O.P. Raju and M.K. Sarojini v. Director, Khadi & Village Industries Kerala State Office; Administrator, Kerala Sarvodaya Sangh

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 8TH DAY OF MARCH 2016/18TH PHALGUNA, 1937 WP(C).No. 35764 of 2015 (U) ---------------------------- PETITIONER(S): -------------------------- 1. O.P.RAJU AGED 58 YEARS MANAGER, KERALA SARVODAYA SANGH KHADI GRAMPDHYOG BHAVAN, GRAMODYA, M.G.ROAD THIRUVANANTHAPURAM, PIN-695 001 2. M.K. SAROJINI COUNTER-IN-CHARGE, KERALA SARVODAYA SANGH KHADI GRAMODHYOG BHAVAN, GRAMODYA, M.G.ROAD THIRUVANANTHAPURAM, PIN-695 001 BY ADVS.SRI.GOPAKUMAR R.THALIYAL SRI.M.S.VIJAYACHANDRAN BABU RESPONDENT(S): ---------------------------- 1. DIRECTOR, KHADI & VILLAGE INDUSTRIES KERALA STATE OFFICE, M.G.ROAD, THIRUVANANTHAPURAM PIN-695 001 2. THE ADMINISTRATOR KERALA SARVODAYA SANGH, GANDHI ASHRAMANM CIVIL STATION (PO), KOZHIKODE, PIN-673 020 R1 BY ADV. SRI.T.RAJASEKHARAN NAIR,SC,KHADI &VILLA R2 BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) R2 BY ADV. SRI.GEORGE VARGHESE KIZHAKKAMBALAM R BY SRI.TOM K.THOMAS, SC KERALA KHADI & VILLAGE IN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 35764 of 2015 (U) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1: TRUE COPY OF RULE 40(II)OF THE SERVICE RULES OF THE KERALA SARVDAYA SANGH ALONG WITH THE RELEVANT TRANSLATION IN ENGLISH EXT.P2: TRUE COPY OF THE CIRCULAR ISSUED BY THE 2ND RESPONDENT DT. 30/3/15 ALONG WITH ITS TRUE TRANSLATION IN ENGLISH EXT.P3: TRUE COPY OF THE COMMUNICATION ISSUED TO THE 1ST PETITIONER DT. 26/6/16 ALONG WITH ITS TRUE TRANSLATION IN ENGLISH EXT.P4: TRUE COPY OF THE COMMUNICATION ISSUED TO THE 2ND PETITIONER DT. 26/6/16 ALONG WITH ITS TRUE TRANSLATION IN ENGLISH EXT.P5: TRUE COPY OF THE REPRESENTATION SUBMITTED BY 26 MEMBERS ADDRESSED TO THE ADMINISTRATOR, KERALA SARVODAYA SANGH, THIRUVANANTHAPURAM DATED 04.01.2016 RESPONDENT(S)' EXHIBITS --------------------------------------- EXT.R1(a): TRUE PHOTOCOPY OF THE JUDGMENT IN OP NO. 32992/2002 PASSED BY THIS COURT EXT.R2(A): TRUE COPY OF RELEVANT PAGES OF SERVICE RULES OF KERALA SARVODAYA SANGAM EXT.R2(b): TRUE COPY OF THE CIRCULAR NO. KSS/I(3) /2005-06/335 DT 25.07.2005 TRUE COPY P.A TO JUDGE jma ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 35764 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 08[th] day of March, 2016 ## J U D G M E N T The petitioners are aggrieved with the fact that the petitioners have been directed to retire at the age of 58 though the service conditions as produced at Ext.P1 stipulates that the retirement age is 60. 2. Both the respondents have filed separate counter affidavits and both of them have raised preliminary question of maintainability of a writ petition against the 2[nd] respondent. Admittedly, the 1[st] respondent is a State since the same is a department under the Central Government. The contention is that no writ could be issued to the 2[nd] respondent, the same being a society not coming under the definition of a State under Article 12 of the Constitution of India. 3. To understand the contention, one has to look at the counter affidavit filed by the 1[st] respondent itself. The 1[st] WPC.No.35764/2015 : 2 : respondent is a statutory body established under the Act of Parliament and functioning under the administrative control of the Ministry of Micro Small & Medium Enterprises, Government of India. In taking up implementation of Khadi and Village Industries Programmes, the 1[st] respondent had enlisted and recognised, among others, charitable institutions, State Khadi & Village Industries Boards etc., one of which is the 2[nd] respondent. The 2[nd] respondent is registered under the Charitable Societies Registration Act with its head office at Kozhikode. 4. The 1[st] respondent itself has submitted in the counter affidavit that they have pumped cores of rupees for various programmes to the 2[nd] respondent from the year 1958 and bank finance has been facilitated under the Interest Subsidy Eligibility Scheme. The 2[nd] respondent is a Directly Aided Institution (DAI) functioning under a two tire management system of a Management Committee and the General Body. On finding erosion of working funds and accumulation of losses due WPC.No.35764/2015 : 3 : to mismanagement, the 1[st] petitioner is also said to have appointed an Administrator to carry on the administration of the 2[nd] respondent. These facts would clearly indicate that there is an all pervasive control of the 2[nd] respondent by the 1[st] respondent. 5. The contention that the 2[nd] respondent would not come within the definition of the State, under Article 12 of the Constitution is only to be rejected going by the Constitution Bench decision of the Hon'ble Supreme Court in 2002(5) SCC 111 (Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and others) wherein the decision of Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (1975 (1) SCC 421) was quoted with approval, as follows: “16. Mathew J, in his concurring judgment went further and propounded a view which presaged the subsequent developments in the law. He said:(SCC 449 Para 82) “A State is an abstract entity. It can only act through the instrumentality or agency of natural WPC.No.35764/2015 : 4 : or juridical persons. Therefore, there is nothing strange in the notion of the State acting through a corporation and making it an agency or instrumentality of the State” 17. For identifying such an agency or instrumentality he propounded four indicia: - (1) “A finding of the State financial support plus an unusual of control over the degree management and policies might lead one to characterize an operation as State action.”(SCC p.454, para 96) - (2) “Another factor which might be considered is whether the operation is an important public function.” (SCC p.454 para 97) - (3) “The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should WPC.No.35764/2015 : 5 : be classified as a State agency. If a given function is of such public importance and so closely related to governmental functions as to be classified as a governmental agency, then even the presence or absence, of State financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description, then mere addition of State money would not influence the conclusion.” (SCC p.454, para 97) (4) “The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the Government for carrying on a business for the benefit of the public. In other words, the question is, for whose benefit was the corporation carrying on the business?” (SCC p.458 para 111)” WPC.No.35764/2015 : 6 : 6. There can be no dispute that the 2[nd] respondent satisfies the aforesaid conditions and can be safely found to be a State under Article 12 of the Constitution of India. 7. The other issue is as to the retirement age. It is an admitted fact that Ext.P1 is the service conditions framed for the 2[nd] respondent which provides for retirement at the age of 60 as per clause 40(ii). Some time in the year 2002, the Managing Committee is said to have taken a decision to reduce the retirement age to 58. No such decision has been placed on record by either of the parties. The respondents rely on the circular at Ext.P2, by which the Administrator again resolved to increase the age of retirement from 58 to 60 which now pending before the Steering Committee. Without approval of the Steering Committee the said enhancement cannot be made effective and the petitioner would have to be retired at the age of 58, is the argument. It is also argued that the petitioners very well knew the practice in the 2[nd] respondent and all employees were retired at the age of 58. WPC.No.35764/2015 : 7 : 8. As was noticed above, the service conditions of the 2[nd] respondent as it exists now, specifies the retirement age to be 60. Without amendment to the same no reduction could have been made. The management has also not produced anything before this court to evidence such a reduction. Reliance is placed on the decision taken by the Administrator, to enhance the age from 58 to 60 and the non- approval of the same by the Screening Committee. Why the Administrator took such a decision and why it required the approval of the Steering Committee, when the service condition as produced at Ext.P1 provide for the retirement age to be 60; remains un-answered by both the respondents. 9. Going by the stipulation of retirement age in the 2[nd] respondent the petitioners can be retired only when they attain superannuation age of 60 years. The practice followed of the retirement at 58, pales into insignificance, tested against the valid rules prescribing the conditions of service in the second respondent. It is made clear that this would not affect the WPC.No.35764/2015 : 8 : retirement of any persons prior to the passing of this order, since they retired without demur. The petitioners have been continuing on the basis of the interim order of this Court, but however, interdicting the payment of salary until the issue is decided. The issue having been decided in favour of the petitioners, the entire salary due to them be paid and they continued till they attain the age of superannuation. Writ petition is allowed. No costs. Sd/- - (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge