C.G. Xavier and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 22ND DAY OF FEBRUARY 2017/3RD PHALGUNA, 1938** **WP(C).No. 39974 of 2016 (V) ----------------------------** ## **PETITIONER(S): -------------** **1. C.G.XAVIER, S/O C.H. GEORGE, AGED 60 YEARS, CHITTAMKOTTU, BLAYIKKADAVU, CHERANALLOOR, KOCHI 34, ERNAKULAM.** **2. A.K. AYYAPPANKUTTY, S/O KANKORI, ARACKAPPARAMBIL, MUTTINAKAM, VARAPPUZHA, ERNAKULAM 683 517.** **3. T.G. ANTONY, S/O GEORGE, THANNISSERIL HOUSE, MANNAMTHURUTHU, VARAPPUZHA, ERNAKULAM 683 517.** **4. M.D. JOSEPH, S/O DOMINIC, MATHIRAPPILLY HOUSE, CHIRAKKAKAM, VARAPPUZHA, ERNAKULAM 683 517.** **5. A.R. BOSE, S/O RAMAKRISHNAN, ATTUVAPARAMBIL, CHERANALLOOR P.O, KOCHIN 683 517, ERNAKULAM.** **6. AUGUSTINE V.X, S/O CHENNIRIKUTTY, PAKKATHUPARAMBU, MANNAMTHURUTHU, VARAPPUZHA, ERNAKULAM 683 517.** **7. C.E. SIVARAJAN, S/O ERNANKUTTY, CHAKKAMCHIRANIKATHU, KEDAMANGALAM, N. PARAVUR, ERNAKULAM 683 513.** **8. T.K. GOPI, S/O KRISHNANKUTTY, THAIPPARAMBIL HOUSE, MANNAMTHURUTHU P.O, VARAPPUZHA 683 517.** **EL** ## **WP(C).No. 39974 of 2016 (V)** ## **----------------------------** **9. T.H. JAYAN, S/O HARIPRASAD, THAREPARAMBIL, MANNAMTHURUTHU P.O, VARAPPUZHA 683 517.** ## **10. M.K. SHERIN,** **S/O KNNAN VIJAYARAJAN, MALARKANDI (VALIYAPARAMBIL), VATTEKKUNNAM, N. EDAPPALLY, KOCHIN 682 024, ERNAKULAM.** **11. P.A. KASIM, S/O ABDU, VALLATHUPARAMBIL, MANNAMTHURUTHU P.O, VARAPPUZHA 683 517.** **12. K.P RAJU,** **S/O PRABHAKARAN, KOTTAYIPARAMBIL, ANTHIKKADU P.O, THRISSUR DISTRICT, 680 641.** **13. C.E. THARU (THARIATH), S/O ITTEERA, CHAKIATH HOUSE, MANNAMTHURUTHU P.O, VARAPPUZHA 683 517.** **14. P.K. MAHESH, S/O KUMARAN, PUTHENPURACKAL, CHIRAKKAKAM, VARAPPUZHA 683 517** **15. N.K. ABBAS,** **N.A. KUTTY, NANNULLIL HOUSE, MANNAMTHURUTHU P.O, VARAPPUZHA 683 517.** **16. T.A. SHINU, S/O ANTONY, THAIPARAMBIL, MANNAMTHURUTHU P.O, VARAPPUZHA 683 517.** **17. T.A. SAMAD, S/O ABOOBACKER, THOPILAPARAMBIL, MANNAMTHURUTHU P.O, VARAPPUZHA 683 517.** **18. M.V LEONSE, S/O VINCENT, MULLASSERIPARAMBIL, MANNAMTHURUTHU P.O, VARAPPUZHA 683 517.** **EL** ## **WP(C).No. 39974 of 2016 (V)** ## **----------------------------** **19.T.R. GEORGE, S/O P.G. RAPHEL, THACHETHU HOUSE, CHIRAKKAKAM, VARAPPUZHA PIN 683 517.** ## **20.K.J. PAULSON,** **S/O K.S. JOSEPH, KUDILINKAL HOUSE, MANNAMTHURUTHU P.O, VARAPPUZHA 683 517.** ## **21.K.H. SAINUDHEEN,** **S/O HASSAN, KARIVELI, MANNAMTHURUTHU P.O, VARAPPUZHA 683 517.** ## **22.P. RAMESH,** **S/O KUMARAN, POTTAYIL HOUSE, KUTTIKKAD, PONNANI, MALAPPURAM DISTRICT, 679 577.** ## **23.P.G. XAVIER,** **S/O GEORGE, PADASSERY HOUSE, MANNAMTHURUTHU P.O, VARAPPUZHA 683 517.** ## **24.M.V. MATHAI,** **S/O KUNJUVAREED, MOONJELI HOUSE, MANNAMTHURUTHU P.O, VARAPPUZHA 683 517.** ## **25.AUGUSTINE CLETUS,** **S/O VARGHESE, THAIPARAMBIL HOUSE, UDYOGAMANDAL P.O, ELOOR, ERNAKULAM DISTRICT, 683 501.** ## **26.K.D. JOSE,** **S/O DEVASSY, KARAKKASSERY HOUSE, CHARIYAMTHURUTHU, VARAPPUZHA P.O, 683 517, ERNAKULAM.** ## **27.A.A. ABDUL KHADER,** **S/O ABBAS, ATHIKKATHU HOUSE, CHERANALLOOR, KOCHI 683 517.** ## **28. V.K. LIRAR,** **S/O KOMUKUNJU, ANCHAPPALAM HOUSE, METHALA P.O, KODUNGALLOOR 680 669.** ## **29. M.B. DEEPU,** **S/O BHASKARAN, MANALILPARAMBU HOUSE, ELOOR SOUTH, UDYOGAMANDAL P.O, ERNAKULAM 683 501.** **EL** ## **WP(C).No. 39974 of 2016 (V)** ## **----------------------------** ## **30. SHIJU,** - **C/O M.K. KOCHAPPAN, MUNDIYATHU HOUSE, ELOOR SOUTH, UDYOGAMANDAL P.O, ERNAKULAM DISTRICT, 683 501.** **31. C.V. RADHAKRISHNAN, S/O VANDI, CHAKKOTHARA HOUSE, KEDAMANGALAM, N. PARUR, ERNAKULAM 683 513.** ## **32. K.K. KAMALESAN,** **S/O KOCHAPPAN, KALATHITHARA, NARACKAL, ERNAKULAM 682 505.** **33. A.K. BALAN, S/O KUMARAN, ARUKATTU HOUSE, CHETTIKKATTU, KUNJITHAI, N. PARUR, ERNAKULAM DISTRICT, 683 522.** ## **34. PRATHEESH K.B,** - **KOCHUPARAMBIL, MANNAMTHURUTHU, VARAPPUZHA,** - **ERNAKULAM DISTRICT, 683 517.** ## **35. THAMPI K.V.,** - **KALATHINUTHAZHATHU, MANNAMTHURUTHU, VARAPPUZHA, ERNAKULAM DISTRICT, 683 517.** ## **BY ADV. SMT.T.B.MINI** **RESPONDENT(S):** - **--------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 659 001.** ## **2. CHIEF ENGINEER,** - **PUBLIC WORKS DEPARTMENTS (NH), SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **3. THE EXECUTIVE ENGINEER,** - **P.W.D. (NH), KODUNGALLOOR DIVISION, KODUNGALLOOR 680 664.** **4. THE EXECUTIVE ENGINEER,** - **P.W.D. SUB DIVISDION (NH), NORTH PARUR 682 505.** **5. THE SUPERINTENDING ENGINEER, NATIONAL HIGHWAYS CENTRAL CIRCLE, VYTTILA, KOCHI 682 020.** **EL** **WP(C).No. 39974 of 2016 (V)** ## **----------------------------** **6. THE DISTRICT LABOUR OFFICER, ERNAKULAM, CIVIL STATION, KAKKANAD, KOCHI 682 030.** **R1 - R6 BY SR. GOVERNMENT PLEADER SRI. S. GOPINATHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 39974 of 2016 (V) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF THE GOVERNMENT ORDER G.O(P) NO 130/16/FIN. DATED 01-09-2016 EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT DATED 25-09-2016 RESPONDENT(S)' EXHIBITS ----------------------R3(A) TRUE COPY OF THE EXTRAORDINARY GAZETTE NOTIFICATION TRUE COPY P.S. TO JUDGE** **EL** ## **A. MUHAMED MUSTAQUE, J. ---------------------------------WP(C). No.39974 of 2016 ---------------------------------Dated this the 22[nd] day of February, 2017** ## **JUDGMENT** Petitioners worked as Mazdoors for collecting toll at Varappuzha Bridge. According to the petitioners, they were engaged for collection of toll since 2001 onwards. Petitioners submit that they were engaged by the 3[rd] respondent. Petitioners approached this Court claiming bonus from the period 20152016. Petitioners also referred to Government Order produced as Ext.P1 for payment of bonus as well as festival allowance for the casual employees and other daily wages workers etc. issued by the Government as per order dated 01.09.2016. 2. As per the Payment of Bonus Act, 1965 in terms of Section 8 eligibility for bonus is fixed, which is reproduced as follows: _“Every employee shall be entitled to be_ **WP(C). No.39974 of 2016** **2** _paid by his employer in an accounting year, bonus, in accordance with the provisions of this Act, provided he has worked in the establishment for not less than thirty working days in that year.”_ 3. The Government by Ext.P1 order, treated all casual seasonal workers and daily wages workers as eligible for bonus and special festival allowance. For the festival allowance, one of the stipulations is that such employees shall be on the roll on 30.09.2016 and continued thereon 16.09.2016. 4. In the counter affidavit filed by the State before this Court, it is contended that PWD collected toll from 16.01.2001 to 03.01.2003, 01.04.2011 to 24.07.2011 and from 01.04.2012 to 08.09.2016. Thereafter, from 03.01.2003 to 31.03.2001 and from 25.07.2011 to 31.03.2012, the toll was collected through contractors by inviting tenders. According to the 3[rd] respondent, petitioners were engaged by the contractors and there is no privity of contract between the PWD and petitioners. 5. In the light of the contentions raised by the 3[rd] respondent, the question is whether the petitioners are treated as engaged by the PWD for toll collection and whether the petitioners are entitled for bonus and festival allowance. **WP(C). No.39974 of 2016** **3** 6. In regard to the first question regarding treating the petitioners as workers under the PWD, this Court is of the view that PWD was collecting toll directly from the period up to 2012 and onus is on the PWD to prove that the petitioners were terminated and they had stopped collection of toll. It is to be noted that, in the counter filed by the 3[rd] respondent even the contractor's names were not provided. It is admitted case by all that toll collection was stopped with effect from 08.09.2016 as per Ext.R3 Gazette Notification. 7. The State is a model employer. The State has no case that they never engaged petitioners in toll collection. Having extracted benefit of sweated labour of the workers, State cannot turn around and say that there is no privity of contract with the workers. The exploited class whose cause has to be espoused by the State cannot deprive them benefits because of they remain as unorganised and also on account of lack of bargaining powers. It is for the State to regiment their own activities in relation to the engagement of such workers. The State in fact thought to dole out with welfare measures to such casual workers by implementing Government Order, allowing bonus and festival **WP(C). No.39974 of 2016** **4** allowance. In such sector, often benefits were deprived for want of collective bargaining power and due to lack of protection of any law. Bonus is not a mere bounty to be given by an employer. It is a right conferred on them in recognition of their labour. In the absence of any claim that they were never engaged at the Toll, this Court is of the view that it is the duty of the State of ensure that legitimate bonus is paid to them for the year 20162017. It is noted that the petitioners have a specific stand in the case that they were paid festival allowance for the previous year, which fact has not been denied in the counter. If that be so, this Court is of the view that the petitioners are entitled for the bonus as referred in Ext.P1 Government Order. 8. The learned Government Pleader submits that employees, who are engaged in profit making enterprise alone are entitled for bonus. Learned Government Pleader relied on _**Rajkapur v. Laxman [AIR 1980 SC 605]**_ . Having gone through the above judgment, I am of the view that the above judgment has no application in this case. In fact Ext.P2 list out the nature of employment to claim bonus. The petitioners would satisfy the category of workers as referred in Ext.P2 referable to **WP(C). No.39974 of 2016** **5** Clause 5 of Ext.P1 Government Order. 9. Next question is whether the petitioners are entitled for any festival allowance. Admittedly, the toll collection has been stopped with effect from 08.09.2016 and petitioners were not in the service on 13.09.2016 and 16.09.2016. Hence petitioners cannot claim any festival allowance as it was only a measure provided by the Government and not referable to any statutory provision. Therefore, this Court is of the view that the writ petition has to be disposed of, directing the Government to disburse Bonus to the petitioners for the year 2015-2016, in the light of Ext.P1 Government Order. Accordingly, the above writ petition is disposed of. No costs. Sd/- ## **A. MUHAMED MUSTAQUE, JUDGE.** sp/15/02/17 //True Copy// P.A. to Judge