WA No.343 of 2022: T.A. Jayakumar and Others v. Kerala State Centre for Advanced Printing and Training Centre (C-APT) and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 15[TH] DAY OF MARCH 2022 / 24TH PHALGUNA, 1943 WA NO. 343 OF 2022** **AGAINST THE JUDGMENT DATED 3.2.2022 IN WP(C) 26592/2018 OF HIGH COURT OF KERALA** ## **APPELLANTS/PETITIONERS:** - **1 T.A. JAYAKUMAR,AGED 49 YEARS THEKKENIRAVATHU HOUSE,KARIKODE P.O., PERUVA(VIA),KOTTAYAM - 686 610.** - **2 JAYAPRAKAHS P.N, PARAYIL, POONJAR P.O.,KOTTAYAM, PIN - 686 581.** - **3 RAJESH T.K, THIRUMALA, KIDANGOOR P.O.,KOTTAYAM - 686 572.** - **4 K.K.JOSHY, KIZHAKKEDATH HOUSE,THENGODE P.O., KAKKANAD,PIN - 682 030.** - **5 PRINCE A.K, ARACKKAPARAMBIL HOUSE, CHENNAD P.O., KOTTAYAM** - **6 BIJU LUKOSE,PURATHEMUTHUKATTIL, THIDANADU P.O., PATAZHA,KONDOOR, KOTTAYAM,PIN - 686 123.** - **7 SAJIMON C.R, CHEMMALLICKAL HOUSE, THIDANADU P.O. KOTTAYAM,PIN - 686 123.** - **8 BIJU JOSEPH, ARACKAPARAMBIL HOUSE, CHENNADU P.O., KOTTAYAM,PIN - 686 581.** - **9 JOMY THOMAS, VARIKKANIKAL, PERINGULAM P.O.,KOTTAYAM - 686 582.** - **10 KOCHUMON P, PALLIKOTTIL, PUTHUPERIYARAM P.O.,THODUPUZHA, IDUKKI - 685 588.** - **11 JOMON BENEDICT,PULPARAMBIL HOUSE, EDAVETTY P.O.,THODUPUZHA, IDUKKI,PIN - 685 588.** - **12 SUHAS M RASAK., PUTHUPARAMBIL ,ERATTUPETTA, ARUVITHURA P.O.,KOTTAYAM DISTRICT.** - **13 REJIMON K.S, KULATHUNKAL HOUSE, POONJAR SOUTH P.O.,KOTTAYAM - 686582.** - **14 MURUGAN T, ALLITHOPPIL, AMBALATHARA, POONTHURA, TRIVANDRUM.** WA No.343 of 2022 2 - **15 SURESH KUMAR A.S, SURESH BHAVAN,AYMANAM, KOTTAYAM.** - **16 RAJUMON MATHEW, PAYATTINGAL, KUNINJI P.O.,MANACADU, THODUPUZHA.** - **17 HAROON RASHEED C.M, CHERIKKAL HOUSE, KILIROOR P.O.,KOTTAYAM.** - **18 THOMAS P.A, PUTHETHU, KALLARA P.O.,VAIKOM, KOTTAYAM.** - **BY ADV NOBLE MATHEW** ## **RESPONDENTS/RESPONDENTS:** - **1 KERALA STATE CENTRE FOR ADVANCED PRINTING AND TRAINING C-APT,FORMERLY KSAVRC, REPRESENTED BY ITS MANAGING DIRECTOR,PUNNAPURAM, WEST FORT,THIRUVANANTHAPURAM - 695 001.** - **2 STATE OF KERALA REPRESENTED BY ITS SECRETARY,HIGHER EDUCATION DEPARTMENT,THIRUVANANTHAPURAM - 695 001.** - **3 STATE OF KERALA, REPRESENTED BY SECRETARY,SECRETARY TO GOVERNMENT,LABOUR AND REHABILITATION,THIRUVANANTHAPURAM-695 001.** - **R1 BY BY ADV LATHA ANAND, SC** - **R2 & R3 BY SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA No.343 of 2022 3 ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** **................................................................. W.A.No.343 of 2022** _[Arising out of judgment dated 03.02.2022 in W.P.(C) No.26592 of 2018]_ **.................................................................** Dated this the 15[th] day of March, 2022 _[Arising out of judgment dated 03.02.2022 in W.P.(C) No.26592 of 2018]_ ## **JUDGMENT** ## **Viju Abraham, J.** The above writ appeal is filed by the petitioners in the writ petition aggrieved by the judgment dated 03.02.2022 in W.P.(C) No.26592 of 2018. 2. Brief facts necessary for the disposal of the appeal are as follows: The petitioners were initially appointed in the 1[st] respondent establishment, Kerala State Center for Advanced Printing and Training C-APT (formerly “Kerala State Audio Visual and Reprographic Centre”) as helpers in the year 2001, after undergoing a regular process of selection. Petitioners are fully qualified for being appointed to the said post and they have been working since then. While working so, the service of the 1[st] petitioner was terminated by the 1[st] respondent as per Ext.P3 order dated 31.05.2002. Similar orders were issued in the case of other petitioners also and that a total number of 433 employees including the petitioners were terminated from service. Aggrieved by the issuance of Ext.P3 (Ext.P5 in O.P.No.14472 of 2002) and other similar orders, several Original WA No.343 of 2022 4 Petitions were filed and this Court as per Ext.P4 judgment dated 01.07.2002 in O.P.No.14472 of 2002 and connected cases quashed the said order and other similar termination orders holding that the same are null and void. It is specifically held by this Court in Ext.P4 judgment that the petitioners shall be deemed to be in service with all consequential benefits but with a further direction that the 1[st] respondent will be at liberty to terminate the excess staff by following the due procedure. After issuance of Ext.P4 judgment, 430 employees including the petitioners were again retrenched from service by the 1[st] respondent. At the time of retrenchment, it was promised to the petitioners that they are entitled to preferential treatment in the matter of re-employment in the order of seniority. On the said assurance the petitioners did not challenge the retrenchment order issued by the 1[st] respondent. Even till date the petitioners are all unemployed. In the said circumstances, they approached the Government by filing Ext.P5 representation dated 21.07.2017 addressed to the Hon'ble Chief Minister requesting for taking a decision to re-appoint them in the 1[st] respondent establishment. From the year 2002 till date, more than 150 vacancies had arisen in the 1[st] respondent establishment due to retirement, death and leave, but the 1[st] respondent did not take any steps to re-engage the WA No.343 of 2022 5 petitioners from the list of retrenched employees. The 1[st] respondent gave employment on a contract basis through Kudumbasree and other labour contractors whereby denying the right of re-employment of the petitioners and similar other persons. It is in the said circumstance, they filed W.P.(C) No.26592 of 2018 seeking the following reliefs: - _“(a) Call for the records in the above case; (b) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to re-employ the petitioners in the existing vacancies which had arisen in between the year 2002 and 2018 forthwith._ - _(c) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to consider and dispose of Exhibit P5 and comply with the provisions of Sec.25-H of the Industrial Disputes Act 1947._ - _(d) Issue a writ in the nature of prohibition or any other appropriate writ, order or direction restraining the first respondent from employing any other persons who are not in the retrenched list._ - _(e) Issue any other appropriate writ, order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case;_ - _(f) Award the costs of the petitioner in these proceedings.”_ 3. A detailed statement dated 09.08.2019 was filed by the 1[st] respondent in which it is mainly contended that the 1[st] respondent had run into huge loss and one of the main reasons for the same was the indiscriminate appointment effected during the year 2000-2001, wherein 938 persons were appointed against 186 vacancies and in the said circumstance, the 1[st] respondent was finding it difficult even to pay salary and wages to the said employees. Therefore the Government has appointed a three-member committee to study the functioning of the 1[st] respondent establishment and the said committee submitted its report intimating that normal functioning of WA No.343 of 2022 6 the Centre is impossible and therefore recommended for cutting the employees' strength in various categories. It is after examining the recommendation of the said committee and also considering the present situation existing in the 1[st] respondent establishment that the Government decided to terminate the services of excess staff in various categories and junior-most person in each category was terminated and it resulted in the removal of service of 438 employees including the petitioners with effect from 01.06.2002. It is also contended that in case the petitioners have any grievance, the same could be agitated by raising an industrial dispute, as their claims involve adjudication of factual issues. Even now the 1[st] respondent is facing acute financial difficulties even to meet the day-to-day activities of the establishment including payment of salary and other benefits of the employees. Therefore, the re-engagement of the retrenched employees cannot be considered at present. 4. In answer to the same, a reply affidavit dated 22.10.2019 was filed by the petitioners. It was specifically contended by the petitioners on the basis of Ext.P8, relevant pages of the report submitted by the three-member committee, that the 1st respondent is bound to re-appoint the retrenched persons if and when vacancies arise in the category according to their seniority. It is further WA No.343 of 2022 7 contended that Ext.P9 list will clearly show the details of employees who retired during the period 2002 to 2018 and that almost 112 employees had retired during the said period. Ext.P10 list will show that 22 employees died during the said period and even in those vacancies, not even a single retrenched employee was re-employed. It was also contended in the reply statement that the financial stringency pointed out by the 1[st] respondent is devoid of any merit. 5. The main thrust of the argument of the petitioners is on the basis of Ext.P4 judgment of this Court in _**Shaji Michael and Others v. State of Kerala and Another, 2003 KHC 329,**_ which was filed challenging Ext.P3 (Ext P5 in the said writ petition) order dated 31.05.2002 and similar orders issued to other employees. The operative portion of which reads as follows: - _“26. For all the above reasons, Ext.P-5 is quashed as being null and void. The petitioners are deemed to be in service and they will be entitled to all consequential benefits. But, this will not stand in the way of the Reprographic Centre terminating the excess staff in accordance with law. Needless to say, in case the services of the petitioners are not needed, their reinstatement need only be notional, not physical, for completing the formalities for retrenching them in accordance with law. But, the employees will be entitled to all monetary benefits for the period they are kept out of service till they are validly retrenched. It is also clarified that if they are any non workmen among the employees, they can be retrenched by following the procedure under R.2.54 of the Service Rules. In other words, in their case, the procedure under S.25F of the Industrial Disputes Act need not be followed.”_ Petitioners also rely on Ext.P8, relevant pages of the report of the three-member committee appointed by the Government to study and WA No.343 of 2022 8 report on proposals for promotion policy and staff pattern in the 1[st] respondent establishment. Clause 1.8 of Exhibit P8 reads as follows: - _“1.8. The Centre is bound to re-appoint the retrenched persons if and when vacancies arise in the category according to their seniority.”_ So, relying on Ext.P4 judgment in _**Shaji Michael**_ 's case (supra) and Clause 1.8 of Ext.P8 report, it is contended by the petitioners that the action of the 1[st] respondent in not re-engaging the retrenched workmen in spite of several vacancies existing is absolutely arbitrary and unjust and the action of the 1[st] respondent in engaging employees on contract basis through Kudumbasree and other labour contractors without engaging the petitioners is also a hostile attitude shown towards the employees like the petitioners and is in clear violation of the undertaking given to them at the time of retrenchment. 6. We have heard the learned counsel appearing for the petitioners, the learned Standing Counsel for the 1[st] respondent and also the learned Government Pleader. 7. The contention of the petitioners is that as per Ext.P4 judgment, this Court has clearly found that the termination of petitioners is illegal. After issuance of Ext.P4 judgment, the petitioners were retrenched from the 1[st] respondent organization with a specific assurance that the retrenched employees will be given preference for re-employment as per their seniority. It is the specific WA No.343 of 2022 9 case of the 1[st] respondent that it is after examining the three-member committee's report that the Government decided to terminate the services of excess staff including the petitioners. It is the specific case of the petitioners that in Clause 1.8 of Ext.P8 report it is specifically recommended that the Centre is bound to re-appoint the retrenched persons if and when vacancies arise in their category according to their seniority. The grievance of the petitioners is that the specific recommendation evidenced by clause 1.8 of Ext.P8 and the promise given by the 1[st] respondent at the time of retrenchment has not been honoured till date. 8. After hearing the parties at length and after considering in detail the various contentions raised, we feel that the matter has to be seriously considered by the 2nd respondent Government. Therefore, the petitioners may file a detailed representation before the 2nd respondent government, with a copy addressed to the 1st respondent establishment, highlighting their grievances and raising all contentions including the one based on Ext.P4 judgment as well as Clause 1.8 of Ext.P8 report, within a period of two weeks from the date of receipt of a copy of this judgment. The 2[nd] respondent Government, immediately on receipt of the said representation may call for a report from the 1[st] respondent establishment regarding the WA No.343 of 2022 10 various contentions raised by the petitioners in the said representation and the 1[st] respondent shall forward a report to the Government within a further period of three weeks from the date of such request/communication is received from the Government. The copy of such report shall be forwarded to the 1[st] appellant/1[st] petitioner in advance. Thereafter, the 2[nd] respondent Government shall consider and pass orders on the representation submitted by the petitioners as expeditiously as possible at any rate within a period of two months, after affording an opportunity of hearing to the petitioners or their authorized representative and also the 1[st] respondent and also taking note the impact of Ext.P4 judgment and other relevant aspects. 9. The learned Single Judge did not take into consideration various crucial and relevant facts while dismissing the writ petition. In view of the same, we set aside the judgment of the learned Single Judge dated 03.02.2022 in W.P.(C) No.26592 of 2018. With the abovesaid observations and directions, the Writ Appeal is disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- ## **VIJU ABRAHAM, JUDGE** cks