENT IN WP(C).NO.29481/2012 DATED 27.03.2013 OF THIS HON'BLE COURT.** - **P7 : COPY OF THE ORDER NO.PL.16/014915/2012 DATED 12.06.2013 ISSUED BY THE RESPONDENT CORPORATION.** - **P8 : COPY OF THE AFFIDAVIT FILED BY THE 1ST RESPONDENT IN WP(C).NO. 24506/2013 DATED 10.10.2013 WITH ANNEXURE.** - **P9 : COPY OF THE JUDGMENT IN WP(C).NO.24506/2013 DATED 23.10.2013 OF THIS HON'BLE COURT.** - **P10: COPY OF THE JUDGMENT IN RP NO.860/2013 IN WP(C).NO. 29481/2012 DATED 29.10.2013 OF THIS HON'BLE COURT.** - **P11: COPY OF THE ORDER NO.PL.16/014915/12 DATED 26.11.2013 ISSUED BY THE RESPONDENT CORPORATION.** - **P12: COPY OF THE JUDGMENT DATED 16.01.2014 IN CCC NO.1380/2013 IN WP(C).NO. 29481/2012 OF THIS HON'BLE COURT.** - **P13: COPY OF THE ORDER GO(MS)NO.105/2013/TRAN. DATED 21.11.2013 ISSUED BY TRANSPORT(A) DEPARTMENT.** - **P14: COPY OF THE ORDER DATED 17.01.2014 IN RP NO.1031/2013 IN WP(C).NO. 5113/2013 OF THIS HON'BLE COURT.** **RESPONDENT'S EXHIBITS:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **C.K. ABDUL REHIM, J.** ------------------------------------------------- ## **W.P.(c) No. 6401 OF 2014-A** ------------------------------------------------DATED THIS THE 2[nd] DAY OF JULY, 2014. ## **J U D G M E N T** The petitioner was working as empanelled Driver on provisional/daily wage basis in the Kerala State Road Transport Corporation (KSRTC). In Ext.P3 order the State Government have accorded sanction to the KSRTC to regularise provisional employees in the categories of Driver, Conductor and Mechanical staff, who have completed 10 years service as on 21-12-2011, subject to certain conditions. As evidenced from Exts.P1, P2 & P4 the petitioner had completed 10 years of service as on the year 2011. Hence he had approached the Corporation seeking regularisation. When the request of the petitioner was not considered, the petitioner along with 4 others have approached this court in a writ petition, W.P (c) No.8439/2012. This court directed the 1[st] respondent to consider the request for regularisation. But the 1[st] respondent had rejected the claim for regularisation ## **W.P.(c) No.6401/2014** -2- through Ext.P5 proceedings, stating the reason that the petitioner is having only 8 years service with 120 duties per year. 2. Aggrieved by Ext.P5 the petitioner again approached this court in W.P (c) No.29481/2012. This court in Ext.P6 judgment found that, in Ext.P3 Government order it is only stipulated that the employee should have 10 years of service and the insistence for 120 duties on every year proposed by the KSRTC was not accepted by the Government. It is found that the reasons mentioned in Ext.P5 that the petitioners do not have 120 duties on every year in all the 10 years, is wrong. Hence this court quashed Ext.P5 and the 1[st] respondent was directed to consider the matter afresh in the light of the observations contained in Ext.P6 judgment. 3. But the 1[st] respondent again issued Ext.P7 proceedings rejecting the claim for regularisation stating the reason that the petitioner has not completed 10 years of service as on 21-12-2011 and hence he is not eligible for **W.P.(c) No.6401/2014** -3- regularisation. The petitioner again challenged Ext.P7 before this court in W.P (c) No.24506/2013. The 1[st] respondent had filed Ext.P8 affidavit in the said writ petition conceding that Ext.P7 proceedings was issued due to a bonafide mistake. It was conceded that the 1[st] respondent had signed Ext.P7 proceedings without properly realising the direction contained in Ext.P6 judgment. Hence Ext.P7 was withdrawn through another order issued vide; No.PL16/014915, dated 08-10-2013. It is further mentioned in the affidavit that the Corporation had sought clarification from the Government with respect to insistence of 120 duties per year and a fresh proceeding will be issued on getting such clarification. Noticing Ext.P8 affidavit filed, the said writ petition was disposed of through Ext.P9 judgment granting liberty to the Corporation to comply with the directions contained in Ext.P6 judgment. 4. Thereafter the petitioner filed a contempt of court case alleging non-compliance of the directions contained in Ext.P6 judgment. When notice in the contempt case was ## **W.P.(c) No.6401/2014** -4- received by the Standing counsel, the 1[st] respondent had filed a Review Petition seeking review of Ext.P6 judgment. The said Review Petition was dismissed through Ext.P10 order finding that there is no error apparent on the face of record warranting review of the judgment. 5. Thereafter the 1[st] respondent again issued Ext.P11 order rejecting the request for regularisation stating the very same reason as mentioned in Ext.P5 that the petitioner had completed only 8 years of service with 120 duties and has not completed 10 years service with 120 duties. It is challenging Ext.P11 that the present writ petition is filed. Inter alia the petitioner seeks direction to the respondent to regularise the petitioner in the service of KSRTC with effect from 22-12-2011 i.e: from the date of Ext.P3 order. 6. When this writ petition came up for admission on 06-03-2014, Standing counsel entered appearance on behalf of respondents and sought time to get instructions. Hence the matter was adjourned after 2 weeks. On 23-06-2014 **W.P.(c) No.6401/2014** -5- when the case came up for consideration, it was noticed that no statement/affidavit is filed. Hence this court expressed the view that the writ petition will be allowed on imposing heavy compensatory cost against the respondents. But the Standing counsel submitted that Ext.P11 order will be withdrawn and appropriate proceedings regularing the petitioner with effect from the date of Ext.P11 order will be issued. Therefore this court was inclined to adjourn the case to 01-07-2014 passing an order as follows; “This is the 4[th] round of litigation where the petitioner is consecutively challenging the decision negativing his claim for regularisation, and this court consecutively setting aside the orders passed by the respondent Corporation. Prima facie this court is convinced that the respondent Corporation had violated and flouted directions issued by this court and compelled the petitioner to approach this court on repeated occasions. Hence this court was inclined to allow the writ petition ordering regularisation, on imposing heavy compensatory cost on the respondent Corporation. 2. However, Sri. Babu Joseph Kuruvathazha, learned Standing counsel appearing for the respondents submitted that Ext.P11 order will be withdrawn and appropriate proceedings regularising the petitioner with effect from 26-11- **W.P.(c) No.6401/2014** -6- 2013 (date of Ext.P11) will be issued. 3. Under the above mentioned circumstances, the case is adjourned to 01-07-2014 for production of revised order if any issued.” 7. Thereafter the case came up for consideration on today. Standing counsel is not in a position to produce any order issued as promised. It is noticed that the petitioner is approaching this court for the 4[th] time, for the very same cause. He had also filed a contempt of court case in the meanwhile. The claim for regularisation is based on Ext.P3 Government order . In Ext.P6 judgment this court found that the rejection of the claim for the reason that the petitioner has not completed 120 duties on every year during the total service of 10 years as on 21.12.2011, is unsustainable. Again the claim for regularisation was rejected stating a totally untenable reason that the petitioner had not completed 10 years. Such a finding is totally contrary to Ext.P4 certificate issued by the Corporation itself, which will show attendance details of the petitioner from the year 2000 onwards. However the ## **W.P.(c) No.6401/2014** -7- said order was withdrawn on the promise that appropriate fresh orders will be issued. Meanwhile a review was attempted against the judgment. It is only on the basis of the dismissal of the review petition and the subsequent withdrawal of Ext.P7 order that this court had closed the writ petition filed, through Ext.P9 judgment. Still the 1[st] respondent had issued Ext.P11 stating the very same reason that the petitioner has not completed 10 years of service with 120 duties as on 21.12.2011. 8. It is pertinent to note that, the issue relating to the insistence for 120 duties per year was the subject matter for consideration in various writ petitions before this court. In the decision reported in **Suresh Kumar vs. State of Kerala (2013 (2) KLT 258)** it was held by this court that the stand taken by KSRTC that, service of provisional employees are not liable to be regularised for not performing 120 duties per year cannot be appreciated. The above view was reiterated through the judgment of a Division Bench in WA.No.763/2013, dt. 28.5.2013. ## **W.P.(c) No.6401/2014** -8- Thereafter the KSRTC had obtained a clarification from the Government through GO (MS).No.105/2013/ Tran dt. 21.11.2013 to the effect that completion of 120 duties per year is a requisite qualification for granting regularisation. But RP. Nos. 1031/2013 and connected cases filed by the KSRTC seeking review of various judgments based on the above said Government order were dismissed by this court on 17.1.2014 and the said order was confirmed by the Division Bench in the judgment in WA. Nos. 339/2014 & connected cases, dt. 12.3.2014. The 1[st] respondent was aware about all these aspects when Ext.P11 impugned order was issued. 9. However, it is pertinent to note that Ext. P6 judgment had attained finality and is binding on parties inter se. A review petition filed against the said judgment was also dismissed through Ext.P10. That being the position rejection of the claim again stating the very same reason which was already negatived by this court will amount to a clear violation of the direction contained in the ## **W.P.(c) No.6401/2014** -9- judgment. Knowing very well that the legal position remains settled in favour of the petitioner, he was unnecessarily dragged on to this court in repeated occasions. Such an attitude on the part of the 1[st] respondent, repeatedly flouting the directions issued by this court, necessarily is to be curtailed in strong terms. The petitioner need to be adequately compensated for his prolonged agony and sufferings, apart from the litigation expenses incurred. Hence this court is of the opinion that this is a fit case where compensatory cost is to be awarded. 10. Under the above mentioned circumstances this writ petition is allowed. It is declared that the petitioner is entitled to be regularised in the establishment of KSRTC, with effect from 8.10.2012, the date on which Ext.P5 order was issued declining regularisation, for the first time. It is also declared that the petitioner will be entitled for payment of salary with all attendant benefits in the pay scale of the 'Driver' in the regular establishment, with effect from 8.10.2012. ## **W.P.(c) No.6401/2014** -10- 11. The respondents are directed to take necessary steps to permit the petitioner to join duty in the regular service as Driver within 3 days of the receipt of a copy of this judgment. Arrears of salary and other benefits as directed above shall be paid to the petitioner within a period of 2 weeks from the date of joining. The KSRTC is further directed to make payment of a sum of Rs.25,000/( Rupees Twenty Five Thousand Only) as compensatory cost to the petitioner, along with the payment of the arrears of salary. 12. The Registrar General of this court is directed to forward a copy of this judgment to the State Government, through the Secretary of the Transport Department. The Government will consider the situation which led to payment of compensatory cost. If it is convinced that the incumbent in the office of the 1[st] respondent or any subordinate officer in the Corporation was responsible for causing such loss to the KSRTC, which is a Corporation fully owned by the Government, it shall take a decision to ## **W.P.(c) No.6401/2014** -11- recover the said amount from the salary of the incumbent responsible. Such a decision shall be taken by the State Government within one month from the date of receipt of a copy of this judgment and a compliance report shall be forwarded by the Secretary to Transport Department to this court without any further delay. Sd/- **C.K. ABDUL REHIM, JUDGE.** ## **AMG/Pmn** True copy P.A to Judge