Kerala High Court
C.K. Kunchu vs State Of Kerala on 31 May, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 3RD DAY OF APRIL 2017/13TH CHAITHRA, 1939
WP(C).No. 5419 of 2015 (B)
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PETITIONERS:
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1. C.K. KUNCHU,
SNEHA NIVAS, NADUTHARA,
PUDUSSERY, PALAKKAD.
2. C. SIVADASAN, "MADHAV SREE",
KERA GARDEN, VADAKKETHARA,
PUDUSSERY, PALAKKAD.
3. V.G. VIDHYADARAN,
S/O GOVINDAN NAIR,
'HARISREE', BAGAVATHI NAGAR,
PUDUSSERY, PALAKKAD.
4. M.PRABHAKARAN, KUNIYAMPAURA VEEDU,
KUTTANOOR P.O., PALAKKAD.
5. A.MUNIYAPPAN, KRISHNA NIVAS,
PUTHUR,KANJIKODE, PALAKKAD.
6. KODI KARUPPAN, HARI NIVAS,
CHANDAPURAM, VALAYAR, PALAKKAD.
7. JOHN FELIX THANKARAJ,
CHINNAMANI VEEDU,
PAMPUMPARA, VALAYAR P.O., PALAKKAD.
8 MICHAEL SWAMI,
KANNUVADIYAR VEEDU, PAMPUMPARA,
VALAYAR P.O., PALAKKAD
9. R.KARUPPASWAMY, PULINGAD,
VALAYAR P.O., PALAKKAD.
WP(C).No. 5419 of 2015 (B)
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10. DWARAISWAMY, DOOR NO.6/66,
KONGAMPARA, PICHANNUR P.O.,
MADUKKARAI, TAMIL NADU.
11. N.ARUCHAMI, DOOR NO.6/39,
KONGAMPARA, PICHANUR P.O.,
MUDUKKARAI, TAMIL NADU.
12. P.C.UNNIKRISHNAN,
PANAMKUTTY HOUSE, PERUVEMBA,
PALAKKAD.
13. C.NARAYANAN, KOOTTALA VEEDU,
RAMASSERY, ELAPPULLY, PALAKKAD.
14. HRUDAYASWAMY, WHITE HOUSE,
ELIPPARA, KOZHIPPARA, PALAKKAD.
15. R.MUKUNTHAN,
KAMBIYOD HOUSE, CHANDRAPURAM,
VALAYAR, PALAKKAD
16. A. KABOOR, FATHIMA MANZIL,
INDIRA NAGAR, CHANDRAPURAM,
VALAYAR, PALAKKAD
17. A.TITUS,
AISWARYA, NETAJI NAGAR,
KANJIKOD, PALAKKAD.
18. N.THANKACHAN,
S/O NARAYANAN, ASWATHY,
INDIRA NAGAR, CHANDRAPURAM,
VALAYAR, PALAKKAD.
19. V.H.ABDUL KADER, RIYAS MANZIL,
JAWAHAR NAGAR, KURUDIKKAD,
PUDUSSERY, PALAKKAD.
20. U.D. MOHANAN,
SRI.NANDANAM, PARA ROAD,
SATHRA PADI, KANJIKOD, PALAKKAD.
21. MATHAI, MENOTH CHALIL, TAMILTHARA,
KANJIKOD,PALAKKAD.
WP(C).No. 5419 of 2015 (B)
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22. APPUKUTTAN C.,
ANUPAM HOUSE, CHANDRAPURAM,
VALAYAR,PALAKKAD.
23. K.A. JOY,
KIZHAKKEDATH HOUSE,
MALABAR GARDEN,
VALAYAR, PALAKKAD.
24. T.K.CHANDRAN KUTTY,
PUTHENPURAYIL HOUSE,
SREE NAGAR COLONY,
MARUTHA ROAD, PALAKKAD.
25. M.BADARKUTTY,
RIYAS MANZIL,
KURUDIKKAR, PALAKKAD.
26. PONNU R.,
SREE LAKSHMI, VISHNU NAGAR,
AVP ROAD, KANJIKODE, PALAKKAD.
27. RAJAPPAN NAIR,
HARE KRISHNA, CHANDRAPURAM,
VALAYAR, PALAKKAD.
28. VIJAYAKUMAR, VIJAY HOUSE,
KARIMADI P.O.,
AMBALAPUZHA, ALAPPUZHA.
29. SANKARAN KUTTY,
AMRUTHA BAVAN, CHANDRAPURAM,
VALAYAR, PALAKKAD.
30. CHANDRAHASAN, KIZHAKKE VELIKKAKATH,
BAGAVATHY NAGAR,
PUDUSSERY, PALAKKAD.
31. RAJASEKHARAN NAIR,
USHUS, NILAMA,
P.O. URIAKODE,
THIRUVANANTHAPURAM - 695 020.
32. C.R.MURALEEDHARAN,
KOCHUPARAMBIL, BINNY ROAD,
PALLURUTHY, KOCHI 682 006.
WP(C).No. 5419 of 2015 (B)
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33. V.S. JAYACHANDRAN, KARTHIKA,
KAVUNGINTHODU,
P.O. KODANGIVILA,
THIRUVANANTHAPURAM - 695 123.
34. P.K.VELAYUDHAN,
SOUPARNIKA, CHENAKKAL ANGADI P.O.,
THENJIPALAM, MALAPPURAM.
35. GOPINADAN PILLAI,
VALLIYATH HOUSE,
P.O. CHETTIKULANGARA,
MAVELIKKARA, ALAPPUZHA.
36. P.KRISHNAN,
PUTHIYOTH HOSUE, KONGANNUR,
ATHOLI, KOZHIKODE.
37. MAHENDRAN V.,
VALIYAPARAMBIL,
VRINDAVANAN NAGAR, H.NO.22,
PUDUSSERY, PALAKKAD.
38. P.M.KUMARAN, KUNIYAMKANDI HOUSE,
P.M.KUTTY ROAD,
ERANJIPALAM, KOZHIKODE.
39. V.M.CHANDRAN,
VATTIYATTIL HOUSE,
KOSHAVANKODE, THARIPPARI,
PATTANCHERI, PALAKKAD.
40. MARIYAPPAN, H.NO.1/847,
SEKHARIPURAM, PALAKKAD - 678 003.
41. RAMACHANDRAN,
SHIVA SHYLAM, INDIRA NAGAR,
CHANDRAPURAM, VALAYAR, PALAKKAD.
42. T.BICHUTTY,
BABU MANZIL, AYODYA NAGAR,
PALLIPURAM P.O., KALLIKAD, PALAKKAD.
43. K.G.SASIDARAN NAIR,
KOLLAMPARAMBIL HOUSE,
KAYYOOR ANPINKAD, KOTTAYAM.
WP(C).No. 5419 of 2015 (B)
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44. M.P.ASHTAMOORTHY NAMBOODIRI,
MARUTHURKARA MANA,
KIZHAKKENADA,
KALLEKULANGARA P.O., PALAKKAD.
45. SEKHARAN, SOUPARNIKA,
KENAMPULLI, CHITTUR,
PALAKKAD.
46. M.VIJAYAN, 14/379,
UTHRADAM, VIVEKANANDA COLONY,
KUNNATHURMEDU, PALAKKAD.
47. K.K.RAJEEVAN,
SREE NILAYAM,
KARIYAD SOUTH P.O., KANNUR.
48. K.N.GOVINDAN KUTTY,
KUTTATH HOUSE, KODANNUR, THRISSUR.
49. AHAMMAD KABEER,
ANUGRAHA, CHERAKKAD,
KUNNATHURMEDU, PALAKKAD.
50. THAMPU,
KALMANDAPAM, PALAKKAD.
51. V.T.DAMODHARAN, VELUTHAPARAMBIL HOUSE,
FORTUNE VILLA, THEKKE VAVANNUR,
KOOTTANADU, PALAKKAD.
52. KUNJALI VALAPPIL,
MANJALIL HOUE,
MAVUTTAMPADI, PILAKKAL ROAD,
P.O. OLAVANNUR, KOZHIKODE.
53. M.NARAYANAN KUTTY,
MUTHUVAKKAD HOUSE,
KANNAMPARIYARAM, MANKARA,
PALAKKAD - 678 613.
54. P.N.NARAYANAN NAIR,
KURUMANGAT HOUSE,
KUTTOORKARA P.O., KALLADIPETTA,
PATTAMBI, PALAKKAD 679 313.
WP(C).No. 5419 of 2015 (B)
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55. M.RAJU,
"LAKSHMI", PARAKKALAM,
NEITHALA, ERATTAKULAM,
PALAKKAD 678 622.
56. CHANDRAN P.,
SHIBI NIVAS, EDAKKAZHIKADAVU,
P.O.FAROK, KOZHIKODE.
57. HARINDRAN K.G.,
MUKKUNNAMKAD HOUSE,
KOTTEKAD P.O., PALAKKAD.
BY ADV. SRI.JACOB SEBASTIAN
RESPONDENTS:
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1. STATE OF KERALA,
REP. BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF INDUSTRIES,
GOVT. SECRETARIAT, TRIVANDRUM,
PIN: 695 001.
2. THE MALABAR CEMENTS LIMITED,
REPRESENTED BY ITS MANAGING DIRECTOR,
MALABAR CEMENTS LTD.,
WALAYAR, PALAKKAD, PIN - 678 624.
3. THE MANAGING DIRECTOR,
MALABAR CEMENTS LTD.,
WALAYAR, PALAKKAD, PIN - 678 624.
R1 BY SMT.MABLE C. KURIEN (GOVERNMENT PLEADER)
R2 & R3 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH
SRI.P.BENNY THOMAS
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 5419 of 2015 (B)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: A TRUE COPY OF THE ORDER DATED MAY 31, 2013 OF THE
FIRST RESPONDENT.
EXHIBIT P2: A TRUE COPY OF THE REPRESENTATION DATED SEPTEMBER 9,
2013 SUBMITTED BY THE PETITIONERS.
EXHIBIT P3: A TRUE COPY OF THE ORDER DATED APRIL 30, 2014 OF THE
FIRST RESPONDENT.
EXHIBIT P4: A TRUE COPY OF THE ORDER DATED SEPTEMBER 26, 2014 OF
THE FIRST RESPONDENT.
RESPONDENT(S)' EXHIBITS : NIL
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/TRUE COPY/
P.A. TO JUDGE
sf
DEVAN RAMACHANDRAN, J.
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WP(C) No.5419 of 2015
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Dated this the 3rd day of April, 2017
JUDGMENT
The petitioners are retirees under the service of the 2nd respondent Company, which is wholly owned Government of Kerala Enterprise. The petitioners were employed as non- managerial employees and they retired from service during the periods from 2005-2010.
2. According to the petitioner, subsequent to their retirement, the Government of Kerala approved a one-time service weightage to non-managerial employees of the 2nd respondent Company. This was allowed as per Ext.P1 order, under which the Government ordered that the service benefit will be effective only from 01.04.2011 and that it will be valid until the date of effect of the next wage revision or incentive.
3. The petitioners who were all retired prior to Ext.P1, WP(C) No.5419 of 2015 2 represented to the Government praying that they be included in the benefits of Ext.P1 order. However, this was rejected by the Government by Exts.P3 & P4 order holding that the service weightage was ordered only to rectify the disparity of the meager difference of salary between the senior employees and new entrants, on account of increase in annual increments under the Cement Wage Board scale. The petitioners have, therefore, impugned Exts.P3 & P4 on the allegation that they have been denied their vested rights for such revision of pension taking into account the service weightage eligible to them.
4. I have heard Sri.Jacob Sebastian, the learned counsel for the petitioners, the learned Standing Counsel appearing for the respondents 2 & 3 and the learned Government Pleader appearing for the 1st respondent.
5. I see that Ext.P1 oder was issued by the Government of Kerala on the request of the Managing Director of the 2nd respondent Company to grant service weightage to non- managerial employees under certain specified conditions. The recommendations of the Managing Director of the 2nd respondent Company was on the basis of settlements arrived at by the WP(C) No.5419 of 2015 3 Company with the various trade Unions, which has been produced by the 1st respondent, along with their Counter Affidavit, as Ext.R1(a). The effect of the service weightage was limited to take effect from 01.04.2011, taking into account the financial condition of the Company and it was the opinion of the Government that it was given effect to prior to that date, the financial requirements necessary for implementation of the order would even imperil the Company.
6. The learned counsel for the petitioner asserts that since some of the petitioners retired as late as 2010, they would also be entitled to the benefit of Ext.P1 and protection of Ext.R1(a) settlement. I am afraid that I cannot accede to this contention because for one, the petitioners were not in service when Ext.R1
(a) settlement was arrived at and for the second, the Government had taken the decision to restrict the operation of Ext.P1 with effect from the start of the financial year 2011-2012 taking into account the perilous financial health of the Company. This is the only reason why the date of 01.04.2011 was specifically stated in Ext.P11. As long as the financial condition of the Company was not very healthy, the Government was justified WP(C) No.5419 of 2015 4 in implementing Ext.P1 from such date as the Company would be in a position to financially suffer.
7. Since the only reason for restricting Ext.P1's operation from 01.04.2011 is based on the financial condition of the Company, obviously, any claim of the petitioner would also depend upon such. I notice that the Government have already concluded all these issues by finding that the 2nd respondent Company cannot be burdened with any further liability, except in terms of Ext.P1. However, if the petitioners are able to show that the 2nd respondent Company had the financial capacity to suffer the service weightage benefits to be given prior to that date, the Government would necessarily be obligated to reconsider the date from which Ext.P1 is to be operated. However, this is not something that this Court, acting under Article 226 of the Constitution of India, can speak affirmatively about.
In such circumstances, I close this writ petition, however, granting liberty to the petitioner to approach the Government with a suitable representation making their claims and if they are able to establish that the financial health of the Company is such that it can suffer the service benefit weightage to non-managerial WP(C) No.5419 of 2015 5 employees, who are retired prior to 01.04.2011, then the competent Secretary of the Government will be obligated to consider such assertions and conclude upon it in the manner mandated in law.
This writ petition is thus ordered. In the peculiar facts and circumstances of this case, I make no order as to costs and I direct the parties to suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN, JUDGE.
//True Copy// P.A to Judge sp/20/04/17