IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 WA.No. 176 of 2004() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.20137/2002 Dated 29/11/2003 .................... APPELLANT/PETITIONER IN THE O.P: --------------------------------- K.SIVANANDAN, WATCHMAN, SIDCO SALES EMPORIUM, THIRUVANANTHAPURAM RESIDING AT AMBILI BHAVAN, ONAMCODE, KOTTAYIL VILLAGE, CHAIKKOTTUKONAM P.O., NEYYATTINKARA TALUK. BY ADV. SRI.VADAKARA V.V.N.MENON SRI.T.N.SUKUMARAN RESPONDENTS/RESPONDENTS IN THE O.P: ------------------------------------ 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD. (SIDCO), HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM, REP. BY ITS MANAGING DIRECTOR. 3. THE MANAGING DIRECTOR, SIDCO, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 4. THE MANAGER, SIDCO SALES EXPORIUM, THIRUVANANTHAPURAM. 5. P.DHARMARAJAN, TECHNICAL SUPERVISOR, NOW WORKING AS MANAGER- IN-CHARGE, SIDCO TILES, AMARAVILA,NEYYATTINKARA. 6. SREEKANTAN NAIR, WORKER, SIDCO SALES EXPORIUM,THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.SANDESH RAJA SRI.M.A.MANHU,SC FOR SIDCO FOR R2 & R3 SMT.M.HEMALATHA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------- W.A.NO.176 OF 2004 () ----------------------------------- Dated this the 1st day of July, 2008 J U D G M E N T KOSHY,J. Appellant/petitioner commenced service as a permanent worker in 1964. He was working in Amaravila Tiles Factory as watcher. Though his appointment was in the worker category, for eight years, he was working as a watcher. His service benefits were fixed on the basis of long term settlements arrived at between the workers and Management after negotiations. The retirement age, according to him, was 60 years. The above factory was earlier under Kerala State Small Industries Corporation Ltd. Thereafter, it was taken over by Kerala Small Industries Development Corporation Ltd. (SIDCO). The service conditions of the petitioner as similarly placed workers were protected. When SIDCO took over the factory, he was asked to do work in the category of worker. He made ExtP1 representation that he may be permitted to W.A.176/2004 2 continue to work in the same post as he was doing the work as watcher for eight years. Thereafter, Ext.P2 was issued. The conditions mentioned in Ext.P2 is as follows: 6. He will have to forfeit his previous claims. 7. In the undertaking he has to distraint that he is not wiling to work as a worker and he will not claimed any privileges from his past service in the roll of the worker. 8. Should execute that he will never appeal before the Management requesting any type of compensation substantial or insubstantial by way of leave or other emoluments and privileges etc. 9. The working hours and the holidays prescribed to the other staff of this Unit is not applicable to him. 10. No overtime allowances is applicable to him. It is the contention of the petitioner that he was allowed to work in the same category and he continued to work as watcher even when SIDCO took over the management. Even request was made, as directed by the Superintendent (Manager in charge). Ext.P2 given to him, also shows that it W.A.176/2004 3 is in English. The terms of Ext.P2 were not understood to him and knowingly, nobody will sign such a document taking away every rights. It is not stated that contentions in Ext.P2 were translated in Malayalam, local language. He continued to do his work as previously he was doing and he completed the age of 58 in 2002. But he was allowed to work until Ext.P11 was issued. Ext.P11 is dated 16.5.2002 and he was relieved on that date only. But in the list of employees to be retired in 2002, his name was not shown. Relieving order is Ext.P12. According to the petitioner, he is entitled to continue upto 60 years of age and his services were wrongfully terminated by Ext.P2. According to the contesting respondent, SIDCO, there was a change of category at the time of request, and by Ext.P2, previous service was forfeited and by accepting the conditions and regulations in SIDCO, he has to retire at the age of 58. It is also further contended under Section 60 (b) of the Kerala Service Rules, only employees in the last grade service who entered service on or before 7.4.1970 will retire at the age of 60 years. First of all, he is not claiming as per Section 60 (b). He wanted his previous service conditions protected. Apart from that, he was W.A.176/2004 4 working in the establishment before 1.1.1970 also. It cannot be stated that by Ext.P2, fresh appointment was given as he only continued in service from 1964 onwards in the same establishment. His benefits are not taken away. In fact, Ext.P14 would show that in 1991, he was asked to opt for becoming an attender with the retirement age of 58 and he declined as his age of retirement will be shortened. So, knowingly he did not accept Ext.P2. Taking all these circumstances, we are of the view that appellant claimant ought have retired only at the age of 60. But now he has completed the age of 60 also. Only monetary compensation can be granted. His salary in February 2002 was Rs.6,966/-. He was relieved only by Ext.P12 on 16.5.2002. Therefore, the full salary of Rs.6,966/- per month should be paid till he was wrongly relieved by Ext.P12 dated 16.5.2002. Till then he actually worked and that should be paid by SIDCO if it is not already paid. Further, he should be paid compensation for premature wrongful retirement. We are not awarding full salary for the person till he reached the age of 60 even though his premature retirement was illegal, as he did not work after issuance of Ext.P12. We are of the opinion that three months W.A.176/2004 5 salary at the last drawn rate is sufficient compensation for his premature illegal retirement. Hence, unpaid salary, if any, till the issue of Ext.P12 retirement order and three months salary as compensation should be paid to the writ petitioner within three months from the date of receipt of copy of this judgment. We allow this writ appeal to the above extent. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 26th May, 2008