Kerala High Court
Subramanian.R vs Kerala Co-Operative Milk Marketing ... on 28 March, 2000
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY, THE 7TH DAY OF APRIL 2014/17TH CHAITHRA, 1936
WP(C).No. 17024 of 2013 (C)
----------------------------
PETITIONERS:
--------------------------
1. SUBRAMANIAN.R.,
WORKER, CATTLE FEED PLANT
KERLA CO-OPERATIVE MILK MARKETING FEDERATION LTD.
MALAMPUZHA P.O., PALAKKAD DISTRICT.
2. MANOHARAN,
WORKER, CATTLE FEED PLANT
KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD.
MALAMPUZHA P.O., PALAKKAD DISTRICT.
3. K.HARIHARAN, WORKER,
KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD.
MALAMPUZHA P.O., PALAKKAD DISTRICT.
4. K.MANIKANDAN,
WORKER
KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD.
MALAMPUZHA P.O., PALAKKAD DISTRICT.
BY ADV. SRI.K.G.PAVITHRAN
RESPONDENTS:
----------------------------
1. KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD.,
MILMA BHAVAN, PATTAM PALACE P.O., THIRUVANANTHAPURAM
REPRESENTED BY ITS MANAGING DIRECTOR, PIN 695 004.
2. THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT
AGRICULTURE (DAIRY DEVELOPMENT) DEPARTMENT
THIRUVANANTHAPURAM.695 001
3. SENIOR MANAGER, MILMA CATTLE FEED FACTORY,
MALAMPUZHA, PALAKKAD DISTRICT, PIN 678 001.
R1 BY ADV. SRI.B.S.KRISHNAN(SR.),
R1 BY ADV. SMT.LATHA KRISHNAN, SC, MILMA
R2 BY GOVERNMENT PLEADER SRI JOSEPH GEORGE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07-04-2014, ALONG WITH WPC. 17546/2013 AND 17136/2013 THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 17024 of 2013 (C)
----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-------------------------------------
EXHIBIT P1: TRUE COPY OF THE REPRESENTATION DATED 28/03/2000 SUBMITTED
BY THE PETITIONERS BEFORE THE 1ST RESPONDENT.
EXHIBIT P2: TRUE COPY OF THE JUDGMENT DATED 2/8/2001 IN O.P.
NO.22805/2001.
EXHIBIT P3: TRUE COPY OF THE LETTER NO.PER: 12:2001/4224 DATED
11/10/2001.
EXHIBIT P4: TRUE COPY OF THE JUDGMENT IN O.P NO.1711/2002 DT.
4/112/2003.
EXHIBIT P5: TRUE COPY OF THE ORDER NO.PER: 12/2001 DT. 18/8/2004
ISSUED BY THE KERALA CO-OP. MILK MARKETING FEDERATION LTD.,
TRIVANDRUM.
EXHIBIT P6: TRUE COPY OF THE ORDER NO.12:01/3568 DT. 12/9/2005 ISSUED
BY THE KERALA CO-OP. MILK MARKETING FEDERATION LTD.,
TRIVANDRUM.
EXHIBIT P7: TRUE COPY OF THE LETTER NO.PER: 25:89:515 DT. 5/2/2001
ISSUED BY THE KERALA CO-OP. MILK MARKETING FEDERATION LTD.,
TRIVANDRUM.
EXHIBIT P8: TRUE COPY OF THE NO. G.O.MS. NO.98/2006/AD DT.31/10/2006.
EXHIBIT P9: TRUE COPY OF THE ORDER NO.PER : 01/2000/3940 DATED
29/4/2013 ISSUED BY THE KERALA CO-OP. MILK MARKETING
FEDERATION LTD., TRIVANDRUM.
EXHIBIT P10: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONERS TO THE 1ST RESPONDENT DT. 6/5/2013.
RESPONDENT(S)' EXHIBITS
---------------------------------------
EXHIBIT R3(a): TRUE COPY OF THE GOVERNMENT ORDER NO. 31337/D2/02/AD
DATED 10.08.2004
TRUE COPY
P.A TO JUDGE
jma
K. VINOD CHANDRAN, J
- - - - - - - - - - - - - - - - - - - -
W.P(C) Nos.17024 of 2013, 17136 of 2013 &
17546 of 2013
- - - - - - - - - - - - - - - - - - -
Dated this the 7th day of April, 2014
J U D G M E N T
The petitioners in all the above writ petitions claim to be similarly placed. An alleged discrimination, ensuing with the issuance of Ext.P9, with respect to 69 other employees; who are said to be appointed in a similar manner as the petitioners' herein and were regularised with retrospective effect from the date of their appointment; is the bone of contention. The petitioners in WP(C) No.17024/2013 were appointed between the periods 1993-94 and those in 17136/2013 on various dates in the year 1984 and the petitioners in 17546/2013 on various dates in the year 1991.
2. The petitioners in W.P(C) No. WPC.No.17024/2013 : 2 : 17024/2013 contend that, when they were regularised as per orders similar to Ext.P5 produced in the said writ petition, the regularisation was effected only from the date of such order. They were declared to be on probation only from the date of Ext.P5, and their probation was declared one year thereafter, by Ext.P6. Even with respect to employees taken in later, i.e, between the period 1995 to 1998; retrospective regularisation was granted as per Ext.P9. Ext P9 was pursuant to a request made by the respondent Federation as is seen at Ext.P7.
3. The recruitment of employees to the Federation, on a reading of Ext.P7, was through Employment Exchange, till the promulgation of the Kerala Public Service Commission (Additional Functions as Respect Certain Societies) Act, 1996. WPC.No.17024/2013 : 3 : Admittedly, such recruits were placed under probation for an year and on successful completion, regularised. Ext.P7 sought permission to regularise persons who were so appointed; through the employment exchange prior to the Kerala Public Service Commission being authorised to make appointments. The Government sanctioned their regularisation as per Ext.P8 dated 31.10.2006 and later gave it retrospective effect from the date of initial appointment as per Ext.P9 dated 29.04.2013.
4. Merely for the reason that petitioners in W.P(C) No. 17024/2013 were regularised, even earlier to Exts.P8 and P9; they were denied such retrospective regularisation, despite they being similarly situated. The petitioners in the two other writ petitions, too, allege the very same ground of discrimination and claim equal treatment. WPC.No.17024/2013 : 4 :
5. The learned counsel appearing for the respondent Federation, refutes the claims raised in toto and would draw a distinction between the claim of the petitioners in the three writ petitions. According to the learned counsel, the petitioners in W.P(C) No.17024/2013 were sponsored by the Employment Exchange but they were regularised in 2004 and their probation declared in 2005 as is evidenced by Exts.P5 and P6. They were contend with that and now cannot raise a claim for retrospective effect of Exts.P5 and P6. Their claims are to be negatived for reason only of the delay occasioned.
6. With respect to the petitioners in W.P(C) 17546/2013 it is contended that they were employed as Casual workers not sourced from the Employment Exchange and there were disputes with respect to WPC.No.17024/2013 : 5 : their regularisation which was eventually settled as per Ext.R1(a) judgment; which recorded the settlement between the parties. It is submitted that the petitioners in the said writ petition cannot be permitted to seek reopening of their cases.
7. As far as W.P(C) No.17136/2013 is concerned, the two petitioners are said to have been employed first in the respondent Federation under a contractor. The petitioners therein had approached the Labour Court with an industrial dispute and the award directing their regularisation was challenged by the respondent Federation before this Court. This Court remanded the matter for fresh consideration and again, the regularisation was granted by the Labour Court. Eventually, petitioners were regularised on 01.02.2000 as Sweepers and later accommodated as workers by category change. The WPC.No.17024/2013 : 6 : petitioners herein also, not being engaged through the employment exchange, it is the contention that their claim for regularisation was only on the specific directions in the award which does not speak of a retrospective regularisation.
8. It is also contented that all the writ petitions have been filed only on the ground that Ext.P9 order has been passed by the Government with respect to some other employees. All the petitioners had rested contend with their prospective orders of regularisation and they cannot be permitted to claim retrospective regularisation even similar to the terms in Ext.P9, is the defence urged.
9. As far as W.P(C) No.17136/2013 is concerned, it is to be noticed that the petitioners were regularised as early as in 2000 on the basis of an award of the Labour Court, which was later WPC.No.17024/2013 : 7 : confirmed by this Court. The petitioners therein, were not similarly placed to the petitioners in the order of the Government, numbered as PER:01/2000/3940 dated 29.04.2013 (produced as Ext.P4). The petitioners had not claimed any retrospective regularisation and their order of regularisation was not in any manner similar to the regularisation of employees appointed through the employment exchange.
10. The said reasoning squarely applies in the case of W.P No.17546/2013 also. The petitioners therein are bound by the judgment in Ext.R1(a) wherein the specific settlement between the respondent Federation and the respondents 1 and 2, who were agitating the cause on behalf of the petitioners herein, was recorded as extracted below:-
"The petitioner and the respondents have WPC.No.17024/2013 : 8 : settled the matter out of Court whereby the workmen concerned have agreed to forego the cost of Rs.1,000/- to each workman, awarded by the Industrial Tribunal and the petitioner hereby agrees to regularize the workmen concerned in this case as workers with effect from the date of order of appointment regularizing their service. It is also agreed by the workmen concerned in this case that no claim whatsoever, monetary or otherwise, will be raised in respect of the past service in the petitioner establishment. It is further agreed by the workmen concerned that the past service on daily wage basis will not be counted for any purpose. In the above facts and circumstances, it is most respectfully prayed that the above writ petition may be disposed of in terms of the above compromise."
Since there is no similarity discernible between the petitioners in W.P(C)17136/2013 and 17546/2013 WPC.No.17024/2013 : 9 : and the employees sponsored by the employment exchange, the former cannot claim any retrospective regularisation. The writ petitions hence, stand dismissed.
11. With respect to W.P(C)No.17024/2013 it is to be noticed that the four petitioners were engaged as casual workers and were sponsored by the employment exchange. Their appointment in various periods between 1993 to 1994 is also admitted. The petitioners had been before this Court with a claim of regularisation and before the authorities and eventually their claims were considered and allowed as per Ext.P5, Ext.P5 order is in the year 2004; and the regularisation granted therein was only prospective.
12. Simultaneous to the representation of the petitioners, another batch of employees were also WPC.No.17024/2013 : 10 : sponsored by the employment exchange and engaged as casual workers between the periods 1995 and 1998. The respondent Federation had taken up the cause of the regularisation of employees; who were sponsored by the employment exchange, from the initial date of their employment; with the Government. That is evident from Ext.P7 dated 05.02.2001; a date prior to the date of regularisation of the petitioners herein.
13. Hence, the claim of the petitioners in W.P(C)No.17024/2013 cannot be dismissed at the threshold, on the ground of delay. The petitioners who were regularised stood in the status similar to that of the employees who were appointed to the respondent Federation between 1995 to 1998. There is no reason stated in Ext.P7 to exclude the employees sponsored by the Employment Exchange, WPC.No.17024/2013 : 11 : prior to 1995; but for the fact that their cause was agitated separately. The petitioner in W.P(C) No.17024/2013 also did not have any cause of action to allege discrimination, then, since the claim for regularisation of the employees appointed later to them were pending consideration of the Government. The same was eventually granted only by the aforementioned Government Order of the year 2013.
14. With respect to the employees appointed between 1995-1998, the respondent-Federation, had recommended regularisation with retrospective effect from the date of their appointment and had also requested the Kerala Public Service Commission to accord approval for such regularisation. It was in such circumstance, Ext.P9 order was passed by the Government permitting the regularisation from the date of their WPC.No.17024/2013 : 12 : respective appointments, but, however, without any claim for monetary benefits with respect to the backwages. Merely for the reason that the petitioners applications were considered earlier, they cannot be denied of, the benefit of retrospective regularisation, which has been granted to similarly placed employees; that too appointed after they were appointed to the service. The petitioners in W.P(C) 17024/2013 has sought for consideration of their claim by Ext.P10. In such circumstance, the Government shall consider Ext.P10 and grant regularisation as has been done in Ext.P9 on the very same terms indicated in Ext.P9, to the writ petitioners herein also. The said Writ petition stands allowed.
15. W.P(C) No. 17024/2013 is allowed on the above terms. W.P(C) Nos.17136/2013 and WPC.No.17024/2013 : 13 : 17546/2013 are dismissed. Parties are left to suffer their costs.
Sd/-
(K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge