K. Mani v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **THURSDAY, THE 21ST DAY OF AUGUST 2014/30TH SRAVANA, 1936** **WP(C).No. 8140 of 2012 (N) ---------------------------** ## **PETITIONER(S):** ## **--------------** **K.MANI** **CARPENTER ON DAILY WAGES, KHADI CENTER, BALUSSERY KOZHIKODE (AGED 56,S/O.KARAPPAN, THARIPALA HOUSE PANANGAD P.O., BALUSSERY)** **BY ADVS.SRI.K.S.MADHUSOODANAN SRI.THOMAS CHAZHUKKARAN SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SMT.M.A.RUXANA** **RESPONDENT(S):** **--------------** ## **1. STATE OF KERALA** **TO BE REPRESENTED BY SECRETARY INDUSTRIES (K) DEPARTMENT, GOVERNMENT OF KERALA THIRUVANANTHAPURAM-695001** **2. KERALA KHADI AND VILLAGE INDUSTRIES BOARD, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY-695006** **3. PROJECT OFFICER, DISTRICT KHADI AND VILLAGE INDUSTRIES OFFICE KOZHIKODE, PIN-673 032.** **R2,R3 BY ADV. SRI.R.S.HARI KUMAR ,SC,KERALA KHADI AND VILLAGE INDUSTRIES BOARD R1 BY GOVERNMENT PLEADER SRI.RAFEEK.V.K R2 & 3 BY ADV. SRI.TOM K.THOMAS, SC KERALA KHADI & VILLAGE INDUSTRIES BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 8140 of 2012 (N)** **APPENDIX** ## **PETITIONER(S) EXHIBITS:** **EXT.P1 PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DATED 30.10.2009.** **EXT.P2 PHOTOCOPY OF THE LETTER BEARING NO.K.B.4705/09/E1(B) WITH RELEVANT EXTRACT OF ANN-1.** **EXT.P3 PHOTOCOPY OF THE BOARD RESOLUTION BEARING DECISION NO.S.3.** **EXT.P4 PHOTOCOPY OF THE JUDGMENT IN WP(C)19705/2011 DATED 9.8.11 OF THE HON'BLE HIGH COURT.** **EXT.P5 PHOTOCOPY OF THE ORDER BEARING NO.G.O.(RT)411/2012/ID DATED 9.3.2012** **RESPONDENTS' EXHIBITS::** **EXHIBIT R1(a): TRUE COPY OF THE JUDGMENT DATED 29.10.2003 IN WRIT APPEAL NO.439/1999** **EXHIBIT R2(a): TRUE COPY OF THE GOVERNMENT ORDER NO.G.O.RT.541/80/D DATED 21.05.1980** **//true copy//** **P.A.TO.JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J.** **.............................................................** W.P.(C)No.8140 of 2012 **.............................................................** Dated this the 21[st ] day of August, 2014 ## **J U D G M E N T** The petitioner was engaged by the Balussery Gramodaya Khadi Sangh as a Carpenter on daily wages with effect from 01.01.1976. While continuing as such, he had been sent for training for improving his skills in the field of carpentry and this fact is evidenced by Ext.P7 certificate issued to him by the Kerala Sarvodaya Sangh. Thereafter, in 1983, the Gramodaya Khadi Sangh was taken over by the Kerala Khadi and Village Industries Board, the 2[nd] respondent herein. The 2[nd] respondent Board was constituted under the Kerala Khadi and Village Industries Act 1957, for the purposes of promoting Khadi and Village Industries in the rural sector of the State by creating job opportunities with minimum capital investment. It is not in dispute in the instant case that at the time of takeover of the Gramodaya Khadi Sangh by the 2[nd] respondent Board, the petitioner who was working on a daily wage basis was also absorbed as an employee of the 2[nd] respondent Board and he thereafter worked under the 2[nd] respondent on daily wage basis. ## 2. By Ext.P1 order dated 30.10.2009, the 1[st] respondent herein initiated a proposal for regularisation of the daily wage W.P.(C)No.8140 of 2012 2 workers working under the 2[nd] respondent Board. In the said order, the State Government called for a resolution by the 2[nd] respondent Board that would show the names of the employees who could be regularised, along with details showing the tenure of their service as daily wage employees under the 2[nd] respondent Board. Pursuant to the said Government Order, the 2[nd] respondent took up the matter at their Board level, as is apparent from Ext.P2 agenda note. In the details appended to the said note, the petitioner is shown as employed on daily wages as a Carpenter at the Balussery unit of the Board against a sanctioned post. The joining date of the petitioner is also shown as 01.01.1976, which is the date on which he was first engaged as a daily wage worker by the erstwhile Balussery Gramodaya Khadi Sangh that was taken over by the 2[nd] respondent Board. The 2[nd] respondent Board eventually passed Ext.P3 Board resolution recommending the case of daily wage employees, including the petitioner, for regularisation by the State Government. 3. It would appear that when no action was forthcoming from the Government, the petitioner approached this Court through W.P. (C).No.19705 of 2011, which was disposed by Ext.P4 judgment directing the State Government to consider the claim of the petitioner for regularisation based on the various Government orders issued and the decisions of this Court and the Supreme 3 W.P.(C)No.8140 of 2012 Court on the subject. Pursuant to Ext.P4 judgment, the 1[st] respondent considered the case of the petitioner for regularisation and proceeded to reject the same by Ext.P5 order dated 09.03.2012. In Ext.P5, the specific stand of the State Government is that all the appointments in the 2[nd] respondent Board are made through the Kerala Public Service Commission and, insofar as the petitioner was engaged on daily wage basis and not against a sanctioned post after observing the rules of selection, the 2[nd] respondent Board could not make regular appointments to sanctioned posts that were already under the purview of the Kerala Public Service Commission. The said order also points out, with reference to the decision of this Court in **State of Kerala v. Valsamma** (2010 (2) KLT 294), that persons such as the petitioner were not entitled to claim regularisation solely on account of the fact that they had long and continuous service under the 2[nd] respondent Board. Ext.P5 order of the Government is impugned in the present writ petition. 4. Counter affidavits have been filed both by the 1[st] respondent State Government as also by the 2[nd] respondent Board. In the said counter affidavits, the stand taken by the respondents is essentially the same as that contained in Ext.P5 order of the 1[st] respondent. In addition, it is pointed out that while there was an earlier proposal by the State Government to regularise daily wage 4 W.P.(C)No.8140 of 2012 employees of the 2[nd] respondent Board, the said proposal was not subsequently pursued by the 2[nd] respondent Board and that was the reason for steps not being taken for regularisation of the service of the petitioner under the 2[nd] respondent Board. It is pertinent to note that the respondents do not have a case that the State Government had decided to drop the proposal, that was mooted through Ext.P1 Government Order, for regularising the services of daily wage employees under the 2[nd] respondent Board. The gist of the stand of the respondents is only that the petitioner does not have a right to claim regularisation in the absence of duly sanctioned posts of Carpenter under the 2[nd] respondent Board and further, that at any rate, the post of Carpenter, which was subsequently sanctioned in the year 1980, was to be filled up only through the Kerala Public Service Commission, as indicated in the Government order dated 21.05.1980 by which the post was created. 5. In the reply affidavit filed by the petitioner, the petitioner would rely on the service details of Sri.M.Sasidharan, who was appointed as Supervisor (Carpenter and Blacksmith) under the 2[nd] respondent Board to show that consequent to the promotion of the said M.Sasidharan as Technical Supervisor (Carpentry and Blacksmith), there was a vacancy to the sanctioned post of Carpenter to which the petitioner could be accommodated. It is W.P.(C)No.8140 of 2012 5 also pointed out with reference to Ext.P8 that, notwithstanding the absence of a sanctioned post of Carpenter in the Balussery unit of the 2[nd] respondent Board, the petitioner had been deputed to various units in the State for the purposes of discharging his duties as a Carpenter and, therefore, the post in question was a transferable one and as long as there was a vacancy in a sanctioned post under the 2[nd] respondent Board, the petitioner could be accommodated to the said vacancy irrespective of the where the vacancy existed. 6. I have heard Sri.K.S.Madhusoodanan, learned counsel appearing on behalf of the petitioner and Sri.Tom.K.Thomas, the learned Standing counsel appearing for the respondents 2 and 3 and Sri.Rafeek.V.K., the learned Government Pleader appearing on behalf of the 1[st] respondent State Government. 7. On a consideration of the facts and circumstances of the case, as also the submissions made across the Bar, I feel that this is a case that deserves a fresh consideration at the hands of the 1[st] respondent State Government. It is not in dispute that the petitioner was engaged as a Carpenter under the erstwhile Balussery Gramodaya Khadi Sangh with effect from 01.01.1976. It is also not in dispute that at the time of takeover of the Gramodaya Khadi Sangh by the 2[nd] respondent Board, the services of the W.P.(C)No.8140 of 2012 6 petitioner were also taken over by the 2[nd] respondent Board. Further, as rightly pointed out by the learned counsel for the petitioner, the fact that there was no occasion for the payment of any retrenchment compensation to the petitioner, in terms of Section 25 FF of the I.D Act, at the time of takeover of the erstwhile unit in 1983 indicates that he continued on daily wage basis in the services of the 2[nd] respondent Board since the date of takeover. Exts.P1 to P3 proceedings of the 2[nd] respondent also would indicate that the petitioner continued in the services of the 2[nd] respondent Board, albeit on daily wage basis, and that the respondent Board had recommended the case of the petitioner for regularisation. The fact of rejection of his claim for regularisation was intimated to the petitioner only by Ext.P5 order dated 09.03.2012 and even in the said order, the reason for rejection of the claim is stated to be the non-sanctioning of a post to which the petitioner could be accommodated. It is also pointed out that insofar as the mode of recruitment, for the post that was subsequently created, was through the Kerala Public Service Commission and subject to fulfilment of the qualification criteria, the petitioner, who did not posess the necessary qualifications, could not be accommodated to the post. While it is no doubt true that the principles stated by the Supreme Court in the case of **Umadevi v. State of Kerala** (2006 (4) SCC (1)) would stand in the way of the petitioner's claim for regularisation insofar as it is 7 W.P.(C)No.8140 of 2012 not established in this case as to whether there was any sanctioned post of Carpenter, under the 2[nd] respondent Board, against which the petitioner could be considered as having worked on daily wage basis, the fact remains that the petitioner was working under the 2[nd] respondent Board continuously for the period from 01.01.1976 to June 2012. Thereafter, he was disengaged when the 2[nd] respondent Board found that he had attained the age of superannuation, applicable to regular employees of the 2[nd] respondent Board. This continuous service of the petitioner under the 2[nd] respondent Board, even if it does not come to his aid in a claim for regularisation under the 2[nd] respondent Board, must, in my opinion, entitle him to some benefit, even if not wholly commensurate with the benefits that would have been obtained by a regularly appointed worker in the same category under the 2[nd] respondent Board. In expressing this opinion, I am mindful of the plethora of jugments of the Supreme Court which hold that mere continuous employment of a person on a daily wage basis will not entitle him to a claim for regularisation, that a daily wage worker stands on a different footing from a worker who is regularly appointed in accordance with the rules of the establishment, that there is no place for misplaced sympathy while considering claims for regularisation and that. before issuing any directions to the employers, the Court should be mindful of the financial implications that would flow from a direction to treat a daily wage worker as a 8 W.P.(C)No.8140 of 2012 regular employee. It is therefore, that I have consciously refrained from expressing the view that the services of the petitioner ought to be treated as regularised. I feel, however, that this court is not powerless to mould an appropriate relief taking into consideration the long tenure of service rendered by the petitioner under the 2[nd] respondent Board. The Supreme Court has recognised the right in labour courts and industrial tribunals to mould appropriate reliefs in cases of industrial adjudication coming before them, taking into account the services rendered by workers in a given establishment. **'** While holding that the principles laid down in **Umadevi s case - 2006 (4) SCC 1** , would have application even in cases of industrial adjudication, the Supreme Court has, in a recent decision - **Hari Nandan Prasad and Anr v Employer I/R to Management of Food Corporation of India and Anr - 2014 (7) SCC 190** , held that in cases where an order of re-instatement, if issued, would effectively result in a regularisation of the services of an employee which could not be legally justified, the court can direct suitable compensation to be paid to the employee, in lieu of re-instatement. Taking cue from the said decision, I feel it would be desirable for the State Government to consider, favourably, the case of the petitioner for the grant of an ex gratia pension. In taking this view, I am supported by a decision of the Full Bench of this Court in State of **Kerala v. Daisy** (2012 (3) KLT 366) wherein, while dealing with a case where a direction had been issued to grant ex gratia 9 W.P.(C)No.8140 of 2012 pension to a provisional employee who had rendered long years of service in an establishment under the State Government, it was held as follows: “24. As stated earlier, the respondent herein had, ever since she was appointed on 6.10.1982, served the Government as a IInd Grade Draftsman continuously and without break for a period of twenty years and six months till she was relieved from service on attaining the age of superannuation on 31.05.2003. She had during the said period rendered service to the public. By virtue of the fact that she was permitted to continue in service, she did not seek other avenues of employment and thereby became ineligible to seek employment in Government. She did not also seek employment in the private sector as she was under the belief that she will allowed to continue till she attains the age of 55 years. In such circumstances, as the provisions in the Kerala Service Rules regarding payment of statutory pension and the provisions of the Exgratia Pension Scheme operate to the detriment of the petitioner, we are of the opinion that the Government should relax the rigour of the rules and sanction and disburse pension to the petitioner taking cue from the stipulations in the Ex-gratia Pension Scheme introduced as per G.O.(P).No.1851/99/Fin dated 18.09.1999. We also notice in this context that but for the Ex-gratia Pension Scheme, even regular employees of the Government who retire from service on attaining the age of superannuation, but do not have the minimum qualifying service of ten years, are ineligible for pension. It is to redress their grievances that the Ex-gratia Pension Scheme was introduced in the year 1999. In such circumstances as there is no noticeable difference in the quality and content of the service rendered by a provisional employee like the respondent and a regularly appointed IInd Grade Draftsman and the respondent possessed the 10 W.P.(C)No.8140 of 2012 qualifications prescribed for the post, we are of the opinion that the Government should, in relaxation of the provisions contained in the Kerala Service Rules, exercising the power conferred on it under R.7 of Part II of the Kerala service Rules and R.11 of part III of the Kerala Service Rules, sanction and pay pension to the respondent. The yardstick adopted by the Government when it implemented the Ex-gratia Pension Scheme, to quantify the pension payable to regular employees who have less than ten years of service, should in our opinion serve as a guideline for the Government to fix and pay pension to the respondent, in relaxation of the rules.” 8. Accordingly, I dispose this writ petition with a direction to the State Government to consider, favourably, the case of the petitioner for grant of an ex-gratia pension, taking into account his long and continuous service under the 2[nd] respondent Board. The State Government must be mindful of the observations of the Supreme Court, at paragraph 17 of the judgment in **Gurmail Singh and Others, etc., v. State of Punjab and Others** (AIR 1993 SC 1388), with regard to the manner in which a State Government should conduct its affairs as an ideal employer. The relevant portion of the judgment reads as follows: “17............................................................ ................................. The conduct of the Government in depriving the appellants of substantial benefits which have accrued to them as a result of their long service with the Government, although the tubewells continue to be run at its cost by a Corporation wholly owned by it, is something which is grossly 11 W.P.(C)No.8140 of 2012 unfair and inequitable. This type of attitude designed to achieve nothing more than to deprive the employees of some benefits which they had earned, can be understood in the case of a private employer but comes ill from a State Government and smacks of arbitrariness. Acting as a model employer, which the State ought to be, and having regard to the long length or service of most of the appellants, the State, in our opinion, should have agreed to bear the burden of giving the appellants credit for their past service with the Government. That would not have affected the Corporation or its employees in any way- except to a limited extent indicated below - and, at the same time, it would have done justice to the appellants. We think, therefore, that this is something which the State ought to be directed to do.” The 1[st] respondent State Government shall pass appropriate orders in the matter within a period of two months from the date of receipt of a copy of this judgment. I make it clear that while passing orders as directed, the 1[st] respondent shall act untrammelled by the observations and findings in Ext.P5 order. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/