IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 WP(C).No. 9289 of 2006(E) ------------------------------------ PETITIONER: ------------------ SMT. ANNIE FRANCIS, SUPERINTENDANT (H.R.M.), THE KERALA AGRO MACHINER CORPORATION LTD., KALAMASSERY UNIT. BY ADV. SRI.JOMMY THARIAN RESPONDENTS: ---------------------- 1. THE KERALA AGRO MACHINERY CORPORATION LTD., REGISTERED OFFICE, ATHANI-683585, ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE SECRETARY, KAMCO WELFARE CENTRE, ATHANI-683585. BY ADV. SRI.A.M.SHAFFIQUE SRI.A.M.SHAFFIQUE SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 9289/2006 E APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE NOTICE DT. 30/09/94 BY THE R1. EXT.P2. COPY OF THE LETTER DT. 4/3/98 BY THE R1. EXT.P3. COPY OF THE LETTER DT. 20/07/98 BY THE PETITIONER TO THE R1. EXT.P4. COPY OF THE LETTER DT. 5/12/97 BY THE PETITIONER TO THE R2. EXT.P5. COPY OF THE PAY SLIP OF THE PETITIONER. EXT.P6. COPY OF THE LETTER DT. 27/1/96 BY THE R1. EXT.P7. COPY OF THE PAY SLIP OF THE PETITIONER FOR THE MONTH OF AUGUST 1996. EXT.P8. COPY OF THE PAY SLIP OF THE PETITIONER FOR THE MONTH OF SEPTEMBER, 2006. RESPONDENT'S EXHIBITS EXT.R1A. COPY OF THE GO RT NO. 1361/90/AD DT. 23/08/90. EXT.R1B. COPY OF THE BYE LAWS OF THE KAMCO EMPLOYEES WELFARE FUND SCHEME, THE RELEVANT PROVISION BEING CLAUSE VIII(4). EXT.R1C. COPY OF THE LETTER DT. 28/11/97 TO THE PETITIONER FROM THE KAMCO WELFARE CENTRE. EXT.R1D. COPY OF THE ORDER DT. 17/11/95 INTRODUCING THE WELFARE FUND SCHEME FOR THE KALAMASSERY UNIT. EXT.R1E. COPY OF THE APPOINTMENT ORDER DT. 13/4/95 TO THE PETITIONER. True copy tga V.GIRI, J. ------------------------- W.P.(C).No.9289 of 2006 ------------------------- Dated this the 13th day of February, 2008. JUDGMENT While working as PABX operator/Receptionist in the Athani Unit of the 1st respondent corporation, the petitioner responded to Ext.P1 notification, by which options were invited by the 1st respondent from the existing employees of the Athani Unit for being considered for appointment to various posts in the Kalamassery Unit as mentioned in Ext.P1, which includes the post of Superintendent (Administration) G-8 on a pay scale of Rs.1590-3050. The following portion of Ext.P1 notification is extracted because it has been referred to and relied upon by both sides. The selection will be based on the qualifications and experience required for the posts as shown above. The persons so selected will be allowed to carry their past service benefits (both sick leave and earned leave), P.F., FPF, Welfare Fund etc. accrued by them at the Athani Unit. They have to resign from Athani and accept the post at the new unit. They will have no further lein at their parent unit. Their service conditions such as working time, holidays, W.P.(C).NO.9289/06 :: 2 :: leave etc. will be that of the units they have opted. They will also be governed by the Rules as applicable to the employee of the respective units. The age of retirement will be 58 and Contributory Provident Fund will be as per the statutory limit of maximum 10%.” 2. Petitioner joined the service in the Kalamassery Unit of the 1st respondent Corporation with effect from 24.4.1995. She had resigned from the service of the company in the Athani Unit with effect from 23.4.1995. After joining the Kalamassery Unit, it was found by the petitioner that she is not being paid the conveyance allowance, which apparently she was drawing while working in the Athani Unit. Another grievance entertained by the petitioner was regarding the non-transfer of the amounts lying to the credit of the petitioner in the Employees' Welfare Fund. It seems that the request made by her in that regard was denied and she was told that she will not be entitled to the Employer's contribution in the welfare fund scheme on the premise that as per Ext.R1(b) bye-laws, employees, W.P.(C).NO.9289/06 :: 3 :: who resign from the services of the Athani Unit, will only be entitled to the Employee's share of the contribution. No specific provision as regards the forfeiture of the employer's share of the contribution, as such, was pointed out in Ext.R1(b). 3. It is further contended that the petitioner was asked to give a stamped receipt for the employee's share of the contribution, but as evidenced by Ext.R1(c) she refused to do so and accordingly the said amount was not granted. 4. As regards the petitioner's claim for conveyance allowance, the stand taken by the 1st respondent on the basis of Exct.R1(a) Government Order for refusing the pay scales of various posts in the 1st respondent providing for a revision in the rate of conveyance allowance, was to the effect that no conveyance allowance will be payable for fresh appointments. Apparently, when the petitioner joined the service of the Kalamassery Unit as a Superintendent, she was eligible to be treated as a fresh appointee in the post of Superintendent and consequently, she is governed by W.P.(C).NO.9289/06 :: 4 :: Ext.R1(a) which disentitles her for conveyance allowance, contends the respondent. 5. I heard learned counsel for the petitioner and the learned standing counsel for the respondents. 6. Insofar as the claim for conveyance allowance is concerned, I am of the view that since Ext.R1(a) provides that conveyance allowance will not be payable to fresh cases and since the appointment order issued to the petitioner Ext.R1(e) does not specifically provide for conveyance allowance, then notwithstanding the fact that the petitioner was receiving conveyance allowance while occupying the post of receptionist in the Athani Unit, she may not be entitled to insist that she should be given conveyance allowance as such. In my view, though the petitioner would be entitled to carry the benefit of her past service in Athani Unit, since she was appointed in a higher post in Kalamassery and the service conditions therein did not provide for conveyance allowance to be paid to a Superintendent appointed subsequent to Ext.R1(a), the stand taken by the respondents in this regard cannot be faulted with. W.P.(C).NO.9289/06 :: 5 :: 7. The second grievance entertained by the petitioner relates to the forfeiture of the employer's contribution of the Employee's Welfare Fund Scheme, which was being managed by the 2nd respondent. Learned counsel for the 1st respondent submits that the management of the fund is regulated by Ext.R1(b) bye- laws. An employee, who resigned from the service Athani Unit, will be entitled only to the employee's share of the scheme as such. 8. I am of the view that this stand taken by the first respondent is unjustified. After all, the resignation of the petitioner from the Athani Unit was only contemporaneous with her appointment in the Kalamassery Unit and there was no break in service of the petitioner, as an employee of the first respondent, which is the employer in both the Kalamassery and the Athani Units. May be, the funds will have to be transferred from one unit to another unit. But, it would not be justified on the part of the 1st respondent to forfeit the employer's contribution to the Employees' Welfare Fund Scheme. W.P.(C).NO.9289/06 :: 6 :: In the result, the writ petition is allowed in part. The respondents are directed to take appropriate steps to see that the employer's and the employee's share in the Employees' Welfare Fund Account in the Kerala Agro Machinery Corporation Limited, Athani from 1995 onwards is transferred to the Kalamassery Unit Welfare Fund Scheme. Needful shall be done in this regard within two months from the date of receipt of a copy of this judgment. Sd/- (V.GIRI) JUDGE sk/ //true copy//