WP(C).No.35554 OF 2009(L)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941** ## **WP(C).No.35554 OF 2009(L)** ## **PETITIONERS:** |**1**|**B.RANJITHKUMAR**| |---|---| ||**INDUSTRIAL TRIBUNAL, PALAKKAD.**| |**2**|**P.V.ABRAHAM INDUSTRIAL TRIBUNAL**| ||**IDUKKI, AT PEERMADE.[DECEASED]**| |**3**|**M.N.RADHAKRISHNA MENON**| ||**INDUSTRIAL TRIBUNAL, ALAPPUZHA.**| |**4**|**E.K.BHASU, INDUSTRIAL TRIBUNAL,**| ||**KOLLAM.**| |**5**|**K.V.RADHAKRISHNAN,**| ||**INDUSTRIAL TRIBUNAL, KOZHIKODE.**| |**6**|**LEELAMMA GEORGE ABRAHAM,**| ||**W/O.LATE SHRI.P.V.ABRAHAM, 'PULARI', PLOT NO.1,**| ||**SUBHASH NAGAR, EDAPPALLY, KOCHI - 682 024.**| |**7**|**PRATAP ABRAHAM VARGHESE,**| ||**S/O.LATE SHRI.P.V.ABRAHAM, 'PULARI', PLOT NO.1,**| ||**SUBHASH NAGAR, EDAPPALLY, KOCHI - 682 024.**| |**8**|**PRADEEP ABRAHAM VARGHESE,**| ||**S/O.LATE SHRI.P.V.ABRAHAM, 'PULARI', PLOT NO.1,**| ||**SUBHASH NAGAR, EDAPPALLY, KOCHI - 682 024.**| **LEGAL HEIRS OF DECEASED P2 IMPLEADED AS ADDITIONAL PETITIONERS 6 TO 8 AS PER ORDER DATED 18.03.2016 IN I.A.NO.3481/2016.** **BY ADVS. SRI.B.UNNIKRISHNA KAIMAL SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.ANNAPOORNA SRI.K.A.BALAN SRI.T.ISSAC SRI.PETER JOSE CHRISTO SMT.N.SANTA SRI.V.VARGHESE** **2** ## **WP(C).No.35554 OF 2009(L)** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT,**| ||**SECRETARIAT, THIRUVANANTHAPURAM.**| |**2**|**THE SECRETARY TO GOVERNMENT OF KERALA**| ||**LABOUR AND REHABILITATION DEPARTMENT,**| ||**SECRETARIAT, THIRUVANANTHAPURAM.**| ||**R1 BY GOVERNMENT PLEADER**| ||**SPL. GP SURESHBABU**| |**THIS WRIT**|**PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON**| |**03.09.2019, **|**THE COURT ON THE SAME DAY DELIVERED THE**| |**FOLLOWING:**|| **WP(C).No.35554 OF 2009(L)** **3** ## **JUDGMENT** The petitioners, who had worked as Industrial Tribunals in the State of Kerala have approached this Court seeking directions to the respondents to grant all perks including pensionary benefits provided in Exts.P4 to P6 orders with effect from the dates from which those benefits have been granted to Judicial Officers. A further prayer sought for to modify Ext.P7 order by granting revised scales of pay to Industrial Tribunal with effect from 01.01.1996 with monetary benefits from 01.07.1996 and to grant consequential financial benefits to the petitioners. Ext.P12 order, in so far as it limits Selection Grade only to 25% of Industrial Tribunals is also under challenge. There is a further prayer sought for a consideration of Ext.P14 representation submitted before the Government. **4** ## **WP(C).No.35554 OF 2009(L)** 2. Heard the learned counsel for the petitioners and the learned Special Government Pleader appearing for the respondents. 3. It is submitted by the learned counsel for the petitioners that, the appointments of the petitioners was made in accordance with the Provisions of Section 7 A of the Industrial Disputes Act, 1947. It is stated that, advocates qualified for appointment as Judges of the High Court are appointed as Industrial Tribunals in terms of Section 7 A. It is contended that, Industrial Tribunals were placed in the pay scale applicable to District Judges and in all state Pay Revisions they were granted the revised scales of pay of District Judges. However, in the pay revision order effective from 01.03.1998, the pay scales of District Judges and Industrial Tribunals were not revised, awaiting the report of the 1[st] National **5** ## **WP(C).No.35554 OF 2009(L)** Judicial Commission. Though, 35% interim relief was granted to Judicial Officers the said benefit was not granted to Industrial Tribunals. The Industrial Tribunals approached this Court and by judgment dated 25-11-1999, this Court directed the payment of interim relief to Industrial Tribunals as well. By Ext.P1 order dated 12.12.2001, the recommendations of the 1[st] National Judicial Pay Commission was implemented by the Government of Kerala and Industrial Tribunals also became entitled to be placed in the revised pay scales as ordered in Ext.P1. By Ext.P2 order, the scale of pay of Industrial Tribunals was also revised. However, since parity with the pay scale of District Judges was denied, petitioners 1 to 3 approached this Court filing OP.No.8947 of 2003 and by judgment dated 05.12.2003 the above writ petition was allowed. The petitioners were directed to be treated on par with District Judges in the matter of time scale as well **6** ## **WP(C).No.35554 OF 2009(L)** as Selection Grade. 4. The matter was taken in appeal and later in Special Leave Petition before the Apex Court and by judgment dated 05.06.2008, the Special Leave Petition was dismissed by Ext.P3 judgment (reported in 2008(3) KLT 33). It was held that Industrial Tribunals are performing judicial functions similar to District Judges and are entitled to similar treatment. Though, Government Orders were issued granting the benefits of revision of pay to Industrial Tribunals also, by Ext.P7 order, the effect of the scales of pay was limited and no retrospective effect from 01.03.1997 was granted. It is stated that, Selection Grade was also limited to 25% of the sanctioned strength of Industrial Tribunals, by Ext.P12 order, which was not in accordance with the benefits granted to District Judges. Detailed representations have been preferred **WP(C).No.35554 OF 2009(L)** **7** before the respondents but without any result and the petitioners are therefore before this Court. 5. Learned counsel for the petitioners would place reliance on Ext.P3 judgment to contend that the issue of treating Industrial Tribunals at par with the District Judges in the matter of pay scales has been considered by the Apex Court in the said judgment. Paragraph 10 and 11 of the said judgment specifies that Article 236(2) defines the expression “Judicial Service” to mean a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. It was found that, the respondents therein, who are Industrial Tribunals are discharging similar duties and functions in the administration of justice and their scale of pay was equal to that of District Judges till revision of pay scales of Judicial ## **WP(C).No.35554 OF 2009(L)** **8** Officers in the year 1998. The Apex Court held as follows: “The Industrial Tribunals are indisputably judicial tribunals manned by legal professionals who are eligible to be appointed as District Judges or Judges of the High Courts. The Presiding Officers are exercising judicial powers and duties under the Industrial Disputes Act, 1947 and their decisions are subject matter of challenge before the High Court by way of Writ Petitions. The only difference is their source of recruitment”. 6. Considering the duties and functions of Industrial Tribunals, the Apex Court held that, there is no reason to treat them differently and it was held that, there was no reason why the benefits available to Judicial Officers performing the same duties should be denied to Presiding Officers of Tribunals under the Industrial Disputes Act, 1947. **9** ## **WP(C).No.35554 OF 2009(L)** Relying on earlier decisions of the Apex Court in _**State of Maharashtra v.Labour Law Practitioners' Association**_ [(1998) 2 SCC 688] and _**Bharat Bank Ltd.**_ _**v. Employees AIR**_ [(1950)SC 459, the Apex Court held that, Presiding Officers of Industrial Tribunals are also entitled to the same benefits as are granted to Judicial Officers under Article 236 of the Constitution of India. The judgment of the Division Bench was therefore declined to be interfered with and the benefits were directed to be granted to Presiding Officers of Industrial Tribunals as well. 7. In Ext.P7 order, the pay scale of Industrial Tribunals has been revised as Rs.16750-20500. It was held that Industrial Tribunals who were placed in Selection Grade will be eligible for revised scale of pay of Rs.18750-22850. It was further held that, fixation of pay in the revised scale shall be made as per the rules for fixation ordered in **WP(C).No.35554 OF 2009(L)** **10** G.O(MS)No.231/2001/Home dated 12.12.2001 and the revised scale of pay ordered in G.O(P)No.145/2006/Fin. dated 25.03.2006 stands withdrawn with effect from 01.07.2004. However, the benefit of the revision of pay with effect from the date on which Exts.P1 and P2 had been made applicable to Judicial Officers was not granted to Industrial Tribunals. 8. A counter affidavit has been placed on record by the Special Government Pleader on behalf of the respondents. It is stated that, during the pendency of the writ petition, the 1[st] respondent had issued orders making available the benefits of the revised scales of pay with effect from 01.01.1996 with monetary benefits from 01.07.1996 and had further ordered that, all perks and allowances granted to District Judges will stand extended to Industrial Tribunals prospectively. It is stated ## **WP(C).No.35554 OF 2009(L)** **11** that, though the order was issued in 2012, the petitioners have filed an additional affidavit producing the said Government Order as Ext.P15 along with Exts.P16 and P17 documents and have sought the grant of perks and allowances with retrospective effect. It is stated that, 25% of the Industrial Tribunals, who have put in not less than 5 years of service were sanctioned Selection Grade on par with District Judges. It is stated that, the request for granting Selection Grade to all Industrial Tribunals on completion of 5 years service cannot be considered since such a benefit has not been recommended by the First National Judicial Pay Commission. 9. I have considered the contentions advanced. In view of Exts.P15 to P17 documents, the only question which survives for consideration is the grant of perks and allowances with retrospective **12** ## **WP(C).No.35554 OF 2009(L)** effect. The benefits of the revised scale of pay has been made available to Industrial Tribunals by Ext.P15 order with effect from 01.01.1996 with monetary benefits from 01.07.1996. It has been ordered in Ext.P15 order that, the perks and allowances shall also be extended to Industrial Tribunals. However, the said benefits are made applicable only prospectively. Though it appears that the petitioners have taken up the issue with the Government, it has been replied stating that, perks are ordered only with the prospective effect and therefore the grant of such benefits retrospectively cannot be considered. 10. Ext.P3 judgment specifically considers the entitlement of the benefits granted by the 1[st] National Judicial Pay Commission to Judicial Officers and the extension of the same to Industrial Tribunals. The Apex Court found that, Industrial **WP(C).No.35554 OF 2009(L)** **13** Tribunals in the State of Kerala are also exercising the same functions and duties as Judicial Officers and the only difference is in the source of their recruitment. It was therefore found that, the principle of equal pay for equal work is liable to be applied in case of Presiding Officers of Industrial Tribunals as well and the decision taken to deny the benefits to Presiding Officers of Industrial Tribunals is unjustified. It was pursuant there to that the matter was reconsidered by the Government and Ext.P7 order was passed. 11. During the pendency of the writ petition the Government accepted Ext.P3 judgment and directed the grant of the benefits with retrospective effect to Industrial Tribunals as well. The scale of pay has been made applicable from 01.01.1996 with arrears payable from 01.07.1996 as in the case of Judicial Officers. However, in the case of perks and **WP(C).No.35554 OF 2009(L)** **14** allowances which were applicable to Judicial Officers pursuant to the Shetty Commission Report, a different stand has been adopted by making the benefits applicable only with prospective effect from the date of the order. 12. The learned Special Government Pleader placed reliance on a decision of a Division Bench of this Court in _**Union of India and Others v.**_ _**N.Dharmadan**_ [2019(3) KHC 552] to contend that, Judicial Members of Central Administrative Tribunals are not Judicial Officers and cannot be equated with Judges of the High Court in the matter of grant of retiral benefits. It is therefore contended that, Presiding Officers of Industrial Tribunals are not District Judges and therefore they would not be entitled to the benefit of perks and allowances with effect from the dates when such benefits are made applicable to Judicial Officers by the orders **WP(C).No.35554 OF 2009(L)** **15** accepting the recommendations of the 1[st] National Judicial Pay Commission. 13. On a consideration of the contentions advanced, I find that Ext.P3 judgment of the Apex Court squarely covers the issue. After considering the entitlement as well as the nature of the duties and functions of Presiding Officers of Industrial Tribunals, the Apex Court had clearly held that, the Industrial Tribunals are carrying out Judicial functions akin to those of District Judges and that as such there is no rationale in treating them differently. The judgment of the Division Bench of this Court which directed the grant of payment of benefits to Presiding Officers of Industrial Tribunals was therefore upheld. By Ext.P15 order dated 24.02.2012, the benefit of revision of scale pay at par with the District Judges with effect from 01.01.1996 has now been made available to Industrial **16** ## **WP(C).No.35554 OF 2009(L)** Tribunals also. In view of the clear findings in Ext.P3 judgment, I am unable to understand how the benefits of perks and allowances as are applicable to District Judges can be denied to Presiding Officers of Industrial Tribunals. The contention now raised that, they are not District Judges has already been considered by the Apex Court in Ext.P3 judgment and it has been held that they are entitled to the benefits as are available to Judicial Officers. 14. In the above view of the matter, I am of the opinion that, the provision in Ext.P15 order to the effect that perks and allowances applicable to District Judges will be granted only prospectively to Industrial Tribunals cannot be accepted. There will accordingly be a direction to the respondents to grant the benefit of perks and allowances as have been ordered by the respective pay revision orders **17** ## **WP(C).No.35554 OF 2009(L)** to the petitioners as well with effect from the date of applicability to Judicial Officers under Exts.P1 and P2. 15. The question of grant of Selection Grade to Industrial Tribunals is a matter for the Government to examine on its merits since it is specifically contended that such benefit is not granted to all District Judges as well. The question is left open to be considered by the Government. The benefits as directed above shall be released to the petitioners within a period of four months from the date of receipt of a copy of this judgment. ## **Sd/-** ## **ANU SIVARAMAN** ## **JUDGE** mpm **18** ## **WP(C).No.35554 OF 2009(L)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE GOVERNMENT ORDER GO(MS)NO.231/2001/HOME DATED 12/12/2001. EXHIBIT P2 TRUE COPY OF THE ORDER GO(MS) NO.84/2003(130) FIN DATED 04/02/2003 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 05/06/2008 OF THE HON'BLE SUPREME COURT IN CIVIL APPEAL NO.4104/2004 REPORTED IN 2008(3) KLT 33. EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER GO(MS) NO.157/2006/HOME DATED 30/08/2006. EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER GO(MS) NO.66/2007/HOME DATED 28/03/2007. EXHIBIT P6 TRUE COPY OF THE GOVERNMENT ORDER GO(MS) NO.134/2007/HOME DATED 12/06/2007. EXHIBIT P7 TRUE COPY OF THE ORDER GO (MS) NO.444/08(114)FIN DATED 06/10/2008 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P8 TRUE COPY OF THE GOVERNMENT ORDER GO(RT) NO.1549/86/LBR DATED 15/10/1986. EXHIBIT P9 TRUE COPY OF THE GOVERNMENT LETTER NO.4479/G3/96/LBR DATED 24/10/1996 TO PETITIONERS 1 AND 2. EXHIBIT P10 TRUE COPY OF THE LETTER NO.16077/03/98/LBR DATED 15/05/1999 OF THE 2ND RESPONDENT. EXHIBIT P11 TRUE COPY OF THE JOINT REPRESENTATION DATED 04/11/2008 SUBMITTED BY THE PETITIONERS TO THE 1ST RESPONDENT.** **WP(C).No.35554 OF 2009(L)** **19** |**EXHIBIT P12**|**TRUE COPY OF THE ORDER GO(MS)**| |---|---| ||**NO.471/09(152)/FIN. DATED 29/10/2009**| ||**ISSUED BY THE 1ST RESPONDENT.**| |**EXHIBIT P13**|**TRUE COPY OF THE GOVERNMENT ORDER GO(MS)**| ||**NO.179/2010/HOME DATED 05/08/2010.**| |**EXHIBIT P14**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**12/08/2010 SUBMITTED BY THE APPLICANTS**| ||**TO THE 2ND RESPONDENT.**| |**EXHIBIT P15**|**TRUE COPY OF THE GO(MS) NO.132/12/FIN.**| ||**DATED 24/02/2012.**| |**EXHIBIT P16**|**TRUE COPY OF THE GOVERNMENT LETTER**| ||**NO.90313/PRC.C1/2009/FIN.DATED**| ||**25/06/2012.**| |**EXHIBIT P17**|**TRUE COPY OF THE GOVERNMENT LETTER**| ||**NO.6756/G3/12/LBR DATED 16/02/2013.**| ||// TRUE COPY //| ||P.A. TO JUDGE|