IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 WA.NO. 2031 OF 2008() --------------------------------- AGAINST THE JUDGEMENT IN WPC.2887/2007 .................... APPELLANT(S): RESPONDENTS 3 & 4 IN THE WPC -------------------------------------------------------------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY, LABOUR DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SHRI T.K. MOHANAN RESPONDENT(S): PETITIONERS & RESPONDENTS 1 & 2 IN THE WPC ----------------------------------------------------------------------------------------------- 1. KERALA STATE BEVERAGES CORPORATION WORKERS CONGRESS REP. BY ITS GENERAL SECRETARY, A.P.JOHN, S/O.POULOSE (RESIDING AT ANJILIKKAPILLY HOUSE, SOUTH PARUR P.O., EKM) REG.NO.07-03/2006, STATE COMMITTEE, CHAITANYA, HOSPITAL ROAD, EKM (WORKING AT KSBC SHOP.NO.FL-120, PETTA,TRIPUNITURA 2. MATHEW VARGHESE, S/O.VARGHESE, MAPPILA KUDIYIL HOUSE, KUTHUKUZHI, KOTHAMANGALAM DISTRICT (NOW WORKING AT KSBC FL1, SHOP NO.146, KOTHAMANGALAM). 3. D.MANOHARAN, S/O.K.S.DAMODARAN, KURIYANNUR HOUSE, ELANJIKEL SOUTH, ELANJIMEL P.O. CHENGANNUR (NOW WORKING AT KSBC FL1, SHOP NO.251, KOLLUKADAVU, CHENGANNUR). 4. C.K.HARIHARAN PILLAI, S/O.KESAVAN NAIR, C.K.CHERUTHITTA HOUSE, BUDHANOOR P.O., CHENGANNUR (NOW WORKING AS KSBC FL1 SHOP NO.65, MANNAR). 5. RAJEEV T.K., S/O.KUMARAN, RAJEEBHAVAN HOUSE, NANTHIYATTUKUNNAM P.O. NORTH PARUR, ERNAKULAM (KSBC SHOP NO.FL1 141, KAVILNADA, CHERIYAPILLY). 6. SALVAN K.N., S/O.NARAYANAN, KOOMBE HOUSE, PERUMBALAM P.O., ALAPPUZHA (KSBC SHOP NO.FL1-106, POOTHOTTA). 7. PRASAD K.S., S/O.SIVASANKARAN NAIR, KALAMBUKATTIL HOUSE, EDAMATTOM P.O. KOTTAYAM (KSBC SHOP NO.FL1 - 70, KARUKACHAL). 8. ABDUL SALAM.A., S/O.ABDUL KADIR RAWTHER M., THADATHIL HOUSE, ELIYARAKKAL, KONNI P.O., PATHANAMTHITTA (KSBC SHOP NO.FL1-244, KONNI). 9. SUBASH KUMAR.S., S/O.SADASIVAN, KALABHAVAN HOUSE, MARIYAPPILLY P.O., KOTTAYAM (KSBC SHOP NO.FL1-79, NAGAMPADAM, KOTTAYAM). 10. SABU.S., S/O.SREEDHARAN, CHELASSERIL HOUSE, ARIKKUZHA, THODUPUZHA (KSBC FL1 OLD SHOP, THODUPUZHA). 11. ANIL K.C., S/O.CHANDRARAJAN, THIRUVONAM HOUSE, CHANDRAGIRI COMPOUND, SREENARAYANAPURAM, VADAKKUVIL P.O., KOLLAM (KSBC FL1-32, KUNDARA). 12. KERALA ABKARI WOKRERS WELFARE FUND BOARD REP. BY ITS SECRETARY AND CHIEF WELFARE FUND INSPECTOR, POWER HOUSE ROAD, THIRUVANANTHAPURAM. 13. KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LTD). REP. BY ITS MANAGING DIRECTOR, SASTHAKRIPA OFFICE COMPLEX, SASTHAMANGALAM P.O. THIRUVANANTHAPURAM. ADV. SRI.P.J.ELVIN PETER,SC,BEVERAGES CORPN. FOR R1 SMT.K.V.RESHMI FOR R2-11 BY ADVOCATE SHRI M.K.C. DAS, SC, AWWF THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/01/2009 ALONG WITH W.A. NO.2473 OF 2008 AND CONNECTED CAES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. ................................................................................ W.A. Nos. 2031, 2113, 2456, 2461, 2473, & 2495 OF 2008 .......................................................................... Dated this the 29th January, 2009 J U D G M E N T Kurian Joseph, J. : The State and the Kerala Abkari Workers Welfare Fund Board have come up in appeal against the common judgment dated 10.06.2008 in W.P.(C) Nos.27944 of 2008 and connected cases. The writ petitioners approached this court challenging the Government Order, G.O.(MS)No.137 of 2006 dated 26.12.2006, which is referred to as Ext.P4 in the judgment. 2. In order to appreciate the contention of the parties, it is necessary to refer to the brief facts: The writ petitioners are temporary workers of the Kerala State Beverages Corporation. According to them, they have been continuing so from 2001 onwards in some cases and subsequent years. Though they W.A. Nos. 2031, 2113, 2456, 2461, 2473, & 2495 OF 2008 2 made several attempts for regularisation, they could not succeed. All the temporary workers were permitted to be enrolled under the Employees Provident Fund Scheme, 1952. Since Abkari Workers Welfare Fund Scheme was subsequently introduced by the Government of Kerala, the Government thought it fit to get the abkari workers enrolled under the Kerala Abkari Workers Welfare Fund Scheme and thus the Government Order, G.O.(MS) No. 24/2006/TD dated 01.03.2006 was passed, which is referred to as Ext.P1 in the judgment. As per the said order, all the temporary workers under the Kerala State Beverages Corporation, who were enrolled under the Employees Provident Fund Scheme were directed to be enrolled under the Kerala Abkari Workers Welfare Fund Scheme. There was also a direction to transfer the contributions already made by such workers and the employer to the Kerala Abkari Workers Welfare Fund Scheme from the date of the enrollment. Apprehending that such enrollment might be a prelude to regularise such temporary workers their counterparts challenged the order dated W.A. Nos. 2031, 2113, 2456, 2461, 2473, & 2495 OF 2008 3 01.03.2006 in W.P.(C)No.7947 of 2006. Some of the temporary workers in turn filed W.P.(C) No.21026 of 2006 praying for implementation of the said order. There were other writ petitions also for a scheme for regularisation. All those writ petitions were heard together by a Division Bench of this court, which led to the judgment dated 31.08.2006 in O.P.No. 21971 of 2002 and connected cases (the decision is reported in 2006 (4) ILR Kerala Series 285). The issues and disputes involved in those cases were dealt with in paragraph No. 3 of the said judgment which reads as follows: “3. Ext.P4 in W.P.C. 7947/06 is not a regularisation order at all. By Ext.P-4 daily wages workers were offered temporary membership under Abkari Workers Welfare Fund Scheme. Above order read as follows: 'In view of the above facts Government are pleased to accord sanction to enroll the daily wage employees of the Corporation in the Kerala Abkari Worker's Welfare Fund Scheme subject to the condition that they will be dispensed with Employees Provident Fund Scheme W.A. Nos. 2031, 2113, 2456, 2461, 2473, & 2495 OF 2008 4 and will be fully governed by the service condition as envisaged in the service rule of the Kerala State Beverages (M & M) Corporation. The accumulations of the employees Provident Fund in respect of the said employees will be transferred to the Abkari Workers Welfare Fund Scheme under clause 32 of the said scheme. The coverage of the daily wage employees of the Kerala State Beverages Corporation under the Abkari Workers Welfare Fund Scheme will not entail claim for regularisation of employment in the Corporation.' Order specifically stated that because of membership they will not entail claim for regulairsation in the Corporation. By the above order abkari workers who are working temporarily on daily wages are entitled to get into Abkari Workers Welfare Fund Scheme. It cannot be termed as a regularisation order. Ext.P-4 is not order in violation of interim order passed by this court. Hence there is no merit in the writ petition No.7947 of 2006 and is liable to be dismissed. Under Section 24 of the Kerala Abkari Workers Welfare Fund Act, 1990, every workers who had completed continuous work for a period of 3 months is W.A. Nos. 2031, 2113, 2456, 2461, 2473, & 2495 OF 2008 5 entitled to become a member of the KAWWF Scheme. Hence Government is bound to implement the above order (Ext.P-3 in W.P. (Civil) No. 21026/06). Hence Writ Petition (Civil)No. 21026/06 is allowed to the above extent.” Ext.P4 referred to in the judgment, which is extracted above, is the Government Order dated 01.03.2006. 3. There were a few other directions in the judgment at paragraph No. 7 and they are extracted below. “xx xx xx xx xx (1) All regular posts vacant should be notified for appointment. All regular posts now held by temporary hands shall be reported in accordance with the rules. (2) No temporary hands shall be appointed to the regular vacancy. (3) All vacancies shall be reported to the Public Service Commission within six months from the date of receipt of copy of this judgment. All posts manned by temporary employees for more than one year continuously shall be W.A. Nos. 2031, 2113, 2456, 2461, 2473, & 2495 OF 2008 6 treated as permanent post. (4) As far as upper age limit is concerned for regular appointments, the temporary employees who are working in the Corporation for more than six months, shall be given age relaxation. But there shall not be any relaxation in the matter of basic qualifications. (5) The temporary employees working in the regular post shall be allowed to continue in service only until these posts are filled up by regular appointments. (6) If any casual or other employees are necessary hereafter, they can be appointed only through employment exchange and such employees will not get any right for regularisation on any account as they shall not be allowed to work for more than six months. We further make it clear that regular vacancies should be notified and regular appointments should be made as expeditiously as possible. With these directions the writ petitions are disposed of. ” 4. While so, the impugned order dated 26.12.2006 was W.A. Nos. 2031, 2113, 2456, 2461, 2473, & 2495 OF 2008 7 passed by the Government, cancelling the order dated 01.03.2006. It is stated in the order that the same is issued in the wake of the directions contained in the judgment referred to above. Though the learned Senior Government Pleader appearing for the State and the learned Standing Counsel for the Beverages Corporation made strenuous efforts to sustain the order, it is fairly clear that for the reasons stated in the impugned order the same cannot be sustained. There is no direction at all in the judgment either with regard to the enrollment under the scheme or with regard to the discontinuance of the temporary workers who are the beneficiaries of the order dated 01.03.2006. In fact, the direction is otherwise. They are permitted to continue until they are replaced by the regular hands recruited through the Public Service Commission. 5. The learned Standing Counsel for the Kerala State Beverages Corporation submits that steps are only under way and that it may take some more time for the recruitment through W.A. Nos. 2031, 2113, 2456, 2461, 2473, & 2495 OF 2008 8 the Public Service Commission. Thus, those temporary workers are entitled to continue till they are otherwise replaced in terms of the judgment referred to above. The very object of the order dated 01.03.2006 was to de-link the abkari workers from the Central Scheme, viz., EPF Scheme and enlist them under the Kerala Abkari Workers Welfare Fund Scheme. There cannot be any dispute that the temporary workers now working under the Kerala State Beverages Corporation are covered under the definition of 'abkari workers'. The principal condition for enrollment under the scheme is only three months' continuous service. According to the temporary workers, all of them are qualified to be enrolled under the scheme. Be that as it may. It is a matter of factual verification by the welfare fund inspector under the scheme, since enrollment is permissible only if the abkari workers satisfy the conditions under the scheme. The attempt of the learned Senior Government Pleader and the learned Standing Counsel for the Kerala State Beverages Corporation is to sustain the Government Order dated W.A. Nos. 2031, 2113, 2456, 2461, 2473, & 2495 OF 2008 9 26.12.2006 on other available grounds. Though it is now settled law that an impugned order cannot be explained and defended on the reasons and factors not reflected in the order itself, in view of the fact that these orders are passed in the process of routine administration, we are inclined to refer to those contentions as well. 6. It is contended that the power of the Government cannot be in any way curtailed or restricted ; if the Government has power to issue an order, the Government has also power to cancel or vary or withdraw the order. We have no quarrel with such a preposition. The Government itself has explained that the order dated 01.03.2006 was intended only to fulfill the object of the Kerala Abkari Workers Welfare Fund. If the Government feels that the said object is not achieved, the Government is well with its powers to withdraw the same. That is the general principle. However, as far as the cases before us are concerned it is seen that the legality of the order dated 01.03.2006 was under challenge before this court and that challenge was W.A. Nos. 2031, 2113, 2456, 2461, 2473, & 2495 OF 2008 10 repelled. The matters do not stop there. The beneficiaries of the orders were also before this court praying for a direction to implement the order. As can be seen from the extracted portions of the judgment, this Court dismissed the challenge in one set of writ petitions and directed the Government to implement the order. At the risk of redundancy, we extract the relevant portion, which reads as follows: “Hence Government is bound to implement the above order(Ext.P1 in W.P.(C) 21026/2006.) Hence WPC.21026/2006 is allowed to the above extent.” 7. The appellants are parties to the judgment referred to above. It has also to be noted that the Government had in fact strained before this court, as can be seen from the counter affidavit in W.P.(C) 7947 of 2006 to sustain the order dated 01.03.2006. Thus the order was sustained. This Court also directed the Government to implement the order thus sustained in the judgment. In such circumstances, as rightly held by the learned single Judge, the only other way, than the judicial W.A. Nos. 2031, 2113, 2456, 2461, 2473, & 2495 OF 2008 11 remedy is to exercise the legislative power in order to take away the substratum of the judgment. Evidently and admittedly that is not what is done while passing the order dated 26.12.2006. Therefore, we do not find any infirmity in the judgment of the learned single Judge. The writ appeals hence lack merit and accordingly, they are dismissed. C.M. Application No.895 of 2008 in W.A.No. 2031 of 2008. Allowed. KURIAN JOSEPH, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk