W.A.No. 848/2023

W.A.No. 848/2023 ..1.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 5[TH] DAY OF JUNE 2023 / 15TH JYAISHTA, 1945 WA NO. 848 OF 2023** **AGAINST THE JUDGMENT DATED 3.3.2023 IN WP(C) 10924/2012** ## **APPELLANTS/PETITIONERS:** **1 K.SREEKUMAR, CHEMICAL INSPECTOR, AGED 50 YEARS, OFFICE OF THE JOINT DIRECTOR OF FACTORIES AND BOILERS (MEDICAL), THIRUVANANTHAPURAM-11, RESIDING AT SREENANDANAM, BN 35 A-1 BAPUJI NAGAR, PONGUMOOD, THIRUVANANTHAPURAM, PIN - 695011 2 G.JAYAKUMAR, TECHNICAL ASSISTANT (CHEMICAL), AGED 53 YEARS,** **OFFICE OF THE JOINT DIRECTOR OF FACTORIES AND BOILERS (MEDICAL), THIRUVANANTHAPURAM-11, RESIDING AT SREENANDANAM, BN 35 A-1 BAPUJI NAGAR, PONGUMOOD, THIRUVANANTHAPURAM, PIN - 695011** **OFFICE OF THE JOINT DIRECTOR OF FACTORIES AND BOILERS (MEDICAL), THIRUVANANTHAPURAM 11, RESIDING AT AMBALATHUMVILA, AVANAMKUZHI, THANNIMOODU P.O., THIRUVANANTHAPURAM, PIN - 695123** - **3 S.B.BEENA, CHEMICAL INSPECTOR, AGED 52 YEARS,** **OFFICE OF THE JOINT DIRECTOR OF FACTORIES AND BOILERS (MEDICAL), THIRUVANANTHAPURAM 11, RESIDING AT SRUTHI, GRA D30, PALLOTTI LANE, GANDHIPURAM, SREEKARYAM P.O., THIRUVANANTHAPURAM, PIN - 695017** **BY ADVS.M/S.THOMAS ABRAHAM, MERCIAMMA MATHEW, ASWIN.P.JOHN R.ANANTHAPADMANABAN & PAUL BABY** W.A.No. 848/2023 ..2.. ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.** - **2 SECRETARY, LABOUR DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.** - **3 DIRECTOR OF FACTORIES AND BOILERS, VANCHIYOOR, THIRUVANANTHAPURAM, PIN – 695035.** - **4 JOINT DIRECTOR OF FACTORIES AND BOILERS, ERNAKULAM, KAKKANAD, KOCHI, PIN – 682030.** - **5 CHEMICAL EMERGENCY HANDLING SOCIETY, (CEHS) REPRESENTED BY ITS MEMBER SECRETARY, OFFICE OF THE JOINT DIRECTOR OF FACTORIES AND BOILERS, KAKKANAD, KOCHI, PIN – 682030.** **SRI.ANTONY MUKKATH, SENIOR GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No. 848/2023 ..3.. ALEXANDER THOMAS & C. JAYACHANDRAN, JJ. ============================================== W. A. No. 848 of 2023 _(arising out of the impugned judgment dated 3.3.2023 in WP(C) No. 10924/2012)_ ============================================== Dated this the 5[th] day of June, 2023 ## J U D G M E N T ## ALEXANDER THOMAS, J. The afore captioned intra court appeal instituted under Sec.5(i) of the Kerala High Court Act, 1958, is directed against the impugned judgment rendered by the learned Single Judge on 3.3.2023 dismissing WP(C).No.10924/2012. The appellants herein are the petitioners in the WP(C) and the respondents herein are the respondents in the WP(C). 2. Heard Sri.Thomas Abraham, learned counsel appearing for the appellants in the WA/petitioners in the WP(C) and Sri.Antony Mukkath, learned Senior Government Pleader appearing for the respondents in the WA/respondents in the WP(C). 3. After hearing both sides, we had passed an order dated 25.5.2023 in this Appeal, which reads as follows: W.A.No. 848/2023 ..4.. _“After hearing the preliminary submissions of both sides, prima facie, this Court would observe that the main dispute in issue in this writ proceedings is in relation to the alleged violation of the service conditions of the writ petitioners, who are Government servants attached to civil posts under the Factories and Boilers Department of the Government of Kerala. If that be so, we would only venture to say that, after the establishment of the Kerala Administrative Tribunal in accordance with the provisions contained in the Administrative Tribunal's Act, 1985, as envisaged in terms of Article 323A of the Constitution of India and as declared by the Constitution Bench of the Apex Court in the celebrated judgment in_ _**L.Chandra Kumar v. Union of India and Others** [1997(3) SCC 261], the High Court cannot exercise the powers of a Court of first instance, in terms of Article 226 of the Constitution of India and the said power as a Court of first instance is exclusively within the province of the Tribunal so established. However, it is also laid down therein that the decision of the Tribunal can be challenged before the Division Bench of the High Court concerned, under Article 226 and/or Article 227 of the Constitution of India. In the instant case, the writ proceedings were initiated in the year 2012 and the WP(C) has now been dismissed by the impugned judgment. It has been challenged by the unsuccessful writ petitioners by filing the present intra court appeal._ _2. Prima facie, we are of the view that the writ proceedings may not be maintainable before this Court and the appellants/writ petitioners may have to approach the Kerala Administrative Tribunal. Both sides will address this Court as to the correctness or otherwise of the prima facie observations made by this Court hereinbelow. If the appellants are convinced that, this Court does not have jurisdiction as a Court of first instance, under Article 226 of the Constitution of India to deal with this case on merits, then they may furnish instructions to the learned counsel as to whether they can withdraw this Writ Petition with liberty to approach the Tribunal and the impugned judgment of the learned Single Judge can be set aside, not on merits but on the ground that the Writ Petition is not maintainable and liberty can be given to the appellants/petitioners to approach the Tribunal. Then, we also propose to make a serious request to the Tribunal, to ensure that, such original application which may be filed by the appellants may be disposed of, without much delay, preferably within 4 to 6 months. If these prima facie observations made by this Court hereinabove are correct, then the mistake in entertaining this matter as above, is not only on both sides, but also on the part of the Court in having overlooked this aspect of lack of maintainability and having ventured to admit the case and keep it pending for a decade and then adjudicate the case on merits._ _3. Both sides will appraise this Court as to the actual state of factual affairs as regards the postings of the respective writ appellants as on today. Sri.Antony Mukkath, learned Senior Government Pleader appearing for the official respondents will immediately get instructions on these aspects and also file statement, detailing out precisely the present state of affairs, as regards the postings of the appellants as on today, as also, as on the date of filing of instant Writ Appeal on 19.04.2023.”_ W.A.No. 848/2023 ..5.. 4. Now, affidavit dated 29.5.2023 has been filed on behalf of R-3 in the WA, wherein it has been _inter alia_ stated that the writ appellants/writ petitioners were holding the posts in the Factories and Boilers Department of the Government of Kerala as on the date of the impugned judgment on 3.3.2023 as well as on the date of filing of WA on 19.4.2023. But that, they were later relieved by the respondents from their government posts on 9.5.2023, in view of the dismissal of the WP(C) and that, they were directed to join their respective earlier postings prior to their relief, in terms of the proceedings impugned in the WP(C). 5. However, Sri.Thomas Abraham, learned counsel appearing for the appellants, submits that, it is true that the appellants were holding the government posts concerned even as on the date of filing of WA and they were relieved only subsequently. 6. Further, we had also requested Sri.Antony Mukkath, learned Senior Government Pleader, to specifically get instructions from the official respondents as to whether the appellants could be provisionally permitted to continue in their earlier postings prior to their relief, as that was the status quo that prevailed as on the date of dismissal of the WP(C) as well as the date of filing of WA. This we so observed in order to ensure the W.A.No. 848/2023 ..6.. preservation of subject matter of _lis_ so that the appellants could approach the Tribunal by filing original application for ventilating their grievances. 7. Further, after hearing both sides, we are of the firm view that since the appellants/writ petitioners are projecting grievances in relation to their service conditions, on the ground that they are regular employees holding regular posts under the Factories and Boilers Department of the Government of Kerala and that, according to them, they were unlawfully or illegally posted to the organisation under R-5, etc., and since the essence of their grievance is in relation to the alleged violation of service conditions in the Government posts and in view of the establishment of the Kerala Administrative Tribunal since the year 2o11, this Court cannot act as the court of first instance in view of the settled law in that regard. 8. It is now well established view from the authoritative pronouncement by the Larger Constitution Bench of the Apex Court in the celebtrated decision in _**L.Chandra Kumar v. Union of India & Ors.** ((1997) 3 SCC 261),_ that even a Constitutional Amendment as in Article 323A excluding the jurisdiction of High Court under Article 226 of the Constitution of India may be violation of the Basic Structure of the Constitution etc., and it has also been W.A.No. 848/2023 ..7.. held that the Tribunal constituted under the Administrative Tribunals Act will continue to be the court of first instance to exercise the powers under Article 226 of the Constitution of India in respect of the areas carved out for them as per the Administrative Tribunals Act and after the decision of the Tribunal, a person aggrieved can institute public law proceedings under Article 226 and/or Article 227 of the Constitution of India before the Division Bench of the High Court concerned, within whose territorial jurisdiction the Tribunal is located, etc. 9. In the light of these aspects, this Court does not have jurisdiction as the court of first instance to entertain the above writ proceedings and the appellant's Writ Petition should have been dismissed as not maintainable with liberty to the petitioners therein to approach the Kerala Administrative Tribunal, as above. In the light of these aspects, it is ordered, in the interest of justice, that the impugned judgment dated 3.3.2023 rendered by the learned Single Judge, dismissing the WP(C).No.10924/2012 on merits, will stand set aside and it is further ordered that the said WP(C).No.10924/2012 will stand dismissed as not maintainable, in view of the abovesaid reasons. Further, liberty is accorded to the appellants/writ W.A.No. 848/2023 ..8.. petitioners to approach the Kerala Administrative Tribunal by instituting appropriate original application before the Tribunal for ventilating their grievances without any further delay. The period of pendency of above writ proceedings, from the date of filing of WP(C) on 7.5.2012, can be urged by the petitioners as the period which could be excluded for the purpose of computation of delay and such a plea may be considered by the Tribunal, taking note of the observations made by this court in the order dated 25.5.2023 as well as in this judgment. 10. Earlier, we had requested the learned Senior Government Pleader to get instructions as to whether the status quo, that existed as on 19.4.2023, _i.e._ date of filing of above WA, could be maintained in favour of the appellants, in order to preserve the subject matter of lis. The official respondents have now fairly submitted through the learned Senior Government Pleader that they are willing for the said course of action only for maintaining the subject matter of lis and this stand cannot be construed as having conceded to the merits of the plea of the appellants for interim relief and the specific contention of the respondents is that the appellants are not entitled to get any such interim relief, etc. 11. The said submission of the official respondents are W.A.No. 848/2023 ..9.. recorded. Accordingly, without getting into the merits of the controversy in any manner and solely for the purpose of preservation of subject matter of lis, it is ordered that the status quo, that existed as on 19.4.2023, _i.e._ date of filing of instant WA, may be observed as regards the posting of the appellants and necessary action, giving them said posting on provisional basis, may be done by the official respondents within 1 week from today and for that purpose, they need not wait for the formal issuance of the certified copy or authenticated copy of this judgment and they should immediately act upon any instructions that may be given in that regard by the learned Senior Government Pleader. However, it is made clear that the said fair stand of the respondents is only for the preservation of subject matter of lis in view of the request made by this Court and this cannot be construed as an act on their part in having conceded to the merits of the plea of the other side for interim relief, etc. 12. Sri.Thomas Abraham, learned counsel appearing for the appellants, would submit on the basis of instructions that his parties will immediately prefer the original application before the Tribunal and will also move for interim relief. 13. It is further made clear that the status quo, regarding the posting of the appellants that existed as on 19.4.2023, shall be W.A.No. 848/2023 ..10.. maintained by the official respondents for a period of 1 month or till orders are passed by the Tribunal on the interim plea whichever is earlier. The Tribunal may decide on the interim relief and the main reliefs in the OA independently and untrammelled by the interim orders and judgment in the WP(C) and this judgment. The Tribunal is requested to decide the main matter in the OA within 4 months having regard to the inordinate time taken in the matter so far. 14. Further, in view of the long and inordinate time taken in this litigative proceedings, it is ordered that the appellants need not wait for the formal issuance of the authenticated/certified copy of this judgment and may proceed to approach the Tribunal without any further delay immediately. With these observations and directions, the above Writ Appeal will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE Sd/- C. JAYACHANDRAN, JUDGE MMG W.A.No. 848/2023 ..11.. ## **APPENDIX OF WA.NO.848/2023** ## **PETITIONERS' ANNEXURES:** **ANNEXURE A1 THE TRUE COPY SAID ORDER NO.DFB/1035/2023-E1 DATED 27/4/2023 ISSUED BY THE 3RD RESPONDENT** **ANNEXURE A2 THE TRUE COPY OF THE SAID LETTER DATED 29/4/2023 SUBMITTED BY THE 1ST APPELLANT** **ANNEXURE A3 THE TRUE COPY OF THE SAID LETTER DATED 29/4/2023 SUBMITTED BY THE 2ND APPELLANT** **ANNEXURE A4 THE TRUE COPY OF THE SAID LETTER DATED 28/4/2023 SUBMITTED BY THE 3RD APPELLANT** ## **RESPONDENTS' ANNEXURES:** **ANNEXURE 1 TRUE COPY OF ORDER DATED,09.05.2023** **ANNEXURE A2 TRUE COPY OF THE MEMO DATED, 20.05.2023 ISSUED TO SRI. JAYAKUMAR.G.** **ANNEXURE 3 TRUE COPY OF MEMO DATED, 20.05.2023 ISSUED TO SMT. BEENA.S.B** - **PETITIONERS' ANNEXURES:** **ANNEXURE A14 THE TRUE COPY OF THE RELEVANT EXTRACT OF THE LOG BOOK** **ANNEXURE A13 TRUE COPY OF COMMUNICATION DATED 8/4/2021 BY THE 3RD RESPONDENT ANNEXURE A12 THE TRUE COPY OF THE DOCUMENT CONTAINING THE ABOVE ENDORSEMENT** W.A.No. 848/2023 ..12.. - **ANNEXURE A11** - **THE TRUE COPY OF THE SAID SUBMISSION SUBMITTED BY THE 3RD APPELLANT BEFORE THE 3RD RESPONDENT** - **ANNEXURE A10(A)** - **THE TRUE COPY OF THE WORK DIARY SUBMITTED BY THE 2ND APPELLANT** - **ANNEXURE A9(A)** - **TRUE COPY OF THE WORK DIARY SUBMITTED BY THE 3RD APPELLANT** - **ANNEXURE A9 THE TRUE COPY OF THE TENTATIVE TOUR PROGRAMME AND THE WORK DIARY SUBMITTED BY THE 3RD APPELLANT** - **ANNEXURE A8 THE TRUE COPY OF DOCUMENT EVIDENCING THE INSPECTION TEAM'S VISIT AT TCL CERAMICS LTD. ON 26-5-23 AT KAKKANAD** - **ANNEXURE A7 THE TRUE COPY OF THE INTIMATION LETTER DATED 14/4/2023 SENT BY SHRI. R SOORAJ KRISHNAN TO SHRI. V GOVINDRAJ, MANAGING DIRECTOR OF TCL CERAMICS LTD** - **ANNEXURE A5 THE TRUE COPY OF THE INTIMATION LETTER DATED 12/4/2023 SENT BY SHRI. R SOORAJ KRISHNAN TO WILLIAM JAMES BURGOYNE BAIRD, DIRECTOR OF WFB BAIRD CO.** - **ANNEXURE A10 THE TRUE COPY OF THE TENTATIVE TOUR PROGRAMME AND THE WORK DIARY SUBMITTED BY THE 2ND APPELLANT** - **ANNEXURE A18(A) THE TRUE COPY OF THE WORK DIARY FOR THE MONTH OF APRIL SUBMITTED ON 16/5/2023 BY THE 1ST APPELLANT** - **ANNEXURE A6 THE TRUE COPY OF DOCUMENT EVIDENCING THE INSPECTION TEAM'S VISIT AT WFB BAIRD CO. AT KAKKANAD ON 25/5/2023** - **ANNEXURE A18** - **THE TRUE COPY OF THE TENTATIVE TOUR PROGRAMME FOR THE MONTH OF MAY SUBMITTED BY THE 1ST APPELLANT** W.A.No. 848/2023 ..13.. **ANNEXURE A17** ## **ANNEXURE A16** ## **ANNEXURE A15** ## **ANNEXURE A19** ## **ANNEXURE A20** **THE TRUE COPY OF THE ATTENDANCE REPORT OF THE 1ST APPELLANT FOR THE MONTH OF MAY AND UP TO 4/6/2023** **THE TRUE COPY OF DOCUMENT EVIDENCING THE INSPECTION TEAM'S VISIT AT FACT, WILLINGDON ISLAND** **THE TRUE COPY OF THE REQUISITION DATED 11/4/2023 ISSUED BY THE JOINT DIRECTOR SHRI. R SOORAJ KRISHNAN** **THE TRUE COPY OF THE REVIEW OF THE TENTATIVE TOUR PROGRAMME AND THE WORK DIARY FOR THE MONTH OF APRIL APPROVED BY THE JOINT DIRECTOR OF FACTORIES AND BOILERS (MEDICAL)** **THE TRUE COPY OF THE COMMUNICATION SENT BY THE 3RD RESPONDENT ON 19/5/2023 TO THE 1ST APPELLANT AS WELL AS ANOTHER CHEMICAL INSPECTOR NAMED SIYAD B**