Petitioners: Sakeena.K. Clerk, Regional Office, HANTEX, Kozhikode; Thankamani A.D., Sales Woman, HANTEX Show Room, Kozhikode; Sudhalekha G.C., Sales Woman, HANTEX Depot, Kalpetta, Wayanad; Santha A.S., Sales Woman, HANTEX Depot, Sulthan Bathery, Wayanad; Asmabi P., Depot In Charge, HANTEX Depot, Malappuram v State of Kerala and Others (WP(C) No. 20170 of 2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **WEDNESDAY, THE 22ND DAY OF NOVEMBER 2017/1ST AGRAHAYANA, 1939** ## **WP(C).No. 20170 of 2010 (U)** ## **----------------------------** ## **PETITIONER(S):** - **-------------** **1. SAKEENA.K. CLERK, REGIONAL OFFICE, , HANTEX, KOZHIKODE.** **2. THANKAMANI A.D, SALES WOMAN HANTEX SHOW ROOM, KOZHIKODE.** **3. SUDHALEKHA G.C,** - **SALES WOMAN HANTEX DEPOT,KALPETTA ,, WAYANAD DISTRICT.** **4. SANTHA A.S,** **SALES WOMAN HANTEX DEPOT,SULTHANBATHERY,, WAYANAD DISTRICT.** **5. ASMABI P.,** - **DEPOT IN CHARGE, HANTEX DEPOT,MALAPPURAM.** ## **BY ADV. SMT.CELINE JOSEPH** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA & OTHERS REPRESENTED BY THE SECRETARY, DEPARTMENT OF INDUSTRIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1** **2. THE DIRECTOR OF HANDLOOMS THIRUVANANTHAPURAM- 695 001** **3. KERALA STATE HANDLOOM WEAVERS CO-OPERATIVE SOCIETY (HANTEX) THIRUVANANTHAPURAM, 695 001, REPRESENTED BY ITS MANAGING DIRECTOR** **4. THE ADMINISTRATOR HANTEX, THIRUVANANTHAPURAM 695 001.** - **R1 BY GOVERNMENT PLEADER SMT. MABLE C. KURAIN R2 ,R4 BY ADV. SRI. T.M. RAMANKARTHA, SC R3 BY ADVS. SRI.K.ANAND, SC, CSEZA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** ## **WP(C).No. 20170 of 2010 (U) -----------------------------------------** ## **APPENDIX** ## **--------------** ## **PETITIONERS EXHIBITS** **----------------------------------** - **EXT.P1 TRUE COPY OF THE ORDER POSTING THE FIRST PETITIONER AT THE REGIONAL OFFICE, KOZHIKODE DATED 6-12-2006 ISSUED BY THE 3RD RESPONDENT** - **EXT.P2 TRUE COPY OF THE ORDER TRANSFERRING THE SECOND PETITIONER TO THE SHOWROOM OF HANTEX AT KOZHIKODE DATED 10.08.2004** - **EXT.P3. TRUE COPY OF THE ORDER TRANSFERRING THE THIRD PETITIONER TO THE SHOWROOM OF KOZHIKODE DATED 10.08.2004** - **EXT.P4 TRUE COPY OF THE JOINING REPORT OF THE FOURTH PETITIONER DATED 3-7-2006** - **EXT.P5 TRUE COPY OF THE ORDER TRANSFERRING THE FIFTH PETITIONER TO THE DEPOT AT MALAPPURAM DATED 21.11.2005** - **EXT.P6 TRUE COPY OF THE JUDGMENT DATED 18.07.2007 IN WPC NO. 19565/2004** - **EXT.P7 TRUE COPY OF THE ORDER NO. A4/D.W/07 DATED 19-11-2009 ISSUED TO THE 3RD RESPONDENT** - **EXT.P8 TRUE COPY OF THE PAY AUTHORIZATION SLIP FOR THE MONTH OF NOVEMBER 2009 IN RESPECT OF THE SECOND PETITIONER DATED 23.11.2009** - **EXT.P9 TRUE COPY OF THE PAY AUTHORIZATION SLIP FOR THE MONTH OF NOVEMBER 2009 IN RESPECT OF THE FIFTH PETITIONER DATED 23.11.2009** - **EXT.P10 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 24.09.2009** - **EXT.P11 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONERS 2 TO 5 DATED 24.09.2009** - **EXT.P12 TRUE COPY OF THE JUDGMENT DATED 15.01.2010 IN WPC NO. 1414/2010** - **EXT.P13 TRUE COPY OF THE ARGUMENT NOTE FILED BY THE FIRST PETITIONER' BEFORE THE 3RD RESPONDENT DATED 12.03.2010** - **EXT.P14 TRUE COPY OF THE ORDER NO. A4/2229/H.T.X.H/10 DATED 12.03.2010 ISSUED BY THE 3RD RESPONDENT** **RESPONDENTS EXHIBITS AND ANNEXURES -------------------------------------------------------ANNEXURE R3(A) TRUE COPY OF THE AGREEMENT DTD.09.07.2004 /TRUE COPY/** **PA TO JUDGE** **sdr/-** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.20170 of 2010 ----------------------------------------------Dated this the 22[nd] day of November, 2017** ## **JUDGMENT** This writ petition is filed by the petitioners seeking to quash Ext.P14 order dated 12.05.2010 passed by the Managing Director of the 3rd respondent society, declining regularization of service of the petitioners, and seeking other consequential reliefs. 2. Petitioners were originally appointed as Tailors in the year 1995 in the manufacturing unit under the 3rd respondent. During 2004, when the manufacturing units became defunct, petitioners were deployed to Depot/Showroom as Clerk/Saleswoman. From the year 1996 onwards, all the petitioners are making Provident Fund contributions. During the year 1999, certain persons who were appointed on daily wages were regularized as per Ext.P7 order dated 19.11.2009. Thereupon, they are given higher scale of pay than the petitioners. In order to secure the very same reliefs, petitioners have submitted Exts.P10 and P11 representations before the 3rd respondent and secured Ext.P12 **W.P.(C) No.20170 of 2010** 2 judgment from this Court, directing the 3rd respondent to consider Exts.P10 and P11, taking note of Ext.P7 proceedings. However, the reliefs sought for by the petitioners are declined as per Ext.P14 order. It is thus challenging the said order, this writ petition is filed. 3. The 3rd and 4th respondents have filed a detailed statement, refuting the claims and demands raised by the petitioners. It is submitted that, all the petitioners were engaged as Tailors/Helpers with effect from 23.04.1995 and regularized in that post during 1996. Petitioners were permanent workers of the Hantex Garments Unit, Wayanad, which is not functioning, due to reasons beyond the control of the society. The workers willing to work in other units were deployed to other units on temporary basis, in order to protect their jobs and wages on the basis of agreement dated 09.07.2004 entered into by and between the Management of the society and the respective Trade Unions, evident from Ext.R3(a). It was clearly stated in the agreement that workers willing to work in other units will be deployed and such workers will be paid an additional benefit of Rs.250/- per month in the case of units in the Wayanad District and Rs.500/- per month 3 **W.P.(C) No.20170 of 2010** in other Districts. According to the respondents, additional benefit is being paid to the petitioners as such. 4. The petitioners who are regularized as Tailors/Helpers during 1996 were brought under the Provident Fund Scheme with effect from regularization, as they were the regular workers of the Wayanad Garment Unit. They were being paid only the Basic Pay plus variable D.A. It is also submitted that, Exts.P1 to P3 and P5 orders are issued on the basis of the agreement dated 09.07.2004 and the orders were issued purely on temporary basis in order to protect the job and wages of the workers. However, they will be reverted to the garment unit as and when the unit is reopened or the permanent employees are recruited through PSC. 5. It is further submitted that, the respondent society has not sought concurrence of PSC to regularize the service of the daily wage employees. However, the matter pertaining to Ext.P7 order, was placed before the Government in obedience with the judgment dated 18.07.2007 in W.P.(C) No.19565 of 2004 rendered by this Court. The Government have accorded sanction _vide_ order dated 07.09.2009 to regularize the service of 32 daily wage employees. It was thereupon that, Ext.P7 4 **W.P.(C) No.20170 of 2010** order was issued. The appointments of the society were brought under PSC with effect from 25.04.1995. The first engagement of the above 32 daily wage employees were prior to 25.04.1995. 6. It is also submitted that, all the petitioners were appointed and regularized in the post of Tailors and it was with the intention of protecting the job and wages of the workers due to the shut down of Wayanad Garment Unit, the workers who are willing to serve in other districts were deployed on a temporary basis. Therefore, according to the learned counsel for the respondents, the circumstances under which Ext.P7 regularization is made is not akin to the situations under which the petitioners have sought regularization. It is also submitted that, in accordance with the directions contained in Ext.P12 judgment, entirety of the matter was considered by the 2nd respondent and decision was taken, and therefore, petitioners have not made out any grounds justifying interference of this Court by invoking the power of judicial review conferred under Article 226 of the Constitution of India. 7. A reply affidavit is filed by the petitioners, reiterating the stand adopted in the writ petition. **W.P.(C) No.20170 of 2010** 5 8. A counter affidavit is also filed by the 2nd respondent almost in similar lines as that of the one filed by respondents 3 and 4. Therefore, I am not traversing through the same in detail. 9. I have heard learned counsel for the petitioners, learned Government Pleader and the learned Standing Counsel appearing for the 3rd respondent. Perused the documents on record and the pleadings put forth by the respective parties. 10. The primary question to be considered in this writ petition is, whether any manner of interference is warranted to Ext.P14 order passed by the 3rd respondent. The sum and substance of the fact discussion made above would make it clear that, the issue raised by the petitioners as per Exts.P10 and P11 representations is regularization of their employment and parity in payment of wages as that of the beneficiaries in Ext.P7 order passed by the 3rd respondent, regularizing the services of certain workers. However, it is an admitted fact that, petitioners were appointed as Tailors in the Garment Unit of the 3rd respondent at Wayanad and their services were regularized. However, the Garment Unit became defunct, consequent to which, in order to protect the interest of the **W.P.(C) No.20170 of 2010** 6 petitioners, they were transferred to other Depots as Clerk/Saleswomen. Petitioners are also paid additional amounts consequent to the agreement executed by and between the petitioners and the 3rd respondent, evident from Exts.P1 to P3 orders of appointment. 11. The main grievance highlighted by the petitioners is that, similarly situated persons were regularized in the service as per Ext.P7 order. However, from the discussions made in Ext.P14 order, it is evident that the petitioners therein were appointed to the service prior to 25.04.1995, on which date, the appointments to the Co-operative Societies were given to the Kerala Public Service Commission. It is also evident that, since the petitioners service as Tailors are already regularized and the present appointment is only a temporary arrangement evident from Exts.P1 to P3, I am of the considered opinion that, Ext.P14 order passed by the 3rd respondent cannot be said to be arbitrary or illegal in any manner. The petitioners were heard therein and reasons are assigned traversing through factual aspects. In that view of the matter also, I am of the considered opinion that there is no illegality or arbitrariness justifying interference in Ext.P14 order. **W.P.(C) No.20170 of 2010** 7 12. However, learned counsel for the petitioners has invited my attention to the judgment of this Court in ' _**Valsamma T.C. and others v. State of Kerala and another'**_ [2009 (2) KHC 794], wherein, it was held that the teachers and ayahs who were working for more than 23 years and performing similar duties and responsibilities as regular appointees, are entitled to the same pay scale and other allowances granted to temporary hands employed through Employment Exchanges, including regularization of their service. Petitioners seek application of the proposition of law laid down therein to the case of the petitioners also. 13. Situations being so, I am of the considered opinion that, even though no interference is warranted to Ext.P14 order, petitioners can be given the opportunity to approach the State Government, seeking appropriate reliefs. 14. Therefore, the writ petition is disposed of, leaving open the liberty of the petitioners to approach the Government, and if any representation is made within a month from the date of receipt of a copy of this judgment, the same shall be considered by the 1st respondent, in accordance with law, after providing notice of hearing to the petitioners and **W.P.(C) No.20170 of 2010** 8 other interested persons, and attain finality within three months thereafter. The writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** St/22.11.2017