Usha T B Pulipparambil and V. Rajendran Pulari Nivas v. Government of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 16TH DAY OF NOVEMBER 2016/25TH KARTHIKA, 1938** **WP(C).No. 16231 of 2015 (D) ----------------------------** ## **PETITIONER(S):** ## **-------------** **1. USHA T B PULIPARAMBIL HOUSE, ELTHURUTH PO-680 611, THRISSUR. 2. V.RAJENDRAN PULARI NIVAS, NOMBIKODE, ELAPPULLI PO, PALAKKAD BY ADV. SRI.P.N.MOHANAN** **RESPONDENT(S): --------------** **1. GOVERNMENT OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE SECRETARY TO GOVERNMENT WATER RESOURCE DEPARTMENT (CADA), SECRETARIAT, THIRUVANANTHAPURAM-695 001** **3. THE ADMINISTRATOR, COMMAND AREA DEVELOPMENT AUTHORITY (CADA), PROJECT HEAD QUARTERS CHEMBUKAVU, THRISSUR-680 001 4. CHIEF ENGINEER COMMAND AREA DEVELOPMENT AUTHORITY (CADA), PROJECT HEAD QUARTERS CHEMBUKAVU, THRISSUR-680 001 R1 BY ADV. GOVERNMENT PLEADER, SMT. MARY BEENA JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 16231 of 2015 (D)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXT.P1 : A TRUE COPY OF THE ORDER DATED 2-4-2007 ISSUED BY THE GOVERNMENT IN THE NAME OF THE GOVERNOR.** **EXT.P2 : A TRUE COPY OF THE SRO NO.1347/1994 DATED 23-9-1994** **EXT.P3 : A TRUE COPY OF THE EX-GRATIA PENSION SCHEME DATED 18-9-1999** **EXT.P4 : A TRUE COPY OF THE JUDGMENT DATED 26-11-2008 IN WPC.NO.20727/04.** **EXT.P5 : A TRUE COPY OF THE JUDGMENT DATED 13-4-2012 IN WA.NO.631/2001** **EXT.P6 : A TRUE COPY OF THE ORDER DATED 24-2-2015 OF THE SECOND RESPONDENT.** **RESPONDENT(S)' EXHIBITS** **----------------------NIL** // True copy // PA to Judge das ## **A.K.JAYASANKARAN NAMBIAR, J.** =========================================== ## **W.P.(C). No. 16231 of 2015** ===================================================== **Dated this the 16[th] day of November, 2016** ## **JUDGMENT** The petitioners 1 and 2 are persons, who joined as Draftsman Grade I and Peon respectively in the services of the Command Area Development Authority (CADA) on 26.03.1982 and 22.04.1983 respectively. Their initial appointment was as provisional employees, and although during the tenure of their engagement, they had approached the respondents with a plea for regularisation, by Ext.P1 order dated 02.04.2007, the plea for regularisation was rejected. The petitioners were, however, permitted to continue in service till the age of superannuation viz.55 years, purely on provisional basis and without regularising their services. It is not in dispute that subsequently the petitioners retired on superannuation on 30.11.2011 and 31.12.2009 respectively. The prayer in the writ petition is essentially for a direction to the respondents to pay ex-gratia pension to the petitioners, based on Ext.P5 judgment of a Full Bench of this Court, passed in the case of another person similarly situated as the petitioners, and working in the same establishment. It is pointed out that, by Ext.P6 order dated 24.02.2015, pursuant to the direction of the Full Bench of this Court in Ext.P5 judgment, the petitioner in the said writ petition was granted ex-gratia pension by -2- W.P.(C). No. 16231 of 2015 the Government. The petitioners, therefore, seek similar treatment in the matter of payment of ex-gratia pension to them. 2. I have heard the learned counsel appearing for the petitioner as also the learned Government Pleader appearing for respondents. 3. The learned Government Pleader would rely on the counter affidavit filed on behalf of the 1[st] and 2[nd] respondents to point out that, in the Full Bench decision of this Court, it was clearly mentioned that the judgment would not be cited as a precedent for the purposes of claiming ex-gratia pension as of right. It is also pointed out that, Ext.P6 order was passed in view of the specific direction in Ext.P5 judgment and hence, the petitioners cannot claim ex-gratia pension as of right, based on Ext.P5 judgment and Ext.P6 order respectively. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that, although Ext.P5 judgment indicates that the said judgment need not to be taken as a precedent for the purposes of enabling any -3- W.P.(C). No. 16231 of 2015 person to claim ex-gratia pension as of right, I find that this is a case where, like the petitioner in the writ petition that led to Ext.P5 judgment, the petitioners herein were also appointed on provisional basis from 1982 and 1983 respectively, and they continued in the services under the respondent CADA till 2011 and 2009 respectively. Although the services rendered by the petitioners may not come to their aid in a claim for regularisation, the said longer tenure of service must, in my opinion, entitle them to some benefit, even if not commensurate with benefits that would have been obtained by a regularly appointed worker in the same category under the respondent authority. In expressing this opinion, I am mindful of the plethora of judgments of the Supreme Court which hold that mere continuous employment of a person on a daily wage basis will not entitle him to a claim for regularisation, that a daily wage worker stands on a different footing from a worker who is regularly appointed in accordance with the rules of the establishment, that there is no place for misplaced sympathy while considering claims for regularisation and that. before issuing any directions to the employers, the Court should be mindful of the financial implications that would flow from a direction to treat a daily wage worker as a regular employee. It is therefore, that I -4- ## W.P.(C). No. 16231 of 2015 have consciously refrained from expressing the view that the services of the petitioner ought to be treated as regularised. I feel, however, that this court is not powerless to mould an appropriate relief taking into consideration the long tenure of service rendered by the petitioner under the 2[nd] respondent Board. The Supreme Court has recognised the right in labour courts and industrial tribunals to mould appropriate reliefs in cases of industrial adjudication coming before them, taking into account the services rendered by workers in a given establishment. While holding that the principles laid down in Umadevi's case **[2006 (4) SCC 1]** , would have application even in cases of industrial adjudication, the Supreme Court has, in a recent decision Hari Nandan Prasad and Another v Employer I/R to Management of Food Corporation of India and Another **[2014 (7) SCC 190]** , held that in cases where an order of re-instatement, if issued, would effectively result in a regularisation of the services of an employee which could not be legally justified, the court can direct suitable compensation to be paid to the employee, in lieu of re-instatement. Taking cue from the said decision, I feel it would be desirable for the respondents to consider, favourably, the case of the petitioners for the grant of an ex gratia pension. -5- W.P.(C). No. 16231 of 2015 5. Accordingly, I dispose this writ petition with a direction to the 1[st] respondent to consider, favourably, the case of the petitioners for grant of an ex-gratia pension, taking into account their long and continuous service under the CADA. The 1[st] respondent must be mindful of the observations of the Supreme Court, at paragraph 17 of the judgment in Gurmail Singh and Others, etc., v. State of Punjab and Others **[AIR 1993 SC 1388]** , with regard to the manner in which an ideal employer should conduct its affairs. The relevant portion of the judgment reads as follows: “17....................................................................... ...................... The conduct of the Government in depriving the appellants of substantial benefits which have accrued to them as a result of their long service with the Government, although the tubewells continue to be run at its cost by a Corporation wholly owned by it, is something which is grossly unfair and inequitable. This type of attitude designed to achieve nothing more than to deprive the employees of some benefits which they had earned, can be understood in the case of a private employer but comes ill from a State Government and smacks of arbitrariness. Acting as a model employer, which the State ought to be, and having regard to the long length or service of most of the appellants, the State, in our opinion, should have agreed to bear the burden of giving the appellants credit for their past service with the Government. That would not have affected the Corporation or its -6- W.P.(C). No. 16231 of 2015 employees in any way- except to a limited extent indicated below - and, at the same time, it would have done justice to the appellants. We think, therefore, that this is something which the State ought to be directed to do.” The 1[st] respondent shall pass appropriate orders in the matter within a period of two months from the date of receipt of a copy of this judgment. sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** das/ 16.11.2016