MADYA-VIDESAMADYA VYAVASAYA THOZHILALI FEDERATION (INTUC) v. THE SECRETARY TO GOVERNMENT, LABOUR DEPARTMENT, GOVERNMENT OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.GIRI** **TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930** **WP(C).No. 27944 of 2006(B)** **----------------------------------------** ## **PETITIONERS:** **-----------------------** **1. MADYA-VIDESAMADYA VYAVASAYA THOZHILALI FEDERATION (INTUC), REPRESENTED BY ITS PRESIDENT C.K.RAJAN, INTUC OFFICE, SANTHI NAGAR, PRESS ROAD, THIRUVANANTHAPURAM695 001.** **2. A.JACOB, FL-01-NO.290, MANNANTHALA, THIRUVANANTHAPURAM.** **BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.R.JAYACHANDRAN SMT.SMITHA GEORGE** ## **RESPONDENTS:** **-------------------------** **1. SECRETARY TO GOVERNMENT, LABOUR DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. KERALA ABKARI WORKERS WELFARE FUND BOARD, LEADED BY ITS CHAIRMAN, POWER HOUSE ROAD, THIRUVANANTHAPURAM-695 036.** **3. KERALA ABKARI WORKERS WELFARE FUND BOARD, REPRESENTED BY ITS SECRETARY & CHIEF WELFARE FUND INSPECTOR, POWER HOUSE ROAD, THIRUVANANTHAPURAM-695 036.** **4. WELFARE FUND INSPECTOR, KERALA ABKARI WORKERS WELFARE FUND BOARD, POWER HOUSE ROAD, THIRUVANANTHAPURAM-695 036.** _Kss_ **..2/-** **...2....** ## **WPC.NO.27944/2006 B** **5. WELFARE FUND INSPECTOR, KERALA ABKARI WORKERS WELFARE FUND BOARD, ERNAKULAM.** ## **6. WELFARE FUND INSPECTOR,** - **KERALA ABKARI WORKERS WELFARE FUND BOARD, THRISSUR.** **7. WELFARE FUND INSPECTOR,** - **KERALA ABKARI WORKERS WELFARE FUND BOARD, KOZHIKODE.** **BY SR. GOVERNMENT PLEADER SRI. NANDAKUMAR- R1 BY ADV.SRI.M.K.CHANDRA MOHANDAS,SC,K.ABKARI WW – R2TOR7** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2008 ALONG WITH WPC NO. 318 OF 2007 AND WPC NO. 2887 OF 2007,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **WPC.NO.27944/2006 B** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE ORDER NO.G.O.(MS) 24/2006/TD DTD. 1/03/2006 ISSUED BY THE GOVT. OF KERALA.** - **EXT.P2: COPY OF THE REPRESENTATION DTD. 30/09/2006 SUBMITTED BY THE PETITIONERS.** - **EXT.P3: COPY OF THE INTERNAL MEMO NO.KSBC/SEC/099/2005-06/ 1239 DTD. 2/03/2006 ISSUED BY KERALA STATE BEVERAGES CORPN.** - **EXT.P4: COPY OF THE GOVERNMENT ORDER NO.137/2006 DTD. 26/12/2006.** - **EXT.P5: COPY OF COUNTER AFFIDAVIT FILED BY THE GOVT.OF KERALA IN WP(C) NO.7947 OF 2006.** ## **RESPONDENT'S EXHIBITS:** - **EXT.R2(A): COPY OF THE ORDER DTD. 16/03/2005 ON I.A.3926 OF 2005 IN O.P.NO.21971 OF 2002 OF THIS HON'BLE COURT.** - **EXT.R2(B): COPY OF THE JUDGMENT DTD. 31/08/2006 IN O.P.NO.21971 OF 2002 OF THIS HON'BLE COURT.** - **EXT.R2(C): COPY OF THE LETTER NO.KSBC/AA1/2487/06 DTD. 03/01/2007 OF THE MANAGING DIRECTOR, KERALA STATE BEVERAGES CORPORATION LTD., THIRUVANANTHAPURAM.** - **EXT.R2(D): COPY OF THE ORDER NO.F.421/06 DTD. 05/01/2007 OF THE 3RD RESPONDENT.** - **EXT.R2(E): COPY OF THE ORDER NO.D/1339/2006 DTD. 05/01/2007 ISSUED BY THE WELFARE FUND INSPECTOR, THIRUVANANTHAPURAM.** ## **RESPONDENT'S ANNEXURE:** - **ANNEXURE R3(A): COPY OF THE ORDER DTD. 20/12/2006.** **/TRUE COPY/** **P.S.TO JUDGE** _Kss_ V. GIRI, J. ------------------------------WP(C).NO.27944/2006, 2887 & 318 of 2007 --------------------------------Dated this the 10th day of June, 2008 ## JUDGMENT Common issues arise for consideration in these writ petitions. Therefore, they have been heard together and are being disposed of by this common judgment. I will refer to the facts in 27944/2006 in the first instance. The first petitioner is the Madya-Videsamadya Vyavasaya Thozhilali Federation. It claims that about 689 Abkari workers are on daily wages, now working in the Kerala State Beverages Corporation after the foreign liquor trade was taken over by the Corporation as per orders of the Government. The Government issued G.O.(MS). No.24/2006/TD dated 1.3.2006. By the said order the Government took note of the fact that the Managing Director of the Kerala State Beverages Corporation had reported that there are 689 daily wage employees in the Corporation who are covered under the Employees Provident Fund Scheme and the contribution of 12% of the wages which are otherwise paid to the employees has been incurred by the Corporation and that if the WPC.27944 /2006 & conn. cases. 2 daily wage employees are covered under the Abkari Workers Welfare Fund Scheme, they will be discontinued from the Employees Provident Fund Scheme. The Managing Director further brought to the notice of the Government section 2(a) of the Abkari Workers Welfare Fund Act, which provides that any person who is employed on daily wages in the liquor business is an Abkari worker and a worker who completes three months of continuous service is entitled to be registered as a member of Abkari Workers Welfare Fund Scheme. Taking note of these facts and with an intention to bring the said workers under the benevolent provisions of the Abkari Workers Welfare Fund Scheme, the following directions were issued in Ext.P1: **“In view of the above facts Government are pleased to accord sanction to enroll the daily wage employees of the Corporation in the Kerala Abkari Workers Welfare Fund Scheme subject to the condition that they will be dispensed with Employees Provident Fund Scheme and will be fully governed by the service condition as envisaged in the service rule of the Kerala State Beverages (M &M) Corporation. The accumulations of the Employees Provident Fund in respect of the said employees will be transferred to the Abkari Workers Welfare Fund Scheme under clause 32 of the said scheme. “** WPC.27944 /2006 & conn. cases. 3 2. Ext.P1 was challenged by certain persons before this court. At the same time the first petitioner in WPC.No. 2887/2007 had approached this court for implementation of Ext.P1 order as WPC.No.21026/2006. Apparently, the persons who challenged Ext.P1 order were apprehensive that the decision to bring 689 employees under the umbrella of the Abkari Workers Welfare Fund Scheme was an attempt to regularise such persons in service. Other grounds were also taken to challenge the order. 3. A Division Bench of this court considered both the writ petitions and by judgment dated 31.8.2006 inter alia upheld Ext.P1 order. Considerable arguments are centered around the nature of the findings and directions of the Division Bench. Therefore, it is advantageous to extract that portion of the judgment of the Division Bench. **“ Order specifically stated that because of membership they will not entail claim for regularisation in the Corporation. By the above order Abkari workers who are working temporarily or daily wages are entitled to get into Abkari Workers Welfare** WPC.27944 /2006 & conn. cases. 4 **Fund Scheme. It cannot be termed as a regularisation order. Ext.P4 is not order in violation of interim order passed by this court. Hence, there is no merit in the writ petition No.7947/2006 and is liable to be dismissed. Under section 24 of the Kerala Abkari Workers Welfare Fund Act 1990, every worker who had completed continuous work for a period of three months is entitled to become a member of the KAWWF Scheme. Hence Government is bound to implement the above order (Ext.P1 in WPC.No.21026/2006. Hence WPC.21026/2006 is allowed to the above extent. “** 4. The Division Bench thereafter went on to consider whether the persons who are covered by Ext.P1, the daily wage employees, are entitled to claim regularisation. The Division Bench made it clear that Ext.P1 should not be construed as one which enables regularisation of 689 daily wage workers referred therein. The bench also directed the Beverages Corporation to take steps for filling up the vacancies in different posts through PSC. WPC.27944 /2006 & conn. cases. 5 5. While so, the Government issued Ext.P4 order GO(MS) No.137/2006 dated 26.12.2006. The Government referred to the judgment of the Division Bench and took note of the fact that this court had directed the Beverages Corporation to conduct regular selection to different posts occupied by daily wage employees in the Corporation through PSC and further to effect provisional appointments, if necessary through Employment Exchange. The Government then, purely on the said basis proceeded to revoke Ext.P1 order by which the Government had directed that daily wage employees in the Beverages Corporation were to be granted membership in the Abkari Workers Welfare Fund Scheme. Ext.P4 order has been challenged in this writ petition. 6. A counter affidavit has been filed by the Government and the Abkari Workers Welfare Fund Board. 7. I heard learned senior counsel for the petitioners Sri.K.Ramakumar, Sri.N.N.Sugunapalan and Smt.Rashmi K.V., the learned Government Pleader Sri.Nandakumar, Sri.O.V.Radhakrishnan, senior counsel for the Abkari Workers Welfare Fund Board and Sri.M.K.Chandramohan Das appearing WPC.27944 /2006 & conn. cases. 6 for the Board in two of the cases. 8. Learned counsel for the petitioners submitted that the Government had taken a decision under Ext.P1 to enroll the 689 employees working in the Beverages Corporation, in the Abkari Workers Welfare Fund Scheme. It was a decision taken keeping in mind section 2(a) of the Abkari Workers Welfare Fund Act (herinafter referred to as the Act). The said persons had been earlier covered by the Employees Provident Fund Scheme administered under the Employees Provident Fund and Miscellaneous Provisions Act 1952. Contributions were made by the Kerala State Beverages Corporation in relation to the daily wage employees. Since these persons are otherwise comprehended by Abkari Workers Welfare Fund Act it is appropriate that they become members of the Abkari Workers Welfare Fund Scheme and are covered by the provisions of the Scheme. Ext.P1 order was challenged before this court. A Division Bench of this court had considered the case and upheld Ext.P1 order. In fact the bench had directed implementation of the same. In the circumstance it is not open to the Government to revoke the same. WPC.27944 /2006 & conn. cases. 7 9. The Government in its counter affidavit contended that essentially the Government had committed a mistake in passing Ext.P1 order. 689 employees referred to in Ext.P1 are daily wage employees. They do not normally come within the definition of section 2(a) of the Act. They were covered by the provisions of the Employees Provident Fund Scheme. The Government had no power to direct that the employees covered by the Employees Provident Fund Scheme would stand excluded from the scheme. There is no provision for a transfer of the fund accumulated in the Employees Provident Fund scheme in relation to the employees registered under the said scheme, to the Abkari Workers Welfare Fund scheme. The Government is entitled to revoke an erroneous order. This is all what has been ordered under Ext.P4. 10. Similar contentions have been taken by the Welfare Board. The first question which arises for consideration is whether Ext.P1 order could be revoked by the Government. Had Ext.P1 order not been questioned before this court and had a Bench of this court not considered the correctness of the same and also directed implementation of the same, I would have WPC.27944 /2006 & conn. cases. 8 accepted the contention of the Government and the Welfare Fund Board that it was competent for the Government to revoke Ext.P1 if they later realised that it was passed on erroneous premises. An order in the nature of Ext.P1 is not sourced to any statutory power. It is an administrative order. It can be revoked. See the decision of the Full Bench of the Delhi High Court in **K.R.Raghavan vs. Union of India ( 1979 (2) SLR 478)** and the decision of this court in WP(C).No.27781/2007 dated 7.11.2007. 11. The competence of the Government to revoke an administrative order notwithstanding, the question is whether the Government could have revoked Ext.P1. As noted above, the Division Bench has specifically considered the correctness of Ext.P1 when it was squarely challenged and the bench had upheld Ext.P1. But more importantly after upholding Ext.P1 the Bench had proceeded to direct implementation of Ext.P1 as such. A mandamus was issued directing the government to implement Ext.P1 in WPC.No.21026/2006 and the said writ petition was allowed to the above extent. What followed was a direction to implement Ext.P1 as such. Such a direction in the nature of writ WPC.27944 /2006 & conn. cases. 9 of mandamus is binding on the Government. Ext.P4 Government order which has been challenged in this writ petition revokes Ext.P1 order which was specifically directed to be implemented by the Division bench. A direction issued by this court on the judicial side in the nature of a writ of mandamus is binding on the authority to whom such direction is issued. If Ext.P4 is allowed, the Government would be unable to implement Ext.P1. This would result in a situation where the Government does not implement the direction issued by this court. 12. Where therefore there is a direction by this court there were two alternatives available to the Government. It could either seek variation of the judgment or it could pass a supervening legislation with an intention to remove the basis of the judgment. Obviously no such alternative has been availed in the instant case. In such circumstances, it was not open to the Government to pass Ext.P4. 13. The direction issued by the Division Bench requires implementation of Ext.P1. Obviously that has to be carried out. What has to be necessarily done is to proceed with the implementation of Ext.P1. The Government could issue a WPC.27944 /2006 & conn. cases. 10 statutory notification in terms of section 17 of the EPF Act exempting Abkari Workers from the purview of Employees Provident Fund Scheme to effectively implement the direction to enroll the workers under the Abkari Workers Welfare Fund Act. Any such action by the Government would be in implementation of the direction issued by the Division Bench. 14. Learned Senior Government Pleader Sri.Nandakumar submits that 689 Abkari Workers referred to in Ext.P1 are only daily rated workers who cannot claim three months continued service on the strength of their engagement on daily wage basis. I do not think that the issue really arises for consideration in this case essentially because the Division Bench while considering Ext.P1 not only upheld Ext.P1 but also directed the Government to implement Ext.P1. In that view of the matter even if it is assumed that the Government has issued a direction to enroll 689 daily wage employees referred to in the said order under the Abkari Workers Welfare Fund Scheme on erroneous premises or on a wrong understanding of the provisions of the Act, the Government is bound to implement the direction. More over I am not in a position to find that the Government had acted on WPC.27944 /2006 & conn. cases. 11 totally erroneous premises, when it directed registration of 689 daily wage employees as part of the Abkari Workers Welfare Fund Scheme. It was within the competence of the Government to take such a decision both in the context of the general executive power which it exercises and also in the context of the power vouchsafed under clause 60 of the Abkari Workers Welfare Fund Scheme. A direction in the nature of Ext.P1 would be binding on the Abkari Workers Welfare Fund Board. For all these reasons, these writ petitions are allowed. Ext.P4 in WPC.No.27944/2006 is quashed. Respondents are directed to take steps to implement the directions in the judgment dated 31.8.2006. But I make it clear that I have not considered any individual cases under the Abkari Workers Welfare Fund Act and it is obviously for the functionaries under the Abkari Workers Welfare Fund Act to act in accordance with law while granting registration to any eligible person under the Abkari Workers Welfare Fund Scheme. **==> picture [106 x 13] intentionally omitted <==** pmn/ WPC.27944 /2006 & conn. cases. 12