IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 OP.No. 7942 of 2003(U) -------------------------------- PETITIONER: ------------------- N.SOUDAMINI,KERNEL CHECKER, KERALA CASHEW CORPORATION, MADAVANA VEEDU, UPPOODU, EAST KALLADA, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.SAJI.K.JOHN RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTD BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. LABOUR COMMISSIONER, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. KERALA STATE CASHEW DEVELOPEMENT CORPORATION LTD, REPRESENTED BY ITS MANAGING DIRECTOR, CASHEW HOUSE, P.B NO. 13, KOLLAM. 4. MANAGING DIRECTOR, KERALA STATE CASHEW DEVELOPEMENT CORPORATION LTD, CASHEW HOUSE, P.B NO. 13, KOLLAM. BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI - R1 & R2 BY ADV. SRI.E.K.MADHAVAN - R3 & R4 SRI.P.V.LOHITHAKSHAN SMT.P.VIJAYAMMA SMT.UMA GOPINATH SRI.V.KRISHNA MENON SMT.AMRITA JAYARAM THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/03/2008, ALONG WITH OP NO. 9657 OF 2003 THE COURT ON 01.04.2008 DELIVERED THE FOLLOWING: W.P.(C) NO.7942/2003 ORDER ON CMP. NO.13696/2003 IN OP. NO.7942/2003 DISMISSED 01.04.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE ORDER PASSED BY THE FOURTH RESPONDENT DT. 26.7.99. EXT.P2:- COPY OF THE INDUSTRIAL RELATIONS COMMITTEE SETTLEMENT, DT. 9.11.1995. EXT.P3:- COPY OF THE COUNTER AFFIDAVIT FILED ON BEHALF OF THE RESPONDENT S IN OP. NO.24840/99 DT. 2.3.2000. EXT.P4:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP. NO.24840/99 DT. 27.6.01. EXT.P5:- COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT DT. 20.8.01. EXT.P6:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP. NO.676/02 DT. 10.6.02. EXT.P7:- COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DT. 13.9.02. EXT.P8:- COPY OF THE ESI IDENTITY CARD OF SMT.GOURY. EXT.P9:- COPY OF THE SUPER ANNUATION ORDER OF SMT.GOURI ISSUED BY THE 3RD RESPONDENT CORPORATION DT. 14.12.04. EXT.P10:- COPY OF THE ESI IDENTITY CARD OF SMT. CHELLAMMA. EXT.P11:- COPY OF THE SUPER ANNUATION ORDER OF SMT.CHELLAMMA ISSUED BY THE 3RD RESPONDENT CORPORATION DT. 3112.03. EXT.P12:- COPY OF THE ESI IDENTITY CARD OF SMT.SATHYABHAMA. EXT.P13:- COPY OF THE SUPER ANNUATION ORDER OF SMT.SATHYABHAMA ISSUED BY THE 3RD RESPONDENT CORPORATION DT. 31.12.02. EXT.P14:- COPY OF THE ESI IDENTITY CARD OF THE PETITIONER. ANNEXURE :- COPY OF THE PENSION PAYMENT ORDER IN RESPECT OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS EXT.R3(a):- COPY OF THE MINUTES OF THE MEETING OF THE SIT RESPONDENT AND TRADE UNIONS HELD ON 27.1.2001. EXT.R3(b):- COPY OF THE OFFICE ORDER DT. 14.3.2001 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NOs.7942 & 9657 of 2003 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of April, 2008. JUDGMENT These two original petitions concern the claim of the petitioner in O.P.No.7942/2003 for regularisation to the post of Kernal Checker under the Corporation which is the petitioner in O.P.No.9657/2003. The employee has approached this court seeking implementation of Ext.P7 order passed by the Labour Comissioner and the management is challenging the very same order in O.P.No.9657/2003. Therefore, the original petitions are disposed of by a common judgment. The short facts leading to the dispute are the following: 2. The employee who is the petitioner in O.P.No.7942/2003, was engaged as a worker in the factory located at Chittumala, belonging to the Corporation in Kollam District right from 1965. The workers who are eligible for regularisation, were being absorbed in the post of Kernel Checker. When a vacancy arose in the said post on 31.12.1992, three senior workers including the petitioner were engaged on a rotation basis as substitutes from the said date. The said arrangement continued. When Smt. OP 7942 & 9657/03 -2- Lakshmikutty Amma was regularised as Kernal Checker, the petitioner raised a complaint which was rejected by Ext.P1 by the management. It was found in the said proceedings that including the petitioner, three workers were working, out of which the petitioner and Smt. Lakshmikutty Amma were having equal attendance and since the latter was senior in age than the petitioner, she was ordered to be regularised. This was under challenge in O.P.No.24840/1999. Ext.P3 is the counter affidavit filed by the management therein, wherein it is admitted that the petitioner is the next substitute for future appointment. While the said original petition was pending, Smt. Lakshmikutty Amma retired from service. This court while disposing of the original petition, directed the 4th respondent to consider the claim of the petitioner based on the terms of the Industrial Relations Committee settlement. But again by Ext.P5, her claim was rejected. The management took the view that she will become eligible for regularisation only on completion of two years in substitute engagement in the vacancy. When this was challenged in O.P.No.676/2002, this court directed the Labour Commissioner to hold an enquiry and take a decision in the matter. Accordingly, after hearing parties, Ext.P7 order has been passed. In Ext.P7, it was held that the petitioner is entitled to get permanent appointment on OP 7942 & 9657/03 -3- monthly salary as Kernal Checker with effect from 1.1.2001, being the date of occurrence of the vacancy. The management challenges the same in O.P.No.9657/2003 on various grounds. 3. As per order dated 28.3.2003 in C.M.P.No13696/2003, this court directed the respondents to appoint the petitioner as directed in Ext.P7 provisionally when the factory reopens. But after engaging her, on 10.2.2004 she was relieved from service on the ground that she has attained the age of superannuation on 18.10.1997 as per the records maintained by the Provident Fund authorities. Under the Provident Fund records her year of birth is noted as 1939 but according to the petitioner, it is correctly recorded in the E.S.I. Records as 1944. Therefore, the original petition has been amended by adding a prayer to declare that the decision of the management to superannuate her is illegal and arbitrary and to grant a declaration that she is entitled to continue in service till 31.12.2004. 4. In the said original petition the management filed a clarificatory petition as I.A.No.16358/2003 seeking for permission to the management to superannuate the petitioner. After hearing the parties, on 5.2.2004 an interim order was passed allowing the Corporation not to continue the engagement of the petitioner subject to further orders to be passed in these OP 7942 & 9657/03 -4- original petitions. Accordingly, she had been relieved also. 5. The management has filed a counter affidavit and an additional counter affidavit in O.P.No.7942/2003. The contention raised in the counter affidavit is that going by the IRC settlement, the petitioner can claim regularisation only after the period of two years as a permanent substitute from the date of occurrence of vacancy. Ext.R3(a) decision is relied upon to justify the contention. In the additional counter affidavit it is contended that on completion of 58 years of age as per the P.F. Records, the petitioner had applied for provident fund pension. The Board of Directors of the Corporation in the meeting held on 15.12.2004 further clarified and decided that the basic record of the workers for deciding the date of birth in the Corporation should be the school record and if it is not available, then to accept the records maintained by the Provident Fund authorities as the actual date of birth when there is difference in recording of date of birth in various records. The representatives of Central Trade Unions are also members of the Board. It is also contended that the petitioner has been receiving the provident fund pension since 18.10.1997 on completion of 58 years and therefore she had attained the age of superannuation of 60 years on 18.10.1999. Annexure A produced along with I.A. No.16358/2003 is the OP 7942 & 9657/03 -5- pension payment order in respect of the petitioner. 6. The very same contentions have been raised in O.P.No.9657/2003 also. Ext.P9 is the resolution of the Board of Directors dated 15.12.2004 stating that when there is difference with regard to the date of birth in various records, the records maintained by the Provident Fund authorities have to be accepted to determine the actual date of birth. Ext.P10 is the circular issued pursuant to the said resolution. 7.Heard learned counsel for the worker and learned counsel for the management. 8. Learned counsel for the employee submitted that she was entitled for regularisation as ordered in Ext.P7 by the Labour Commissioner and the contention raised by the management by relying upon clause 15 that she should complete a further period of two years to become eligible for regularisation, is not correct. Therefore, it is submitted that she was entitled for regularisation from the date of occurrence of vacancy and was entitled to continue till the age of superannuation taking her year of birth as 1944. As regards the dispute raised by the management regarding the year of birth, learned counsel for the petitioner, relying upon the documents like E.S.I. Cards, submits that her year of birth has been recorded clearly as 1944 and OP 7942 & 9657/03 -6- the contention that she had attained superannuation taking her year of birth as 1939 is not correct. It is only a mistake. It is also contended that in respect of other similarly placed employees, the E.S.I. Card has been relied upon by the management to fix the date of superannuation. Exts.P9 to P14 are the cards which are relied upon by the petitioner. Learned counsel made an alternative plea that the mere fact that she was in receipt of pension cannot deprive her right to continue till 2004 and if this Court directs, she is prepared to pay back the amount of pension received from the Provident Fund authorities. 9. The first question to be addressed is whether the view taken by the Labour Commissioner in Ext.P7 is correct or not. Ext.P2 is the settlement relied upon by both parties. Clause 15 provides that when permanent vacancies arise in posts having a regular scale of pay, then workers who are working in these posts on temporary basis on receipt of daily rated wages, will be entitled for regularisation based on the highest number of attendance. In fact, the petitioner had approached this court earlier in O.P.No.24840/1999 challenging the appointment of Smt. Lakshmikutty Amma and at that time both of them had attendance numbering 45 each, but she was not given appointment as Smt. Lakshmikutty Amma was aged OP 7942 & 9657/03 -7- more than her. Ext.P3 is the counter affidavit therein and no contention has been raised to the effect that she has to work again as a permanent substitute for two years from the date of occurrence of regular vacancy to claim regularisation. In para 9, it is clearly stated that the petitioner is the next substitute for future appointments. In Ext.P7 order, the effect of clause 15 was considered by the Labour Commissioner. It has clearly been recorded in Ext.P7 that the petitioner had been on termporary employment receiving the daily rate on the scale of Kernal Checker from 1992. In the subsequent vacancy she could not be accommodated as Smt. Lakshmikutty Amma was senior in age. In fact, the dispute between the petitioner and Smt. Lakshmikutty Amma arose in 1996, actually. It is in these circumstances the Labour Commissioner held that when the vacancy arose on 1.1.2001, the petitioner ought to have been accommodated, as those who are qualified shall not be asked to acquire the qualification again. Going by clause 15, it cannot be said that the petitioner should work as a permanent substitute for another two years. In that view of the matter, it cannot be said that the view taken in Ext.P7 is perverse warranting interference in these proceedings. A plain reading of clause 15 shows that the temporary employees who work on daily wage basis receiving the scale for a continuous period of two years OP 7942 & 9657/03 -8- and having the maximum attendance, would be made permanent subject to the availability of vacancy. As she has complied with the said condition even at the time when the vacancy arose in 1996 and as the only aspect against her at that time was that she was younger in age, the management cannot again insist that when a vacancy arose on 1.1.2001, she should again work as a substitute for two years to get the regular appointment. Therefore, the challenge against Ext.P7 raised by the management in O.P.No.9657/2003 fails. 10. This will not solve the issue for other reasons. It is clear from the averments in the counter affidavit filed by the management that the year of birth of the petitioner is noted as 1939 in the Provident Fund records and on that basis, she has been receiving pension from the Provident Fund organisation from 18.10.1997 onwards. Under the Employees Provident Fund Pension Scheme 1995, an employee who has completed the age of 58 years, will become eligible for Provident Fund pension. Therefore, it is clear that she had attained 58 years on 18.10.1997 and therefore she had attained 60 years in the year 1999 and her date of superannuation will be 18.10.1999 as per the Provident Fund records. When the worker has openly accepted her year of birth as 1939 and she had been receiving pension on OP 7942 & 9657/03 -9- the basis of that, the changed stand now adopted that the management is bound to continue her based on the records maintained under the E.S.I. Act cannot be accepted. In fact, the management has already resolved as per Ext.P9 in O.P.No.9657/2003 that when difference arises in various records regarding the date of birth, the records maintained by the Provident Fund authorities should be accepted. It cannot be said that the said decision is wrong on any premise. It is evident that the employee has to apply to the Provident Fund Organisation for getting pension and going by Annexure A produced by the management along with I.A.No.16358/2003, pension has been sanctioned taking her date of birth as 18.10.1939. With open eyes she accepted the pension granted as per the said proceedings. Even after filing her writ petition, no attempt has been made to change the date of birth in the Provident Fund records and to refund the pension amount received. The said conduct clearly show that she had no qualms while receiving the pension amount from the Provident Fund Organisation. The turn round now sought to be made cannot, in the circumstances of the case, improve her case. Even though learned counsel for the worker offered to pay back the Employees Provident Fund Pension in the event of this court finding that the year of birth has to be taken as 1944, I am afraid going by the records OP 7942 & 9657/03 -10- available from Provident Fund authorities, this court will not be justified in accepting the said plea put forward by the learned counsel, that too at the time of argument only. She had ample time if she was really aggrieved, to get the date of birth corrected in the Provident Fund records and if she had any dispute regarding her date of birth recorded therein. In that view of the matter, the action taken by the management to superannuate her with effect from 10.2.2004 cannot be said to be wrong. 11. Therefore, even though the challenge against Ext.P7 order passed by the Labour Commissioner fails, in view of the fact that she has attained the age of superannuation on 18.10.1999, she has no claim for regularisation in the vacancy which arose on 1.1.2001 and she will not be entitled for any benefits by way of salary, etc. on that count. Therefore, the prayers in O.P.No.7942/2003 are rejected. 12. Pursuant to the interim order passed in O.P.No.7942/2003, she had been absorbed in the vacancy and had worked till she was superannuated on 10.2.2004. Learned counsel for the petitioner had also pointed out that if the year of birth is taken as 1939, she was entitled for regularisation in 1996 itself in the place of Smt. Lakshmikutty Amma. I find force in the above submission. But at this stage, such entitlement OP 7942 & 9657/03 -11- cannot be declared in these proceedings, as she did not get any such relief in her writ petition filed earlier, viz. O.P.No.24840/1999. But since she has worked till 10.2.2004 as Kernal Checker, it is declared that the management cannot seek any refund of salary for the period from 18.10.1999 till 10.2.2004. Further, in the peculiar facts and circumstances of this case, the said period will be counted for granting her other retirement benefits, if any, which remains unpaid. Hence, both the writ petitions stand dismissed, subject to the above directions. No costs. (T.R. Ramachandran Nair, Judge.) kav/ OP 7942 & 9657/03 -12- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. Nos.7942 & 9657 of 2003 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Ist April, 2008.