The Plantation Corporation of Kerala Ltd. v. Kerala Plantation Corporation Employees Union (CITU), Athirapally Group, Plantation Corporation Staff Union (INTUC) and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **WEDNESDAY, THE 2ND DAY OF JULY 2014/11TH ASHADHA, 1936** ## **WP(C).No. 27660 of 2003 (P)** **----------------------------** **PETITIONER:** - **-------------------** **THE PLANTATION CORPORATION OF KERALA LTD., KOTTAYAM - 686 004, REPRESENTED BY ITS MANAGER (P&A), M.R. K.J.JOGGY.** **BY ADVS.SRI.JOSEPH KODIANTHARA SRI.JOYWIN MATHEW SRI.RAJU SEBASTIAN VADAKKEKARA,SC** ## **RESPONDENTS:** **------------------------** **1. THE KERALA PLANTATION CORPORATION EMPLOYEES UNION (CITU), ATHIRAPALLY GROUP, ATHIRAPALLY, REPRESENTED BY ITS GENERAL SECRETARY.** **2. THE PLANTATION CORPORATION STAFF UNION (INTUC), H.O.KOTTAYAM - 686 002.** **3. THE INDUSTRIAL TRIBUNAL, ALAPPUZHA.** **4. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LABOUR & REHABILITATION DEPARTMENT, THIRUVANANTHAPURAM.** **R1 BY ADVS. SRI.A.V.XAVIER SRI.JOLLY JOHN R2 BY ADV. SRI.P.N.SASIDHARAN R3 & R4 BY GOVERNMENT PLEADER SRI.T.R.RAJESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.27660/2003 (P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF COMMON AWARD DATED 31/12/2002 OF THE INDUSTRIAL TRIBUNAL ALAPPUZHA IN I.D.NOS.28/99, 34/99 AND 10/2001.** **EXT.P2: COPY OF THE DYING IN HARNESS SCHEME ADOPTED BY THE PETITIONER DATED NIL.** **EXT.P3: COPY OF CLAIM STATEMENT DATED 18/12/99 FILED BY THE 1ST AND 2ND RESPONDENTS BEFORE THE INDUSTRIAL TRIBUNAL, ALAPPUZHA , I.D.NO.28/99.** **EXT.P3(A): COPY OF CLAIM STATEMENT DATED 31/07/2003 FILED BY THE 1ST AND 2ND RESPONDENTS BEFORE THE INDUSTRIAL TRIBUNAL, ALAPPUZHA, ID NO.34/99.** **EXT.P3(B): COPY OF CLAIM STATEMENT DATED 16/08/2001 FILED BY THE 1ST AND 2ND RESPONDENTS BEFORE THE INDUSTRIAL TRIBUNAL, ALAPPUZHA, ID NO.10/01.** **EXT.P4: COPY OF WRITTEN STATEMENT DATED 21/03/2000 FILED BY THE PETITIONER BEFORE THE INDUSTRIAL TRIBUNAL, ALAPPUZHA, ID NO.28/99.** **EXT.P4(A): COPY OF WRITTEN STATEMENT DATED 3/01/2001 FILED BY THE PETITIONER BEFORE THE INDUSTRIAL TRIBUNAL, ALAPPUZHA, ID NO.34/99.** **EXT.P4(B): COPY OF WRITTEN STATEMENT DATED 26/12/2001 FILED BY THE PETITIONER BEFORE THE INDUSTRIAL TRIBUNAL, ALAPPUZHA, I.D.NO.10/01.** **EXT.P5: COPY OF ORDER DATED 29/06/2000 OF THE GOVERNMENT.** **EXT.P6: COPY OF LETTER DATED 17/08/2000 OF THE PETITIONER TO THE PUBLIC SERVICE COMMISSION.** **EXT.P6(A): COPY OF LETTER DATED 13/11/2000 OF THE PETITIONER TO THE PUBLIC SERVICE COMMISSION.** **EXT.P6(B): COPY OF LETTER DATED 20/09/2001 OF THE PETITIONER TO THE PUBLIC SERVICE COMMISSION.** **EXT.P7: COPY OF THE MINUTES OF THE MEETING DATED 7/06/2002 OF THE BOARD OF DIRECTORS OF THE PETITIONER.** **..2/-** **Kss** **..2....** ## **WPC.NO.27660/2003 (P)** **EXT.P8: COPY OF THE ORDER G.O.(MS) NO.149/2004/AGR. DATED 15/07/2004.** **EXT.P9: COPY OF THE LETTER NO.A3(2) 768/2001/CW(1) DATED 12/10/2001 ISSUED BY THE P.S.C.** ## **RESPONDENT'S EXHIBITS:** **EXT.R1(A): COPY OF THE LETTER OF THE PETITIONER TO THE MANAGER, KALLALA ESTATE DATED 11/01/1990 WITH A COPY TO MR. T.A.SHAJU.** **EXT.R1(B): COPY OF THE APPOINTMENT ORDER DATED 6TH DECEMBER TO MR.SHYAM CHANDRAN AND ACCEPTED BY HIM ON 07/12/1993.** **EXT.R1(C): COPY OF PROCEEDINGS OF THE PETITIONER DATED 11/06/2002.** **EXT.R1(D): COPIES OF THE RELEVANT PAGES NOS. 18 AND 19 OF THE ANNUAL REPORT 2006-2007 REGARDING P & L A/c.** ## **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **P.D. RAJAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.27660 of 2003** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of July, 2014** ## **J U D G M E N T** The petitioner is a company registered under the Companies Act, 1956 which is owned by the State of Kerala, engaged in the business of planting rubber and cashew, in various estates in Kerala, filed this writ petition under Article 226 and 227 of the Constitution of India. 2. The petitioner challenges the common award in I.D.Nos.28/99, 34/99 and 10/2001 passed by the Industrial Tribunal, Alappuzha on the ground that the award is illegal, arbitrary and without appreciation of law or facts. The above disputes were tried together by the Tribunal on the basis of the petitions from the side of the workmen since the question in challenge was identical. The above dispute was raised by the employees' union of the Kerala Plantation Corporation i.e. Kerala Plantation Corporation Employees Union and the Kerala Plantation Corporation Staff Union. ## W.P.(C) No.27660 of 2003 **-2-** 3. The issue adjudicated in I.D.28/99 was that whether the demand of the union for appointment of Smt. Lekha Nair, Peon and Sri.A. Raghavan, Watcher to the post of Junior Assistant is justifiable. 4. The issue adjudicated in I.D.No.34/99 was that whether the three workmen namely T.A.Shaju, K.M. Jophy and K.J. Kuriachan though qualified and had applied for the post of Field Assistant under the dying-in-harness scheme, were offered the appointment and posted as Watchers under the management, are eligible to be posted as Field Assistants? (2) If yes, from which date? 5. The issue adjudicated in I.D.10/2001 was relating to the refusal of the management in not giving appointment to the workman V.V. Joseph to the post of Field Assistant, who is still working as Watcher. 6. All the three disputes were tried together on the basis of a petition filed from the workmen side. More or less, on identical situation, an award was passed by the Tribunal earlier in an industrial dispute I.D. No.52/1992. W.P.(C) No.27660 of 2003 **-3-** That dispute was raised by the unions viz., Kerala Plantation Corporation Employees Union (CITU), Plantation Corporation Staff Union and Kerala Plantation Staff Association. In I.D. 52/92 the issue referred for adjudication was whether eight workmen concerned therein were entitled to get promotion/appointment as Field Assistants. By an award dated 30.10.1995 the Tribunal held that all the workmen concerned in the dispute should be given appointment as Field Assistants from the date on which first among their four junior claimants were appointed i.e., from 9.2.1989. It was also directed that the retrospective promotion so given would be only notional and the workmen concerned were entitled for monetary benefits attached to the post of Field Assistants only from 1.11.1995. 7. The writ petitioner contended that the petitioner is a company registered under the Companies Act, 1956, which is fully owned by the State of Kerala and engaged in the business of planting rubber and cashew in various estates in Kerala. The petitioner contended that the W.P.(C) No.27660 of 2003 **-4-** Tribunal, by Ext.P1 award, directed to appoint the workmen as Junior Assistants and in compliance with the direction of the High Court, the Government directed the management to give appointment to two other workers, who were appointed initially as Watchman/Peon as per the scheme to the post of Junior Assistant, Peon and Watchers to be posted as Junior Assistant or Field Assistant by way of category change. The workers in I.D. 28/99 were appointed on 16.12.1988, the workers in I.D. 34/99 were appointed on 09.06.1989, 21.06.1990 and 04.02.1992 and the workers in I.D. 10/2001 were appointed on 28.08.1991 and they were appointed in the petitioner's firm under the dying-inharness scheme. The appointment on the ground of compassionate scheme was adopted by the petitioner on 18.5.1987. Before that the Corporation was following the Government orders. Writ petitioner contended that the workmen approached the Industrial Tribunal with the above dispute after eight years of their appointment. In the meantime, the qualification for appointment to the post of W.P.(C) No.27660 of 2003 **-5-** Junior Assistants and Field Assistants were changed and the Government modified the rules also. Hence Ext.P1 is to be quashed. 8. From the above argument it is clear that the workmen had already opted the benefit under the dying-inharness scheme at the time of their appointment and subsequent to that, they cannot claim the ground of dyingin-harness scheme in the promotion vacancy. The qualification for the post of Field Assistant is also changed by the Government and cancelled the earlier direction issued for appointment of unqualified persons in the post of Field Assistant. The Public Service Commission has also approved the eligible qualification as graduation and the appointment by way of transfer was restricted as per Ext.P9. Now, the workmen are put in charge of the post of Junior Assistants and they are getting charge allowance in that post. 9. The learned counsel appearing for the respondents contended that by Ext.P2, guidelines were W.P.(C) No.27660 of 2003 **-6-** framed in the year 1987 for appointment in the petitioner's firm. Therefore, the workers are entitled to get appointment under the dying-in-harness scheme, according to the rules framed. Till February 1990, the basic qualification for appointment as Field Assistant was S.S.L.C. As per the direction issued in ID 52/92, eight persons were appointed in the year 1995. The minimum qualification was introduced in Plantation Corporation from 28.2.1990. After that, the basic qualification was declared as graduation. In the meantime, as per the direction in I.D. 52/92, eight persons were appointed. Therefore, the respondents contended that there was a fraud played by the Plantation Corporation at the time of the appointment of the workers in these three I.D.s. Hence they are eligible to get appointment as Field Assistants. 10. The first point that I wish to consider on this aspect is whether the workmen are entitled to get the benefit of dying-in-harness scheme in a promotion post after getting appointment to a post. The learned Tribunal, W.P.(C) No.27660 of 2003 **-7-** ## in Ext.P1, has discussed that aspect as point No.2. “(2) Whether Clause 14 of the scheme framed by the management for extending benefit under the dying-inharness scheme will make them ineligible to claim appointment in higher posts subsequently.” In support of the above argument, the Tribunal relied on the decision of the Apex Court reported in **State of Rajasthan v. Umrao Singh** [1995 I L.L.J 908]. But, no proper answer was given to that point. The Tribunal observed that it can be seen that the decision cited will not support, in any way, the case projected by the Management. Such a bar will be there only if the initial appointment itself was strictly in accordance with the scheme. The petitioner admitted that the workers are appointed on dying-in-harness basis. The eligibility for appointment under the dying-in-harness scheme is properly explained in Ext.P2. Clause 14 of the scheme provides the conditions for appointment under the dying-in-harness scheme. According to that clause, if an option is given, a worker is appointed and he has accepted that post, he cannot thereafter change the category. That ## W.P.(C) No.27660 of 2003 **-8-** will not be a bar for any further appointment. This position was explained by the Apex Court in **State of Rajasthan v. Umrao Singh** [1995 I L.L.J 908]. The allegation of the workers in this case is that they were appointed initially as Field Assistants/Junior Assistants. But, the petitioner's firm suppressed that fact and gave appointment as Watcher/Peon. They never gave such option in their first appointment but they are ready and willing to receive the post of Watcher/Peon on the date of assuming charge in the appointed post. Even though the workers made such an argument, no materials were perused by the Tribunal for considering whether there was any suppression of fact at the time of appointing these workers in these three IDs. The seniority list was not considered before appointing the workers in ID 52/92. The number of vacancies available in the Plantation Corporation was also not ascertained. Without ascertaining those facts, Ext.P1 direction was issued and there is lack of application of mind. 11. In paragraph 15, the Tribunal has observed as W.P.(C) No.27660 of 2003 **-9-** ## follows: “15. A close reading of Ext.M1 scheme will show that the stand adopted by the management is quite irrational. The learned counsel for the management has cited one decision of the Supreme Court in State of Rajasthan v. Umrao Singh (1995 I LLJ 908). It was declared by the Supreme Court in that case that once the appointment is given under the dying in harness scheme, the appointee's right to get further appointment to higher post would be exhausted. If we examine the facts of this dispute, it can be seen that the decision cited will not support in any way the case projected by the management. Such a bar will be there only if the initial appointment itself was strictly in accordance with the scheme. In this connection it is useful to note clause 14 of Ext.M1 scheme which reads as follows:- “ÉiÄßdɵÞø¢ ç¼ÞÜßAí ¥çÉfߺîÄßÈÈáØøߺîí ¥çÉfµæÈ ÈßÏÎßAáKÄßÈí ÈßÖíºÏßAáµÏᢠ¦ÏÄí ¥çÉfµZ ¥¢·àµøßAáµÏᢠæºÏñá µÝßEÞW ÎæxÞøá ÄØñßµÏßçÜÏíAí ÏÞæÄÞøá µÞøÃÕÖÞÜᢠÎÞxÞX ¿ßÏÞæÈ ¥ÈáÕÆßAáKÄÜï.” 12. The petitioner has produced Ext.P8 in which it is stated that the qualification for appointing Junior Assistant has been modified. Moreover, the direction in O.P. 1478/00 has also not been complied with. Therefore, fresh consideration is necessary. Respondents 1 & 2 filed counter affidavit. In paragraph 3 it is stated thus: Exhibit P-1 Award is not defective in any manner as averred in the Ground A. A close reading of the Award, it would show that it is perfectly legal and sustainable in law. It is in terms of the Award of 3[rd] respondent in I.D. 52/1992 which is Exhibit W-6 in Exhibit P-1 herein. The W.P.(C) No.27660 of 2003 **-10-** petitioner has accepted the award in I.D.52/1992 and implemented the same. It is alleged by the workers that the actual vacancy declared at the time of appointment of the workmen as Junior Assistant/Field Assistant was suppressed by the Plantation Corporation. The number of available vacancies in the post of Peon or Watcher was also not disclosed. But writ petitioner contended that the workers approached the Tribunal after 9 years' delay. i.e. only after getting the award in I.D. No.52/92. In the circumstances, Ext.P1 requires reconsideration. The provision of compassionate employment was explained in the decision reported in **Umesh Kumar Nagpal v. State of Haryana and Ors. [(1994) 4 SCC 138]** which reads as follows: “Compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.” W.P.(C) No.27660 of 2003 **-11-** In the light of the above observation in the decision, I am of the opinion that the reference was not properly answered by the Tribunal. Workers alleged fraud against the management which was not answered by the learned Tribunal. The workers are now working in the post of Junior Assistant on working arrangement and no request from their side to discontinue from that post. It is submitted that the Plantation Corporation is giving charge allowance to them. I am not disturbing that position. Now the qualification to the post of Junior Assistant is changed. In the circumstances, the learned Tribunal is directed to consider the reference and dispose of the matter according to law within six months from the date of receipt of this judgment. Sd/- **P.D. RAJAN, JUDGE** //True copy// P.A. TO JUDGE shg/