PASCAL BYLON K.I. v. STATE OF KERALA & ORS.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939** **WP(C).No. 7017 of 2016 (B) ---------------------------** **PETITIONER(S): -------------** **PASCAL BYLON K.I., SENIOR OFFICER (STORES), THE TRAVANCORE - COCHIN CHEMICALS LTD., UDYOGAMANDAL, ERNAKULAM. RESIDING AT KONNULLY HOUSE, MATHAI MANJOORAN ROAD COCHIN: 682 018.** **BY ADVS.SRI.ASOK M.CHERIAN** **SRI.R.ROHITH SRI.K.JANARDHANA SHENOY SRI.V.N.RAJAPPAN** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA,** **REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE PRINCIPAL SECRETARY TO GOVERNMENT,** **INDUSTRIES (H) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **3. THE TRAVANCORE - COCHIN CHEMICALS LTD.,** **UDYOGAMANDAL, ERNAKULAM 683 501, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR.** **4. THE CHAIRMAN & MANAGING DIRECTOR, THE TRAVANCORE - COCHIN CHEMICALS LTD., UDYOGAMANDAL, ERNAKULAM - 683 501.** **R1-R2 BY ADV. SRI.K.K.RAVINDRANATH, ADDL. ADVOCATE GENERAL SENIOR GOVERNMENT PLEADER SRI.T.RAJASEKHARAN NAIR R3 & R4 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR** **SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-04-2017, ALONG WITH WPC. 26841/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 7017 of 2016 (B)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** - **P1: TRUE COPY OF THE RELEVANT PAGE OF THE MANAGERIAL STANDING ORDERS** - **P2: TRUE COPY OF THE LETTER OF THE 3RD RESPONDENT DATED 19/2/2016 INFORMING THE PETITIONER OF HIS DATE OF RETIREMENT ON ATTAINING THE AGE OF SUPERANNUATION** - **P3: TRUE COPY OF THE COVERING LETTER OF THE 2ND RESPONDENT DATED 9/2/2015** - **P4: TRUE COPY OF RELEVANT EXTRACTS OF THE MINUTES OF THE MEETING OF THE BOARD OF DIRECTORS HELD ON 5/12/2014** - **P5: TRUE COPY OF THE ORDER DATED 24/10/2011** - **P6: TRUE COPY OF THE ORDER DATED 7/5/2015 BEARING NO.ND-H2/85/2015-IND** - **P7: TRUE COPY OF THE ORDER OF THE HON'BLE HIGH COURT IN WPC NO.9559/2015, DATED 9/4/2015** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **EXT.R3(a): TRUE COPY OF EXTRACT OF MINUTES OF THE BOARD MEETING DTD.25.6.2015 AT THE REGISTERED OFFICE OF THE COMPANY AT UDYOGAMANDAL.** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **P.V.ASHA, J.** ----------------------------------------------------- **==> picture [337 x 80] intentionally omitted <==** ## **JUDGMENT** Both these writ petitions are filed by employees of Travancore Cochin Chemicals Ltd. seeking enhancement of retirement age to 60 years. Hence both these writ petitions are disposed of by this common judgment. Parties and documents referred to in this judgment are as described in the W.P.(C) No. 26841 of 2016, unless specified otherwise. 2. Petitioners submit that the Travancore Cochin Chemicals Ltd. (TCC) is one of the profit-making Public Sector Undertakings under the State Government. The Board of Directors of TCC had in its meeting held on 5.12.2014, resolved to recommend to the Government of Kerala to enhance the retirement age of managerial personnel under it from 58 to 60 years. Based on this decision, the TCC requested the Government in Ext.P3 letter to accord sanction to fix the retirement age of managerial personnel at 60 years, enclosing W.P(C) Nos.7017/2016-B & 26841 of 2016-E 2 Ext.P4 minutes of the meeting of the Board of Directors. But the Government as per Ext.P5 letter dated 7.5.2015 informed the TCC that the Government had taken a policy decision not to enhance the retirement age of employees in public sector undertakings and, therefore, the request of the 3[rd] respondent cannot be acceded to. 3. The petitioners point out that the Government had, as per Ext.P6 letter dated 24.10.2011, approved the proposal submitted by Travancore Titanium Products Limited, another public sector undertaking to enhance the retirement age of managerial personnel and workmen under it to 60 years, approving a similar recommendation by the Board of Directors of that Public Sector Undertaking. Similarly, the retirement age of the employees of several of the public sector undertakings in the State is enhanced to 60 years. It is their case that the retirement age of the workmen category under the respondent Company is 60 years and hence there is disparity among the employees under the 3[rd] respondent company which is discriminatory and cannot be permitted. At the same time the managerial employees are governed by Ext.P1 managerial standing orders W.P(C) Nos.7017/2016-B & 26841 of 2016-E 3 and Clause 29 thereof provides that the retirement age shall be 58 years. It is also submitted that the retirement age of the managerial employees as well as that of the workers under the 3[rd] respondent was 60 years till the year 1977 and that it was in the board meeting held on 27.6.1977, the retirement age was reduced to 58 years. But in the case of the workers' category that decision of the Board could not be implemented, as it was found to be contrary to the standing orders which prevailed at the relevant time. The case of the petitioners is that the decision of the Board of Directors in Ext.P4 was to bring about parity between the managerial personnel and the workers in the matter of retirement age. The petitioners rely on various judgments of this court as well as the Supreme Court in support of their claim for enhancement of the retirement age. 4. Respondents 3 and 4 have filed a counter affidavit. It is stated that when Government, as per Ext.P5 letter, rejected the request of the 3[rd] respondent to enhance the retirement age to 60 years, the Board of Directors in its meeting held on 25.6.2015, resolved to adhere to the Government decision keeping the retirement age of managerial personnel at 58 years. W.P(C) Nos.7017/2016-B & 26841 of 2016-E 4 They have produced Ext.R3(a) minutes of the Board meeting held on 25.6.2015. It is stated that the conditions of service of the employees in managerial cadre are in terms of the managerial standing orders and also the orders of Government issued from time to time. As per Managerial Standing Orders Ext.R3(c), the retirement age of managerial employees are fixed at 58 years. Producing the order appointing the petitioners, the 3[rd] respondent states that in the order of appointment of the petitioners it was made clear that they would be governed by the Managerial Standing Orders and hence they cannot have any valid claim for enhancement of retirement age. At the same time, the service conditions of workmen are governed by the certified standing orders and periodical settlements between the management and trade unions. The 3[rd] respondent is a Company fully owned and controlled by the Government of Kerala. As per the Articles of Association, for any change in the service conditions of the employees, prior approval of the Government is mandatory. Being a Government of Kerala undertaking, the 3[rd] respondent is bound to accept the decision of the Government. There are 92 employees working in the managerial cadre and W.P(C) Nos.7017/2016-B & 26841 of 2016-E 5 458 in the workmen category in the 3[rd] respondent company. It is also stated that there is no discrimination with respect to the retirement age as far as managerial employees under the 3[rd] respondent are concerned. As the petitioners claimed benefits on par with those in the KSEB, Kerala Water Authority, etc. the respondents stated that service conditions of employees of those statutory bodies cannot be compared with that of employees of the 3[rd] respondent. The employees of the Government Companies are entitled to Gratuity, Provident Fund and other statutory benefits. According to the respondents, the retirement age continues to be 58 in 90% of the Government Companies. As against the list of 17 companies furnished by the petitioners, respondents submit that retirement age continues to be 58 in 50 companies. 5. The Government has also filed a counter affidavit in similar lines. It is stated that any change in service conditions of the employees under the 3[rd] respondent, which is a fully Government owned Company, requires prior approval of the Government. It is also stated that the claim for enhancing the retirement age on the ground that there is disparity comparing W.P(C) Nos.7017/2016-B & 26841 of 2016-E 6 the retirement age of workmen is baseless, as both the groups are governed by separate standing orders. It is not necessary that the Government should accept all the recommendations made by the Board of Directors of the company. Since the service conditions of workmen category are governed by the certified standing orders which provide for the retirement age of 60, there is no anomaly or disparity to be rectified as claimed by the petitioners. When it is the policy decision of the Government not to enhance the retirement age, that policy decision cannot be interfered with in the process of judicial review. There cannot be any valid plea of discrimination also in respect of the age of retirement of officers. 6. According to the respondents, the issue is squarely covered by a Division Bench judgment of this court in **State of Kerala v. Kerala Land Development Corporation Employees Union** [I.L.R. 2016 (2) Kerala 81], wherein this Court upheld the decision of the Government rejecting the recommendation of the Board of Directors of Kerala Land Development Corporation for enhancement of the retirement age. W.P(C) Nos.7017/2016-B & 26841 of 2016-E 7 7. Heard Senior Adv. T.A.Shaji and Adv. Ashok M. Cherian, for the petitioners and Adv P.Gopinatha Menon, the learned Standing Counsel for the 3[rd] respondent and Sri Vijayamohan, the learned Special Government Pleader. 8. Distinguishing the judgments relied on by the respondents, the learned Senior Counsel submits that the case of the petitioners is liable to be considered in view of the fact that there is anomaly existing among the two categories of employees under the 3[rd] respondent company which cannot be permitted even going by the judgments relied on by the respondents. The learned Senior Counsel relied on the judgments of this court in respect of Warehousing Corporation, Kerala Beverages Corporation etc. in support of the contention that the retirement age is liable to be enhanced. At the same time, it is the case of the respondents that the policy decision of the Government is not liable to be interfered with, as held by this court in **Kerala Land Development Corporation Employees Union** 's case (supra). 9. On consideration of the rival contentions, it is seen that the plea of disparity is raised on the ground that the workmen can continue till the age of 60 years whereas the W.P(C) Nos.7017/2016-B & 26841 of 2016-E 8 managerial employees have to retire at the age of 58 years. At the same time, the petitioners do not dispute the fact that both these categories are governed by separate standing orders. Therefore the claim for parity raised by the petitioners is only with respect to retirement age. They also claim that the retirement age was enhanced in several Public Sector Undertaking. In this case the Government has taken a decision not to enhance the retirement age. The 3[rd] respondent also by Ext.R3(a), changed their decision to enhance the retirement age and to adhere to the decision of the Government. It is a case where any change in service conditions of the employees of the 3[rd] respondent requires prior approval. It is the policy decision of the Government not to enhance the retirement age. Now the question to be examined is whether this Court should interfere with that policy decision, on the ground that the retirement age was enhanced in certain public sector undertakings or on the basis of the decisions rendered in certain cases. I will therefore examine the judgments relied on by either side. 10. In the Division Bench judgment of this court in **State of Kerala v. Adithikutty Amma, D.** [ILR 2010(4) Kerala 572] W.P(C) Nos.7017/2016-B & 26841 of 2016-E 9 this court was considering the case of the retirement age of the employees of the Warehousing Corporation, where the retirement age of the employees was 55 years. While reversing the decision of the learned Single Judge, the Division Bench held that when prior sanction is required from the appropriate Government, for amendment of any of the provisions in the service rules and Government declines the same, the Warehousing Corporation which is not a statutory body cannot but accept the decision of the Government. It was stated that Warehousing Corporation is not a statutory body and it is formed with the investment of State Government, Central Government and Central Warehousing Corporation. It is for the Board of Directors to manage the corporation in terms of the regulation framed under Section 42 which in turn can be done only with the approval of the State Government. Another question considered therein was regarding the requirement of passing a reasoned order by the Government. The Division Bench found that no separate reasoning is necessary in the Government order by which retirement age is fixed, since the same is a policy matter. However, it was found necessary for the Government to W.P(C) Nos.7017/2016-B & 26841 of 2016-E 10 reconsider the decision in the light of the decision taken in respect of certain other public sector undertakings. 11. In the judgment in **Kavirajan v. K.S.B.C Ltd.** [2007 (2) KLT 917] which was relied on by the petitioners and distinguished by the respondents, this court was considering the issue regarding the retirement age of the employees of Kerala State Beverages Corporation Ltd. There were 3 sets of employees in the Beverages Corporation. Out of the total 2700 employees in the corporation, 339 employees were regular workers, 1500 were Abkari workers and 650 employees were those deputed from other corporations. The deputationists were allowed to work in the Corporation upto the age of 58 years as the retirement age in the corporation from which they are deputed were 58 years. In the case of the Abkari workers, it was found that they were to work upto the age of 60 years, in order to enable them to get pension under the Abkari Workers Welfare Scheme. Abkari workers were absorbed in the Corporation. Thus it was found that when the 339 workers of the Corporation were to retire at the age of 55 years, 1500 workers who were absorbed from among Abkari workers were continuing till the W.P(C) Nos.7017/2016-B & 26841 of 2016-E 11 age of 60 years and those who were appointed on deputation which come to 650 were continuing till the age of 58 years. Relying on the judgment of the Apex Court in **Osmania University v. V.S.Muthurangam & Ors.** [1997 (10) SCC 741] this court found that the employees provident fund pension scheme envisages pension contribution by employees upto the age of 58 years in order to get the full benefit of pension under the scheme. The Corporation had already requested the Government to enhance the age from 55 to 58 years and for suitable amendment to the service rules. Observing that there is no rhyme or reason for retaining the retirement age of regular workers alone at the age of 55, this court found that there was hostile discrimination between similarly placed workers in other corporation and even the employees working in the same corporation, it was held that the regular employees of the Kerala State Beverages Corporation are entitled to continue till the age of 58. In the judgment in the **Osmania University** (supra) the Apex Court was considering the question of retirement age with reference to the provisions contained in the Osmania University Act 1959. Section 38(1) of the University Act provided that W.P(C) Nos.7017/2016-B & 26841 of 2016-E 12 conditions of service relating to the salaried officers of the University shall as far as possible to be uniformly issued except in respect of salaries payable to them. There the teaching and non teaching staff of the University were having a uniform age of retirement, i.e at 55 years, which was later enhanced to 58 on the basis of enhancement made by the State Government. But in the case of the teaching staff of the University, the retirement age was enhanced on introduction of the University Grants Commission Scheme upto the age of 60. The non teaching staff claimed parity in retirement age relying on the provisions contained in Section 38(1) contending that there were 2 categories of such employees unequally placed in violation of Article 14 of the Constitution of India. At the same time, the retirement age of the State Government employees continue to be 58 years. The University claimed that non teaching staff can be allowed to continue only upto the age of 58 on par with the State Government employees. But the Apex Court found that if uniform conditions of service for teaching and non teaching staff are not otherwise impracticable, the University is under an obligation to maintain such uniformity because of the mandate of W.P(C) Nos.7017/2016-B & 26841 of 2016-E 13 Section 38(1) of t he Act. Therefore, it was held that in order to bring uniformity in the age of superannuation of teaching and non teaching staff of the University, it was necessary to enhance the retirement age of the non teaching staff as it was not impracticable. 12. However, in the judgment in **Kerala Land Development Corporation Employees Union** (supra) a Division Bench of this court found that the employees cannot claim enhancement of retirement age contrary to the policy decision of the Government. The judgments in **Osmania University** 's case (supra), **Warehousing Corporation** 's case (supra) and **Kavirajan** 's case (supra) were considered by this court and distinguished. In **Kerala Land Development Corporation Employees Union** (supra) also the Board of Directors had by its resolution dated 14.5.1998 resolved to raise the age of retirement from 55 to 60 years. The resolution as well as the request made thereafter were pending consideration of the Government for a long time. Ultimately by letter dated 15.10.2004, the Government informed the Corporation of its decision to reject the request for enhancement. Land W.P(C) Nos.7017/2016-B & 26841 of 2016-E 14 Development Corporation is also an establishment fully owned by the Government of Kerala, as in the case of the 3[rd] respondent. It was running at a loss. In para.16 of the judgment this court found that the Corporation being a fully owned Government company, the financial liabilities of the Corporation are to be borne by the Government to some extent. It was also found that the Government bears the establishment expenses of the corporation, as evident from Article 36(x) of the Articles of Association, which contemplates financial grant by the State Government to cover up the deficit of the corporation. Therefore, it was found that any decision to enhance the retirement age will result in financial burden on the State. Therefore, the State Government is fully competent to take a decision regarding approval or disapproval of the resolution of the Board. Apart from that Rule 21 of the Service Rules therein also provided for prior approval for any change in service conditions of the employees. Referring to the judgment in **K.Nagaraj v. State of A.P** [1985 (1) SCC 523] where the Apex Court held that the policy issues like the age of retirement was not liable to be interfered with by the courts in exercise of W.P(C) Nos.7017/2016-B & 26841 of 2016-E 15 judicial review and this court found that the decision of the Government was not liable to be interfered with. It is an exercise which the Administrator and the legislature have to undertake. The judgment in **Osmania University** (supra) was also considered in **Kerala Land Development Corporation Employees Union** 's case (supra). Similarly **Kavirajan** 's case (supra) also found to be in different set of circumstances and this court found that three sets of employees were found to be continuing in an establishment and therefore the decisions in those cases cannot be relied on. In the judgment in **Sureshchandra Singh v. Fertilizer Corporation of India Ltd.** [(2004) 1 SCC 592] the Apex Court considered a similar issue. In that case, the Board of Directors of Corporation passed a resolution not to increase the retirement age from 55 to 60 years as it involves financial implication. It was at a time when the Central Government enhanced the age to 60 years. When that decision was challenged, the Apex Court found that there was no discrimination. All employees in the FCIL working in various units and divisions were retiring at the age of 58 years as per the then existed rules. It was further held that every W.P(C) Nos.7017/2016-B & 26841 of 2016-E 16 corporation will have to take into account its separate circumstances so as to formulate a policy decision and there was no discrimination in respect of employees of other corporations. It was also found that the decision of the single bench taken therein was on the basis of a finding that there was no financial burden put on the Government in enhancing the age of retirement. Similarly in the judgment in **State of U.P v. Dayanand Chakrawarty** [(2013) 7 S.C.C 595], the Apex Court considered regulation 4 of the U.P Jal Nigam and Engineering Department (Public Health Branch) Regulations, 1978 which provided for the retirement age at 58 and in the case of Group D employees employed upto 5.9.1985 it was 60 years. Similarly, the age of superannuation of those transferred from the corporation from the Local Self Government Department was also fixed at 60 years. There it was found that there was no intelligible differentia distinguishing the 2 categories and held that the regulations were unconstitutional. In para.22 of the judgment the Apex Court held as follows regarding the exercise of judicial review on the policy decision. “22. In **Indian Institute of Technology v. Raja Ram Verma** the Apex Court has laid down that prescription of age of retirement is a W.P(C) Nos.7017/2016-B & 26841 of 2016-E 17 managerial function and the court can interfere only when it is found that policy of fixation of age of retirement is not based on intelligible differential. The following was laid down in paragraph 27: “27. It has been held by this Court, more than once, that prescribing the age of retirement is a managerial function and such decisions are taken by the management of the concerned institute on consideration of various aspects. One of the most predominant consideration is the need of the institute, its functional requirements and efficient management of its manpower. there are the areas where the Court should not normally venture and judgment in this area should be best left with the authorities who are in charge of running or managing such institutes. However, if the Court finds that the policy in fixing the age of retirement was not based on any intelligible criterion or is founded on such a basis which are patently unreasonable and perverse, the Court has a bounden duty to interfere and direct the concerned management to proceed on a reasonable basis.” 13. In the present case all the petitioners claim enhanced retirement age on the ground that the workmen are allowed to continue till the age of 60 years and therefore the **Kavirajan** 's case (supra) squarely applies in their case. In view of the judgment of the Division Bench of this Court in **Kerala Land Development Corporation Employees Union** 's case (supra) and the judgments relied on in it, it cannot be said that there is any discrimination. The workers and managerial employees cannot be grouped together for the purpose of retirement age alone. The conditions of service of the workers as well as that of managerial staff continue to be governed by separate standing orders all throughout. Therefore, on the ground that there are 2 sets of retirement age, the petitioners, who belong to managerial cadre, cannot claim to continue till the age of 60 years. It is not W.P(C) Nos.7017/2016-B & 26841 of 2016-E 18 disputed that the 3[rd] respondent company is fully owned by the Government and any change in conditions of service requires approval. When the Government on the basis of a policy decision took the view that retirement age need not be enhanced, this court cannot interfere with that decision and direct enhancement of retirement age. 14. Moreover, the learned Standing Counsel submitted that as at present, the 3[rd] respondent Corporation is also a loss making company. It is also pertinent to note that in the case of **Kavirajan** 's case (supra), Beverages corporation was one having only 80% of shares with the Government. It is also pointed out that in 90% of the public sector undertaking owned by the Government the retirement age is 58 years. It is pointed out that in the year 2013-14, the company is at a loss of 3.5 crores whereas it made profit of Rs.60 lakhs during the year 2014-15. Again in 2015-16 the loss of the company is Rs.7.26 crores. 15. In the above circumstances, the petitioners' claim for enhancement of retirement age is unsustainable. There is no reason to interfere with the decision of the Government in Ext.P5 letter dated 7.5.2015. W.P(C) Nos.7017/2016-B & 26841 of 2016-E 19 The writ petitions are therefore dismissed. Sd/ **(P.V.ASHA, JUDGE)** rtr/