P. Surendran and Others v. State of Kerala and Kerala State Cashew Development Corporation and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 15TH DAY OF NOVEMBER 2012/24TH KARTHIKA 1934 ## **O.P.No.10546 of 2002 (E)** --------------------------------------------- PETITIONERS:- ----------------------- 1. P.SURENDRAN, - PARVATHY SADANAM, - MUKKODU, KARIPURAM. 2. N.GOPI, ROADVILA, DECENT JUNCTION, KOLLAM. - 3. M.SUNDARESAN, SANTHA MANDIRAM, THAZHOM, KARIMPINPUZHA, PUTHOOR, KOLLAM (DIED) 4. SULOCHANA, MURALI MANDIRAM, MANIKANTANCHIRA, KADAKKAL, KOLLAM. - THE DEATH OF THE 3[rd] PETITIONER IS RECORDED AS PER ORDER DATED 6.11.2012 IN MEMO BEARING CF.NO.20471/2010. BY ADV. SRI.P.B.SURESH KUMAR (SENIOR ADVOCATE) RESPONDENTS:- -------------------------- 1. STATE OF KERALA, - REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE KERALA STATE CASHEW DEVELOPMENT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, - KERALA STATE CASHEW DEVELOPMENT CORPORATION, KOLLAM - 691 001. 3. SHAHAL HASSAN MUSALIAR, - BELAIR BUNGALOW, KILIKOLLOOR, KOLLAM - 691 004. 4. T.SALIHA BEEVI, BLUE BELLS, - KANNIMEL CHERRY, KILIKOLLOOR, KOLLAM - 691 004. O.P.NO.10546 OF 2002-E - 2 - 5. AKBAR HYDAR MUSALIAR, MALIKA VEEDU, ASRAMAM, KOLLAM - 691 004. R1 BY GOVERNMENT PLEADER SRI.P.S.ABDUL KAREEM. R2 BY ADV.SRI.M.R.RAJENDRAN NAIR (SENIOR ADVOCATE) & STANDING COUNSEL SRI.C.UNNIKRISHNAN (KOLLAM) R3 BY ADVS. SRI.P.SANJAY, SRI.BIJU MEENATTOOR SRI.JINU JOSEPH SRI.GLEN ANTONY SMT.M.VANAJA R, BY ADV. SRI.U.K.RAMAKRISHNAN (SR.) R, BY ADV. SRI.E.K.MADHAVAN R, BY ADV. SRI.P.V.LOHITHAKSHAN R, BY ADV. SMT.P.VIJAYAMMA R, BY ADV. SMT.UMA GOPINATH R, BY ADV. SRI.SAJEEV ASOKAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06-11-2012, ALONG WITH O.P.NO.13958/2002-J AND CONNECTED CASES, THE COURT ON 15-11-2012 DELIVERED THE FOLLOWING:- ## O.P.No.10546 of 2002-E ## **APPENDIX** Petitioners' Exhibits:- - ----------------------------Ext.P1 - Copy of the office order issued by the Corporation in connection with the appointment of the 1[st] petitioner dated 27.8.1974. - Ext.P2 - True copy of the office order issued by the Corporation in connection with the appointment of the 3[rd] petitioner dated 15.6.1974. - Ext.P3 - True copy of the office order issued by the Corporation in connection with the promotion of the 1[st] petitioner to the post of Factory Manager Grade II dated 29.1.1985. - Ext.P4 - True copy of the office order issued by the Corporation in connection with the declaration of probation of the second petitioner to the cadre of Factory Manager Grade II dated 8.10.1990. - Ext.P5 - True copy of the office order issued by the Corporation in connection with the appointment of the petitioners 3 and 4 as Factory Manager Grade II dated 10.6.1989. - Ext.P6 - True copy of the office order issued by the Corporation in connection with the promotion of the 1[st] petitioner as Factory Manager Grade I dated 22.1.1990. - Ext.P7 - True copy of the proceedings issued by the Managing Director of the Corporation in connection with the promotion of the 2[nd] petitioner as Factory Manager Grade I dated 3.12.1999. - Ext.P8 - True copy of the office order by which annual increment was sanctioned to the head office staff of the Corporation dated 8.12.1989. - Ext.P9 - True copy of the judgment of this Court in O.P.No.16424/1994 dated 4.9.1997. - Ext.P10 - True copy of the judgment in W.A.No.1793/1997 dated 27.9.2001. ## O.P.No.10546 of 2002-E - 2 - Ext.P11 - True copy of the judgment in C.C.C.No.295/2002 dated 1.4.2002. Ext.P12 - True copy of the communication issued by the Corporation to the 3[rd] respondent dated 28.3.2002. Ext.P12(a) - True copy of the relevant portion of the list enclosed along with Exhibit P12 dated nil. Ext.P13 - True copy of the communication issued by the Corporation to the 4[th] respondent dt.25.3.2002. Ext.P13(a) - True copy of the relevant portion of the list enclosed along with Exhibit P13 dated nil. Ext.P14 - True copy of the communication issued by the corporation to the 5[th] respondent dated 25.3.2002. Ext.P14(a) - True copy of the relevant portion of the list enclosed along with Exhibit P14 dated nil. Respondent's Exhibits:- ------------------------------Ext.R2(a) - True copy of the order of the Hon'ble Supreme Court in S.L.P.No.20323 of 2001. - Ext.R2(b) - True copy of the lease agreement dated 11.3.1974 taking over the factory. - Ext.R2(c) - True copy of the Minutes of the meeting of the Sub-Committee dated 22.8.1974. - Ext.R2(d) - True copy of the lease agreement dated 13.3.1974 taking over the factory. - Ext.R2(e) - True copy of the Minutes of the meeting of the Sub-Committee dated 9.4.1975. - Ext.R2(f) - True copy of the Minutes of the meeting of the Sub-Committee dated 11.6.1974. ## O.P.No.10546 of 2002-E - 3 - - Ext.R2(g) - True copy of the lease agreement dated 23.4.1974 taking over the factory. - Ext.R2(h) - True copy of the Minutes of the selection made by the Sub-Committee dated 13.4.1974. - Ext.R2(i) - True copy of the order of the 2[nd] respondent dated 22.4.1975. Ext.R2(j) - True copy of the order of the Hon'ble Supreme Court in S.L.P.No.21913/2002. - Ext.R2(k) - True copy of the relevant page of O.P.No.16424/1994 containing para 5. - Ext.R2(l) - True copy of the relevant page of O.P.No.16424/1994 containing Ext.P5. Ext.R2(m) - True copy of the relevant pages of Muster Roll. - Ext.R2(n) - True copy of the relevant pages of Muster Roll. - Ext.R2(o) - True copy of the relevant pages of Provident Fund & Family Pension Fund Ledger. - Ext.R2(p) - True copy of the application for clarification filed by the private owner of Neduvathoor. - Ext.R2(q) - True copy of the application for clarification filed by the private owner of Ezhukone. - Ext.R2(r) - True copy of the application for clarification filed by the private owner of Kallambalam (Navaikulam Village) factories. ( true copy ) ## K. Vinod Chandran, J. ----------------------------------------------------------------------------O.P.Nos.10546/2002-E, 13958/2002-J, 14062/2002-Y, 14105/2002-D, 667/2003-D, W.P.(C) Nos.32486/2003-P, 1708/2004-C & 1918/2004-C ----------------------------------------------------------------------------Dated this, the 15[th] day of November, 2012 ## JUDGMENT The petitioners herein claim to be regular employees of the 2[nd] respondent, Kerala State Cashew Development Corporation, hereinafter referred to as “Corporation”. Recruited into the service of the Corporation and then unceremoniously sent out only for the reason that the cashew factories, in which they were then employed, were, by virtue of judgment of this Court, released to the owners. All the petitioners were engaged in one or another of factory Nos.3, 19 and 25, owned respectively by respondents 3, 4 and 5. The petitioners were employed, at the time of termination, either as Factory Manager Grade I or Grade II, Factory Clerk, Driver or Watchman. 2. On consent of counsel on either side, the records in O.P.No.10546 of 2002 was referred to and the counter affidavit of the 3[rd] respondent in O.P.No.14062 of 2002 also was perused. 3. The brief facts necessary are that petitioners 1 and 2 in O.P.No.10546 of 2002 were employed as Factory Manager Grade I and 4th petitioner as Factory Manager Grade II. The 3[rd] O.P.No.10546 of 2002 & - 2 - connected cases petitioner, who was Factory Manager Grade II, is no more and his legal representatives have not been impleaded. All the petitioners were appointed by orders similar to Exhibits P1 and P2 as Factory Clerks in the respondent Corporation. The 1[st] petitioner was posted to Factory No.24 and the 2[nd] petitioner to Factory No.10 and it was also specified that they would be likely to be transferred to any factory managed by the Corporation from time to time. Subsequent to their appointment in the year 1974, after about 11 years, based on a written test and interview, the petitioners in the lead Original Petition were, on different dates, promoted to the post of Factory Manager Grade II, and a copy of the order in respect of 1[st] petitioner is produced as Exhibit P3. Their promotions were confirmed and one such order in respect of 2[nd] petitioner is produced as Exhibit P4. The 1[st] petitioner by Exhibit P6 and the 2[nd] petitioner by Exhibit P7 were promoted as Factory Manager Grade I. 4. The facts are similar in case of all the petitioners in all the Original/Writ Petitions; regarding their initial appointment and terms under which they were appointed and confirmed in service. While they were continuing in the employment, all the petitioners in the various Original/Writ Petitions were transferred to one or other of factories numbered as 3, 19 and 25. These factories, actually owned O.P.No.10546 of 2002 & - 3 - connected cases by respondents 3 to 5, were originally leased out to the respondent Corporation and subsequently requisitioned under the Kerala Cashew Factories (Requisitioning) Act, 1979, hereinafter referred to as “the Requisitioning Act”. 5. The facts as revealed in the counter affidavit filed by the 3[rd] respondent in the lead Original Petition would indicate that the respondent Corporation had been in occupation of the factory No.3 from the year 1969 onwards. The lease was also extended for various periods. On expiry of such extended period, requests were made for getting re-possession of the factory. It was in this context that the Requisitioning Act was passed. There was a notification issued under the Requisitioning Act for taking possession of the factory for a period of five years. On expiry of such period, an amendment was brought in, and a further notification was issued extending the period of requisition. This was challenged by the 3[rd] respondent in O.P.No.16424 of 1994 and by the 4[th] respondent in O.P.No.553 of 1996. O.P.No.16424 of 1994 was allowed by Exhibit P9 judgment. Similarly O.P.No.553 of 1996 filed by the 4[th] respondent was also allowed. The said judgments were challenged by the State as also the respondent Corporation. During the pendency of the Writ Appeals, the 5[th] respondent also approached this Court in O.P.No.10546 of 2002 & - 4 - connected cases O.P.No.2631 of 1998. The Writ Appeals and the Original Petition were heard together and by Exhibit P10; while the Writ Appeals were dismissed, the Original Petition was allowed, specifically directing implementation of the judgment of the learned Single Judge by release of the factory and the machinery, which were taken over, to the petitioners. The amendment made in Section 3(1) of the Requisitioning Act was held to be unconstitutional and violative of Articles 14, 19(1), 300-A and 301 of the Constitution. A Special Leave Petition was filed before the Hon'ble Supreme Court. When contempt proceedings for non-compliance of the judgment in the Writ Appeal was initiated, the respondent Corporation, as evidenced by Exhibit P11 order, submitted before Court that the Special Leave Petitions are being not pressed and the orders of the Division Bench are being complied with. This evidently shows that despite the order in 1997, at least till 2002 when the contempt case was initiated, the factories were not released to the petitioners therein and were in occupation by the respondent Corporation. 6. The petitioners, more specifically those in O.P.No.10546 of 2002, approached this Court when the factories were thus handed over. The employees of the Corporation, the petitioners herein, were without work. On approaching the O.P.No.10546 of 2002 & - 5 - connected cases Corporation, they were told that the respondents 3 to 5, who were the owners and who obtained release of the factories, have undertaken to employ all existing employees in the said factories. It was on an enquiry pursuant to that it was revealed that the respondent Corporation was relying on an undertaking made by the owners, who were the petitioners in the Original Petitions challenging the Requisitioning Act, before the learned Single Judge. The said undertaking, according to the petitioners, is only with respect to the daily wage workers and does not take in the regular employees of the Corporation, which status of the petitioners remain undisputed. The petitioners, hence, claimed to be entitled to be continued in the service of the Corporation. 7. After the counter affidavit dated 6.7.2002 of the 2[nd] respondent was taken on file in the lead Original Petition, this Court considered the interim prayer sought for by the petitioners and by order dated 24.07.2002, directed the 2[nd] respondent to prepare and publish a seniority list of Factory Managers in its employment within two weeks and in the event of any reduction in vacancies, the junior-most was directed to be retrenched and the petitioners directed to be reinstated and retained in service, if found to be seniors. This order was passed in O.P.No.10546 of 2002. The other Original/Writ O.P.No.10546 of 2002 & - 6 - connected cases Petitions were filed later. The interim order passed was challenged in Writ Appeal by the respondent Corporation. The undertaking given by the owners before the Hon'ble Supreme Court, in tandem to that given in O.P.No.16424 of 1994, was projected by the Corporation to contend that it was the responsibility/liability of the owners to employ the workers who were subsisting in the factory at the time of the release. A Division Bench of this Court considered the undertaking given before the learned Single Judge in Exhibit P9 judgment as also the undertaking given before the Hon'ble Supreme Court and found that the staff employed directly by the Corporation will not come under the purview of such 'undertaking'. The “workmen” mentioned in the order of the Supreme Court was held to be not inclusive of the staff directly employed by the Corporation. Again the State and the Corporation were before the Supreme Court. The Special Leave Petitions were disposed of by order dated 5.7.2010, directing this Court to dispose of the writ petitions; especially since the Special Leave Petitions were against an interim order. 8. I have heard learned Senior Counsel Sri.P.B.Suresh Kumar on behalf of all the petitioners in the Original/Writ Petitions, the learned Government Pleader Sri.P.S.Abdul Kareem on behalf of the State, learned Senior Counsel Sri.M.R.Rajendran Nair, instructed by O.P.No.10546 of 2002 & - 7 - connected cases Sri.C.Unnikrishnan, for the respondent Corporation and Sri.P.Sanjay on behalf of the 3[rd] respondent. 9. On behalf of the petitioners, it is urged that the records in the case would amply demonstrate that they were regular employees of the respondent Corporation, liable to be transferred and posted in any of the factories under the respondent Corporation. It was by mere misfortune that all the petitioners herein were transferred and posted in one or other of the factory Nos.3, 19 and 25. The litigation between the owners of the factory, and the State and the respondent Corporation on the other side, was only with respect to the requisitioning of the factories as per the Amendment Act. The service of the employees of the respondent Corporation who were then working in such factories did not at all arise for consideration. What was intended by the undertaking, according to the petitioners as also the learned counsel for the 3[rd] respondent, is that those workers who were employed seasonally in the factories would be continued to be so employed and the respondent Corporation would have no liability towards such employees. It is not to say that the petitioners who were regularly employed in the service of the Corporation also would be employed by the respective owners. 10. The learned Senior Counsel Sri.P.B.Suresh Kumar O.P.No.10546 of 2002 & - 8 - connected cases would rely on the decision in _**Jawaharlal Nehru University v. Dr.K.S.Jawatkar and others,**_ **1989 Supp (1) SCC 679** , to contend that the transfer of service to a third party without employee's consent would not be always a necessary consequence of transfer of ownership and possession of an undertaking and if at all such transfer results in reduction of posts, the principle of “last come first go” would apply. The decision of the Hon'ble Supreme Court in _**Balram Gupta v. Union of India and another,**_ **1987(Supp) SCC 228,** was urged more in the nature of a plea to the official respondents to display a small amount of grace in mitigating the hardship caused to the petitioners. It is urged that all the petitioners in O.P.No.10546 of 2002, O.P.No.667 of 2003 and W.P.(C) No.1708 of 2003 and petitioners 2 to 4 in O.P.No.13958 of 2002, 2[nd] petitioner in W.P.(C).No.32486 of 2003 and the 1[st] petitioner in O.P.No.14062 of 2002 have attained the age of superannuation. The other petitioners are still rendered unemployed and two of the petitioners, 3[rd] petitioner in O.P.No.10546 of 2002 and also the 3[rd] petitioner in O.P.No.13958 of 2002, have passed away without their grievances being redressed. Support was also drawn from one of the concurring majority judgments in _**Delhi Transport Corporation v. D.T.C. Mazdoor Congress,**_ **1991 (Supp) 1 SCC 600,** to spell out the right of a O.P.No.10546 of 2002 & - 9 - connected cases permanent employee to a post. 11. Sri.M.R.Rajendran Nair, learned Senior Counsel appearing on behalf of the respondent Corporation would again rely upon the undertaking made by the owners before the learned Single Judge and before the Hon'ble Supreme Court. The additional counter affidavit dated 31.5.2004 filed by the respondent Corporation in the lead Original Petition has been pointed out to show that the 1[st] petitioner in the said Original Petition was a person who had been engaged earlier in one of the factories which had been taken on lease by the 2[nd] respondent. Exhibit R2(b) lease deed relating to the said factory, numbered as 29, and Exhibit R2(c) Minutes of the meeting of the Sub-Committee held on 22.08.1974 have been pin-pointed to contend that all the petitioners were similarly taken into the service of the Corporation and they stand on a separate footing. What is intended by the word “directly employed” in the undertaking before the Supreme Court is only those persons who were taken from the open market. These petitioners by themselves belong to a separate class. It is also contended, on the strength of the additional counter affidavit dated 10.08.2011 that the petitioners are all “workmen” under the Industrial Disputes Act and the Original/Writ Petitions itself are to be rejected for reason only of there being available efficacious O.P.No.10546 of 2002 & - 10 - connected cases alternate remedy. The fact that they were “workmen” again would show that they are persons clearly coming within the contours of the undertaking; by the respondent owners. 12. The 3[rd] respondent would urge that as noticed above the factory itself was handed over after considerable time and that too, in an abysmal condition, resulting in the owners being unable to resume operation. With respect to the undertaking, it is the specific contention of the 3[rd] respondent that the staff employed by the respondent Corporation who were posted in the factories were the employees of the 2[nd] respondent Corporation who were entrusted by the Corporation with the work of carrying on the operations in the factory. Such employees of the Corporation, employed casual labourers and seasonal workers for carrying on such operations. The undertaking before this Court as also the Supreme Court related to only such casual labourers and seasonal workers. The respondent Corporation having released the possession of the factories, it no longer lies in the mouth of the Corporation that their employees should be employed by the owners of the factories. The owners of the factories are quite competent to manage the factories by themselves, by employing casual employees and seasonal workers. 13. With respect to the issue raised on the maintainability, O.P.No.10546 of 2002 & - 11 - connected cases it is to be noticed that the counter affidavit dated 6.7.2002 filed by the Corporation raised an issue on a bland assertion that efficacious alternate remedy is available under the Industrial Disputes Act. The Corporation did not dispute that the petitioners in the Original/Writ Petitions were Factory Managers or the others were employed in the respective designations. No reliance was placed then and now to show that Factory Managers are not engaged in a supervisory capacity or draw salary beneath the limit prescribed under the Industrial Disputes Act. There is nothing on record even now, explaining the nature of duties, these factory Managers were, enjoined upon. As noticed above, an interim order was passed after the counter affidavit was placed on record. Writ Appeal was filed and in the Special Leave Petition the matter was remanded for reconsideration and disposal by this Court. It is too late in the day to contend for the dismissal of the above writ petition by reason of an efficacious alternate remedy as is laid down in _**Thressiamma v. Union of India,**_ **1999 (2) KLT 683.** This Court is not inclined to consider the issue of maintainability on that ground at this point of time, especially when the Special Leave Petition was disposed of with specific direction to consider and dispose of the Original/Writ Petitions. O.P.No.10546 of 2002 & - 12 - connected cases 14. The initial appointment of most of the petitioners are as Factory Clerks and two are Drivers and one a Watchman. The appointment order Exhibit P1 indicates provisional appointment in a specified scale of pay and postulates confirmation after the stipulated probation period of one year, subject to successful completion of probation. The appointment order specifically says that the employee will be governed by the Rules in force from time to time in the Corporation, and makes the employees so appointed liable for transfer to any of the factories run by the Corporation. I would immediately notice the contention of the Corporation that the petitioners, by nature of their appointment and the source from which they were taken, stand apart as a different class. 15. The 1[st] petitioner is said to have been working in Factory No.29 taken over on lease by the respondent Corporation. The lease deed entered into has been produced as Exhibit R2(b). Such absorption of employees working in the factory is not a condition of lease; nor is it stipulated that any employee employed by the Corporation during the lease period would be terminated on the expiry of the lease period. Very pertinently, though the employment of the 1[st] petitioner in Factory No.29 is projected as the reason for his absorption in the respondent Corporation, by Exhibit P1 the 1[st] O.P.No.10546 of 2002 & - 13 - connected cases petitioner is posted to Factory No.24. It is also pertinent that except for S.Sreedharan Pillai, 2[nd] petitioner in O.P.14062 of 2002, and G.Indira, the 3[rd] petitioner in O.P.14105 of 2002, none of the petitioners were employed in any of the factories bearing Nos.3, 19 or 25 before they entered the service of the Corporation. It is trite that once persons are employed in the service of an authority; the source from which they were taken pales into insignificance and cannot at all result in a classification in the stream of service in which they were inducted, confirmed and continued without any break. 16. The distinction attempted to be drawn by the Corporation relying on the words “employed directly” used while recording compromise before this Court, in the opinion of this Court is misplaced. The “existing workers and staff other than the staff employed directly by the Corporation” can only be taken as those persons who were engaged in the work undertaken in the respective factories. It is also to be noticed that the undertaking was that such workers will be given 250 days work in an year, specifically indicating “casual and seasonal workers”. It is not the case of the respondent Corporation that the petitioners were employed casually or seasonally. They were all in the regular employment of the respondent Corporation with definite designations, like Factory O.P.No.10546 of 2002 & - 14 - connected cases Manager, Driver, Watchman, etc. The petitioners were paid salary in accordance with the regular scales of pay applicable to such posts sanctioned in the respondent Corporation. They were regularly employed. Their service was governed by the Rules of the Corporation and they were liable to transfer to any of the factories under the Corporation; operated by the Corporation as absolute owner or on lease or on requisition. Their employer was the respondent Corporation and the emphasis laid by the Supreme Court on the principle that a permanent employee has right of lien on the post he holds until his tenure of service reaches superannuation, as laid down in _**Moti Ram Deka v. General Manager, North East Frontier Railway,**_ **(1964) 5 SCR 683,** and approved in _**Delhi Transport Corporation's case**_ ( _supra_ ) assumes significance in this case. The petitioners were all employed directly by the respondent Corporation and were continuing in the regular service of the Corporation. 17. The decision of the Hon'ble Supreme Court in **1989 Suppl. (1) SCC 679** is apposite to the facts of this case. Jawaharlal Nehru University (JNU) had an independent Centre of Postgraduate Studies at Imphal, Manipur. The Centre was managed by the JNU and the appointments were also made by the JNU. In 1980, O.P.No.10546 of 2002 & - 15 - connected cases proceedings were taken to transfer the Centre from the JNU to Manipur University. To effectuate this transfer, the Manipur University passed a resolution detailing the terms of transfer and the Manipur University along with the Manipur Government requested the JNU for transfer of the Centre from JNU. JNU having accepted the proposal, the transfer was fixed on 1.4.1981. By an enactment, which was assented to by the Governor on 28.5.1980, the Manipur Legislature provided that on and from the date on which the Act came into force in respect of Post graduate education and research, the JNU would cease to exercise jurisdiction over the Centre of Postgraduate Studies in Imphal and that the State Government of Manipur may make provision for transfer of employees from the JNU Centre to the Manipur University. The respondent, an Assistant Professor in the employment of the JNU at the Imphal Centre, sought for continuation in the JNU till the attainment of the age of superannuation. The High court having allowed the claim of the Assistant Professor, JNU was before the Supreme Court. The Supreme Court found that the contract of service entered into by the Assistant Professor was a contract with the JNU and no law can convert it into a contract between the Assistant Professor and the Manipur University without making it expressly or by necessary implication, subject to the O.P.No.10546 of 2002 & - 16 - connected cases employee's consent. The fact that the respondent was not shown in the list of Assistant Professors of JNU or that the provision for such post was not indicated in the University's budget, according to the Supreme Court, was irrelevant and it could only be regarded as an erroneous conception of the status of the employee. It was also held that even if the transfer of the Centre is regarded as an abolition of the post held by the respondent, even then the principle “last come, first go” would apply and a person junior to the respondent must be sent out. 18. In the instant case, the principle of “last come, first go” was directed by this Court in the interim order. The respondent Corporation chose, not to accept it. It is the specific contention in the Original/Writ Petitions that the juniors of the petitioners who were working in other factories of the Corporation were continued when the petitioners were terminated. The respondent Corporation obviously has not denied such a contention in any of the three affidavits filed as counter in the Writ/Original Petitions. 19. Respondents 3 to 5, the owners who obtained release of the factories, are bound by their 'undertaking'. The 'undertaking' made in Exhibit P9 and before the Supreme Court are extracted hereunder: O.P.No.10546 of 2002 & - 17 - connected cases ## Exhibit P9 (Judgment in O.P.No.16424/1994 dated 4.9.1997): “Petitioner has undertaken that he will give 250 days' work in an year to the workers. He should employ all the existing workers and staff other than the staff employed directly by the Corporation. All the benefits to the workers till the factory is handed over back should be paid by the Corporation. All the benefits under the various labour enactments should be paid thereafter by the petitioner”. ## Supreme Court order (Order in S.L.P.(C).No.20323/2001 dt. 29.11.2001): “On behalf of the respondents, we record their undertaking given through counsel that, upon the possession of the factories being restored to the respondents, the factories shall be run by them and the workmen thereof paid their salaries and other benefits on a regular basis”. 20. However, the said undertaking does not include those persons/staff directly employed by the Corporation. The persons who were employed in such factories, who were in the regular service of the respondent Corporation and liable to be transferred to any of the factories under the Corporation, do not come within the frame work of the 'undertaking'. In any event, going by the dictum laid down in the decision cited above, on an 'undertaking' made by certain private individuals, the respondent Corporation cannot wash their hands of O.P.No.10546 of 2002 & - 18 - connected cases their responsibility to persons in their regular employment. The employment of all the petitioners were governed by the Rules of the respondent Corporation, as is evident from the appointment order. The petitioners were all taken into employment and continued as such in the various factories under the respondent Corporation as per the specific terms of employment of the respondent Corporation. The contract of service is between the petitioners and the respondent Corporation. Even if the respondent owners now undertake that they would employ the petitioners, the petitioners can simply reject the said offer. If they accept such an offer, can it be said that the respondents 3 to 5 would be obliged to pay the salary in accordance with the scales of pay under which they were drawing pay in the respondent Corporation? The answer is a definite “No”. Likewise, any agreement entered into by the respondent Corporation with the owners with respect to the service of regular employees of the Corporation being transferred to them, cannot subsist or be put into force without the consent of the employees. 21. On the strength of the findings above, this Court has absolutely no hesitation to come to the conclusion that the petitioners, who are all regular employees of the respondent Corporation, who, when employed in the factories under the respondent Corporation, O.P.No.10546 of 2002 & - 19 - connected cases were persons directly employed by the respondent Corporation. In _**Food Corporation of India v. Ashis Kumar Ganguly,**_ **AIR 2009 S.C. 2582,** the Supreme Court was considering the issue whether the grant of one advance increment on absorption in Food Corporation of India to deputationists from Central Government while denying the same to deputationists from State Government was discriminatory. The contention of the Corporation was that the employees deputed were from two different services forming different classes and the exercise of discretion in favour of one class was not arbitrary. The Supreme Court noticing that the Corporation conceded that the nature of duties, qualifications and service conditions stand on similar footing held the denial of the advance increment to State Government deputationists, to be discriminatory. The ground of discrimination was upheld on the following reasons: “Only because, according to the Corporation, they were treated differently, in our opinion, by itself cannot be a ground not to apply the rules applicable to the employees of the Food Corporation of India on their absorption in the services of the Food Corporation of India only because they have been taken from the different sources. Different treatments meted out to the respondents vis-a-vis the Central Government employees although drawn from separate cadre, for the purpose of grant of benefit to one class only, would, in our opinion, amount to discrimination”. O.P.No.10546 of 2002 & - 20 - connected cases This Court also draws immense support from the decision of the Supreme Court in _**Manmad Reddy B. and others v. Chandra Prakash Reddy and Others,**_ **(2010) 3 SCC 314,** wherein the issue arose from another instance of persons drawn from different sources and integrated into one class/cadre/category were classified for purposes of promotion on the basis of the source from which they were drawn. The twin tests of classification was reiterated by the Supreme Court in the decision reported in _**Food Corporation of India v. Bhartiya Khadya Nigam Karmachari Sangh**_ [(2012) 2 SCC 307] as follows:- “a separate and distinct class and such classification is a reasonable one based on intelligible differentia having nexus with the object sought to be achieved”. The petitioners were all regularly recruited into the services of the Corporation and were governed by the Rules of the Corporation. It was also specified that they would be liable for transfer to any of the factories under the Corporation. Once they are regularly inducted into the service of the Corporation, they could not be treated separately from the other employees in the Corporation. There cannot be any classification on the basis of the source from which they were so O.P.No.10546 of 2002 & - 21 - connected cases inducted. They continue to be regular employees of the Corporation irrespective of the fact that their services being used in the factories owned by the Corporation or leased out by the Corporation or requisitioned by the Corporation. The factum of employees working in the factories under the Corporation, irrespective of the manner in which they came to be under the Corporation cannot result in there being a discrimination between the services by reason only of the fortuitous circumstance alone of such employee being deployed in any one of the said factories. Such classification cannot stand the test of reasonableness based on an intelligible differentia having nexus with the object sought to be achieved. Such a classification would be discriminatory and arbitrary. 22. The petitioners, on the strength of the above findings, can safely be declared as entitled to be continued as regular employees of the respondent Corporation being directly employed by the Corporation. They are excluded from the 'undertaking' recorded before this Court and before the Hon'ble Supreme Court. They are “workers and staff who are employed directly by the respondent Corporation”. It is declared that they are not liable to be included in the list of workers liable to be employed by the individual owners; even with such consent of the individual owners. In the instant case, O.P.No.10546 of 2002 & - 22 - connected cases of course, there is no such consent and it has been found, that, the 'undertaking' of the individual owners does not take in the petitioners. It is evident that the petitioners were not employed after the factories were released to the individual owners, by the respondent Corporation. 23. The principle of “no work, no pay” cannot be imported, looking at the facts of the case and the manner in which the respondent Corporation has conducted itself. Learned Senior Counsel for the petitioners, as noticed earlier, on the strength of a Supreme Court decision, attempted to inspire the Corporation to show a little amount of grace. Grace has to come from within and despite such realization, this Court had attempted a mediation. Neither grace, nor a settlement crystallized. That does not at all sway the mind of this Court either way. 24. What is pertinent is that a learned Single Judge had passed an interim order directing the drawing up of a seniority list and, if necessary, effect retrenchment, on the well accepted principle of “last come, first go”. The interim order was confirmed in Writ Appeal. The matter was taken up before the Hon'ble Supreme Court. There can be no quarrel or question on the competence of the Corporation to take appropriate remedies against orders prejudicing O.P.No.10546 of 2002 & - 23 - connected cases them. But, this Court cannot shut its eyes to the plight of the petitioners who were left to the vagaries of life; unceremoniously sent out from the service to which they were regularly appointed and continued and then abruptly left unemployed; for absolutely no fault of theirs. The Corporation could have drawn up the seniority list and retrenched the petitioners, if they were found to be juniors and if there was reduction of posts by reason of three factories being released. The principle of 'last come first go' could have been resorted to, if the petitioners were seniors and after accommodating them, juniors could have been sent out after payment of eligible compensation. This would have, not at all affected, the remedies that could be availed of by the Corporation, on the interpretation of the 'undertaking'. Then the area of conflict would have been virtually different. True, the order in W.A.No.1975 of 2002 was challenged in Special Leave Petition, which was stayed by the Hon'ble Supreme Court. But, there cannot be any quarrel to the oft reiterated course of resorting to 'last come first go'; which is a well accepted principle of jurisprudence consistently affirmed by the Hon'ble Supreme Court and this Court while dealing with the various aspects and incidence of service. The Corporation, in the opinion of this Court, to put it tersely, missed the bus. O.P.No.10546 of 2002 & - 24 - connected cases 25. In the above circumstances, it is directed that those petitioners who have reached or passed their age of superannuation shall be paid the entire back-wages, which shall be computed from the day after the last pay was paid to them, till the date of superannuation. Needless to say, that, such pay directed to be paid shall include the basic pay as also the Dearness Allowance and shall be computed with the necessary increments as specified in the scales to which the petitioners were entitled in their respective posts. Such petitioners shall also be entitled to all the retirement benefits eligible to the employees of the Corporation, including gratuity as on the date of superannuation considering them to have continued without any break in service from the date of their appointment to the date of superannuation. The petitioners, who have not attained the age of superannuation, shall, on a request being made, immediately be appointed in the vacant posts available with the Corporation with immediate effect, or again following the principle of 'last come first go'. Such petitioners who are appointed shall also be entitled to the entire back-wages as, specified above, in the case of petitioners who have superannuated. In the event of the Corporation computing the benefits as directed above within a period of three months from today and effecting payment within a period of three months thereafter, the O.P.No.10546 of 2002 & - 25 - connected cases respondent Corporation shall not be liable for any interest. However,if such payments are not made within the time stipulated, the amounts due to the petitioners shall carry interest at the rate of 12.5% per annum from the date on which it became due, till the date of realization. The Original/Writ Petitions are allowed with costs payable by the respondent Corporation, fixed at the rate of Rs.5,000/(Rupees five thousand only) in each of the Original/Writ Petitions payable to the respective petitioners jointly. Sd/K.Vinod Chandran, Judge. Vku/- (true copy)