IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 WA.No. 142 of 2011() -------------------- ( AGAINST THE JUDGEMENT/ORDER IN WPC.32733/2008 Dated 09/10/2009_ .................... APPELLANT/1ST RESPONDENT ---------------------------- THE KERALA SOAPS AND OILS LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, KOZHIKODE-673 005. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH RESPONDENTS/PETITIONER & 2ND RESPONDENT ----------------------------------------------------------------------- 1. SYED BADARUDDIN (FORMERLY ASSISTANT SUPERINTENDENT, KERALA SOAPS AND OILS LIMITED), 3/228 A, AFREEN, PARANKAVU PARAMBA, PULIKKAL LANE, NADAKKAVU PO, KOZHIKODE-673011. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF INDUSTRIES SECRETARIAT P.O., THIRUVANANTHAPURAM-1. BY R1 BY ADV. SRI.P.V.ASHA BY R2 BY ADV. SENIOR GOVERNMENT PLEADER, SRI.T.T.HOOD. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14/02/2011, ALONG WITH WA NO. 143 OF 2011 , WA NO. 166 OF 2011 & WA NO. 124 OF 2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK PIUS C.KURIAKOSE & P.BHAVADASAN, JJ. --------------------------------------------------------- W.A Nos.124, 142, 143 & 166 OF 2011 ---------------------------------------------------------- Dated this the 14th day of February, 2011. JUDGMENT PIUS C.KURIAKOSE,J. These writ appeals preferred by the Government and by the Keala Soaps and Oils Limited arise from the common judgment of a learned single Judge of this Court in Writ Petition Nos.32733 and 32797 of 2008. The first respondent in writ appeals were the petitioner in the writ petitions. The petitioner in Writ Petition No.32733 of 2008 was a former Assistant Superintendent (Soaps) in M/s.Kerala Soaps and Oils Limited. The petitioner in writ petition No.32797 of 2008 was former Plant Supervisor in that company. The petitioner in Writ Petition No.32733 had earlier filed O.P No. 11447 of 1998 before this Court praying for a declaration that he was entitled to join duty on the expiry of the leave which had been sanctioned to him and praying further that the communications marked Exts.P9 to P11 in that O.P informing him that his name was removed from the rolls of the company be quashed by issuing a writ of certiorari. In that O.P this Court considered C.M.P No.18176 of 2003 filed by the petitioner and W.A Nos.142, 143, 166 & 124 OF 2011 2 passed an interim order directing the company to consider the claim of the petitioner for granting him the benefits of the voluntary retirement scheme. It was also directed that the petitioner should be heard before a decision as to whether he should be granted the benefits of the voluntary retirement scheme is taken. The O.P was finally closed by passing Ext.P9 judgment. Thus on the terms of Ext.P9 judgment the company ought to have considered claim of the petitioner in Writ Petition No.32733 of 2008 for grant of the benefits of the voluntary retirement scheme after giving hearing opportunity to him. The company did nothing to comply with the direction in Ext.P9, even though the petitioner approached the company by filing Exts.P10 and P10(a) representations. 2. The petitioner in Writ Petition No.32797 of 2008 has filed O.P No. 7035 of 1997 against the company seeking reliefs identical to those claimed in OP.No.11447 of 1998. In that OP this Court passed Ext.P9 interim order directing the company to consider the petitioner's claim for the benefits under the VRS in accordance with law within two months. The O.P itself was disposed of in the light of Ext.P9 interim order. Here also the W.A Nos.142, 143, 166 & 124 OF 2011 3 company did nothing to implement Ext.P9 order. The matters remained like that till about 2008. In 2008 Writ Petition Nos.32733 and 32797 were filed by the two petitioners as they noticed that they were not being admitted to the benefit of VRS which the company introduced in 2008 for the reason that their names did not figure in the rolls of the company. The learned Single Judge under the common judgments impugned in these appeals allowed both the writ petitions granting the following reliefs: “(a) The petitioner shall, along with a copy of this judgment, file an application before the 2nd respondent claiming the benefit of the voluntary retirement package announced under Exts.P11, P12 and P13. (b) His application must be considered as one by an employee, who was on the rolls of the company on 15.12.2002, the date mentioned in Ext.P11 order. (c) His application for voluntary retirement from service shall be treated on a par with the application of those employees, who had responded to Ext.P11 and in whose favour voluntary retirement compensation was disbursed. (d) Orders shall be passed by the Government in this regard on the petitioner's application for voluntary retirement compensation within three months from the date of receipt of a copy of this judgment.” 3. In these writ appeals the Company and the Government have prominently urged that the writ petitioners having W.A Nos.142, 143, 166 & 124 OF 2011 4 practically given up the claim for quashing of the order removing them from the rolls of the company, are not entitled to be given the benefit of being considered as though they were on the rolls of the company on 15.12.2002. The date mentioned in Ext.P11 order under which the new VRS is issued in 2008. 4. Sri.E.K.Nandakumar learned counsel for the appellant in Writ Appeal Nos.142 of 2011 and 143 of 2011 and Shri.T.B.Hood learned Senior Government Pleader for the appellant/ Government in Writ Appeal Nos.124 and 166 of 2011 addressed us persuasively on the grounds raised in the respective memoranda of appeals. Referring to the judgments in O.P. No. 11447 and 7035 of 1997, they would submit that it was evident and more or less admitted that the writ petitioners in W.P.(C) 32733 of 2008 served the company only during the period from 12.7.1978 till 10.9.1994 and they were not on the rolls of the company at the time of Ext.P11 order was issued. They are not entitled to be considered as they were on the rolls of the company on 15.12.2002 or on the date of Ext.P11 order. In the case of the the petitioner in Writ Petition No.32797 of 2008 the period from 1.2.1979 to 1.4.1995 is the period during which he worked for the W.A Nos.142, 143, 166 & 124 OF 2011 5 company. The maximum that this writ petitioner can aspire for is benefit of Ext.P9 judgment and order in the two writ petitions filed by them. 5. Smt.P.V. Asha learned counsel for petitioner in these appeals would oppose the submissions of Mr.Nandakumar and learned Senior Government Pleader. The learned counsel however conceded that the writ petitioners were working with the company only during the period mentioned by the learned counsel for the appellant and the learned Senior Government Pleader. According to her as the writ petitioners were not being paid salary they had no other go than receiving employment abroad. She submitted that the company itself is to be lame for not having complied with the directions in Ext.P9 judgment in Writ Petition 32733 of 2008 and Ext.P9 order in writ petition No.32797 of 2008. As the company itself is to be lame for disobedience of those Exts.P9 judgment and P9 order, there is justification at least morally for giving to the writ petitioners the benefit of new VRS scheme subsequently issued by the company. 6. Having anxiously considered the rival submissions addressed at the Bar we find merit in the submissions of the W.A Nos.142, 143, 166 & 124 OF 2011 6 learned counsel for the appellant and learned Senior Government Pleader that it is not correct to direct the concerned to treat the writ petitioners to be in the service of the company on 15.12.2002 and to grant them the benefit of the VRS package issued under Ext.P11 order. Admittedly and evidently neither of the writ petitioners were on the rolls of the company on 15.12.2002. In fact in the original petitions filed by them earlier contained prayer to quash the order of the company removing their names from the rolls of the company. They did not press that prayer and that prayer was not granted by this Court. We do find some merit in the submission of Smt. P.V Asha that when this Court under Ext.P9 order and P9 judgments directed the company to consider the claims of the writ petitioners for the benefit of extension of VRS, this Court did assume that the writ petitioner continues to be on the rolls of the company at least notionally as the benefit of VRS can be extended only to somebody who is in the service of the company. But according to us in the admitted situation where the writ petitioners were not working for the company during the relevant period and actually working for some other establishments, the petitioners can legitimately and legally aspire W.A Nos.142, 143, 166 & 124 OF 2011 7 for only the relief that was granted to them under Exts.P9 judgment and P9 order. It is submitted by the learned counsel for the appellant company that the company will do whatever is necessary for implementing Ext.P9 judgment in Writ Petition No.32797 of 2008 and Ext.P9 order in Writ Petition No.32733 of 2008 within a period of one month from today. Mr. T.B.Hood learned Senior Government Pleader submitted that it may be possible to extend the benefits of the previous VRS to both the writ petitioners within a maximum period of 6 weeks. Under the above circumstances, we are inclined to allow all these writ appeals and modify the impugned judgments and to the extent of directing the respondents in the writ petitions to ensure that both the writ petitioners are extended the benefits of the previous (VRS referred to in Ext.P9 judgment in Writ Petition No.32733 of 2008 and P9 order in 32797 of 2008) immediately that is at any rate within a period of two months from today. It is ordered accordingly. Smt.P.V Asha learned counsel for the writ petitioners requested for a direction for payment of interest on the benefits that are admissible to the writ petitioners. As the company itself is to be lame for the delay that has been occurred in the matter as W.A Nos.142, 143, 166 & 124 OF 2011 8 regards the above submission we will observe that the claim for interest can also be considered by the concerned while extending to the writ petitioners the benefits of the previous VRS. The payment of interest due after the dates of Exts.P9 and P10 judgments in the two writ petitions should also be considered by the concerned. Writ Appeals are allowed to the above extent. PIUS C.KURIAKOSE, JUDGE P.BHAVADASAN, JUDGE mns