IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 32117 of 2007(W) 1. WILSON JACOB, JUNIOR FIELD OFFICER, Petitioner 2. C.VENUGOPALAN, ASSISTANT SECURITY 3. V.V.VASU, FIELD SUPERVISOR, 4. V.K.CHANDU, -DO- -DO- 5. A.T.BALAN, -DO- -DO- 6. K.R.SASI, -DO- -DO- 7. R.RAMUNNI, -DO- -DO- 8. P.PRABHAKARAN, -DO- -DO- 9. A.M.GOPALAN, -DO- -DO- 10. C.RAMACHANDRAN, -DO- -DO- 11. K.KRISHNAN, -DO- -DO- 12. K.T.MANIYAN, -DO- -DO- 13. M.BALAKRISHNAN, -DO- -DO- 14. K.LEELAMMA, -DO- -DO- 15. A.M.CHANDRAN, -DO- -DO- 16. M.C.RAMANAN, -DO- -DO- 17. B.BALAN, -DO- -DO- 18. A.VELAYUDHAN, -DO- -DO- 19. A.CHIMBAN, -DO- -DO- 20. T.K.UNNI, -DO- -DO- 21. K.KUNKAN, -DO- -DO- 22. P.M.SUKUMARAN, -DO- -DO- 23. K.N.DAYAN, -DO- -DO- 24. N.PADMANABHAN, -DO- -DO- 25. P.ANILKUMAR, -DO- -DO- 26. V.HARIDASAN, -DO- -DO- 27. RAJAN K.CHANNAN, -DO- -DO- 28. E.K.RAMAKRISHNAN, LOWER DIVISON CLERK, 29. DAISAMMA JOSEPH, -DO- -DO- 30. K.T.RAMACHANDRAN, -DO- -DO- 31. K.RAGHAVAN, -DO- -DO- 32. K.MANORANJAN, TYPIST CUM CLERK, 33. P.VENU, -DO- -DO- 34. V.P.VENUGOPALAN, OFFICE MANAGER, 35. V.ACHUTHAN, PEON, -DO- -DO- 36. BHOJ BHADAR SINGH, SECURITY GUARD, 37. BUDHI BHADUR, -DO- -DO- 38. KUMAR SINGH, -DO- -DO- 39. POORNA BHADUR, -DO- -DO- 40. T.K.VELAYUDHAN, FIELD ASSISTANT, 41. ANNAN, -DO- -DO- 42. P.C.MANI, -DO- -DO- 43. P.P.RAJAN, -DO- -DO- 44. C.S.BASTIAN, -DO- -DO- 45. SEKHARAN, DRIVER, -DO- -DO- 46. N.PRABHAKARAN ADIYODI, CURINGMAN, 47. A.VASUDEVAN, BLACKSMITH, 48. K.SOMAN, WATCHMAN CUM COOK, 49. P.K.LEELA, MASALACHI, -DO- -DO- 50. P.SAHADEVAN, CARPENTER, -DO- -DO- 51. A.K.ANNAMMA, TYPIST, -DO- -DO- Vs 1. THE STATE OF KERALA, REPRESNETED BY THE Respondent 2. THE DIRECTOR, 3. THE SOUTH WYNAD GIRIJAN JOINT FARMING 4. THE DISTRICT COLLECTOR, 5. THE REGIONAL PROVIDENT FUND For Petitioner :SRI.J.OM PRAKASH For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice S.SIRI JAGAN Dated :15/06/2009 O R D E R [ENTITY], J. =-=-=-=-=-=-=-= =-=-=-=-=-=-=-=-=-= W. P (C) No. 32117 of 2007 =-=-=-=-=-=-=-=-= =-=-=-=-=-=-=-=-= Dated this, the 15th June, 2009. J U D G M E N T
The petitioners are employees of the erstwhile South Wyanad Girijan Joint Farming Co-operative Society Ltd., No. D2301, popularly known as Sugandhagiri Cardamom Project, which was established by the Government of Kerala. The Government decided to wind up that Society and in March, 2003 all the labourers of the Society were retrenched from service. However, no formal orders retrenching the staff of the Society were issued by the Society or the Government. According to the petitioners, since there were no formal orders terminating their services, they continued to attend the office and signed the attendance register. But, they were not being paid salary. They approached this Court by filing [CASE NUMBER], in which, by judgment dated 8-2-2006, this Court directed the Government to consider the grievances of the petitioners. Thereafter, the Government passed Ext. P14 order, whereby the scheme for retrenchment of the staff was framed. However, there was no provision in Ext. P14 for payment of salary for the period from March, 2003 to 16-10-2006, which is the date of Ext. P14. Instead, certain payments allegedly made to the petitioners as six months' salary were also adjusted against the retrenchment compensation payable to the petitioners as per Ext. P14 scheme. Prior to issuing Ext. P14 order, the Government had passed Ext. P13 order rejecting the claim of the petitioners for arrears of salary from March, 2003 onwards. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs:
"(i) Issue a writ of certiorari calling for the records relating to Ext. P13 and quash the same;
(ii) Issue a writ of mandamus directing the respondents 1 to 4 to pay the salary of the petitioners till 16-10-2006.
(iii) direct the first respondent to calculate all amounts due to the petitioners as per the revised scale of pay as per G.O.125/2006 Fin. dated 17-3-2006 and G.O.145/2006 Fin. dated 25-3-2006 and modify the Ext. P14 scheme accordingly and pay the same as shown in Ext. P26 schedule.
(iv) issue a writ of certiorari calling for the records relating to Ext. P11 and quash that part of the same which says that the amount stated in it will be adjusted against the final retrenchment package to the employees of the Sugandhaagiri Cardamom project as and when it is introduced.
(v) direct the 5th respondent to abstain from adjusting or removing any amount paid as per Ext. P24 towards any other liability of the 3rd respondent."
2. According to the petitioners, in so far as there is no formal order retrenching the service of the petitioners, they must be deemed to be continuing in service up to 16-10-2006, when only they were formerly retrenched from service and therefore they are entitled to salary for the period from March, 2003 to 16-10-2006 also. Learned counsel for the petitioner would rely upon the decision of the Supreme Court in [PRECEDENT], wherein the Supreme Court has upheld the right to livelihood in respect of matters of employment. The counsel for the petitioners wants this Court to extend the same proposition of law laid down in that case to the petitioners in this case.
3. Counter affidavits have been filed by respondents 1, 2 and 5. The learned Government Pleader would submit that the counter affidavit filed on behalf of the 2nd respondent is actually filed on behalf of the 4th respondent-[ENTITY]. The contentions raised in the counter affidavits are essentially to the effect that since the petitioners are not admittedly worked for the period, they are not entitled to salary for the period. In the counter affidavit of the 1st respondent, another contention is also taken to the effect that since the petitioners themselves had earlier filed [CASE NUMBER] to implement Ext. P14, they cannot now turn around and contend that the same should now be modified to grant them salary also for the period in question.
4. In answer to the same, quoting from the reply affidavit, learned counsel for the petitioners would contend that the right to challenge that part of Ext. P14 order, whereby the salary was denied to the petitioners, has been reserved in the writ petition itself by referring to Ext. P28 copy of the writ petition in that case. The petitioners also rely on the decision of the Supreme Court in [PRECEDENT], wherein the Supreme Court has held that when in a suit right to proceed for another s relief had been reserved in the suit, filing of another suit for that reserved relief is not barred by the earlier suit.
5. I have considered the rival contentions in detail.
6. Admittedly, for the period in question, the petitioners had not worked at all. Of late, Supreme Court has changed its earlier view regarding payment of back wages. The Supreme Court has now laid down the law that payment of back wages is not automatic. It depends on the facts and circumstances of each case. This is clear from the decision in [PRECEDENT], in which it is held thus:
"5. But the manner in which "back wages" is viewed, has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement. We may refer to the latest of a series of decisions on this question. In U.P. State Brassware Corpn. Ltd. v. [ENTITY], (2006) 1 SCC 479, this Court following [PRECEDENT] and [ENTITY] v. S.C. Sharma, (2005) 2 SCC 363, held as follows: ([ENTITY] case, SCC p. 480d-g) "A person is not entitled to get something only because it would be lawful in do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance.
Although direction to pay full back wages on a declaration that the order of termination was in valid used to be the usual result, but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. The changes brought about by the subsequent decisions of the Supreme Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident.
No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of [SECTION] of the [ACT]. While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages cannot be the natural consequence."
In [PRECEDENT], this Court observed: (SCC p. 596, para 8) "8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of [SECTION] of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wages employment though it may be for 240 days in a calender year."
16. There has also been a noticeable shift in placing the burden of proof in regard to back wages. In [ENTITY], this Court held: (SCC p. 366, para 16) "When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard."
In U.P. State Brassware Corpn. Ltd., this Court observed:
(SCC p.495, para 61) "61. It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raises the aforementioned plea but having regard to the provisions of [SECTION] of the [ACT] or the provisions analogous thereto, such a plea should be raised by the workman."
17. There is also a misconception that whenever reinstatement is directed, "continuity of service" and "consequential benefits"
should follow, as a matter of course. The disastrous effect of granting several promotions as a "consequential benefit" to person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether "continuity of service" and/or "consequential benefits" should also be directed. We may in this behalf refer to the decisions of this Court in [PRECEDENT], [PRECEDENT] and [PRECEDENT].
"18. Coming back to back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages in addition to the several factors mentioned in [PRECEDENT] and [ENTITY] [(2006) 1 SCC 479]. Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venue and that he did not have any income. Then the burden will shifts to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may." Although in this case there is no issues relating to reinstatement, since the petitioners' claim that they are entitled to salary for the period during which they were kept out of employment, that question has to be considered applying the principles regarding payment of back wages as stated in the above decision. Therefore, what I have to consider in this writ petition is as to whether the petitioners are entitled to wages for the period from March, 2003 to 16-10-2006 during which period, the petitioners had not admittedly worked. The petitioners themselves admit that in March, 2003, the Government had decided to close down the project and distribute the land of the Society to the tribals who are the members of the society. The society itself was formed for cultivating that land, which was transferred to the society by the Government, using the labour force of the tribals. That being so, once the lands are distributed to the tribals, practically, there is no other function for the society whatsoever and the continuance in service of the staff would be redundant. In the counter affidavit filed by the 1st respondent, it is categorically stated that the society was wound up with effect from 17-5-2003. When the petitioners had not admittedly worked for the period in question, I do not think that I should exercise my discretionary jurisdiction under [SECTION] of the [ACT] directing payment of salary for that period for the mere fault on the part of the Government or the Society in not issuing a formal order dispensing with their services also like that of the labourers. The petitioners were very well aware of the fact that the project had no further life after March, 2003. They were also aware of the fact that the society was wound up. That being so, there was no point in going on hoping that they would be continued in service. In any event, having not worked for the period in question, I am not inclined to exercise my discretionary jurisdiction to direct the Government or the society to pay them backwages for the period from March, 2003 to 16-10-2006.
7. The petitioners would raise another contention that they were not given the benefits of 2006 pay revision orders. According to them, whenever Government revised pay of its employees, the pay of the employees of the society were also automatically revised and therefore the petitioners are entitled to have their pay revised also.
8. I do not think that, that contention also can be countenanced under law. Admittedly, the society stopped functioning in March, 2003. The 1st respondent has in their counter affidavit stated that the pay revision order of the Government came into force with effect from 1-7-2004. The pay revision orders of the Government do not also automatically become applicable to the employees of the society. For revising salary of the employees, the society has to adopt the pattern of pay revision adopted by the Government and implement the same in the society. Admittedly, that has not happened. I any event, for a society which has stopped functioning in March, 2003 and wound up on 7-5-2003, no pay revision could have been effected from 1-7-2003. For that reason, the second claim of the petitioners cannot also be countenanced.
For the above reasons, I do not find any merit in the writ petition and accordingly the same is dismissed.
[ENTITY], Judge.