IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 WP(C).No. 30264 of 2010(G) -------------------------- PETITIONERS: -------------------- 1. P.VIJAYAKUMAR, AGED 41 YEARS, S/O.AYYAPPAN, PILAKKIL HOUSE, GANESSAGIRI P.O., MUNDAYA, PALAKKAD DISTRICT. 2. K.UMESHBABU, S/O. LATE K.THUPPAN EZHUTHACHAN, KUNNATH HOUSE, MANNAUR P.O., KAVALAPPARA (VIA), PALAKKAD DIST. 3. V.SASI, AGED 49 YEARS, S/O.VELAYUDHAN, KARAMKOTTUKONAM, CHAMAVILA VEEDU, PEYADU, THIRUVANANTHAPURAM- 695 573. 4. K.NARAYANAN KUTTY, AGED 42 YEARS, S/O.LATE ACHUTHAN NAIR, KATTIPATH HOUSE,CHAZHUR PO TRICHUR 680 571. 5. C.K.RATNAKUMAR, AGED 38 YEARS, S/O.LATE KUNJHITTY, CHETHIKKATTIL HOUSE, CHAZHOOR P.O., TRICHUR-680 571. 6. V.E.RAMACHANDRAN, AGED 45 YEARS, S/O.SHANKUNNI NAIR, VADAKKE ELATH HOUSE, CHAZHOOR P.O., TRICHUR- 680 571. 7. N.A.SIDHARTHAN, AGED 44 YEARS, S/O.N.M.AYYAPPAN, NAMBATTY HOUSE, VALAPPAD P.O., TRICHUR- 680 567. 8. K.J.SHAJU, AGED 43 YEARS, S/O.JACOB, KALLIKADAN HOUSE, KADANNUR P.O., TRICHUR 680 574. 9. N.A.VINOD KUMAR, AGED 45 YEARS, S/O.LATE APPUKUTTY, NEDIYARA HOUSE, THALIKULAM P.O., TRICHUR- 680 569. 10. M.D.BABU (OUSEPH M.D.), AGED 47 YEARS, S/O.LATE DEVASSY, MAROTTICAKAL THYCATTUCHERRY, TRICHUR- 680322. BY ADVS. SRI.G.D.PANICKER SMT.JEENA JOSEPH WP(C).No. 30264 of 2010(G) ------------------------------------- RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, LABOUR DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001. 2. PUBLIC SERVICE COMMISSION, REPRESENTED BY SECRETARY, PATTAM, THIRUVANANTHAPURAM- 695004. 3. THE KERALA STATE ELECTRICITY BOARD, REP.BY SECRETARY VAIDYUDHI BHAWAN, PATTOM, THIRUVANANTHAPURAM- 695 004. ADDL. R4 IMPLEADED --------------------------------- ADDL.R4. DEPUTY LABOUR COMMISSIONER, KAKKANAD, ERNAKULAM; IS IMPLEADED AS ADDL. R4, AS PER ORDER DT. 19.1.10 IN IA 15881/10 R 1, 4 BY GOVERNMENT PLEADER, SRI.ASIF R2 BY ADV. SRI.ALEXANDER THOMAS, SC, PSC R3 BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/12/2010, ALONG WITH COC NO.1156 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30264 of 2010(G) ------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF THE EXTRACT OF THE LIST OF WORKMAN INVOLVED IN I.D.NO.27/2002.. EXT.P2. COPY OF THE AWARD DATED 15.12.2004 IN I.D. NO.27/2002 PASSED BY THE INDUSTRIAL TRIBUNAL, PALAKKAD. EXT.P3. COPY OF THE JUDGMENT IN W.P © NO.28836/2005 DATED 16.11.2007. EXT.P4. COPY OF JUDGMENT IN W.P.(C) NO.18084/2006, DATED 16.11.2007. EXT.P5. COPY OF THE JUDGMENT IN W.A. NO.627/2008 DT. 10.7.2008. EXT.P6. COPY OF THE JUDGMENT IN W.A.615/2008 DT.22.10.2008. EXT.P7. COPY OF THE MOTHLY FOR JULY 2010 PUBLISHED BY THE KSEB WORKERS UION (CITU). EXT.P8. COPY OF THE NOTIFICATION DATED 30.1.2008 ISSUED BY THE 2ND RESPONDENT, PSC, DISTRICT OFFICE, PALAKKAD. EXT.P9. COPY OF THE LETTER NO.P11 (3) 2312/06 DT. 18.08.2010. EXT.P10. COPY OF THE CIRCULAR DATED 16.9.2009, ISSUED BY 3RD RESPONDENT. RESPONDENT'S EXHIBITS : NIL. -------------------------------------- / TRUE COPY P.A. TO JUDGE VK C.T.RAVIKUMAR, J. ----------------------------------------- W.P. (C) NO.30264 OF 2010 & CONT.CASE(Civil) No.1156 OF 2008 ---------------------------------------- Dated this the 7th day of December, 2010. JUDGMENT Writ petitioners are petty contractors and contract line workers under the Kerala State Electricity Board (for short 'KSEB'). This writ petition has been filed mainly to redress the grievances relating non implementation of the award of the Industrial Tribunal Palakkad in ID No. 27 of 2002. Further prayer is to issue a direction to the first respondent to appoint a Deputy Labour Commissioner and an Additional Labour Commissioner in pursuance to the request dated 25.5.2010. Evidently, as per Ext.P2 award the following directions were issued to the management:- “ a) 25% of the existing vacancies as well as the vacancies that may arise during a period of five years from the date of this award shall be reserved for appointment from among the petty contractors and contract line workers. There shall be appropriate percentage of communal reservation within this 25% in terms of Articles 16 and 335 of the Constitution of India. b) The management shall in consultation with the State Government nominate an officer not below the rank of Deputy Labour Commissioner to prepare a State-wide seniority list of petty contractors and contract line workers who had worked not less than 1200 days preceding the date of this award and the same shall be published on the notice boards of all the offices of the management from where this category of workmen are deputed for works. Similarly an officer not below the rank of additional Labour Commissioner in the State Labour Department shall be W.P. (C) NO.30264 OF 2010 & CONT.CASE(Civil) No.1156 OF 2008 2 authorised to finalise the seniority list after conducting personal hearing of the workmen who have submitted objections to the draft list and the final seniority list shall also be published in the same manner as stated above. c) All persons whose names figured in the final seniority list and who satisfy all the qualifications for appointment of electricity workers as per the orders of the management which are in force as on the date of this award, except the condition of maximum age limit, shall be eligible for submitting applications for appointment in terms of this award. d) The maximum age limit for appointment as per this award shall be 50 years as on the date of notification inviting applications for appointment. e) The management shall be free to formulate and finalise a recruitment procedure incorporating the above directions in consultation with KPSC as per Sec.3 of Kerala Public service Commission (Addl. Functions) Act, 1963. f) The KPSC shall be authorised to conduct a suitability test/interview and submit a select list of successful candidates. g) The management shall comply with the above directions and ensure that the selection process for appointment against 25% of the existing vacancies is completed within 120 days from the publication/pronouncement of this award and appointments are made within 60 days from the date of publication of select list byh KPSC. h) If sufficient candidates are not available for filling up 25% vacancies in terms of this award, the remaining posts shall be treated as general.” 2. The said award was challenged before this Court in W.P. (C) No. 28836 of 2005. As per Ext.P3 judgment the said writ petition was dismissed with certain clarifications. Against Ext.P3 judgment two writ appeals viz., writ appeal Nos.627 of 2008 and 615 of 2008 were unsuccessfully attempted. The former writ W.P. (C) NO.30264 OF 2010 & CONT.CASE(Civil) No.1156 OF 2008 3 appeal was disposed of as per Ext.P5 judgment and latter writ petition was disposed of as per Ext.P6 judgment. The Special Leave Petition preferred against Ext.P5 judgment by the KSEB was also dismissed. However, the respondents have not complied with the directions in Ext.P2 award as clarified in Ext.P3 judgment. The sum and substance of the petitioners' contention is that the 3rd respondent is bound to comply with the directions given under Ext.P2 award subject to the clarifications made under Ext.P3 judgment and the fruits of the award and the judgment shall not be permitted to be deprived of. 3. I have heard the learned counsel appearing for the petitioner, the learned Government Pleader the learned standing counsel for the second respondent and also the learned standing counsel for the third respondent. 4. A contempt case has also been filed on being aggrieved by the non-compliance with the judgment in W.P.(C).No.28836 of 2005 dated 16.11.2007. It has been brought to my notice that with a view to draw a seniority list in terms of the directions in Ext.P2 award from amongst persons who are included in WW 23 and 24 referred to in Ext.P2 award, the Deputy Labour W.P. (C) NO.30264 OF 2010 & CONT.CASE(Civil) No.1156 OF 2008 4 Commissioner, Ernakulam was nominated as the officer. In fact, the said nomination is in tune with the directions under Clause (b) in paragraph 48 of Ext.P2 judgment. Evidently, the Deputy Labour Commissioner is nominated to prepare a statewise seniority list of petty contractors and contract line workers in terms of Ext.P2 award which was clarified as per Ext.P3 judgment. Going by Ext.P2 and Ext.P3 an Additional labour Commissioner has also to be nominated for the purpose of finalising the seniority list drawn by the Deputy Labour Commissioner. After finalisation of such a list qualified persons from among those included in WW 23 and 24 have to submit their applications. Obviously, as per the directions issued under Ext.P2 award the eligibility and entitlement to make such applications are limited to those who fall within age limit specified thereunder, viz., 50 years. Admittedly, the post identified for such appointments is Electricity Worker. As per the award 25% of the existing vacancies of electricity workers as well as the vacancies that may arise during the period of 5 years from the date of award were to be reserved for appointment for among the petty contractors and contract line workers. Ext.P2 award is dated 15.12.2004 and Ext.P3 W.P. (C) NO.30264 OF 2010 & CONT.CASE(Civil) No.1156 OF 2008 5 judgment is dated 16.11.2007. Nevertheless, the petitioners are yet to receive the benefits arising out of Exts.P2 and P3. There can be no dispute with respect to the position that further delay in the matter of finalisation of the list and failure on the part of the 3rd respondent in calling for applications in terms of the award from the finalised list would result in denial of the benefits of Ext.P2 award to those persons who would cross the age limit of 50 years on the date of such invitation for application after following the requisite procedures, in terms of directions (d) in Ext.P2. In such eventuality, as per the terms of Ext.P2 award, such vacancies would also be treated as general. Therefore, according to the petitioners the matter cannot brook any further delay and any such delay would hamper their chances of getting an appointment in terms of the directions under Ext.P2 award which stood modified as clarified as per Ext.P3. The said apprehension cannot be said to be an unfounded one in the facts and circumstance. 5. Obviously, for complying with the directions under (c) and (g) of Ext.P2 award and Ext.P3 judgment the Deputy Labour Commissioner is to be nominated for the purpose of preparing a W.P. (C) NO.30264 OF 2010 & CONT.CASE(Civil) No.1156 OF 2008 6 state wise seniority list of petty contractors and contract line workers and an Additional Labour Commissioner has to be nominated for the purpose of its finalisation. The final seniority list is to be forwarded to the Kerala Public Service Commission on receipt of such a list from the Additional Labour Commissioner. The 3rd respondent is to formally finalise the recruitment procedure incorporating the directions in Ext.P2 judgment which stood clarified in Ext.P3 judgment in consultation with Kerala Public Service Commission (Additional Functions) Act, 1963 in terms of directions (e) in Ext.P2 judgment. In fact for a proper implementation of the directions in the award, 3rd respondent shall formally finalise such a recruitment procedure before finalisation of the final seniority list. On receipt of such a final seniority list applications have to be invited from eligible persons who are included in the final seniority list. Appointments have to be effected then, against vacancies specifically reserved in terms of direction No. (a) in Ext.P2 award. As already noticed with a view to implement the directions in Ext.P2 Government have already nominated the Deputy Labour Commissioner as officer to prepare a state wise seniority list in terms of Exts.P2 award and W.P. (C) NO.30264 OF 2010 & CONT.CASE(Civil) No.1156 OF 2008 7 P3 judgment. There is no dispute with respect to the liability of the respondents to implement the various directions in Ext.P2 award in terms of Ext.P3 judgment. At the same time, as noticed hereinbefore, any further delay in the matter of its implementation may ultimately disentitle the petitioners and certain other similar circumstances persons from enjoying the fruits of Ext.P2 award in terms of Ext.P2. At any rate, such an eventuality has to be averted. In the said circumstances the Deputy labour Commissioner, Ernakulam who was nominated as the Officer to prepare a state wise seniority list and petty contractors and contract line workers in terms of the directions in Ext.P2 award and Ext.P3 judgments shall draw draft seniority list in terms of the directions thereunder expeditiously at any rate within a period of one month from the date of receipt of a copy of this judgment and forward the same to the KSEB to publish the same in the manner and for the purpose, in terms of Ext.P2 award. In the meanwhile, the 3rd respondent shall formally formulate and finalise the recruitment procedure incorporating the directions in Ext.P2 award that stood clarified by Ext.P3 judgment in consultation with the Kerala Public Service W.P. (C) NO.30264 OF 2010 & CONT.CASE(Civil) No.1156 OF 2008 8 Commission as per Section 3 of Kerala Public Service Commission (Additional Functions) Act 1963, in terms of Ext.P2 expeditiously to enable the first respondent to implement the directions in Ext.P2 award, in terms of this judgment. As already noticed the said officer is only to identify the qualified persons from among those included in WW 23 and 24 in Ext.P2 award. In the meanwhile the first respondent shall nominate an Additional Labour Commissioner in the State Labour Department for the purpose of finalising the draft list to be drawn by the Deputy Labour Commissioner, Ernakulam in terms of Ext.P2 award and Ext.P3 judgment. The Additional Labour Commissioner has to be nominated for that purpose by the first respondent within a period of two weeks from the date of receipt of the copy of the judgment. Needless to say that the Additional Labour Commissioner, Ernakulam shall finalise the draft list in accordance with the directions in Ext.P2 award and Ext.P3 judgment within one month from the date of receipt of draft list. On its finalisation the 3rd respondent shall take immediate steps for the purpose of calling applications from among those who are included in the final seniority list for appointment in terms of Ext.P2 award and W.P. (C) NO.30264 OF 2010 & CONT.CASE(Civil) No.1156 OF 2008 9 Ext.P3 judgment. It shall be done within one month from the date of finalisation of the final the seniority list. In terms of Ext.P2 award the entire expenses have to be borne by the 3rd respondent. The writ petition is disposed. CONT.CASE(Civil) No.1156 OF 2008: The above contempt petition has been filed alleging non compliance with the directions in W.P.C.12473 of 2007 read with judgment dated 1611 of 2007 in W.P.C.No.28836 of 2005. In view of the judgment in W.P.(C) No. 36264 of 2010, this contempt petition is closed. C.T.RAVIKUMAR, JUDGE. mns