IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 RP.No. 428 of 2008() -------------------- AGAINST THE ORDER IN WA.144/2008 Dated 03/03/2008 .................... REVIEW PETITIONERS -------------------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING DIRECTOR 2. THE DISTRICT TRANSPORT OFFICER KERALA STATE ROAD TRANSPORT CORPORATION KOTTARAKKARA BY ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. RESPONDENT: ------------- C.SASIDHARAN NAIR , S/O. CHANDRASEKHARA PILLAI VEHICLE SUPERVISOR (RETD) KSRTC RESIDING AT GIRIJA BHAVAN, THEVALAPPURAM P.O. PUTHOOR, KOTTARAKKARA, KOLLAM DISTRICT THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 07/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N. RAVINDRAN, JJ. --------------------------------------------------------------- R.P.NO.428 OF 2008 in W.A.NO.144 OF 2008 -------------------------------------------------------------- Dated this the 7th day of April, 2008. O R D E R Balakrishnan Nair, J: The respondents in the writ appeal have filed this review petition praying to review the interim order passed by this Court on 3.3.2008. The relevant portion of the said order reads as follows: “We feel that if claims of the writ petitioners are allowed and the amounts due to them are directed to be released from the amounts set apart for the pensioners, who are waiting in the queue for more than three years to receive the pensionary benefits, serious prejudice will be caused to them. It was submitted on behalf of the K.S.R.T.C that the pensioners, who retired up to May, 2004 alone were able to receive the terminal benefits as per the priority list. There is, thus, a delay of about four years in releasing the terminal benefits. If out of turn payments are allowed to the petitioners herein, from the limited amount set apart to the pensioners, the claim of those who are waiting in the queue will be further delayed. Therefore, having regard to the fact that the claims of the petitioners have been found to be genuine by the K.S.R.T.C, we feel that a R.P.NO.428/2008 . 2 direction should be issued to make payment to them from other funds of the K.S.R.T.C, without drawing the same from the 10% amount set apart for payment to the pensioners. We are told that in some of the cases marriages were over because of the delay in hearing these matters and they have conducted the marriages by availing loan from financiers. We are told that, in one case the marriage was postponed for want of funds. So, the K.S.R.T.C. is directed to release the D.C.R.G due to the petitioners herein within one month from today. The payment shall be made from other funds of the K.S.R.T.C and not from the 10% collection set apart for paying amounts due to the pensioners, who are waiting in the queue”. 2. The review petitioners seek review of that order on the following grounds: Firstly, it is submitted that the writ petitioners have obtained an order to get the D.C.R.G due to them released out of turn when several pensioners are waiting in the queue, which will amount to discrimination. Secondly, it is submitted that the order under review has been passed by this Court without giving an effective opportunity to the K.S.R.T.C, to place its contentions before this Court. Thirdly, it is pointed out that the precarious financial position of the K.S.R.T.C was not adverted to by this Court while R.P.NO.428/2008 . 3 passing the interim order. On the above grounds, the review petitioners pray that for meeting the claims of the petitioners, permission may be granted to divert atleast a portion of the 10% amount set apart for making payment to the pensioners. 3. We heard the learned counsel for the writ petitioners also. The 1st ground raised by the K.S.R.T.C is plainly untenable. The order under review takes care of redressing the grievances of the writ petitioners without affecting those who are standing in the queue to receive their pension. If the review is allowed, the payment to the writ petitioners will be made from the 10% amount set apart and the same will affect those who are waiting for years to receive their terminal benefits. So, the 1st ground raised on behalf of other pensioners, if accepted, will in fact go against their interest. The 2nd ground that the K.S.R.T.C was not given an opportunity to place its views is not correct. Nothing prevented the K.S.R.T.C from placing its point of view before this Court. In fact, this Court issued a direction on 25.2.2000, which is extracted as follows: “We feel that the direction of this Court, setting R.P.NO.428/2008 . 4 apart a percentage of the daily collection should be appropriately modified so that the retired employees get their terminal benefits released at least within one year of their retirement. Further, the provident fund amount due to the retired employees should be released within one month of their retirement. There are some exceptional cases where the payment may be required to be made without any reference to the position of the pensioners concerned in the priority list. In such cases, we feel that the K.S.R.T.C should find out other funds to satisfy their claims and not from the amount set apart to meet the pensionary claims of the employees who are standing in the queue after their retirement. The K.S.R.T.C may file its response to the above proposal within one week.” 4. Pursuant to the above direction, the K.S.R.T.C did not file any response as directed by this Court. So, after hearing both sides, the order under review was passed. But, without standing on the above technicality,we are again considering the facts placed by the K.S.R.T.C before this Court in this review petition. According to the K.S.R.T.C, because of the various liabilities it has to discharge, its financial position is very bad. The learned counsel for the writ petitioners on the other hand pointed out that the KSRTC has omitted to state about the revenue received by it from other sources like licence fee of the rooms in the shopping complexes attached to the bus stations etc; other than the income generated from R.P.NO.428/2008 . 5 operating the vehicles. 5. We assume that the financial position of the K.S.R.T.C is very precarious. We think, it is a poor defence for not paying the D.C.R.G due to the retired employees when they are in dire need of it. The claims made by the writ petitioners have been accepted as genuine by the K.S.R.T.C also. The employees of the K.S.R.T.C are being paid the D.C.R.G as per the provisions of the K.S.R. Unless exempted from the provisions of the Payment of Gratuity Act, 1972, the claim of the employees for the D.C.R.G will be covered by the said Act also. As per Section 9 of the Act, there is a mandatory punishment of six months' imprisonment for the default to pay gratuity payable under the Act. This is the legislative policy concerning payment of gratuity. The Apex Court dealing with the disability of an establishment to pay minimum wages as per the notification under the Minimum Wages Act said that an industry which cannot pay the minimum wages should be close down. We think, the said principle would apply in the case of an industry which cannot pay gratuity to its employees. We find no merit in the review petition. The prayer of the review petitioners to permit them to divert atleast a portion of the 10% amount set apart R.P.NO.428/2008 . 6 for payment to the pensioners, cannot be accepted. In the result, the review petition fails and it is dismissed. K. BALAKRISHNAN NAIR, JUDGE P.N. RAVINDRAN, JUDGE. cl