K. Mohandas and others v Travancore Titanium Products Limited and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 28TH DAY OF MAY 2013/7TH JYAISHTA 1935** **WP(C).No. 12120 of 2011 (L) ----------------------------** ## **PETITIONER(S):** **---------------** **1. K.MOHANDAS, VENATTIL HOUSE, INDIRA NAGAR ROAD, NEETHI NAGAR-138, PEROORKADA THIRUVANANTHAPURAM.** ## **2. P.GOPINATHAN, JAYAHARI, D-6 CHESHIRE HOME LANE, KOWDIAR PO, THIRUVANANTHAPURAM.** **3. JAMES P.R, TC 13/1852, ARRA-29 AVITTOM ROAD, KUMARAPURAM, THIRUVANANTHAPURAM-11.** **4. M.M.MATHEW, TC 12/1087, BARTON ILL , KUNNUKUZHI PO, THIRUVANANTHAPURAM-37.** **5. A.NAJUMUDIN, FLAT B-313, SWATHI NAGAR WEST PORT, THIRUVANANTHAPURAM-23.** **6. K.DIVAKARAN, TC 6/2039, PMV NAGAR ELIPPOD, VATTIYOORKAVU PO, THIRUVANANTHAPURAM-13.** **7. F.VINCENT, TC 5/736,PADMAVI PASAM ROAD PEROORKADA, THIRUVANANTHAPURAM-05.** **8. M.ABVOOBAKER KUNJU, TC 8/1445. AVRA A-14 ARAYALOOR, THIRUMALA PO, THIRUVANANTHAPURAM-6.** **9. S.SATHEESAN ASARI, TC 4/203-1,KRA D-31 KURAVANKONAM, KOWDIAR PO, THIRUVANANTHAPURAM-3** **10. P.MOHANLAL, TC 2/1787 (5) CHANDRAKANTAM GRA-108, GOUREEESAPATTOM, THIRUVANANTHAPURAM-4.** **11. R.J.D PRATHAPAN, TC 11/1133, CHARACHIRA ROAD, NANTHANCODE, THIRUVANANTHAPURAM 695 003.** **12. T.P.MOHAMMED, MAITHRI, PO CHENAKKAL ANGADI, THENHIPPALAM, MALAPURAM 673 636** **13. P.MURALEEDHARAN NAIR, TC8/136-3, MURALIGEETHAM, THIRUMALA, THIRUVANANTHAPURAM-06.** **14. RAMABHADRAN S, SOBHA RAMAM, 52, KRISHNA NAGAR, PEROORKADA THIRUVANANTHAPURAM-5.** **BY ADVS.SRI.P.RAMAKRISHNAN** **SMT.PREETHI KESAVAN SRI.T.C.KRISHNA SRI.C.ANIL KUMAR SRI.PRATAP ABRAHAM VARGHESE** ## **RESPONDENT(S):** **---------------** **1. TRAVANCORE TITANIUM PRODUCTS LIMITED** **KOCHUVELI, THIRUVANANTHAPURAM-21 REPRESENTED BY ITS MANAGING DIIRECTOR.** ## **2. THE MANAGING DIRECTOR,** **TRAVANCORE TITANIUM PRODUCTS LIMITED, KOCHUVELI THIRUVANANTHAPURAM-21 .** **3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, INDUSTRIES (H) DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001** **BY ADV. SRI.K.ANAND (A.201) BY ADV. SMT.LATHA KRISHNAN BY GOVERNMENT PLEADER NOUSHAD THOTTATHIL BY SRI.B.S.KRISHNAN(SR.)SC,TRAV.TITANIUM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).NO.12120 OF 2011** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P1 COPY OF THE EXTRACTS OF THE MINUTES OF THE 344TH MEETING OF THE BOARD OF DIRECTORS OF R1 HELD ON 25.6.2007.** **EXT.P2 COPY OF ORDER DATED 5.7.07 ISSUED BY R2.** **EXT.P3 COPY OF LETTER ATED 1.7.08 FROM BHARAT PETROLEUM CORPORATION LIMITED TO R1.** **EXT.P4 COPY OF LETTER DATED 4.11.08 FROM BHARAT PETROLEUM CORPORATION LIMITED TO R1.** **EXT.P5 COPY OF PARTICULARS OF 60 APPOINTMENTS MADE BY R1 DURING THE PERIOD MAY 2007 TO MARCH 2011.** **EXT.P6 COPY OF ORDER DATED 5.8.09 AS PER WHICH ONE DR. K. GOPINATHAN NAIR IS APPOINTED AS CONSULTANT (R& D) ON CONTRACT BASIS.** **EXT.P7 COPY OF THE ORDER DATED 5.8.09 APPOINTING ONE DR. V.V. SREERAJAN AS CONSULTANT IN (R& D) ON CONTRACT BASIS.** **EXT.P8 COPY OF THE LETTER DATED 10.9.08 APPOINTING SRI. JOHN JOSEPH AS SECRETARIAL CUM FINANCIAL CONSULTANT ON CONTRACT BASIS.** **EXT.P9 COPY OF LETTER DATED 4.6.07 APPOINTING DR. ALIAS M.O AS CHIEF MANAGER (R&D) ON CONTRACT BASIS.** **EXT.P10 COPY OF ORDER DATED 10.3.08 APPOINTING DR.R.C. NAIR AS CHIEF MEDICAL OFFICER ON CONTRACT BASIS.** **EXT.P11 COPY OF THE ORDER DATED 12.11.08 APPOINTING SRI.V.B. RAMESHKUMAR AS VIGILANCE & SECURITY SUPERINTENDENT ON CONTRACT BASIS.** **EXT.P12 COPY OF THE ORDER DATED 7.1.09 AS PER WHICH ONE MATHEW P.V WAS APPOINTED AS FINANCE MANAGER ON CONTRACT BASIS.** **EXT.P13 COPY OF THE MINUTES OF THE MEETING DATED 28.6.10.** **EXT.P14 COPY ODF JUDGMENT DATED 24.11.2010 IN WPC NOS. 35223/08 AND 3585/07.** **EXT.P15 COPY OF REPRESENTATION DATED 15.1.2.2010 SUBMITTED BY THE PETITIONERS BEFORE R3.** **EXT.P16 COPY OF ARGUMENT NOTE DATED 17.11.2011 SUBMITTED BY THE PETITIONERS.** **EXT.P17 COPY OF ORDER DATED 14.2.2011 ISSUED BY R3.** ## **RESPONDENTS' EXHIBITS:** **EXT.R3(A) STANDING ORDERS/SERVICE RULES FOR THE MANAGERIAL PERSONNEL.** ## **EXT.R3(B) MD'S ORDER NO.23/07/DT 5.7.07.** **EXT.R3(C) PROFIT AND LOSS ACCOUNT FOR 2006-07** **/TRUE COPY/** **P.S. TO JUDGE** **cl** **A. M. SHAFFIQUE, J.** ................................................. W.P.(C).NO.12120 OF 2011 .................................................. Dated this the 28[th] day of May, 2013 ## **JUDGMENT** Petitioners challenge Exts.P1, P2 and P17. Ext.P1 is the decision taken by the Board of Directors of Travancore Titanium Products Limited, the 1[st] respondent herein, on 25.6. 2007 deciding to implement the retirement age of employees in the Managerial Cadre as 58. By virtue of the said decision, about 30 employees in the Managerial Cadre, who has crossed the age of 58 years were to retire and the decision in that regard was taken authorizing the Managing Director to implement the same in the month of July, 2007. Ext.P2 is the office order by which the decision to adopt a uniform criteria with regard to the retirement age of all categories of employees in the Company was incorporated in the Standing Orders Recruitment and Promotion Policy for Managerial Cadre. 2. Petitioners are persons who retired at the age of 58 years by virtue of the above decision, challenged the said decision by filing writ petition before this Court as W.P.(C). No.35223/2008 and connected cases. The said cases came to W.P.(C).NO.12120 OF 2011 2 be decided on 24.11.2010 and Ext.P14 is the said judgment. This Court having taken into consideration the factual situation involved in the matter, directed the petitioners to submit necessary representation before the Government and the Government was directed to take a decision within a specified time. Pursuant to the same, Ext.P15 representation and Ext.P16 Memorandum of Arguments were submitted by the petitioners before the Government which resulted in Ext.P17 order dated 14.2.2011. In Ext.P17 the Government came to a conclusion that the Company has reported that there was a loss of Rs.15.35 crores in 2005-06 and 3.45 crores in 2006-07 although no audit figures were available for confirmation. Government did not find anything wrong with the Company in fixing the retirement age at a time when the Company was facing acute financial crisis. It is also found that refixing and unification of retirement age as 58 years is one of the steps taken by the Management for the very existence of the Company. Hence, the Government did not interfere in the decision. 3. It is the contention of the petitioners that the factual matters which were relied upon by the Board of Directors W.P.(C).NO.12120 OF 2011 3 was totally baseless. One of the main reasons for taking the decision was the expenditure of Rs.256.10 crores for implementing a Major Pollution Control and Expansion Project. According to the learned counsel for the petitioners, that decision was later abandoned. Another reason was the financial position of the Company. That the Company has incurred loss during the previous financial year, according to the petitioners, was not on any basis as there was no audited balance sheet. The other reasons stated by the Company were also not correct. In regard to the price of raw materials, especially sulphur, reference is made to Exts. P3 and P4 to show the change of price during 1[st] July which was reduced from Rs.35,000/MT to Rs.2,500/MT during 4[th] November, 2008. Another contention urged by the petitioners is that subsequent to Exts.P1 and P2, 61 persons were appointed in the Company from May, 2007 to March, 2011 as evidenced from Ext.P5 list, which also would show that the reason stated for reducing the number of employees was not correct when the number of persons discharged was only 30. 4. Though no counter affidavit is filed by the 1[st] respondent, it is argued by the learned Senior Counsel W.P.(C).NO.12120 OF 2011 4 appearing for the 1[st] respondent that there is no scope for judicial review in respect of the decision taken by the management for refixing the retirement age. It is submitted that no retirement age fixed in the Company in regard to the employees of Managerial Cadre. Decision was taken by the management in terms of Ext.P1 to have a uniform retirement age for the Managerial Cadre, the staff as well as workers and therefore, 58 years was fixed as the retirement age. Those persons who had crossed 58 age were requested to retire from the Company. Reference is also made to the judgment of a Division Bench of this Court in Sajan Mannali v. Hon'ble Chief Justice (1994 (1) KLT 223) wherein this Court in paragraph-9 held as under: 9. The expression “conditions of service” is one of wide import. It means all those conditions which regulate the holding of a post by a person right from the time of his appointment, till his retirement and even beyond it, in matters like pension etc. The dismissal of a government servant or his compulsory retirement are all matters which all within his conditions of service. (North West Frontier Province v. Suraj Narain Anand, AIR 1949 PC 112; State of Madhya Pradesh v. Shardul Singh, (1970) 1 SCC 108). The expression would include age of superannuation as also the right to reduce it. (State of Bihar v. Yogendra Singh, AIR 1982 SC 882; Srinivasan v. State of Kerala, 1967 KLT 853 = AIR 1968 Ker. 158 W.P.(C).NO.12120 OF 2011 5 (FB). Compulsory retirement, dismissal and reduction in age of retirement being part of conditions of service, extension of service is equally a condition of service. We are unable to find any difference in principle between the two.” 5. The main contention urged by the learned counsel is that conditions of service includes, fixing the age of superannuation and also the right to reduce it and if the company has taken a decision in that regard, it cannot be held to be bad merely for the reason that the petitioners have challenged the same. Further it is contended that appointment of the petitioners was subject to the conditions of service and once the retirement age had been fixed, though by earlier practice persons were permitted to continue up to the age of 60 there is nothing wrong in the management taking such a decision. 6. Counter affidavit is also filed by the 3[rd] respondent inter alia supporting the stand taken by the respondents. Reference is made to Ext.R3(a) Standing Orders for Managerial Personnel covered under the Recruitment & Promotion Policy for Managerial Cadre in the company. Clause 14 is relied upon to contend that it is open for the Board to amend, W.P.(C).NO.12120 OF 2011 6 modify, alter or add to these rules from time to time and all such amendments, modifications, alterations or additions shall take effect from the date stated therein. It is therefore contended that the decision taken by the Management to alter conditions of service is valid and cannot be challenged. Reference is also made to Ext.R3(c), the Profit and Loss Account for the year ended 31[st] March, 2007 to indicate the loss suffered by the company for the financial year 2006-07. 7. Heard learned counsel for the petitioners, Standing Counsel for the 1[st] respondent and learned Government Pleader. It is argued by the learned counsel for the petitioners that if the reason stated by the Company in Ext.P1 was correct, there was no reason for them to appoint several other persons as evidenced from Ext.P5. That apart, there is no material to indicate that the Company was suffering loss during the relevant time. It is also argued that though a detailed representation was submitted before the Government, none of the contentions raised by the petitioners has been considered as directed by this Court in Ext.P14 judgment. 8. It is not in dispute that the 1[st] respondent is a Company incorporated under the Companies Act. There was no W.P.(C).NO.12120 OF 2011 7 contract between the petitioners and the Company in regard to the retirement age, nor in the Standing Orders for Managerial Personnel covered under the Recruitment & Promotion Policy for Managerial Cadre in the company. It is also not in dispute by way of practice managerial cadre personnel were retiring at the age of 60. The Board of Directors have decided to fix the retirement age as 58 years and the reasons are stated in Ext.P1. Going by the judgment of the Division Bench of this Court in Sajan Mannali v. Hon'ble Chief Justice (1994 (1) KLT 223) which refers to the judgment in State of Bihar v. Yogendra Singh (AIR 1982 SC 882) and the Full Bench judgment of this Court in Srinivasan v. State of Kerala (1967 KLT 853) interference of this Court in such matter is very limited. The employees who were in service are liable to comply with the conditions of service even if it is amended during their service. Even in a case where the retirement age is fixed at 60, nothing prevents the management from changing the conditions and refix at 58 years. The management had their own reasons for the same. One of the reasons stated is the financial loss suffered by the management. Though audited accounts were not produced, Ext.R3(c) is one of the documents W.P.(C).NO.12120 OF 2011 8 to indicate that the management had suffered loss. That several persons were appointed subsequently, cannot stand in the way of the management fixing the retirement age at 58 years for all persons. It is argued by the learned counsel for the petitioners that though in respect of several other categories of staff a decision was taken to fix the retirement age at 58 years, such decision was not implemented. This is controverted by the learned counsel for the 1[st] respondent by contending that the company has taken such a decision. The staff has challenged the decision before the Labour Court. The Labour Court has set aside the said decision and the matter is pending before this Court in a writ petition filed by the management. In respect of workers when the management sought to implement the same, it was not allowed. That matter is also pending before this Court in a writ petition filed by the management. 9. The facts being so, the question to be considered is whether the decision taken by the Government in this regard is justifiable or not. The Government having taken into consideration the rival contentions came to a conclusion that the Company was justified in refixing the retirement age at 9 W.P.(C).NO.12120 OF 2011 58 years on account of the acute financial crisis of the Company. There are no materials to show that the Company was not in a financial crisis. The Board of Directors of the Company had formed an opinion to fix the retirement age as 58 years. I do not think that the said decision is in anyway arbitrary or perverse. That apart the scope of judicial review is very limited. 10. Under these circumstances, I do not think that Ext.P17 order issued by the Government can be interfered by invoking the jurisdiction under Article 226 of the Constitution of India. In the result, there being no merit in the writ petition, the same is dismissed. ## **A. M. SHAFFIQUE, JUDGE.** cl