IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 Con.Case(C).No. 1748 of 2007(S) ------------------------------- AGAINST THE JUDGEMENT IN WA.1267/2007 Dated 19/06/2007 .................... PETITIONER: PETITIONER: -------------------------- VARGHESE, AGED 39 YEARS, S/O. MATHAI VAREED, SIRKAR VELI, AARATTUVAZHI WARD, A.S.ROAD,ALAPPUZHA ADDL. PETITIONERS: 2. ANTONY, S/O.E. ANTHAPPAN, SIRKAR VELI, ARATTUVAZHI WARD, A.S.ROAD, ALAPPUZHA. 3. J.FRANCIS, SON OF JOSEPH, SIRKAR VELI, ARATTUVAZHI WARD, A.S.ROAD, ALAPPUZHA. 4. K.J..MARTIN, SON OF JANUVARIES, SIRKAR VELI, ARATTUVAZHI WARD, A.S.ROAD, ALAPPUZHA. 5. K.A.ANTONY, SON OF ANTHONI, SIRKAR VELI, ARATTUVAZHI WARD, A.S.ROAD, ALAPPUZHA. 6. JACOB THOMAS, SON OF THOMAS, SIRKAR VELI, ARATTUVAZHI WARD, A.S.ROAD, ALAPPUZHA. 7. BENEDICT, SON OF ANTHAPPAN, SIRKAR VELI, ARATTUVAZHI WARD, A.S.ROAD, ALAPPUZHA. 8. JAMES P.D., SON OF P.A.DEVASSY, SIRKAR VELI, ARATTUVAZHI WARD, A.S.ROAD, ALAPPUZHA. 9. DEVASSY, SON OF ISSAC, SIRKAR VELI, ARATTUVAZHI WARD, A.S.ROAD, ALAPPUZHA. (ADDL PETITIONERS 2 TO 9 ARE IMPLEADED VIDE ORDER DT. 10.3.08 IN IA NO.128/2008) BY ADV. SRI.B.GOPAKUMAR SMT.CHINCY GOPAKUMAR COC 1748/2007 RESPONDENT(S): --------------- 1. T. SANTHOSH, (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER) SECRETARY, ALAPPUZHA MUNICIPALITY, MUNICIPAL OFFICE, ALAPPUZHA. 2. P.P. CHITHRANJAN, (AGE AND FATHER'S NAME NOT IKNOWN TO THE PETITIONER) CHAIRPERSON/CHAIRMAN, ALAPPUZHA MUNICIPALITY, MUNICIPAL OFFICE, ALAPPUZHA. BY SRI.M.K.CHANDRAMOHAN DAS, SC. THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- CONTEMPT CASE (C) NO.1748/2007-S ----------------------------------------- Dated 10th February, 2009. JUDGMENT Balakrishnan Nair, J. The petitioners were the petitioners in W.P.(C) No.21301/2005. They were contingent workers engaged on daily wage basis by the Alappuzha Municipality. They were entitled to get the benefit of G.O. (MS) No.91/2001/L.S.G.D/Tvm dated 29.3.2001, which was produced as Ext.P10 in that writ petition. As per the said Government Order, the persons engaged after 31.12.1991 and before 31.12.2000, irregularly from the open market, are also eligible to be treated as substitute workers and they will be considered for regular appointment according to their turn. The Municipality took the view that the benefit of that G.O can be extended only to persons who were in service on 31.12.2000 and thereafter. Since the petitioners were not engaged on the said date or thereafter, they were denied the benefit of Ext.P10 G.O. The Municipality also contended that there were no records available with it to show that the petitioners were ever COC 1748/2007 2 engaged as contingent workers on daily wage basis. Aggrieved by the said stand of the Municipality, the petitioners approached this Court, by filing the above said writ petition. The said writ petition was allowed, overruling both the objections of the respondents. This Court held that there is nothing in Ext.P10 to indicate that those who were in service as on 31.12.2000 and thereafter alone are eligible for its benefit. It was also held that even if the Municipality is not having any records regarding the engagement of the petitioners, their engagement is proved by the certificates produced by them, which were issued by the concerned Municipal Councillors. So, the learned Single Judge issued the following direction in their favour: “In the result, Exts.P14 and P25 are set aside to the extent it adversely affects petitioners 2 to 9. It is declared that the petitioners are entitled to get the benefit of Ext.P10. There shall be an order directing respondents 1 and 2 to regularise the service of the petitioners in terms of Ext.P10 according to their turn, accepting Exts.P2 to P8 certificates as proof of their daily wage employment during the relevant period. This shall be done as expeditiously as possible, in any event, within six weeks from the date of receipt of a copy of this judgment.” The Municipality appealed, but the appeal was dismissed by Annexure-I judgment. Even after the time limit granted by the Division Bench, when the Municipality did not implement the direction in their favour, issued by COC 1748/2007 3 this Court, the contempt application was filed. 2. The 1st respondent has filed a counter affidavit, stating that the Municipality has implemented the directions issued by this Court. It is submitted that this Court did not issue any direction to straightaway regularize all the petitioners forthwith. The order was to regularize them according to their turn. Going by Ext.P10 G.O and other relevant orders, the persons engaged through the Employment Exchange have to be preferred first for regularization. Thereafter, the persons engaged between 31.12.1991 and 31.12.2000 have to be considered for regularization. For the said purpose, the Municipal Council has prepared a seniority list of daily wage contingent workers. A copy of the same is produced as Annexure-R1 (a). The first 30 persons named therein are persons employed through Employment Exchange. Serial Numbers 31 to 49 are persons engaged on casual basis, directly from the open market, as per the records available in the Municipality. The persons listed as Serial Numbers 50 to 58 are the petitioners. It is submitted that the petitioners will be considered for regularization, as and when their turn arises in accordance with Ext.R1(a). Therefore, the respondents submit that they have not violated the direction of this Court. 3. The petitioners have filed a reply affidavit, stating that the persons COC 1748/2007 4 engaged subsequent to their engagement on casual basis from the open market and that too, for a few days, have been regularized as contingent employees and were placed in a time scale of pay, as per Annexure-XIII order. All the petitioners have longer service and were engaged earlier also, when compared to all the persons included in Annexure-XIII. So, an order similar to Annexure-XIII should have been passed in their case also. Then only it can be said that the respondents have obeyed the direction issued by this Court, it is submitted. 4. We heard the learned counsel on both sides. They reiterated their respective submissions, which we have noted above. The respondents have implemented the judgment as they understood it. In purported implementation of it, they have issued Annexure-R1(a) list also. But, the petitioners, as mentioned earlier, want an order in the nature of Annexure- XIII. Whether they are entitled to such an order based on Annexure-II judgment, which was affirmed by Annexure-I judgment, is a matter which can be decided only in a writ petition and not in this contempt application. Therefore, we are not inclined to proceed further with the contempt application. Accordingly, it is closed without prejudice to the contentions COC 1748/2007 5 of the petitioners and their right to work out their remedies against Ext.R1(a). K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm/