IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 WA.No. 2304 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.22273/2007 Dated 09/09/2009 .................... APPELLANT(S): PETITIONER: ------------------------- ASHOKAN VELUTHAN, SANITATION WORKER KANNUR MUNICIPALITY, MUNICIPAL OFFICE, KANNUR-2. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): RESPONDENTS: --------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KANNUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, KANNUR-2. 3. SECRETARY, KANNUR MUNICIPALITY MUNICIPAL OFFICE, KANNUR-2. ADV. SRI.V.M.KURIAN FOR R2&R3 GOVT.PLEADER SMT.R.BINDU. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2010, ALONG WITH WA NO. 2316 OF 2009 THE COURT ON 18.02.2010 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------------- W.A.Nos.2304 & 2316 of 2009 ---------------------------------------------------- Dated this the 18th day of February, 2010. JUDGMENT Ravindran, J. Writ Appeal No.2304 of 2009 arises from W.P.(C) No.22273 of 2007 and Writ Appeal No.2316 of 2009 arises from W.P.(C) No.508 of 2007. The appellants are the writ petitioners. The writ petitions were heard and disposed of by a common judgment. Therefore, these writ appeals were also heard together and are being disposed of by this common judgment. 2. The brief facts are as follows: The appellant in W.A.No.2304 of 2009 commenced service as Contingent Worker in the Kannur Municipality on 14.2.1989 and the appellant in W.A.No.2316 of 2006 commenced service as Contingent Worker in the Kannur Municipality on 1.12.1987. They were recruited through the Employment Exchange. In Ext.P2 seniority list produced in W.P.(C) No.22273 of 2007, the name of the appellant in W.A.No.2304 of 2009 appears at Sl.No.17. In Ext.P2 seniority list produced in W.P.(C) No.508 of 2007, the name of the appellant in W.A.No.2316 of 2009 appears at Sl.No.47. The W.A.Nos.2304 & 2316/2009 2 appellant in W.A.No.2304 of 2009 was regularised in service as Sanitation Worker with effect from 13.8.2004 by Ext.P3 order produced in W.P(C) No.22273 of 2007 and the appellant in W.A.No.2316 of 2009 was likewise, regularised in service as Sanitation Worker by Ext.P3 order dated 21.8.2003 produced in W.P.(C) No.508 of 2007 with effect from 21.8.2003. 3. 19 contingent workers who were junior to the appellant in W.A.No.2304 of 2009 were regularised in service as Sanitation Workers pursuant to the award passed by the Labour Court, Kannur on 30.12.1996 in I.D.No.40 of 1996 with effect from 5.2.1994. Likewise, 16 contingent workers who were junior to the appellant in W.A.No.2316 of 2009 were regularised in service as Sanitation Workers pursuant to the award passed by the Labour Court, Kannur on 27.7.1005 in I.D.No.24 of 1994 with effect from 26.3.1993. The appellants thereupon claimed regularisation in service with effect from dates on which their juniors were regularised in service. Their claim for such regularisation was rejected by the Secretary of Kannur Municipality. The appeal filed therefrom was rejected by the Municipal Council. Their representations to the Government were W.A.Nos.2304 & 2316/2009 3 also rejected. The writ petitions were thereupon filed claiming regularisation in service with effect from the dates on which the appellants' juniors were regularised in service. The appellants contended that as their juniors have been regularised in service with effect from earlier dates, they are also entitled to be regularised in service with effect from the date on which their juniors were regularised. It was contended that the rejection of their requests in that regard is arbitrary and discriminatory. 4. The Kannur Municipality filed a counter affidavit resisting the writ petitions and justifying the stand taken by the Municipality and the Government in the impugned orders. It was contended that persons junior to the appellants were regularised in service pursuant to the awards passed by the Labour Court, Kannur to which they were parties and that the appellants who are not parties to the industrial dispute cannot claim regularisation based on the awards passed by the Labour Court, Kannur in I.D.Nos.24 of 1994 and 40 of 1996. The learned Single Judge who heard the writ petitions held that the appellants cannot be denied regularisation with effect from the dates on which their juniors were regularised in service merely for the W.A.Nos.2304 & 2316/2009 4 reason that they are not parties to the industrial dispute. The learned single Judge held that the appellants are entitled to be regularised in service with effect from the date on which their immediate juniors were regularised. The writ petitions were accordingly allowed, the impugned orders were quashed and Kannur Municipality was directed to regularise the appellants in service with effect from the date on which their juniors were regularised pursuant to the awards passed by the Labour Court, Kannur. The learned single Judge however held that the appellants will not be eligible for monetary benefits except to have their pay and other benefits notionally fixed with effect from the dates on which they are retrospectively regularised. The Kannur Municipality was directed to issue orders regularising them in service within eight weeks from the date of receipt of a certified copy of the judgment. The writ petitioners have, aggrieved by the direction issued by the learned Single Judge that they will not be entitled to monetary benefits but only for notional fixation of pay and other benefits, filed these writ appeals canvassing the correctness of the said direction. 5. We heard Sri.P.M.Pareeth, the learned counsel for the W.A.Nos.2304 & 2316/2009 5 appellants. We have also gone through the pleadings and the materials on record. The learned counsel for the appellants contended relying on section 18 (3) (d) of the Industrial Disputes Act, 1947 that though the appellants are not parties to the awards passed by the Labour Court, Kannur in I.D.Nos.24 of 1994 and 40 of 1996, they are entitled to all the benefits flowing therefrom. The learned counsel for the appellants contended that the awards passed by the Labour Court, Kannur in favour of their juniors in service, enure to their benefit and, therefore, they are entitled to monetary benefits also with effect from the date of retrospective regularisation. 6. Though the learned single Judge held that the appellants are also entitled to be regularised in service with effect from the dates on which their juniors were regularised, the learned single Judge held that the appellants will not be entitled to claim monetary benefits from the date they are retrospectively regularised in service till 13.8.2004 and 21.8.2003 the dates on which they were initially regularised. Persons junior to the appellant in W.A.No.2304 of 2009 were regularised in service with effect from 5.2.1994 pursuant to the award passed by the W.A.Nos.2304 & 2316/2009 6 Labour Court, Kannur in I.D.No.40 of 1996 on 3.12.1996. Persons junior to the appellant in W.A.No.2316 of 2009 were regularised in service with effect from 26.3.1993 pursuant to the award passed by the Labour Court, Kannur on 27.7.1995 in I.D.No.24 of 1994. The appellants did not move for regularisation immediately thereafter. They moved for regularisation contending that their juniors have been regularised in service with effect from an earlier date only in the year 2005, nearly a decade after the Labour Court ordered regularisation of their juniors in service. The appellants have no case that they were not aware of the awards passed by the Labour Court directing regularisation of their juniors in service. In our opinion, the appellants who did not seek regularisation with effect from an earlier date immediately after the Labour Court passed awards in favour of their juniors directing their regularisation with effect from 5.2.1994 and 26.3.1993 cannot be heard to contend that they should be given monetary benefits also with retrospective effect. The learned single Judge has, in our opinion, rightly declined the benefit of arrears of salary and other benefits to the appellants. The learned single Judge however protected the pay W.A.Nos.2304 & 2316/2009 7 of the appellants by granting them notional fixation of pay and other benefits. 7. The learned Single Judge has as a matter of fact applied the principle underlying section 18(3)(d) of the Industrial Disputes Act, 1947 to hold that the appellants are also entitled to regularisation. Section 18 (3) (d) of the Industrial Disputes Act, 1947 does not, in our opinion, entitle the appellants to contend that they are entitled to monetary benefits also with effect from the dates of their retrospective regularisation. The appellants did not seek regularisation in service for more than a decade. Their juniors in service had staked a claim for regularisation and the dispute raised by them in that regard was referred to the Labour Court, Kannur for adjudication way back in the year 1994 and 1996. They waited till the awards passed by the Labour Court, Kannur in I.D.Nos.24 of 1994 and 40 of 1996 directing regularisation of their juniors in service, were implemented. They did not raise any grievance in regard to their conditions of service or put forward a claim for regularisation for more than a decade after the Labour Court directed regularisaion of their juniors in service. In such circumstances, we are of the opinion W.A.Nos.2304 & 2316/2009 8 that the learned Single Judge was justified in declining the appellants' payment of monetary benefits with retrospective effect. We are also not satisfied that the discretion exercised by the learned Single Judge is perverse. The conduct of the appellants who had chosen to wait for nearly a decade after the Labour Court, Kannur passed awards directing regularisation of their juniors in service dis-entitles them from claiming monetary benefits with retrospective effect. We, therefore, find no ground to interfere with the judgments under appeal. For the reasons stated above we hold that there is no merit in the writ appeals. The writ appeals fail and are accordingly dismissed. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge vaa