Kerala High Court
George Thomas Puthenveetil vs Union Of India on 9 July, 2012
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 30TH DAY OF NOVEMBER 2017/9TH AGRAHAYANA, 1939
WP(C).No. 37060 of 2017 (F)
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PETITIONERS:
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1. GEORGE THOMAS PUTHENVEETIL,
COLONEL (TS), INDIAN ARMY (RETIRED),
PROPRIETOR,
GEORGE THOMAS PUTHENVEETTIL SECURITY AGENCY,
TC.24/1627, OPP. GOVT. LPS.METTUKADA,
THYCADU PO, THIRUVANANTHAPURAM
2. JAMES MATHEW, MATTAKOTTIL,
KADUTHURUTHY PO, KOTTAYAM - 686604.
3. RAJU JOSEPH, KUZHIKANDATHIL,
ERAVIMANGALAM PO, KOTTAYAM - 696613.
4. BINU KUMAR P.S, ASWATHY HOUSE,
CHEMMANIKARA PO, VAIKOM.
BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.MANU SEBASTIAN
SRI.P.J.JOE PAUL
RESPONDENTS:
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1. UNION OF INDIA, REPRESENTED BY
THE SECRETARY TO THE GOVERNMENT,
MINISTRY OF DEFENCE, GOVERNMENT OF INDIA,
SOUTH BLOCK, NEW DELHI - 110001.
2. DIRECTOR GENERAL RESETTLEMENT (DGR)
MINISTRY OF DEFENCE, GOVERNMENT OF INDIA,
WEST BLOCK IV, R.K PURAM, NEW DELHI - 110066.
3. BHARATH SANCHAR NIGAM LTD., REPRESENTED BY
ITS PRINCIPAL GENERAL MANAGER,
TELECOM DISTRICT, KOTTAYAM, KERALA - 686001.
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WP(C).No. 37060 of 2017 (F)
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4. THE ASSISTANT GENERAL MANAGER (ADMIN)
OFFICE OF THE PRINCIPAL GENERAL MANAGER
OF TELECOM, KOTTAYAM - 686001.
R1 & R2 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R3 & R4 BY SRI.MATHEWS K.PHILIP, SC
SRI.SAJI VARGHESE, SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 30-11-2017 ALONG WITH WPC.38097/2017 & WPC.38222/2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C).No. 37060 of 2017 (F)
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APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1: A TRUE COPY OF THE OFFICE MEMORANDUM
NO.28(3)/2012-D (RES 1) DATED 09.07.2012.
EXHIBIT P2: A TRUE COPY OF THE EMPANELMENT CERTIFICATE
DATED 21.11.2013 ISSUED TO THE PETITIONER BY
2ND RESPONDENT.
EXHIBIT P3: A TRUE COPY OF THE LICENSE NO. 09/2015
DATED 21.03.2015 ISSUED TO THE PETITIONER BY
GOVT. OF KERALA.
EXHIBIT P4: A TRUE COPY OF THE OFFICE MEMORANDUM
DATED 04.10.2005 BY THE GOVT. OF INDIA.
EXHIBIT P5: A TRUE COPY OF THE SPONSORSHIP LETTER ISSUED BY
2ND RESPONDENT.
EXHIBIT P6: A TRUE COPY OF THE AGREEMENT DATED 28.05.2016.
EXHIBIT P7: A TRUE COPY OF THE NOTICE OF WAGE REVISION
PUBLISHED BY DGR ON 19.01.2017.
EXHIBIT P8: A TRUE COPY OF THE LETTER NO. G624/16-17/I/6
DATED 24.10.2017 BY THE 4TH RESPONDENT TO THE
1ST PETITIONER.
EXHIBIT P9: A TRUE COPY OF THE TENDER DOCUMENT
DATED 09.10.2017.
EXHIBIT P10: A TRUE COPY OF THE LETTER SENT BY THE
1ST PETITIONER TO THE 3RD AND 4TH RESPONDENTS.
EXHIBIT P11: A TRUE COPY OF DOCUMENT OF "PROJECT SANCHAY"
MOOTED BY THE 3RD RESPONDENT.
EXHIBIT P12: A TRUE COPY OF O.M DATED 18.1996.
EXHIBIT P13: A TRUE COPY OF JUDGMENT DATED 10.2.2010 IN
W.A.NO.2675/09.
RESPONDENTS' EXHIBITS:
EXHIBIT R4A: TRUE COPY OF THE AGREEMENT DATED 27.11.2017
ENTERED INTO BETWEEN THE 4TH RESPONDENT AND THE
LOWEST TENDERER IN EXHIBIT P9 TENDER.
//TRUE COPY//
P.S. TO JUDGE
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K. VINOD CHANDRAN, J.
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W.P.(C) Nos. 37060, 38097 & 38222 of 2017
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Dated: 30th November, 2017
J U D G M E N T
Six security agencies have filed the above writ petition against the termination of their contract with one month notice, issued to each of them separately which have been challenged in the three writ petitions. W.P.(C) No.37060/2017 is taken as the lead case since the documents in the said writ petition was referred in the course of hearing. The decision would regulate the other writ petitions also since the terms of contract, date of commencement and expiry are identical.
2. The petitioner agencies are Empaneled Agencies of the Directorate General of Resettlement (DGR). The Ministry of Defense has issued Office Memorandum dated 09.07.2012 wherein "Guidelines W.P.(C) No. 37060, 38097 & 38222 of 2017 -2- for Functioning of DGR Empaneled Ex-Servicemen for Security Services" have been issued (Ext.P1). As per the guidelines, the Ex-Servicemen Officers who retire from service are entitled to form an agency and seek for empaneling before the DGR. The DGR Agencies are obliged to engage 90% Ex-Servicemen and they could also take in 10% civilians. The scheme is to ensure employment to Ex-servicemen, officers and soldiers. The Government of India through its Department of Public Enterprises have vide: Office Memorandum Number 6/22/93-GL-15-DPE(SC/ST) dated 01.02.1994 instructed all Central Government Public Sector Undertakings/Enterprises to take security cover from Security Agencies sponsored by DGR. The Security Agencies sponsored as per the guidelines are the individual Ex-servicemen Security Agency operated by Ex-servicemen officers and the State Government W.P.(C) No. 37060, 38097 & 38222 of 2017 -3- owned Ex-servicemen Corporation (ESM Corporation).
3. A subsequent Office Memorandum was also issued at Ext.P4 dated 04.10.2005 again reiterating the requirement of engaging security personnel as sponsored by the DGR or the State ESM Corporations, which reads as hereunder:
"2. All the administrative Ministries/Departments are requested to kindly issue necessary instructions to the Public Sector Enterprises under their administrative control to obtain contract security services from the Directorate General of Resettlement (DGR), West Block- IV, R K Puram, New Delhi - 110 066 (Tel No.26192354) or from State, ESM Corporations for sponsoring Ex- servicemen Security agencies on their panel."
4. The petitioner-agencies were so sponsored as per the tenders issued by the respondent Corporation W.P.(C) No. 37060, 38097 & 38222 of 2017 -4- and successfully bid in the auction proceedings. An agreement was also executed, one of which is seen at Ext.P6. The security personnel were deployed and were carrying on the services when they were issued with notices similar to Ext.P8, directing withdrawal of the services of security guards from the specific locations in which the petitioner agencies were granted the contract. The petitioners apprehended that this was in pursuance of a tender for providing manpower services, as issued at Ext.P9. Later, Ext.P11, a document revealing implementation of a project, termed 'Sanjay', was produced which obviously has led to the present situation.
5. The learned Counsel for the petitioners contend that they have been awarded specific works extending up to 31.05.2018 and there cannot be an abrupt stoppage of the same, which is also against the W.P.(C) No. 37060, 38097 & 38222 of 2017 -5- specific instructions of the Central Government, as seen from the Office Memorandum issued by the Department of Public Enterprises dated 01.02.1994 and 04.10.2005. The respondent Corporation is a Public Sector Enterprise coming under the definition and controlled by the Ministry.
6. The learned Counsel for the respondent Corporation would contend that the entire scheme now sought to be implemented is for cost rationalization, especially in the context of the Corporation finding it difficult to pay its own employees. It is also submitted that security services have not been withdrawn from all locations where the Corporation functions. In the subject locations wherein the security concern is minimal, the respondent Corporation has decided to float tenders for provision of man power services for the upkeep and maintenance of various offices and W.P.(C) No. 37060, 38097 & 38222 of 2017 -6- exchanges. An agreement at Ext.R4(a) is produced to contend that the intention is not to provide for any security services. It is also contended that the rates of the DGR empanelled agencies are more and hence the scheme for cost rationalization is implemented. Ext.P6 agreement is specifically pointed out to contend that the agreement is liable to termination on one month notice in writing or on payment of one month contractual dues; in lieu of notice.
7. Definitely, the clause in the agreement entitles the Corporation to terminate the same with one month notice, or one months dues, in lieu of notice. The termination clause cannot lead to an arbitrary exercise of such power and any employer is bound to put forth reasons which makes the termination unavoidable and not a capricious exercise. It cannot be treated as a carte blanche to act according to mere whims and W.P.(C) No. 37060, 38097 & 38222 of 2017 -7- fancies; throwing to the winds the sanctity of a contract and the obligation to abide by its terms during the period it is current and valid. It cannot also be against the regulations controlling the actions of the employer; in this case a Public Sector Enterprise, held down to more exacting standards. The respondent Corporation in its status of a Public Sector Enterprise is regulated by the instructions issued by the Ministry of Public Enterprise. The respondent Corporation being a 'State' as defined under Article 12 of the Constitution of India has a duty to abide by the regulations as brought out by the Government of India and has to maintain a higher standard of integrity in its transactions with the public.
8. As of now, admittedly, the Ministry of Public Enterprises, Government of India, has directed all the Public Sector Enterprises and Undertakings to employ W.P.(C) No. 37060, 38097 & 38222 of 2017 -8- Security Personnel as sponsored by the DGR so as to ensure continuance of employment to Ex-servicemen officers and soldiers who retire at an early age. Admittedly, the Corporation was engaging these security guards who were also carrying on the routine maintenance works. Even the scheme 'Sanchay' as formulated by the respondent Corporation produced at Ext.P11, indicates that 'these outsourced staff shall only be appointed where DGR approved security guards are already present and carrying out routine maintenance activities' (sic).
9. The project paper admits, so to say, that the security personnel were appointed for providing security services and to carry on the routine maintenance and upkeep of the premises, since they were engaged round the clock. The Corporation on identifying locations where the security concerns are W.P.(C) No. 37060, 38097 & 38222 of 2017 -9- low, intends to substitute the DGR sponsored security staff with the outsourced staff now sought to be appointed as per the agreement, copy of which is produced at Ext.R4(a). The scope of work of the new outsourced staff is also seen at page 9 of the agreement. A reading of the work assigned would indicate that security work is not specified. The outsourced staff are meant to man the exchanges or units of the Corporation even during off-duty hours and obviously their presence takes care of the minimal security concerns, in the off-duty hours.
10. As has been seen from Ext.P11, the routine maintenance work which were carried out by the DGR security personnel, is now being sought to be handed over to the outsourced staff, who, obviously would be concerned with the security also of the units or exchanges. The respondent Corporation cannot appoint W.P.(C) No. 37060, 38097 & 38222 of 2017 -10- personnel to carry on security services other than from the DGR sponsored agencies or the State ESM Corporation. What cannot be directly done, is attempted to be done indirectly by appointing outsourced staff. This is also without the permission of the Ministry of Public Enterprises. Definitely the respondent could take up the policy decision with respect to unit/exchanges, wherein the security concerns are minimal and obtain permission from the concerned Ministry, so as to withdraw security personnel and then appoint outsourced staff for routine maintenance work without any security concerns being addressed by them. However, till such time the Government of India permits; it is not possible for the Corporation to deviate from the specific directions of the Ministry of Public Enterprise.
W.P.(C) No. 37060, 38097 & 38222 of 2017 -11-
11. In this context it is also to be noticed that Ext.R4(a) is again entered into with a firm, whose proprietor is a retired Colonel. The guidelines as per the DGR stipulate that any security personnel or agency ( ESM-Officer) over the age of 60 years is not entitled to continue in the approved panel. The award of provision of Security Services is also regulated by Ext. P1 guidelines, which offers a level playing field to those empanelled. This Court is not aware of whether the agency now given the outsourcing work as per Ext.R4
(a) is an agency still sponsored by the DGR or not. If it is not, it can lead to engagement of ESM above 60 years. This would run contrary to the intention of the Central Government to ensure employment to ESM who in the prime of their life are retired from the armed forces. Even if the new agency is one sponsored by the DGR, the employment of such agency by a tender for W.P.(C) No. 37060, 38097 & 38222 of 2017 -12- outsourcing the maintenance work in the midst of a valid term of another contract would interfere with the level playing field offered by the guidelines.
12. Either way it results in flagrant violation of the spirit and intent of the policy, to provide and ensure continued employment to Ex-servicemen officers and soldiers till the age of 60 years, framed by the Central Government. The Scheme is framed for reason of the officers and soldiers from the armed forces retiring at an early age, than in the other services. Though not capable of the exacting standards required in the armed forces they are, all the same, in the prime of their life, capable of carrying out other jobs. They voluntarily took up employment with the armed forces and hence were denied a civil job in which they would have retired normally after reaching a ripe age. A citizen who took up the job in the armed services and having served the W.P.(C) No. 37060, 38097 & 38222 of 2017 -13- Country during his prime of youth, cannot be left to be wasted after retirement. Resettlement of service personnel is hence taken up by the Government, with all earnestness, which cannot be foiled by such measures.
13. On the above reasoning the termination orders impugned in the various writ petitions are set aside. The petitioners would be allowed to continue till the expiry of the term of their contract. The respondent Corporation would be entitled to seek permission from the Ministry of Public Enterprises to bring in any change in policy. Till that is done the policy of the Central Government will have to be adhered to.
The writ petitions are allowed. No Costs.
Sd/-
K.VINOD CHANDRAN, JUDGE jjj 30/11/17