IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 WA.No. 671 of 2006() AGAINST THE JUDGEMENT IN OP.7297/2002 Dated 21/11/2005 APPELLANT(S): /PETITIONERS: 2 TO 5,8 TO12,17,22,24,29,34,38,44, 47,49,54,56, 58,59,61,66,75,77,80,82,84 TO 87,89,91,99,102,107 TO 108,121,126,127 TO 128,133 TO 134,136 TO 138,141 TO 412 149 TO 150,153,155 TO 156,158,160,163 TO 167,169,172,175,183 AND RESPONDENTS 3 TO 4, 6 TO 20. 1. B.G. DATTAN, DWARAKA, PIPELINE ROAD, PALARIVATTOM, COCHIN-25 2. K.K SIVADASAN, MUDUKAPPILLY, EDAPPILLY 3. P.K UTHAMAN, PARICKLPILLIL SITHARA HOUSE MANJUMMEL P.O., UDYOGAMANDAL 4. P.C.CHANDY, PANAKKAL HOUSE, CHERANALLOR P.O. COCHIN-34 5. V. GOPALAKRISHNAN NAIR, CHAITHANYA, CHANGAMPUZHA NAGAR, KALAMASSERY. 6. P.K. DEVASSY KUTTY PADAYATTIIL, THURAVUMKARA VEEDU KANJOOR, ERNAKULAM DIST. PIN-683 575 7. A.L SADASIVAN PILLAI, LAKSHMANVIHAR, EAST KADUNGALLOOR U.C. COLLEGE P.O., ALUVA 8. M.K.M PANICKER, QUARTERS NO.523/4, FACT, COCHIN DIVISION, AMBALAMEDU 9. C.A JOSEPH, CHALAVEETIL HOUSE, NEAR LODGE STOP, PANAIKULAM, ALANGAD P.O 10. P.K VISWAMBARAN, PEZHINKAL VEEDU, EDAPPALY P.O, TOLLGATE 11.B. MUHAMMED, VIDAKAM VEEDU, MUNEPINJI, THAYIKKATTUKARA, P.O ALUVA 12. T.A. IBRAHIM KUTTY, THOPPIL HOUSE, THAIKKATTUKARA, ALUVA. 13. THRESIAKKUTTY, CHERIYA KADAVIL, MANJUMMEL P.O. 14. C.G. PRABHAKARAN NAIR, NELLELY HOUSE, KURUPPUMKULAMGARA P.O, CHERTHALA SOUTH, ALAPPUZHA. 15. R. GOPALAKRISHNAN, LEKHA NIVAS, POOCHAKKAL P.O, PANAVALLI. 16. SULAIMAN B., KARINTHAGALAPARAMBIL, BINAMIPURAM, EDAYAR 17. K.K APPU, KANIYARUTHARA HOUSE, PONNARIMANGALAM, MULAVUKAD P.O. 18. P. PANKAJAKSHAN NAIR, KUTTIKKATTU HOUSE, CHERANALLOOR P.O. 19. T.K. RAVEENDRAN, SARAVANA, THAMPURATTYPARAMBU, B.T.S ROAD, EDAPPALLY P.O, KOCHI 682 024. 20. V.N GOPINATHAN NAIR, VELLAYATH HOUSE, VAYALAR P.O CHERTHALA. 21. K.B YOUSEF, ULAKKARAPARAMBU, MUTTAM, THAYIKKATTUKARA, ALUVA. 22. T.L GEORGE, KOLLANNUR HOUSE, H.M.T COLONY, U.C COLLEGE P.O, ALUVA 23. M.A SULAIMAN, MANATHU THOPPIL VEEDU, THRIKKAKARA P.O. 24. K.V PAPPU, KUPPIL HOUSE, KARIMUGAL COLONY, PUTHENKURIZU P.O. 25. K. SANKUNNY NAIR, PARAYIL HOUSE, AYYANTHOLE, PUDUKKARA, THRISSUR. 26. A.K. KARUNAKARAN, ALLENANJI HOUSE, VELLARAPPILLY (S) P.O, SREEMOOLANAGARAM. 27. V.P JOY, VITHAYATHIL HOUSE, MANNAMTHURUTHU, VARAPUZHA- 683 517 28. P.B MOHAMMED, PARAPPATHU HOUSE, MANJUMMEL. 29. C.L VARGHESE, CHAKKARAKKADU HOUSE, PERUMPILLY, NARAKKAL P.O. 30. K. VISWANANTHAN NAIR, DANYA, CHANDRATHIL ROAD, AYYANATH LANE, P.O EDAPPALLY. 31. M.S. PAVITHRAN, MEDAKKAL HOUSE, ELOOR SOUTH, UDYOGAMANDAL P.O. 32. P.J LEONS, PUNNAKKAL HOUSE, CHEMBUMUKKU, K.K ROAD, THRIKKAKARA P.O. 33. G. RAMACHANDRAN NAIR, CHANDRAS, BEHIND SREEKRISHNA TEMPLE, MANJUMMEL. 34. N. GOPINATHAN NAIR, KARTHIKA, CHITTOR PIN-682 027. 35. N. LEKSHMANAN ACHARI, MADATHUVELIYIL HOUSE, THURAVOOR SOUTH, CHERTHALA. 36. K.R. BALAKRISHNAN, PUTHENCHIRAYIL VEEDU, PERUMTHURUTHU, MUHAMMA P.O. 37. N.N NAMBOOTHIRIPAD, AMANAKARA, P.O MANJUMMEL, UDYOGAMANDAL. 38. K.R.G. THIRUMULPAD, USHAS, P.O MANJUMMEL. 39. V.K. CHINNAPPAN, ARADHANA, MANNATHAPARAMBIL, MANJUMMEL. 40. K.K THANKAPPAN, KUNDOORKADU HOUSE, MANJUMMEL. 41. K. KRISHNAN, PADATHOLIL VEEDU, KETTATHUPARAMBU, VATTEKUNNAM, EDAPPALLY P.O. 42. P.B LESTINE, PARAPPILLI HOUSE, THERVARKADU, VARAPUZHA. 43. K.K SHYAMALAN, KANJIRAKKATTU HOUSE, P.O MANJUMMEL. 44. HYDROSE MOHAMMED KUNJU, PAREEKATTU HOUSE, ROCKWILL ROAD, P.O KALAMASSERY. 45 N. RAVEENDRANATHAN PILLAI, DEVARAGAM, POOSARIPADI, KIZHAKKEPURAM, N.PARAVOOR- 683 513. 46. P.S. BALAKRISHNAN, PUTHIYEDATHU VEEDU, MUPPATHADAM P.O ALUVA-2 47. K. PADMAKSHY, DEVADATTAN, KANJIRAMATTOM P.O, ERNAKULAM DIST. 48. C.K. SUBRAMANIAN, CHATTA PARAMBIL HOUSE, ELOOR SOUTH, UDYOGAMANDAL. 49. K.L JOSEPH, KANDAMPARAMBIL VEEDU, ELOOR SOUTH, UDYOGAMANDAL. 50. P.R. VISWAMBARAN, NOBLE VIHAR, EDAPPALLY TOLL, COCHIN-24. 51. A RAVINDRAN, ANTHIKKADU HOUSE, ELOOR SOUTH, UDYOGAMANDAL. 52. O.K SUBRAMANIAN, ORTHOTTATHIL HOUSE, WEST CHALAKUDY P.O. NEAR SOUTHERN COLLEGE, PIN-680 307. 53. K.N PAVITHRAN. KALAPURAKKAL VEEDU, ALATTUCHIRA P.O. PERUMBAVOOR. 54. V.V. GOPALAKRISHNAN, DEEPA NIVAS, ELOOR SOUTH, P.O UDYOGAMANDAL. 55. P.G. THARIAN, PAYYAPPILLY HOUSE, VAPPALASERY P.O, ANGAMALY 56. K.K SUBRAMANIAN, CHITHRA, KUNDUKANDATHIL HOUSE, RAILWAY STATION ROAD, OLLUR P.O, PIN- 680 306. 57. N.A KUNJAPPAN, NARANATHU PARAMBIL ELOOR SOUTH, UDYOGAMANDAL. 58. P.M KUNJAPPAN, PUNTHURUTH, ELOOR EAST, P.O UDYOGAMANDAL. 59. M.K VELAPPAN, MEDAKKAL HOUSE, MANJUMMEL. 60. P.C. MATHAI, PONNAN HOUSE, MANJUMMEL. 61. V. DORASAMY SUNDAR NIVAS, P.O MANJUMMEL 62. B. CHANDRASHEKARA PILLAI, KAILAS, MANJUMMEL. 63. M. MOHAMMED, PULLADATH HOUSE, KUTTIKKATTUKARA P.O. PIN 683 504 64. K.J. STANLY, VADAKEKALLAM HOUSE, WEST OF IRON BRIDGE, NEAR SEEMATTI TEXTILES, ALLEPPY. 65. T.M VASUDEVAN PILLAI, ANJALI VEEDU, ELOOR SOUTH. 66. A.S ACHARI,MULLAMUTTAM HOUSE, VELLORKARA, PUTHENKURISU P.O, ERNAKULAM. 67. V.A. IBRAHIM, VALLOPPILIL HOUSE, BRAHMAPURAM P.O, AMBALAMEDU, ERNAKULAM. 68. KOSHY A.G. 34/1259, MOTHER TERESA ROAD, EDAPPILLY KOCHI- 34. 69. CHINNAMMA PHILIP, PUKADYIL HOUSE, 361/x, MONASTERY LANE, ALUVA 70. LEELAMMA MATHEW, CHOOLAKKAL HOUSE, PHED QUARTERS ROAD, ALUVA. 71. SAROJINI AMMA J. ,NARAYANAM, KOZHIVETTUVELI, EROOR NORTH P.O, THRIPUNITHURA. 72. MARY ABRAHAM, 50/VIDHYANAGAR, COCHIN UNIVERSITY P.O KOCHI-35. 73. RAJAM H., KRISHNA NIVAS, PATHALAM FERRY, KUTTUKKATTUKARA P.O, UDYOGAMANDAL. 74. VISALAKSHMY AMMA K.S, GOKULAM, GLASS FACTORY ROAD, KALAMASSERY. 75. JAGADAMMA P.N., HB-95, PANAPPILLIE, PANAMPILLY NAGAR, KOCHI- 36 76. RAJAMMA A.V., PRASANTH, PALARIVATTOM P.O. KOCHI- 25 77. RADHAMONY AMMA P.L. THEKKEVAKAYIL, KESARI ROAD, N.PARUR. 78. AELAMMA K.P, SAJIV BHAVAN, KUZHIKKADU P.O, AMBALAMEDU 79. PAULOSE M.L, MALEAKKAL HOUSE, NARAKKAL P.O, KOCHI 80. SANKUNNY, SRUTHIMANDIRAM, KUTTANELLOOR P.O, KUNNAMKATTUKARA, THRISSUR. 81. RAHELAMMA K.M, C/O. BINOY THOMAS, 5A, POOJA APARTMENTS, POOJAPURA, THIRUVANANTHAPURAM. 82. SARASA P.R. RAJ BHAVAN, PADAVANAD P.O. OLLUR, THRISSUR BY ADV. SRI.K.JAJU BABU RESPONDENT(S): RESPONDENTS 1 & 2: 1. FERTILIZERS AND CHEMICALS TRAVANCORE LTD ELOOR, UDYOGAMANDAL, FLOOR, 683501, REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR. 2. UNION OF INDIA, REP. BY THE SECRETARY TO GOVT. OF INDIA, MINISTRY OF CHEMICALS AND FERTILIZERS, SHASTRI BHAVAN, NEW DELHI. BY ADV. SRI.E.K.NANDAKUMAR FOR R1 SRI.A.K.JAYASANKAR NAMBIAR FOR R1 SRI.JOHN VARGHESE, ASSISTANT SG SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2009, ALONG WITH WA NO.1533 OF 2006, WA NO.359 OF 2006, WPC NO. 34727 OF 2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------------- W.A. NOS. 359, 671 & 1533 OF 2006 & W.P.(C) NO. 34727 OF 2004 --------------------------------------------------- Dated this the 11th day of June, 2009 JUDGMENT Balakrishnan Nair, J. W.A. No.671 of 2006 The appellants were workmen of the first respondent - Company (hereinafter referred to as “F.A.C.T.”). The long term settlement governing the terms of employment of the workmen expired on 31.12.1996. On negotiation, a fresh settlement was concluded between the parties and finally it was signed on 28.8.2001. The said settlement was to take effect notionally from 1.1.1997. The benefits under the settlement including pay revision were released to the workmen with effect from 1.7.2001. Ext.P1 is the said settlement concluded between the management and the workmen in the presence of conciliation officer under Section 12 (3) of the Industrial Disputes Act. Clause 29 of the settlement provided as follows: “The liability and payment of arrears relating to revision of basic pay/wages and DA with effect from 1.1.1997 to 30.6.2001 will be reviewed, W.A. No.671/2006 &Connected Cases 2 and decided by the Management/Government when the Company starts earning continuous profit at least for three years. PF, Gratuity and Annual bonus on revised wages for this period will also be subject to payment of arrears of wages for this period.” Clause 33.1 which is also relevant in this case reads as follows: “Subject to clause 29 above, those workmen who retired from the Company service on attaining age of superannuation or left on voluntary retirement or died whilst in service on or after 1.1.1997 will be deemed to be eligible for arrears under this Settlement calculated as from 1.1.1997 to the date up to which they were in the service of the Company after adjusting the monthly adhoc interim relief and arrears thereof paid to them till then, (provided they or their heirs as the case may be, apply for the same within 6 months of the decision to pay arrears under this Settlement. The amount of arrears if not claimed and paid within this period will be transferred to the Welfare Fund). In the case of voluntary retirement availed after 1.7.2001, the ex-gratia paid will be reworked consequent to the Wage Revision.” In the light of the above provisions, though the workmen who retired between 1.1.1997 and 1.7.2001 are eligible for pay revision, they have to wait for getting arrears of salary as also the terminal benefits at the revised rates. The appellants in this Writ Petition are workmen who retired from service between 1.1.1997 and 1.7.2001. We note that some of the W.A. No.671/2006 &Connected Cases 3 workmen already died and their legal representatives are before the Court as appellants. We are also told that during the pendency of the Writ Petition, the first petitioner died. Similarly, in a connected Writ Petition, we are told that three of the petitioners have already died. The appellants submit that since they were retired employees, there was none to espouse their cause before the conciliation table and, therefore, their right to get revised pensionary benefits and arrears of salary have been dealt with under the settlement unfairly. 2. The grievances of the appellants are two-fold. The first grievance is that they are denied arrears of salary from 1.1.1997 till their date of retirement. But, we notice that similar claim raised by similarly placed employees in the managerial cadre has been rejected by this Court. All the workmen and the managerial employees serving as well as retired are waiting for better times as contemplated under the settlement/relevant order for getting arrears of salary. So, in the case of the appellants, this Court cannot grant any relief on that claim. The second grievance of the appellants is that they were paid pensionary benefits only at the pre revised rates. The officers who retired between 1.1.1997 and 1.7.2001 have been paid terminal benefits taking into account the revised pay scales. All the workmen and officers who retired from service with effect from W.A. No.671/2006 &Connected Cases 4 1.7.2001 have also been paid terminal benefits at the revised rates. The appellants and similarly placed workmen who retired between 1.1.1997and 1.7.2001 alone are discriminated. They were paid terminal benefits taking into account their pre revised wages. So, they pray that appropriate direction may be issued to the first respondent to remedy the above injustice meted out to them. The first respondent would submit that disability, if any, suffered by the appellants is flowing from Ext.P1 settlement. They derived the benefit of pay revision only under that settlement. So, they cannot derive the benefits and simultaneously attack the deferment of the benefits till the F.A.C.T. makes profits consecutively for three years. Therefore, for getting the benefits flowing from Ext.P1, the appellants have to wait till the conditions provided therein are satisfied. In the case of the officers, pay revision was granted as per the orders of the management. But, in the case of the workmen, the pay revision benefits were granted pursuant to Ext.P1 settlement which is binding on both sides. Therefore, the workmen cannot turn round and attack some of the terms of Ext.P1 by taking advantage of certain other provisions. 3. We notice that the term of the settlement was for ten years which expired on 31.12.2006. Notice of termination of the settlement and claim for fresh revision of wages have been submitted in the form of charter of W.A. No.671/2006 &Connected Cases 5 demands by the existing workmen. In view of the said position, the conditions in Ext.P1 no longer survives as terms of settlement, but as terms of employment. They will continue to bind until they are modified by a fresh settlement or award: see the decision of the Apex Court in L.I.C. of India v. D.J. Bahadur, A.I.R. 1980 S.C. 2181. In view of the above subsequent developments, the appellants can definitely seek variation of the terms of Ext.P1 and clamour for a fair decision in the matter of release of the terminal benefits. The management cannot contend that in view of Ext.P1, they are disabled from considering the request of the appellants. As rightly pointed out by the learned counsel for the appellants, the officers who retired from service before 1.7.2001 and after 1.7.2001 have been paid terminal benefits at the revised rates. All the workmen who retired after 1.7.2001 have already received their terminal benefits at the revised rates. Only the appellants and similarly placed workmen who retired between 1.1.1997 and 1.7.2001 were paid terminal benefits only at the pre revised rates. We feel that there is some injustice meted out to the appellants. The same has to be remedied, if the financial position of the F.A.C.T. can afford that. Since the F.A.C.T. was in the red, the aforementioned clauses were introduced in the settlement. But, since terminal benefits at the revised rates were already released to the officers who retired in the aforementioned block period, we feel that a sympathetic W.A. No.671/2006 &Connected Cases 6 consideration of the case of the workmen involved in these cases should be made by the management. 4. Accordingly, the Writ Appeal is disposed of directing the first respondent to consider the claim of the appellants and other similarly placed persons for getting terminal benefits at the revised rates, having regard to all the relevant facts, in accordance with law within two months from the date of receipt of a copy of this judgment. Regarding arrears of pay revision, it is ordered that the same will be released to the appellants and other similarly placed persons when arrears are paid to the existing workmen. W.A.Nos.359 &1533 of 2006 & W.P.(C) No.34727 of 2004 The judgment in W.A. No.671 of 2006 will govern these cases also. Accordingly, the said cases are disposed of. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. No.671/2006 &Connected Cases 7 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A NOS.359 ,671,& 1533/2006 & W.P.(C) No.34727/2004 JUDGMENT 11th June, 2009 W.A. No.671/2006 &Connected Cases 8