M.J. Sunny Agricultural Superintendent, Kerala Livestock Development Board Ltd. v. Kerala Livestock Development Board Ltd. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 15TH DAY OF JULY 2014/24TH ASHADHA, 1936** ## **WP(C).No. 5626 of 2014 (C)** **---------------------------** ## **PETITIONER(S):** ## **---------------** **M.J.SUNNY AGRICULTURAL SUPERINTENDENT KERALA LIVESTOCK DEVELOPMENT BOARD LTD, BULL STATION PALAKKAD** **BY ADVS.SRI.DEEPU THANKAN KUM.N.V.ANUPRIYA** ## **RESPONDENT(S):** - **---------------** ## **1. KERALA LIVESTOCK DEVELOPMENT BOARD LTD.** **GOKULAM, PATTAM THIRUVANANTHAPURAM- 695 004, REPRESENTED BY ITS MANAGING DIRECTOR** ## **2. STATE OF KERALA** **REPRESENTED BY ITS PRINCIPLE SECRETARY SECRETARY TO GOVERNMENT, ANIMAL HUSBANDRY DEPARTMENT GOVT.SECRETARIAT, THIRUVANANTHAPURAM- 695 001** **R-R1 BY ADV. SRI.MILLU DANDAPANI,SC,K.F.C. BY SMT.SUMATHI DANDAPANI, SR. BY GOVERNMENT PLEADER SMT.M.J.RAJASREE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-07-2014, ALONG WITH WPC. 22511/2013, WPC. 29302/2013, WPC. 10275/2014 & WPC. 14304/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 5626 of 2014 (C)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT P1 TRUE COPY OF EXTRACT OF THE MINUTES OF THE 160TH MEETING OF THE BOARD OF DIRECTORS OF THE 1ST RESPONDENT BOARD HELD ON 24/6/2006** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 1/4/2013 IN WPC NO 7858/2011 BEFORE THIS HON'BLE COURT** **EXHIBIT P3 TRUE COPY OF THE CONSEQUENTIAL ORDER PASSED BY THE GOVT.DATED 15/7/2013** **EXHIBIT P4 TRUE COPY OF EXTRACT OF THE 193RD BOARD MEETING OF THE 1ST RESPONDENT HELD ON 19/12/2013** **RESPONDENT(S)' EXHIBITS: NIL** **---------------------------------------** **//TRUE COPY//** **P.A TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J.** **.............................................................** W.P.(C).No.5626 of 2014, W.P.(C).No.10275 of 2014, W.P.(C).No.14304 of 2014,W.P.(C).No.29302 of 2013 & W.P.(C).No.22511 of 2013 **.............................................................** Dated this the 15[th] day of July, 2014 ## **J U D G M E N T** As the issue involved in all these writ petitions are the same, they are taken up together for consideration and disposed of by this common judgment. 2. Shorn of unnecessary details the brief facts necessary for disposal of these writ petitions are as follows: The petitioners in W.P.(C).Nos.29302 of 2013 & 22511 of 2013 and W.P.(C).Nos.10275 of 2014 and 14304 of 2014 are persons who are working as attendants in different Farms under the Kerala Livestock Development Board. They are workers for the purposes of the Industrial Disputes Act and the conditions of service under the respondent Board are governed by the Standing Orders framed and certified in terms of the Industrial Employment (Standing Orders) Act, 1946. The petitioners in the above writ petitions have sought an amendment to the provisions of the certified Standing Orders applicable to the respondent Board by seeking an enhancement in the retirement age from 58 years to 60 years. The matter is currently pending consideration before the W.P.(C).No.5626 of 2014 and connected cases 2 Joint Labour Commissioner, Thiruvananthapuram who has been arrayed as respondent No.2 in W.P.(C).No.14304 of 2014. The petition for amending the Standing Orders was filed in the wake of the resolution passed by the Board of Directors of the respondent Board deciding to enhance the retirement age of workers from the present level of 58 years to 60 years. As per the procedure contemplated under the Industrial Employment (Standing Orders) Act, 1946 the representation of the petitioner before the Joint Labour Commissioner will have to be considered by the said authority under Section 10 of the said Act. The Joint Labour Commissioner would have to enter upon an adjudication and take a decision on the issue of whether the certified Standing Orders requires to be modified by enhancing the age of retirement applicable to workers under the respondent Board. The decision of the Division Bench of this Court in W.A.No.159 of 2010 and connected cases which is reported as **Secretary, BPL and PSP Workers Union v. BPL Groups of Companies** [2010 (2) KLT SN 14 (C.No.17)] laid down the nature of the rights available to a worker in terms of Section 10 of the aforementioned Act. It is stated in the said judgment as follows: “Under Section 10 of the Industrial Employment (Standing Orders) Act, either the management or the workman concerned, can move the Certifying Officer, for modification of the terms of the W.P.(C).No.5626 of 2014 and connected cases 3 Certified Standing Orders. It is a statutory right of the workman and when such a motion is made, the Certifying Officer has got statutory duty to consider the same. Therefore, the existence of a condition in the Standing Orders for so many years, governing retirement age is not a bar for raising a demand to change it, as it is a statutory right.” 3. It is seen from the facts in the aforementioned writ petition that the petitioners in W.P.(C).No.14304 of 2014 and W.P.(C). No.10275 of 2014 were due to retire from the respondent Board on 30.06.2014 and 31.05.2014 respectively. They approached this Court through the aforementioned writ petitions prior to their retirement and obtained interim orders whereby they were permitted to continue in the employment of the Board pending disposal of the writ petition. As regards the petitioners in W.P.(C). No.22511 of 2013, all the petitioners therein except 3[rd] , 4[th] and 5[th] petitioner had retired prior to the filing of the writ petition. Pursuant to the interim order passed by this Court permitting them to continue in service pending disposal of the writ petition, only the 3[rd] , 4[th] and 5[th] petitioners continued in the employment of the respondent Board and the 1[st] and 2[nd] petitioners in the said writ petition did not get reinstated in the services of the Board. Similarly in Writ Petition No.29302 of 2013 all the petitioners W.P.(C).No.5626 of 2014 and connected cases 4 therein retired on 30.11.2013 and despite the interim order dated 28.02.2014 permitting them to continue in service, it is stated that they did not get reinstatement in the services of the Board. In otherwords those of the petitioners in the aforementioned writ petition who are presently continuing in the services of the Board are continuing only on the strength of the interim order passed by this Court permitting them to continue in service pending disposal of the writ petition. 4. The petitioner in Writ Petition 5626 of 2014 is working as an Agricultural Superintendent in the respondent Board. Unlike the petitioners in the other writ petitions, he is a person who does not fall under the category of worker for the purposes of the Industrial Disputes Act. Accordingly, his service conditions are governed by the rules and regulations applicable to staff under the respondent Board, which are framed by the Board of Directors of the respondent Board with prior approval of the State Government. As per the rules and regulations applicable to the petitioner in this writ petition, the age of retirement fixed for the category of staff was initially 55 years, which was subsequently enhanced to 58 years in 2006. Although there was some litigation in connection with the earlier enhancement of the retirement age from 55 years to 58 years, that culminated in the judgment dated 01.04.2013 in W.P.(C).No.5626 of 2014 and connected cases 5 W.P.(C).No.7858 of 2011 whereby the right of the petitioner to continue in service till the age of 58 years was declared by this Court. In the absence of any appeal against the said judgment I am given to understand that the State Government subsequently approved the proposal of the Board of Directors of the respondent Board to enhance the retirement age to 58 years. In the present writ petition, the petitioner seeks an enhancement of retirement age to 60 years based on a subsequent decision of the Board of Directors of the respondent Board recommending the enhancement of retirement age to 60 years for persons under the staff category. This subsequent resolution of the Board has not been approved by the State Government as yet and it was in a situation, where the petitioner apprehended superannuation prior to an approval by the State Government of the resolution taken by the respondent Board, that the petitioner approached this Court through this writ petition. In this writ petition also there was an interim order passed on 28.02.2014 permitting the petitioner to continue in service on a provisional basis subject to the result of the writ petition. 5. Although various contentions have been raised in the aforementioned writ petitions, the petitioners now limit their prayer to a direction to the Joint Labour Commissioner, in those cases pertaining to the worker category, and a direction to the W.P.(C).No.5626 of 2014 and connected cases 6 State Government, in the case pertaining to the staff category, for taking a decision, on the amendment to the Certified Standing Orders in the former category and on the approval to the decision of the Board of Directors in the latter category. The stand of the respondent Board in these matters is that unless and until the Standing Orders have been formerly amended after complying with the procedure contemplated under the Industrial Employment (Standing Orders) Act, 1946 and the decision of the Board of Directors in the case of staff has received the formal approval of the State Government, the petitioners really do not have any right to continue, beyond the age of superannuation, under the services of the respondent Board. 6. I have heard Sri.Deepu Thankan, counsel for the petitioners and Smt.Sumathi Dandapani learned Senior counsel appearing on behalf of respondent Board and also the learned Government Pleader appearing on behalf of the State Government and the Joint Labour Commissioner. 7. The contention of the petitioners is essentially based on the decisions of this Court in **Kavirajan v. K.S.B.C.Ltd.** (2007 (2) KLT 917) and **State of Kerala v. Mohanabalan** (2010 (4) KLT 95) wherein this Court had occasion to consider the claim made by W.P.(C).No.5626 of 2014 and connected cases 7 workers who faced the prospect of superannuation, prior to a final decision by the Government to raise the age of superannuation. While this Court has unambiguously indicated that the issue of enhancement of age of retirement is essentially one that falls in the realm of policy of the employer and any decision with regard to fixing of age of retirement can only be impugned on the well settled grounds for challenging the policy decisions, the Court had, taking into consideration the peculiar factual situations in those cases, permitted the petitioners to continue in employment notwithstanding their having crossed the age of superannuation and pending a final decision by the government on the issue of enhancement of the age of superannuation. It is apparent that in those cases the decision of the Court was essentially one that was taken to protect the interest of the petitioners in the event of the Government ultimately taking a decision in their favour. Per contra, the learned Senior counsel appearing on behalf of respondent Board would place reliance on the decisions of the Supreme Court in **George v. State of Kerala** (1992 (1) KLT 793) and decision of the Single Judge of this Court in **Ramani Bai.N.(Dr.) and Others v. State of Kerala and Others** (ILR 2010 (3) Kerala Page 566) to contend that it has been well settled since the decision of the Supreme Court in **K.Nagaraj v. State of Andhra Pradesh** (AIR 1985 SC 551) that the fixing of age of retirement of an employee is W.P.(C).No.5626 of 2014 and connected cases 8 within the domain of the policy of the employer and any decision in that regard cannot be interfered by Court exercising powers under Article 226 of the constitution of India. It is of course conceded that if the policy decision itself is one that is arbitrary or irrational that would call for a different treatment in law. 8. Having considered the submissions of counsel on either side, I feel that the rights of the petitioner to continue in service would ultimately depend upon the decision taken by the competent authority. In the case of the workers in the service of the respondent Board that decision would have to be in the form of an order by the Joint Labour Commissioner before whom proceedings are pending in terms of the Industrial Employment (Standing Orders) Act, 1946. Since the decision of the Board of Directors of the respondent Board with regard to enhancement of the age of retirement of workers to 60 years from the level of 58 years is already on record before the said authority, I do not think that there is any need for further delay in the matter of taking a decision under the provisions of the Act. Similarly, in the case of the staff under the respondent Board, it is the Government that has to take a decision, either to approve or not to approve, the decision of the Board of Directors of the respondent Board to enhance the age of retirement of the staff under the respondent Board from 58 W.P.(C).No.5626 of 2014 and connected cases 9 years to 60 years. The fate of the petitioners will depend upon the decisions taken by these authorities. While taking a decision, the authorities must realise that the petitioners who have already crossed the age of superannuation as per the age of retirement presently fixed are continuing in service only on account of the interim orders passed by this Court. This would necessarily involve financial commitment to the employer namely the respondent Board. If eventually the authorities concerned do not find in favour of an enhancement of the age of retirement to either categories of employees, then the financial liability to the employees for the service rendered during the interim period, pursuant to the interim orders passed by this Court, would have to be fastened on the employer. An uncertainty in the matter of financial liability of the respondent Board or of the Government cannot be allowed to continue indefinitely as it would not be the interest of justice. It is therefore necessary that the authorities concerned take a decision expeditiously. Under these circumstances, I am inclined to dispose these writ petitions with the following directions: 1.The Joint Labour Commissioner, before whom the petitions for modification of the Certified Standing Orders pertaining to the respondent Board are pending, shall consider the same as expeditiously as possible and at any rate W.P.(C).No.5626 of 2014 and connected cases 10 within a period of 6 weeks from today. The Joint Labour Commissioner shall ensure that the decision is taken, as directed, after hearing the petitioners as also the respondent Board. 2. The State Government shall take a decisions in the matter of approval of the resolution of the Board of Directors seeking to enhance the age of retirement of the staff under the respondent Board from 58 years to 60 years, within a period of two months. 3. Both the authorities expected to take decision in the matter, as directed in the judgment, shall keep in mind the fact that any delay in taking a decision would entail financial commitments to the respondent Board as an employer and that certainty, in the matter of the status of the petitioners vis-a-vis the respondent Board, is paramount in the instant cases. The directions with regard to the time limit within which the decisions are to be taken shall therefore be borne in mind and strictly complied with. 4. Those petitioners who, pursuant to the W.P.(C).No.5626 of 2014 and connected cases 11 interim orders passed by this Court, have continued in the services of the respondent Board shall be permitted to continue in their employment till such time as decisions contemplated in this judgment are taken by the authorities concerned. With these directions, the writ petitions are disposed of. **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/