Leela Amma v. Kerala State Handloom Development Corporation Ltd. and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH **“C. R.”** WEDNESDAY, THE 25TH DAY OF JUNE 2014/4TH ASHADHA, 1936 WP(C).No.17333 of 2010 (N) --------------------------------- PETITIONER: -------------- LEELA AMMA, PART-TIME SWEEPER, REGIONAL OFFICE, KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LTD., NEMON THIRUVANANTHAPURAM. BY ADVS. SMT.SREEDEVI KYLASANATH SRI.V.SADASIVAN SMT.V.J.SAFEENA SMT.SHALEENA RAJAN RESPONDENTS: ----------------- 1. KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LTD., REPRESENTED BY ITS MANAGING DIRECTOR, THILLERI ROAD, KANNUR-670001. 2. THE REGIONAL MANAGER, KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LTD. REGIONAL OFFICE, NEMON, THIRUVANANTHAPURAM. * ADDL. R3 ----------STATE OF KERALA, REP. BY SECRETARY, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. *[ADDL R3 IS IMPLEADED AS PER ORDERS DATED 21/07/2010 IN I.A. 10053/10 & I.A. 9925/2010] BY ADV. SRI.K.JOHN MATHAI R1 BY ADV. SRI.P.BENNY THOMAS R1 BY ADV. SRI.P.GOPINATH ADDL.3 BY ADV. GOVERNMENT PLEADER SMT.SEENA RAMAKRISHNAN BY SRI. E.K.NANDAKUMAR, SC FOR KSHDC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.17333 of 2010 (N) ## APPENDIX PETITIONER'S EXTS:- EXT.P1:- TRUE COPY OF THE ORDER NO.2170/85 DATED 12/09/1985 OF THE PROJECT OFFICER. EXT.P2:- TRUE COPY OF ORDER NO.E/2170/88 DATED 27/01/89 OF THE REGIONAL MANAGER. EXT.P3:- TRUE COPY OF ORDER DATED 08/02/91 OF THE 2ND RESPONDENT. EXT.P4:- TRUE COPY OF ORDER NO.E/2170/90-91 DATED 2/5/1991. EXT.P5:- TRUE COPY OF THE JUDGMENT DATED 03/02/1998 IN OP 3893/96. EXT.P6:- TRUE COPY OF THE ORDER DATED 26/03/98 OF 1ST RESPONDENT. EXT.P7:- TRUE COPY OF ORDER DATED 26/07/06 IN RP 383/06. EXT.P8:- TRUE COPY OF THE COMMUNICATION NO.G2/PTS/1425/97 DATED 1/10/97 OF 1ST RESPONDENT. EXT.P8(a):- TRUE COPY OF GO (P) NO.501/2005/FIN DATED 25TH NOV. 2005. EXT.P9:- TRUE COPY OF THE REPRESENTATION OF PETITIONER DATED 16/06/2008. EXT.P10:- TRUE COPY OF THE RULES OF PART-TIME CONTINGENT EMPLOYEES' ISSUED VIDE GO(P) 58/81(281) FIN. DATED 3/11/1980. EXT.P12(a):- A TRUE COPY OF G.O.(P) 831/80/253/FIN. DATED 3RD NOV. 1980. EXT.P13:- TRUE COPY OF GO (P) 412/2011/FIN. TVM DATED 30/09/2011. EXT.P14:- TRUE COPY OF JUDGMENT DATED 3/1/2006 IN OP 34244/2000. .......... ## **C.R.** ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------W. P. (C) No.17333 of 2010 -----------------------------------------------Dated this the 25[th ] day of June, 2014 ## **JUDGMENT** The question that arises for consideration in this Writ Petition is as to whether the petitioner who has rendered 25 years of continuous temporary service as a Part-time Sweeper in the Kerala State Handloom Development Corporation Ltd., a Public Sector Undertaking, is entitled to regularisation in service or not ? 2. Heard the learned counsel appearing for the petitioner, learned Standing Counsel appearing for the respondents 1 and 2 and the learned Government Pleader appearing for the third respondent. 3. The facts that are necessary for disposing of this Writ Petition are briefly stated as follows: The petitioner was temporarily appointed as a Part-time Sweeper in the first W. P. (C) No.17333 of 2010 -2- respondent Corporation as per Ext.P1 order dated 12-09-1985. Thereafter, she was continuing as such with occasional hike in her remuneration. This Writ Petition has been filed on 03-06-2010 for regularising her service as a Part-time Sweeper in the first respondent Corporation and for other reliefs. During the pendency of this Writ Petition, she has retired from service on 30-06-2010 on attaining the age of 58 when she was drawing monthly wages of 1,000/-.₹ The monthly remuneration of a regular Part-time Sweeper in the first respondent Corporation discharging similar duties as that of the petitioner in June, 2010 consisted of a basic pay of 1,500/- plus D.A. of 1,845/- totalling to 3,345/-₹ ₹ ₹ (these details have been submitted, on instructions, by the learned Standing Counsel for the respondents 1 and 2). The Part-time Sweepers are expected to work in the forenoon only. But, in the first respondent Corporation, they have to work in the showrooms during working hours from 9.30 a.m. to 1.30 p.m. and from 3.30 p.m. to 7.30 p.m. as their services are inevitable. Therefore, practically, even though W. P. (C) No.17333 of 2010 -3- they are Part-time Sweepers, they are discharging their duties as full-time workers under the first respondent. 4. It is averred by the petitioner that the management of the first respondent used to regularise the services of Part-time Sweepers on whom management have special or personal interest. Hence, a similarly placed Part-time Sweeper, namely, Smt.S.Susheela Devi, filed O.P. No.3893 of 1996 before this Court. Her prayer for regularisation was not resisted by the respondents in their counter affidavit. That Original Petition was disposed of by this Court by Ext.P5 judgment with a direction to regularise her in the category of Sweeper within two months from the date of receipt of a copy of the judgment. It was observed in that judgment that the petitioner therein was continuing since long in service and such a person cannot be termed as temporary for the entire menlife. Thereafter, as per Ext.P6 order dated 26-03-1998 of the first respondent, her service was regularised with effect from 01-04-1998. Similarly, another Part-time Sweeper, namely, Smt.P.C.Lusamma, filed O.P. W. P. (C) No.17333 of 2010 -4- No.12676 of 1999. That Original Petition was heard along with another Original Petition, O.P. No.4587 of 1996, filed by another Part-time Sweeper and, as per a common judgment dated 29-02-2000, this Court directed to regularise their services. Accordingly, their services were regularised by the first respondent. 5. The case of the petitioner is also similar to that of Smt.S.Susheela Devi and Smt.P.C.Lusamma. Since the petitioner's service was not regularised by the first respondent, she, along with Smt.B.Sreelatha, another Parttime Sweeper, filed O.P. No.34244 of 2000 for the purpose of regularising their services. This Court disposed of that Original Petition, as per Ext.P14 judgment dated 03-01-2006, with a direction to consider the case of the petitioner herein and the other petitioner in the light of the directions issued by this Court in the case of Smt.P.C.Lusamma in O.P. No.12676 of 1999 and in the case of Smt.S.Susheela Devi in Ext.P5 judgment and also in the light of Ext.P6 order passed by the first respondent regularising the service of W. P. (C) No.17333 of 2010 -5- Smt.S.Susheela Devi. It was made clear in the judgment that in case the petitioners are similarly situated as Smt.S.Susheela Devi, whose service was regularised as per Ext.P6, the petitioners shall also be given the same benefit. Instead of complying with the directions so issued by this Court, the respondents 1 and 2 filed a Review Petition for reviewing the judgment. That Review Petition has been disposed of by this Court as per Ext.P7 order dated 26-07-2006 making it clear that while taking a decision pursuant to Ext.P14 judgment, it would be open to the review petitioners to consider the eligibility of the writ petitioners. But, thereafter, the respondents 1 and 2 did not consider the directions issued by this Court in Ext.P14 judgment as clarified by Ext.P7 order. Therefore, the petitioner submitted a representation on 20-09-2007 before the first respondent for regularising her service. Even thereafter the respondents 1 and 2 have not complied with the directions in Ext.P14. Therefore, pointing out the entitlement to regularisation as per Ext.P14 judgment of this W. P. (C) No.17333 of 2010 -6- Court, the petitioner preferred Ext.P9 representation dated 16-06-2008 before the first respondent. Since that representation was also not considered, the petitioner submitted Ext.P10 representation dated 15-06-2009 requesting for regularising her service. But, the first respondent did not consider her representations. Hence, the directions issued by this Court in Ext.P14 judgment remained ignored by the respondents 1 and 2. In such a circumstance, the petitioner was compelled to prefer this Writ Petition for regularising her service as Part-time Sweeper in the first respondent Corporation and for other reliefs. 6. A statement has been filed on behalf of the respondents 1 and 2 in this case. The third respondent has filed a counter affidavit. 7. It is the case of the petitioner, as stated in Ext.P9, that she was working as a Part-time Sweeper in the first respondent Corporation since 1984 and, as such, she has put in more than 25 years of continuous service as a Part- W. P. (C) No.17333 of 2010 -7- time Sweeper. It is admitted in the statement of the respondents 1 and 2 that the petitioner has worked for more than 25 years as a Part-time Sweeper in the first respondent Corporation. It is the specific case of the petitioner that Smt.P.C.Lusamma and Smt.S.Susheela Devi, whose services were regularised on the basis of the directions issued by this Court in their Original Petitions, are similarly placed like the petitioner. There is no case for the respondents that the case of the petitioner is different from the cases of Smt.P.C.Lusamma and Smt.S.Susheela Devi. There is also no case for the respondents that there is no vacancy of Parttime Sweeper for regularising the petitioner. But, the respondents 1 and 2 contend in their statement that the regularisation of the petitioner cannot be considered as there is no policy for regularisation of Part-time Sweepers. The respondents have not challenged Ext.P14 judgment passed by this Court directing the respondents 1 and 2 to consider the case of the petitioner and another in the light of the judgments passed in respect of Smt.P.C.Lusamma and W. P. (C) No.17333 of 2010 -8- Smt.S.Susheela Devi. It was also made clear in Ext.P14 that if the case of the petitioner and another is similar to that of Smt.S.Susheela Devi, the petitioner and another shall also be given the same benefit. The respondents 1 and 2 preferred a Review Petition for reviewing Ext.P14 judgment. That was disposed of by Ext.P7 order passed by this Court without interfering with the directions so issued in Ext.P14. But, in Ext.P7, it was made clear that while taking a decision pursuant to Ext.P14, it would be open to the review petitioners to consider the eligibility of the writ petitioners. Neither in the statement filed by the respondents 1 and 2 nor in the counter affidavit filed by the third respondent, they have a case that the petitioner is not eligible or not qualified for appointing as a regular Part-time Sweeper. Their case is that there is no policy in the first respondent Corporation to regularise Part-time Sweepers. They have no case that the petitioner is ineligible or unqualified for the post. Therefore, Ext.P7 order does not stand in the way of regularisation of her service. After passing Ext.P7 order in W. P. (C) No.17333 of 2010 -9- the Review Petition, the respondents 1 and 2 were duty bound to consider the case of the petitioner and another in the light of the directions issued in Ext.P14. If the directions were complied with, the respondents 1 and 2 cannot, but only find that the case of the petitioner is similar to that of Smt.P.C.Lusamma and Smt.S.Susheela Devi. Therefore, the petitioner is entitled to the benefit given to Smt.S.Susheela Devi, as made clear in Ext.P14 judgment. The benefit granted to Smt.S.Susheela Devi was nothing but regularisation of her service. Such a benefit should have been given to the petitioner also as directed in Ext.P14 judgment. But, that was not done. In view of the directions issued by this Court in Ext.P14 judgment, the respondents 1 and 2 cannot raise a contention that their policy is not to regularise the Part-time Sweepers. They are bound to implement the directions issued in Ext.P14 judgment. Therefore, on the strength of Ext.P14 judgment, the petitioner was entitled to be regularised in service as Parttime Sweeper much before her retirement. That was illegally W. P. (C) No.17333 of 2010 -10- denied to her by the respondents. 8. The respondents do not have a case that there was no vacancy for regularising the petitioner. It is an admitted fact that the petitioner was continuously discharging the duties of a Part-time Sweeper for more than 25 years under the first respondent before her retirement on 30-06-2010. That the necessity of engaging or appointing a Part-time Sweeper is quite evident from this fact. A regular Part-time Sweeper was earning a monthly remuneration of 3,345/-.₹ But, the petitioner was paid only 1,000/-. The Honourable₹ Supreme Court in **Rajesh Kumar Soni and Others v. Ministry of Environment & Forest and Wild Life and Others [(1992) 4 SCC 116]** has held as follows: “............ It is not disputed that the petitioners have been working in the establishment for more than 4 to 5 years. This gives us the impression that there is regular need for this employment. Though this is the position, petitioners are being continuing as daily-rated employees. We do not think this should be permitted particularly when the wage of daily-rated employees is about half of regular employees. We direct the opposite-partyrespondent to absorb the petitioners on regular basis. If there be any other similarly situated W. P. (C) No.17333 of 2010 -11- employees senior to them they should be given the same benefit. ............” The law thus laid down by the Honourable Supreme Court is squarely applicable to the case of the petitioner. 9. The peculiar fact situation obtained in the case on hand raises another question. Admittedly, the first respondent is a Public Sector Undertaking under the Government of Kerala. The Public Sector, whether it is Government or Public Sector Undertakings, should be model to others. But, here, a hapless lady, who was earning her livelihood by way of doing menial services as a Part-time Sweeper, was deprived of her genuine right to be regularised in the service of the first respondent. The first respondent, all along, required her services continuously. In such a circumstance, the deprivation of her right to be absorbed into the regular establishment of the first respondent is nothing but unfair and arbitrary labour practice violating the fundamental rights guaranteed by the Constitution of India under its Articles 14 and 16. W. P. (C) No.17333 of 2010 -12- 10. Equal pay for equal work is a right emerging from the Constitution. As already stated, the monthly remuneration of a regular Part-time Sweeper in June, 2010 was 3,345/-. But, the remuneration of a temporary Part-₹ time sweeper was only 1,000/-. Both the hands, regular₹ and temporary, are discharging similar duties. But, a hostile discrimination is meted out to temporary Part-time Sweeper in the matter of service benefits. This is highly arbitrary and violative of Article 14 of the Constitution. Time and again, interpreting the constitutional provisions, the Honourable Supreme Court laid down that only for the reason that a person is not a regular hand the minimum of the salary being paid to a regular hand cannot be denied to that person. Here, the petitioner was denied her legitimate right to get the remuneration payable to a regular hand. This discriminatory treatment is meted out only for the reason that the respondents 1 and 2 have not regularised the service of the petitioner. This illegality has to be corrected by regularising her service in the first respondent W. P. (C) No.17333 of 2010 -13- Corporation. 11. The Honourable Supreme Court in **Daily Rated Casual Labour v. Union of India [(1988) 1 SCC 122]** has held as follows: “............ We are of the view that such denial amounts to exploitation of labour. The government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starvation wages. It may be that the casual labourer has agreed to work on such low wages. That he has done because he has no other choice. It is poverty that has driven him to that State. The government should be a model employer. We are of the view that on the facts and in the circumstances of this case the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lowest is not tenable. ............” The Honourable Supreme Court also said in this judgment that the managements and the Governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonable long period of time. In the case on hand, a Public Sector W. P. (C) No.17333 of 2010 -14- Undertaking controlled by the Government of Kerala compelled a poor lady to remain as a temporary Part-time Sweeper earning less wages for more than 25 years! It was quite unreasonable and arbitrary violating the fundamental rights guaranteed under Articles 14 and 16 of the Constitution. The Honourable Supreme Court in **Dharwad P.W.D. Empl. Assn. v. State of Karnataka [(1990) 2 SCC 396],** dealing with the constitutional goal of equal pay for equal work and the question of regularisation of daily rated and monthly rated employees in various departments under the State of Karnataka, has held as follows: “We have referred to several precedents - all rendered within the current decade - to emphasise upon the feature that equal pay for equal work and providing security for service by regularising casual employment within a reasonable period have been unanimously accepted by this Court as a constitutional goal to our socialistic polity. Article 141 of the Constitution provides how the decisions of this Court are to be treated and we do not think there is any need to remind the instrumentalities of the State - be it of the Centre or the State, or the public sector - that the Constitution makers wanted them to be bound by what this Court said by way of interpreting the law.” W. P. (C) No.17333 of 2010 -15- It was further directed in this judgment as follows: “The precedents referred to above have, therefore, obliged the State of Karnataka, respondent before us, to regularise the services of the casual employees who are in these cases called daily rated and monthly rated employees and the State of Karnataka is obliged to make them the same payment as regular employees are getting. ............” In the light of the law declared by the Honourable Supreme Court in the rulings referred to, the petitioner was entitled to have regularised her service. The first respondent was legally obliged to regularise the service of the petitioner long back. But, they have not done so. Even after this Court issued specific directions in Ext.P14 judgment, the respondents 1 and 2 have not cared to consider the matter. But, without complying with the directions issued in Ext.P14 and without assigning any reason, the petitioner was denied her legitimate claim for regularisation in service. 12. The Government of Kerala issued Ext.P8(a) order dated 25-11-2005 incorporating provisions for creating posts of Full-time and Part-time Sweepers as well as for W. P. (C) No.17333 of 2010 -16- regularising their services in various departments. Going by the provisions in Ext.P8(a), persons similarly placed like the petitioner working in Government departments are entitled to regularisation. Therefore, by issuing Ext.P8(a), the Government have declared their policy of regularising Casual and Temporary Sweepers like the petitioner in service. The first respondent Corporation is a Public Sector Undertaking controlled by the Government of Kerala. A contention has been raised by the respondents that the provisions contained in Ext.P8(a) cannot be extended to the petitioner as she was not in part-time Government service. Hence, the benefits assured under Ext.P8(a) are of no avail to the petitioner. The first respondent Corporation, being a Public Sector Undertaking, should be a model to others. The Government have declared their policy of regularising Casual and Part-time Sweepers. Moreover, the Government have issued Ext.P13 order dated 30-09-2011 incorporating provisions for creating posts of Full-time and Part-time Sweepers as well as for regularising their services in State W. P. (C) No.17333 of 2010 -17- Public Sector Undertakings, Boards, Autonomous Institutions etc. In the light of the provisions incorporated in Ext.P13, persons like the petitioners are entitled to be absorbed in regular service. But, the respondents raised a contention that Ext.P13 has been issued only after the retirement of the petitioner and hence, the benefits under Ext.P13 cannot be extended to her. So, according to the respondents, Ext.P8(a) is applicable only to those in Government service and Ext.P13 is applicable only to those who are in service after it came into force. But, the fact remains that by issuing Exts.P8(a) and P13, the Government of Kerala have declared their policy and intention to regularise the services of persons like the petitioner. Moreover, the persons similarly placed like the petitioner were already regularised in the first respondent Corporation either based on the directions issued by this Court or based on the decisions taken by the first respondent itself. Therefore, even though a technical contention as raised by the respondents in respect of Exts.P8(a) and P13 may be raised, based on the public policy W. P. (C) No.17333 of 2010 -18- of the Government reflected in Ext.P8(a), the petitioner's service could have been regularised much earlier. Even otherwise, as already discussed and found, the petitioner was entitled to regularisation in service much earlier. That was illegally denied to her. 13. The petitioner has raised a claim that she is entitled to continue in the service of the first respondent till she attains the age of 70. Her contention is that persons similarly placed like her are allowed to continue till they complete 70 years in different departments under the Government of Kerala. Such benefit shall also be extended to her. The statement and the counter affidavit filed by the respondents show that the retirement age prevailing in the first respondent Corporation is 58. Accordingly, the petitioner has already retired from service on 30-06-2010. She has no case that some others similarly placed like her are allowed to continue beyond the age of 58 in the first respondent Corporation following the rule applicable to similar persons working in Government departments. W. P. (C) No.17333 of 2010 -19- Therefore, in the circumstances, this Court cannot allow the claim of the petitioner to continue in the service of the first respondent till she attains the age of 70. 14. For the foregoing reasons and discussions, the petitioner is entitled to regularisation in the first respondent Corporation notwithstanding the fact that she has retired from service. This Court, by Ext.P14 judgment, directed the respondents 1 and 2 to consider the case of the petitioner in the light of the judgments rendered by this Court in respect of Smt.S.Susheela Devi and Smt.P.C.Lusamma and also directed to give the benefit granted to Smt.S.Susheela Devi as per Ext.P6 to the petitioner as well, if she is similarly situated like her. On the strength of the judgments of this Court, Smt.S.Susheela Devi and Smt.P.C.Lusamma were regularised and there is no dispute at all regarding the fact that the petitioner and Smt.S.Susheela Devi are similarly situated. Therefore, in the light of the directions issued by this Court in Ext.P14 judgment, the petitioner was entitled to regularisation much earlier. After issuing the directions by W. P. (C) No.17333 of 2010 -20- this Court in Ext.P14 judgment, the respondents 1 and 2 ought to have accepted the claim of the petitioner for regularisation in service. But, they have not even cared to consider Ext.P14 judgment, but simply ignored the same. The stand so adopted by the respondents 1 and 2 was illegal. Even the representations submitted by the petitioner, pointing out her entitlement to regularisation and requesting for regularisation, did not persuade the first respondent to comply with the directions in Ext.P14 judgment. Ext.P14 was pronounced by this Court on 03-01-2006. The Review Petition filed by the respondents 1 and 2 for reviewing Ext.P14 was disposed of by Ext.P7 order on 26-07-2006. Even thereafter, the respondents 1 and 2 did not consider or comply with the mandatory directions issued by this Court in Ext.P14. Therefore, in the facts and circumstances, it is only just and reasonable to direct that the petitioner shall be regularised as a Part-time Sweeper in the first respondent Corporation with effect from 01-01-2007 and, accordingly, all service benefits including arrears of pay and allowances W. P. (C) No.17333 of 2010 -21- shall be paid to her. 15. In the result, the first respondent is directed to regularise the service of the petitioner as Part-time Sweeper with effect from 01-01-2007. She is entitled to pay and allowances as paid to the regular Part-time Sweepers with effect from 01-01-2007. She is also entitled to retirement benefits on that basis as if she has retired as a regular Parttime Sweeper from the first respondent Corporation. The orders regularising the service of the petitioner in the first respondent Corporation shall be issued by the first respondent within fifteen days from the date of receipt of a copy of this judgment. The arrears of pay and allowances and retirement benefits shall be drawn and paid to the petitioner within 45 days thereafter. This Writ Petition is allowed as above. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE W. P. (C) No.17333 of 2010 -22-