IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 WP(C).No. 22180 of 2011(V) --------------------- PETITIONER(S): ----------------------- 1. KERALA STATE ELERICITY BOARD PETTY CONTRACTORS AND CONTRACT LINE WORKERS UNION REG.NO.01-34/89, NANDANCODE, THIRUVANANTHAPURAM REPRESENTED BY GENERAL SECRETARY. 2. N.N.SUBRAMANIAN, AGED 43, S/O.NARAYANAN, NEDUMBRAM HOUSE, NEDUVATTOM, NEELESWARAM P.O., KANNIMANGALAM. (PETTY CONTRACTOR AND CONTRACT LINE WORKER, ELETRICAL SECTION, MANJPARA). BY ADVS. SRI.K.S.MADHUSOODANAN SRI.THOMAS CHAZHUKKARAN SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SMT.M.A.RUXANA RESPONDENT(S): ------------------------- 1. KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM REP.BY SECRETARY-695 004. 2. STATE OF KERALA TO BE REPRESENTED BY SECRETARY, LABOUR DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001. 3. ADDITIONAL LABOUR COMMISSIONER (INDUSTRIAL RELATION), OFFICE OF LABOUR COMMISSIOENR, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001. 4. KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY SECRETARY-695 004. R1 BY ADV. SRI. K.S. ANIL, KSEB R2 & R3 BY GOVT. PLEADER SRI. HANIL KUMAR R4 BY ADV. SRI. P.C. SASIDHARAN, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/09/2011, ALONG WITH WPC NO. 22982 OF 2011 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 22180 of 2011(V) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : PHOTOCOPY OF THE AWARD IN I.D. 27/02 DATED 15-12-04 OF INDUSTRIAL TRIBUNAL, PALAKKAD. EXT.P2 : PHOTOCOPY OF THE JUDGMENT IN W.A. 615/08 DATED 22-10-08 OF THE HON'BLE HIGH COURT. EXT.P3 : PHOTOCOPY OF THE ORDER IN SLP (CIVIL) 23872/08 AND SLP (C) NO. 31118/08 DATED 12-3-10 OF HON'BLE SUPREME COURT. EXT.P4 : PHOTOCOPY OF THE JUDGMENT IN WP(C) 30264/10 DATED 7-12-10 OF THE HON'BLE HIGH COURT. EXT.P5 : PHOTOCOPY OF THE CIRCULAR BEARING NO. PS I/D27/02/2002 DATED 10-5-2011. EXT.P6 : PHOTOCOPY OF THE COMPLAINT OF THE 1ST PETITIONER TO THE 1ST RESPONDENT DATED 26-5-2011. EXT.P7 : PHOTOCOPY OF THE REPORT PUBLISHED IN MATHRUBHUMI DAILY DATED 23-7-2011. EXT.P8 : PHOTOCOPY OF THE REPORT PUBLISHED IN MATHRUBHUMI DAILY DATED 27-7-2011. EXT.P9 : PHOTOCOPY OF THE COMPLAINT OF THE 1ST PETITIONER TO THE 3RD RESPONDENT DATED 1-8-2011. EXT.P10 : PHOTOCOPY OF THE ORDER BEARING NO. 1(2) 9341/10 OF THE 3RD RESPONDENT DATED 5-8-2011. EXT.P15(a) : PHOTOCOPY OF THE RELEVANT PAGE OF SENIORITY LIST. EXT.P11 : PHOTOCOPY OF THE ORDER BEARING NO. EB7(a) R.I.A/1172 (221) 2011 DATED 8-2-11. EXT.P12 PHOTOCOPY OF THE LIST SUBMITTED BY EXE.ENGINEER ELECTRICAL DIVISION, PERUMBAVOOR. EXT.P15(a) PHOTOCOPY OF THE COMPLAINT GIVEN TO 3RD RESPONDENT DATED 1-8-2011. EXT.P13 PHOTOCOPY OF THE LIST SUBMITTED BY EXE. ENGINEER ELECTRICAL DIVISION, ALEPPEY. EXT.P14 PHOTOCOPY OF THE LIST OF EXCLUDED 12 SUBMITTED BY EXE. ENGINEER, ELECTRICAL DIVISION, CHERTHALA. (Contd...) WP(C).No. 22180 of 2011(V) EXT.P15 PHOTOCOPY OF THE LIST OF 15 SUBMITTED BY EXE. ENGINEER, ELECTRICAL DIVISION, ERNAKULAM CENTRAL. EXT.P15(a) PHOTOCOPY OF THE FORWARDING LETTER OF THE EXE. ENGINEER, ELECTRICAL DIVISION, ERNAKULAM BEARING NO. EDE/DB 19/2011- 12/402 DATED 29-7-11. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn P.N.RAVINDRAN, J. ----------------------------------------- W.P.(C).Nos.22180, 22982, 23025, 23070, 23155, 23163, 23308, 23430, and 23510 of 2011 ----------------------------------------- Dated this the 1st day of September, 2011 JUDGMENT In these writ petitions, the petitioners challenge order No.I (2)9341/10 dated 5.8.2011 issued by the Additional Labour Commissioner (IR), Trivandrum, whereby the seniority list of petty contractors and contract line workers of the Kerala State Electricity Board was finalised. For the same of convenience W.P (C)No.22180 of 2011 is treated as the main case and unless otherwise mentioned, the documents referred to are those produced therein. 2. Contractors executing works for the Kerala State Electricity Board, the total cost of which is below Rs.1,00,000/-, called Petty Contractors and the workers engaged by them raised a demand for regularisation in service. Since conciliation failed, the Government referred the said issue for adjudication to the Industrial Tribunal, Palakkad as per G.O(Rt.)No.806/2002/LBR dated 15.3.2002. Later the said Government order was amended W.P(C).No.22180 of 2011 and connected cases. -:2:- to rectify certain mistakes in that order by issuing G.O.(Rt.) No.2929/2002/LBR dated 27.9.2002. The issue referred for adjudication to the Industrial Tribunal was:- “Whether the demand for regularisation of the services of petty contract workers and contract line workers by KSEB is justifiable? If so, what relief they are entitled to.” 3. By Ext.P1 award passed on 15.12.2004 the Industrial Tribunal held that 25% of the existing vacancies of electricity workers as well as of the vacancies that may arise during a period of five years from the date of the award shall be reserved for appointment from among petty contractors and contract line workers. The Industrial Tribunal held that the minimum qualifying service for considering the claim for regularisation can be fixed as 1200 working days. The Industrial Tribunal also held that only petty contractors and the workmen who worked along with them are entitled to the benefit of the award and contract workers who were employed through other contractors for construction and other major works are not entitled to the benefit of the award. The operative portion of Ext.P1 award reads as follows:- “47. Before concluding this award, it is W.P(C).No.22180 of 2011 and connected cases. -:3:- hereby clarified that the petty contractors and the workmen worked along with them alone are entitled to be included in the seniority list. In other words, the contract workers who were employed through other contractors for construction and other major works are not entitled to the benefit of this award. 48. Having considered all the points raised by either side, the following directions are issued to the management:- a) 25% of the existing vacancies of Electricity Workers as well as the vacancies that may arise during a period of five years from the date of this award shall be reserved for appointment from among the petty contractors and contract line workers. There shall be appropriate percentage of communal reservation within this 25% in terms of Articles 16 and 335 of the Constitution of India. b) The management shall in consultation with the State Government nominate an officer not below the rank of Deputy Labour Commissioner to prepare a State-wide seniority list of petty contractors and contract line workers who had worked not less than 1200 days preceding the date of this award and the same shall be published W.P(C).No.22180 of 2011 and connected cases. -:4:- on the notice boards of all the offices of the management from where this category of workmen are deputed for works. Similarly an officer not below the rank of Additional Labour Commissioner in the State Labour Department shall be authorised to finalise the seniority list after conducting personal hearing of the workmen who have submitted objections to the draft list shall also be published in the same manner as stated above. c) All persons whose names figured in the final seniority list and who satisfy all the qualifications for appointment of Electricity Workers as per the orders of the management which are in force as on the date of this award, except the condition of maximum age limit shall be eligible for submitting applications for appointment in terms of this award. d) The maximum age limit for appointment as per this award shall be 50 years as on the date of notification inviting applications for appointment. e) The management shall be free to formulate and finalise a recruitment procedure incorporating the above directions in consultation with KPSC as per W.P(C).No.22180 of 2011 and connected cases. -:5:- Sec.3 of Kerala Public Service Commission (Addl. Functions) Act, 1963. f) The KPSC shall be authorised to conduct a suitability test/interview and submit a select list of successful conditions. g) The management shall comply with the above directions and ensure that the selection process for appointment against 25% of the existing vacancies is completed within 120 days from the publication/pronouncement of this award and appointments are made within 60 days from the date of publication of select list by KPSC. h) If sufficient candidates are not available for filling up 25% vacancies in terms of this award, the remaining posts shall be treated as general.” 4. The Kerala State Electricity Board challenged Ext.P1 award by filing W.P.(C)No.28836 of 2005 in this Court. By judgment delivered on 16.11.2007 (Ext.P2 in W.P.(C)No.22982 of 2011), a learned single Judge of this Court dismissed the writ petition. Taking note of the apprehension expressed by the learned Senior Counsel who appeared on behalf of the Board that there is possibility of manipulation of the list of workmen and it W.P(C).No.22180 of 2011 and connected cases. -:6:- may pave the way for the entry of ineligible persons through the back door, this Court observed that the said apprehension is not well founded as the field of choice is confined to the workmen named in Exts.W23 and W24 series lists appended to the award and that no worker, whose name does not find a place in the said lists, shall be considered for selection. The Kerala State Electricity Board carried the matter in appeal by filing W.A.No.627 of 2008. By judgment delivered on 10.7.2008 (Ext.P3 in W.P.(C) No.22982 of 2011) the said writ appeal was dismissed. One of the Contract Workers Unions filed W.A.No.615 of 2008 canvassing the correctness of the observations made by the learned single Judge in para 12 of the judgment regarding the workers who are eligible to be considered for selection. By Ext.P2 judgment delivered on 22.10.2008 another Division Bench of this Court dismissed the said writ appeal. Though the Kerala State Electricity Board and the appellant in W.A.No.615 of 2008 carried the matter to the Apex Court by filing SLP (C) Nos.23872 of 2008 and 31118 of 2008, the Special Leave Petitions were dismissed by Ext.P3 order passed on 12.3.2010. Ext.P1 award thus attained finality. W.P(C).No.22180 of 2011 and connected cases. -:7:- 5. While matters stood thus, some of the workers filed Contempt Case (Civil) No.1156 of 2008 alleging that the directions issued by the learned single Judge in W.P.(C)No.12473 of 2007 have not been complied with. Yet another group of workers filed W.P.(C)No.30264 of 2010 for an order directing the State of Kerala to appoint a Deputy Labour Commissioner and an Additional Labour Commissioner to implement the directions issued by the Industrial Tribunal in Ext.P1 award. The said writ petition and the Contempt Case were disposed of by a learned single Judge of this Court by Ext.P4 judgment delivered on 7.12.2010. While the said writ petition was pending, the Government nominated the Deputy Labour Commissioner, Ernakulam as the officer empowered to prepare a State-wise seniority list of petty contractors and contract line workers in terms of the award passed by the Industrial Tribunal. Taking note of that fact this Court disposed of the said writ petition by Ext.P4 judgment with a direction to the State Government to nominate an Additional Labour Commissioner for the purpose of finalising the draft list in accordance with the directions of the Industrial Tribunal in Ext.P1 award and the judgment of this Court in W.P(C) W.P(C).No.22180 of 2011 and connected cases. -:8:- No.28836 of 2005. This Court also directed the Deputy Labour Commissioner to prepare a draft seniority list in terms of Ext.P1 award and Ext.P2 judgment within one month from the date of receipt of a copy of Ext.P4 judgment and to forward it to the Board for publication in terms of the award. This Court also directed the Additional Labour Commissioner to finalise the seniority list within one month from the date of receipt of the draft list and further directed that on finalisation of the seniority list, the Kerala Public Service Commission shall take immediate steps to invite applications from among those who are included in the final seniority list. Pursuant to the directions issued by this Court in Ext.P4 judgment, the Deputy Labour Commissioner, Ernakulam, who was later promoted to the category of Regional Labour Commissioner, forwarded a list of 242 petty contractors and contract line workers along with a covering letter dated 1.7.2011 to the Additional Labour Commissioner. Later, a list containing the names of 40 others was also submitted by the Deputy Labour Commissioner on 28.7.2011. The Additional Labour Commissioner thereafter issued Ext.P7 notice inviting objections to the draft seniority list. The last date stipulated for W.P(C).No.22180 of 2011 and connected cases. -:9:- submission of objections was 10.8.2011, but it was thereafter preponed to 1.8.2011 by issuing a press release, copy of which is produced as Ext.P8. The petitioners state that even within the short time, objections were submitted to the draft seniority list prepared by the Deputy Labour Commissioner, but without considering any of the objections, the Additional Labour Commissioner issued Ext.P10 order dated 5.8.2011 approving the draft seniority list prepared by the Deputy Labour Commissioner, Ernakulam containing the names of 282 persons. The main contention raised in these writ petitions is that Ext.P10 order finalising the seniority list runs counter to the directions issued by the Industrial Tribunal in Ext.P1 award, which has attained finality and before the seniority list was finalised, none of the persons who had objected to the draft seniority list prepared by the Deputy Labour Commissioner, Ernakulam were put on notice or heard. 6. I heard Sri.K.S.Madhusoodanan, Sri.G.D.Panicker, Sri.Sabu.S (Kallaramoola) and Sri.Biju Martin, learned counsel appearing for the petitioners, Sri.Hanil Kumar, learned Government Pleader appearing for the State of Kerala and W.P(C).No.22180 of 2011 and connected cases. -:10:- Sri.K.S.Anil, learned standing counsel appearing for the Kerala State Electricity Board. From a reading of Ext.P10 order it is evident that the draft list prepared by the Deputy Labour Commissioner, Ernakulam, contained the names of only 282 persons. The order also discloses that persons interested were granted time till 1.8.2011 for submitting objections to the draft list thus published and that 1200 objections had been received. However, on the short ground that no one had objected to the inclusion of the names of 282 persons, without considering any of the objections received from various persons, the Additional Labour Commissioner finalised the draft seniority list prepared by the Deputy Labour Commissioner, Ernakulam. The Industrial Tribunal had in the award, the relevant portions of which I have already extracted above, directed that the Kerala State Electricity Board should, in consultation with the State Government, nominate an officer not below the rank of Deputy Labour Commissioner to prepare a State-wise seniority list of petty contractors and contract line workers who had worked for not less than 1200 days preceding the date of the award, that the seniority list shall be published on the notice boards of all the W.P(C).No.22180 of 2011 and connected cases. -:11:- offices of the Kerala State Electricity Board from where contract line workers/petty contractors were deputed for works and that an officer not below the rank of Additional Labour Commissioner in the State Labour Department shall be authorised to finalise the seniority list after conducting a personal hearing of the workmen who have submitted objections to the draft list. The Industrial Tribunal had also directed that the final seniority list shall also be published in the same manner in which the draft seniority list is required to be published. The award has attained finality. The direction issued by this Court in Ext.P4 judgment to the Deputy Labour Commissioner, Ernakulam, was to prepare the State-wise draft seniority list in terms of Ext.P1 award and the judgment of the learned single Judge of this Court in W.P.(C)No.28836 of 2005 and to forward it to the Board for publication in terms of the award. This Court had also directed the Additional Labour Commissioner to finalise the list. However, notwithstanding that fact 1200 objections had admittedly been received to the draft seniority list prepared by the Deputy Labour Commissioner, the Additional Labour Commissioner did not consider any of the objections and on the short ground that no-one has raised a W.P(C).No.22180 of 2011 and connected cases. -:12:- complaint that ineligible persons have been included in the list of 282 persons, the draft list was finalised. In my opinion, the procedure adopted by the Additional Labour Commissioner to finalise the draft list prepared by the Deputy Labour Commissioner, cannot be said to be legal or proper. The Industrial Tribunal had in Ext.P1 award directed that the Additional Labour Commissioner shall finalise the seniority list after conducting a personal hearing of the workmen who have submitted objections to the draft list. 7. A learned single Judge of this Court had while upholding Ext.P1 award directed that the field of choice will be limited to those petty contractors/contract line workers whose names find a place in W23 and W24 series of lists appended to the award. Therefore, every petty contractor/contract line worker whose name figures in W23 and W24 series lists is entitled to object to the draft seniority list prepared by the Deputy Labour Commissioner and to have his objections considered at a hearing. That having admittedly not been done, I am of the opinion that the order passed by the Additional Labour Commissioner cannot be sustained. W.P(C).No.22180 of 2011 and connected cases. -:13:- 8. Ext.P1 award was passed on 15.12.2004. More than six years have passed thereafter. It became final with the dismissal of the Special Leave Petitions by the Apex Court on 12.3.2010. More than 15 months have passed thereafter. However, till date the seniority list of petty contractors/contract line workers has not been finalised in the manner directed in Ext.P1 award. Such being the situation, even while interfering with Ext.P10 order, I deem it appropriate to direct that the entire exercise of hearing the objectors who have already submitted objections pursuant to Ext.P7 notification issued in the newspaper dailies dated 27.7.2011 should be completed after affording all of them an opportunity of being heard. I accordingly dispose of the writ petitions with the following directions:- (a) Ext.P10 order issued by the Additional Labour Commissioner on 5.8.2011 finalising the seniority list of 282 petty contractors/contract line workers shall stand quashed for the purpose of enabling the Additional Labour Commissioner to consider the objections received by him. In other words, if no one has till date objected to the inclusion of the names of any of the 282 persons in the list appended to Ext.P10, their names W.P(C).No.22180 of 2011 and connected cases. -:14:- need not be deleted from the list. On the other hand, if any one has objected to the inclusion of the names of any of the said 282 persons, those persons shall be put on notice and heard before a decision is taken to revise the list of 282 persons. (b) The Additional Labour Commissioner shall, within one week from the date of receipt of a certified copy of this judgment from any one of the petitioners, issue a public notice in all the Kerala editions of the Malayala Manorama, Mathrubhoomi and Desabhimani dailies inviting objections to the draft seniority list prepared and published by the Deputy Labour Commissioner, Ernakulam or from persons seeking inclusion of their names in the seniority list. Interested persons who satisfy the eligibility criteria fixed by the Industrial Tribunal, Palakkad, in Ext.P1 award shall file their objections within two weeks from the date of publication of the notice, if they have not so far filed objections. (c) The Additional Labour Commissioner shall thereafter issue a public notice in the manner indicated above fixing a date or dates for hearing, hear the persons who have filed objections and thereafter finalise the seniority list after considering the objections expeditiously and in any event within a period of two W.P(C).No.22180 of 2011 and connected cases. -:15:- months from the last date stipulated for receipt of objections. In any case the entire exercise shall be completed before 30th November, 2011, having regard to the fact that a ranked list of candidates prepared by the Kerala Public Service Commission for appointment by direct recruitment as Electricity Worker is in force in many of the districts and the said lists will cease to be valid on 31.12.2011. (e) Needless to say, the Additional Labour Commissioner shall, while finalising the seniority list, have due regard to the observations made by the Industrial Tribunal in paragraphs 47 and 48 of Ext.P1 award and by this Court in paragraph 12 of the judgment delivered in W.P.(C) No.28836 of 2005. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P.(C).Nos.22180, 22982, 23025, 23070, 23155,3163, 23308, 23430 & 23510/2011 ---------------------------- JUDGMENT 1st September, 2011