Naveen K. et al. v. Kerala State Road Transport Corporation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE B.P.RAY** **TUESDAY, THE 19TH DAY OF JUNE 2012/29TH JYAISHTA 1934** **WP(C).No. 15813 of 2011 (B) ---------------------------** **PETITIONER(S):** - **-------------** **1. NAVEEN K, KALLIYIL HOUSE, NELLARA, FEROK, CALICUT.** **2. NAVANEETH N.R,V.N.R.NIVAS, CHORODE P.O., VATAKARA,CALICUT.** **3. RAJENDRAKUMAR.K.P.,KILIYAM VELI, MUHAMMA P.O.,CHERTHALA, ALLEPPEY.** **4. MOHANDAS, THEKKEDATH HOUSE,** - **PERINGARA P.O.,THRUVALLA, PATHANAMTHITTA.** **5. SABEESH V.R,SABEESH NIVAS, S.L.PURAM P.O.,ALLEPPEY.** **BY ADVS.SMT.P.M.SWAYAM PRABHA SRI.ANIL KUMAR M.SIVARAMAN** **RESPONDENT(S):** - **--------------** **1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY CHAIRMAN & MANAIGING DIRECTOR, TRANSOPRT BHAVAN, THIRUVANANTHAPURAM-695 001.** **2. THE EXECUTIVE DIRECTOR(ADMINISTRATION) O/O.CHAIRMAN MANAGING DIRECTOR, TRANSPORT BHAVAN, THIRUVANANTHAPURAM-695 001.** **3. THE DISTRICT TRASNSPORT OFFICER, DISTRICT TRANSPORT OFFICE, CALICUT-673 001.** **4. THE DISTRICT TRANSPORT OFFICER,** **DISTRICT TRASNSPORT OFFICE, ALAPPEY-688 001.** **5. THE ASSISTANT TRANSPORT OFFICER,** - **ASSISTANT TRANSPORT OFFICER, THOTTIPALAM,CALICUT-673 001.** **6. THE ASSISTANT TRANSPORT OFFICER,** - **TRANSPORT OFFICE, CHANGANASSERY-673 181.** - **BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC BY SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2/4/2012, ALONG WITH WPC. 29462/2011 AND CONNECTED CASES, THE COURT ON 19/6/12 DELIVERED THE FOLLOWING:** **AS** ## **WP(C).No. 15813 of 2011 (B)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE APPOINTMENT ORDER ISSUED TO THE 1ST PETITIONER. EXT.P2: COPY OF THE APPLICATION SEEKING RESIGNATION SUBMITTED BY THE 1ST PETITIONER. EXT.P3: COPY OF THE MEMORANDUM DATED 21/5/2011 SERVED TO THE 1ST PETITIONER BY THE DISTRICT TRANSOPRT OFFICER. EXT.P3(A): COPY OF THE NOTICE WAS SERVED TO THE 2ND PETITIONER DATED 27/5/2011. EXT.P3(B): COPY OF THE NOTICE/MEMORANDUM ISSUED BY THE 4TH RESPONDENT TO THE 3RD PETITIONER.** **EXT.P3(C): COPY OF THE LETTER DATED 18/5/2011 INTIMATING THE 4TH PETITIONER TO REPAY AN AMOUNT OF RS.17230/-TO THE CORPORATION. EXT.P3(D): COPY OF THE LETTER DATED 25/5/2011 ISSUED BY THE 6TH RESPONDENT TO THE 5TH PETITIONER.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** **P.A. TO JUDGE** **AS** ## **B.P. Ray, J.** ==================================== W.P.(C)Nos.27552, 15813, 16873, 17089, 20776, 23877, 24476, 25562, 29462 & 31558/2011 & 1935, 2080 & 7063/2012 ==================================== Dated this the 19[th] day of June, 2012. ## **JUDGMENT** 1. Petitioners were the employees of the Kerala State Road Transport Corporation. They have joined the service of the Corporation as Mechanic Grade-II trainees with a stipend of Rs.5,250/- per month. After the completion of three months' training, they joined in regular service. Thereafter, the petitioners resigned from the Corporation while working as Mechanic Gr.II. After a lapse of about two months from the date of resignation, the respondents issued a notice wherein it is stated that the petitioners have to remit Rs.17,230/- being the cost settled by the corporation towards incidental expenses in connection with the appointment and pre-appointment training. It is also stated that the petitioners will not have any lien or other benefits in future on account of their past service in KSRTC. Being aggrieved by the same, the petitioners have filed these writ petitions. W.P.(C)Nos.27552, 15813, 16873, 17089, 20776, 23877, 24476, 25562, 29462 & 31558/2011 & 1935, 2080 & 7063/2012 -:2:- ## Since the prayer of the petitioners are almost similar, the prayer ## sought for in W.P.(C)No.15813/2011 is quoted hereunder. “i) a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to the issuance of Ext.P3 series proceedings/memorandum and quash the same as opposed by law and issued without any authority; ii) declare that the petitioners are not liable to repay the amount of Rs.17,230/- each to the respondents as stated in Ext.P3 series notices as unenforceable and ab initio void; iii) declare that the impugned order/memorandum dated 16.5.2011 enabling the respondents to recover the stipend from the petitioners is not at all any way applicable to the petitioners since which have a prospective implication; iv) grant such other appropriate writ, direction or order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” 2. Learned counsel for the petitioners submits that the impugned orders directing recovery of the stipend given to the petitioners while working as trainees is arbitrary, illegal and unconstitutional because it is deprival of accrued right vested on them. It is the case of the petitioners that after the theory class, no training was given. They were posted at different workshops of the respondents to work as trainee Mechanics. Learned counsel for the KSRTC submits that the W.P.(C)Nos.27552, 15813, 16873, 17089, 20776, 23877, 24476, 25562, 29462 & 31558/2011 & 1935, 2080 & 7063/2012 -:3:- Corporation has sustained huge loss by imparting training and after being trained, they left the service thereby the Corporation sustained huge loss by giving training to the petitioners. Therefore, the Corporation has every right to recover the said amount from the petitioners. He further submits that the Corporation is intending to amend the Rules incorporating the right to recover the amount. 3. Admittedly, there was no agreement either by the recruiting agency, i.e., the Kerala Public Service Commission or by the respondent Corporation that it is binding on the petitioners to serve the Corporation as they were given mechanical training to work as Mechanics. On a perusal of the pleadings, it appears that the petitioners were appointed on condition that they will be given training with a stipend of Rs.5,250/- per month. In order to appreciate the contentions of the petitioners as well as the respondents, it is necessary to go through the terms and conditions of the appointment letter which is quoted hereunder for ready reference: - “1. The advice of the candidate is subject to Rule (3)(c) of the General Rules of the Kerala State & Subordinate W.P.(C)Nos.27552, 15813, 16873, 17089, 20776, 23877, 24476, 25562, 29462 & 31558/2011 & 1935, 2080 & 7063/2012 -:4:- Services Rules, 1958; 2. The appointment will be purely provisional and will be terminable without notice on the expiry of the vacancy in which he is posted, but will be continued if a vacancy is available provided his work and conduct are found satisfactory; 3. He will have to undergo pre-appointment training for a period of 3 months. During the period of training he will be paid only a stipend of Rs.5250/- (Rupees Five thousand two hundred and fifty only) (the minimum of the scale of pay of Mechanic Gr.II) for 26 days in a month; 4. On successful completion of pre-appointment training, he will be appointed as Mechanic Gr.II in the scale of pay of Rs.5250-10900; 5. If appointed continuously as stated in paragraph (2) above, he will be on probation for a period of two years on duty within a continuous period of three years from the date of such appointment; 6. He/she will be liable to be terminated from the service of the Corporation with one month's notice during the period of probation if his performance, conduct or character is/are found not satisfactory or found that he had furnished any false records or information or suppressed material facts at the time of joining; 7. The appointment will be subject to the rules and regulations now in force under the Kerala State Road Transport Corporation and those the Corporation may make in future relating to service conditions; 8. The appointee will also be governed by any new pension scheme that will be implemented in future in Kerala State Road Transport Corporation; If he/she agrees to accept the appointment on the conditions stipulated above, he/she is directed to report himself/herself before the Executive Director (Admn.)I/C, KSRTC at Transport Bhavan on 30.7.2010 at 10.00 a.m. for certificate verification. Pre-appointment training will commence from the date of joining in the units where the candidate is posted. He/she should attend for verification with W.P.(C)Nos.27552, 15813, 16873, 17089, 20776, 23877, 24476, 25562, 29462 & 31558/2011 & 1935, 2080 & 7063/2012 -:5:- following original documents and handover one copy of this order duly accepted and signed. 1. Certificates to prove age and qualification. 2. Medical certificate of health in the prescribed form enclosed from a Medical Officer of rank not lower than a Civil Surgeon or honorary Medical Officer of Civil Surgeon's rank or Director of Indigenous Medicines; 3. Community certificate (for SC/ST); or non-creamy layer certificate (for OBC). 4. Learned counsel for the petitioners submits that as per Clauses 3 and 4 of the letter of appointment, a trainee will get appointment in the post of Mechanic Gr-II in the scale of pay of Rs.5250-10900. Accordingly, some of the petitioners were appointed and they served under the Corporation. Thereafter, after serving for sometime, they have resigned. Learned counsel for the petitioners cited a decision in **Union of India and others v. Tushar Ranjan Mohanty and others** reported in **(1994) 5 S.C.C. 450** wherein it was held that the legislature and the competent authority under Article 309 of the Constitution of India have the power, however, cannot be used to justify the artbitrary, illegal or unconstitutional acts of the Executive. In pursuance to the letter of appointment, no undertaking was taken W.P.(C)Nos.27552, 15813, 16873, 17089, 20776, 23877, 24476, 25562, 29462 & 31558/2011 & 1935, 2080 & 7063/2012 -:6:- from the petitioners by the Corporation and Clause 7 of the appointment order indicates that appointment will be subject to the Rules and Regulations now in force under the KSRTC and those the Corporation may take in future relating to service conditions. Therefore, in the absence of any Rule or undertaking, the impugned orders cannot be sustained. 5. Learned standing counsel for the Corporation submits that even though there is no rule since the Corporation has spent a substantial amount to train the petitioners, the Corporation expects that the petitioners should serve the Corporation for at least one year under the Corporation and to that effect a condition has been imposed in future appointments. In the judgment in **Narindar Kumar and** ## **others v. The State of Punjab and others (A.I.R. 1985 S.C. 275)** the Apex Court has held as follows: - “5. The question which, therefore, arises for consideration is whether there is a condition in the contract of apprenticeship of the appellants that they shall serve the employer after the successful completion of their apprenticeship training. In this behalf, paragraph 2 of the letters of appointment under which the appellants were appointed as apprentices is important. It reads thus: W.P.(C)Nos.27552, 15813, 16873, 17089, 20776, 23877, 24476, 25562, 29462 & 31558/2011 & 1935, 2080 & 7063/2012 -:7:- “It should be clearly understood that you shall be on stipendary training for a period of one year and on successful completion of this training, you shall be absorbed in the department if there are vacancies, without any commitment subject to the stipulation that during the waiting period after one year's apprenticeship, you will not be paid any remuneration”. 6. It is urged on behalf of the respondents that this particular term in the contract of apprenticeship cannot be construed as a condition that the apprentices shall, after the successful completion of their apprenticeship training, serve the employer. We find it difficult to accept this submission. Paragraph 2 of the letters of appointment is intended to convey the meaning that there is an obligation on the apprentices to serve the employer after the successful completion of the training. This condition is not happily expressed but, in matters such as the one before us, one must take a broad and commonsense view of the terms of employment. It is not proper in such cases to indulge in a hairsplitting approach and find an escape for defeating the rights of employees. When paragraph 2 says that the apprentice “shall be absorbed in the department”, the only reasonable interpretation to put up on that expression is that it creates reciprocal rights and obligations on the parties to the contract of apprenticeship, namely, the employee and the employer. “You shall be absorbed” is a double edged term of the contract. It binds the employer to offer employment to the apprentice “if there is a vacancy” ” and, equally, it binds the apprentice to accept the offer. (emphasis supplied) 6. In this case, the petitioners have served the Corporation for sometime after completion of their training. Since petitioners have served for W.P.(C)Nos.27552, 15813, 16873, 17089, 20776, 23877, 24476, 25562, 29462 & 31558/2011 & 1935, 2080 & 7063/2012 -:8:- sometime, the plea of the Corporation that they are liable to refund the amount cannot be accepted. I hold that the direction to recover the amount from the petitioners is illegal and unconstitutional. But, I make it clear that where a person has not served at all after completion of training, it will be open to the Corporation to realize the amount from the employee. In the result, the writ petitions are allowed quashing the impugned orders. **B.P. Ray, Judge.** sl.