IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 WP(C).No. 5446 of 2008(W) ------------------------- PETITIONER: ------------ J. JALAL, AGED 60 YEARS, CLEANER, KERALA STATE COIL CORPORATION LTD., ALAPPUZHA (RETD. ON 31-08-2002), S/O.LATE JAMAL, MUBARAK MANZIL, NEAR MUHAMMED SCHOOL,CIVIL STATION WARD, ALAPPUZHA. BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ SRI.ANOOP JOSEPH SRI.ANOOP.V.NAIR SRI.ABHILASH AKBAR SRI.T.B.SIVAPRASAD RESPONDENTS: ------------- 1. KERALA STATE COIR CORPORATION, ALAPPUZHA, REPRESENTED BY ITS MANAGING DIRECTOR. 2. MANAGING DIRECTOR, KERALA STATE COIR CORPORATION LTD., P.B.NO.191, ALAPPUZHA. BY ADV. SRI.K.N.BALACHANDRAN KARTHA,SC,COIRCRFT FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No.5446 of 2008 -------------------------- Dated this the 27th May, 2008 J U D G M E N T The petitioner, while working as Cleaner in the services of the 1st respondent voluntarily retired from service on 31.8.2002 under the Voluntary Retirement Scheme. Petitioner received notice pay, gratuity and other benefits payable to an employee who retires under the Voluntary Retirement Scheme in terms of Exhibits P1 to P3. Subsequent to the petitioner's retirement from the service of the Company, the salary of all employees were revised with effect from 1.4.2002. Petitioner submits that had the petitioner remained in the services of the Company, his salary would have been increased by an amount of Rs.1,449.20 per month and this would have resulted in an enhancement of the total emoluments that he had received under the VRS Scheme. Request made by him in this regard was rejected as per Exhibit-P6, which has been challenged in this writ petition. W.P ( C) No.5446 of 2008 2 2. In the 1st counter affidavit filed by the 2nd respondent it is pointed out that payment under the scheme have been accepted by the petitioner under the Voluntary Retirement Scheme. Subsequent revision in the wages payable to the employees of the Company will not in any way affect the benefits in favour of the petitioner. Reference is made to Clauses 7 (2) and 7 (3) of the first counter affidavit, which read as follows : “7(2): says the employees retiring under this scheme shall not have any claim against the company on any account except for the amount payable under this scheme; 7(3) says an employee under this scheme shall not have any claim for re-employment in the company or to stipulate any other conditions under this scheme and will have no recourse to dispute on any ground whatsoever the amount payable/payment made under the scheme have been accepted by the employee. In Exhibit-P1 and employees voluntary retirement scheme 1998 the term used is shall.” W.P ( C) No.5446 of 2008 3 3. It is therefore contended that having accepted the amounts in terms of the scheme, petitioner is not entitled to claim the difference merely because there has been revision in the wages, which will apply in the case of those persons who remain in the services of the Company and also to those persons who might have retired on superannuation. 4. The stand taken by the company seems to be correct. Petitioner is bound by the clauses contained in the VRS scheme which stands in the way of staking a claim for revision of wages. Having accepted the terms of the scheme, it is not open to the petitioner to thereafter, claim a benefit, which is squarely prohibited by the terms of the scheme. 5. Learned counsel for the petitioner submits that notwithstanding the above position, the 1st respondent had paid the benefits of the revision to one Sri.K.F. George who had also retired under the VRS scheme. In the affidavit originally filed by the Company, it was contended that what was paid to Sri.George was only the benefits due to him and the benefits of the salary revision was not extended to him as such. Apparently, W.P ( C) No.5446 of 2008 4 this averment turned out to be erroneous and pursuant to the order passed by this Court on 7.4.2008 expressing this Court's dis-satisfaction with the manner in which the affidavit was sworn to by the 2nd respondent, additional counter affidavit was filed by 2nd respondent on 26.5.2008. It is conceded that the averments made in para 10 of the counter affidavit was by mistake and that by mistake the arrears of salary and difference in the gratuity on account of the pay revision of the staff was extended to Sri. K.F George. It is further stated therein that steps have been taken to recover an amount of Rs.30,817/- from Sri. George and a letter has also been sent to him. The mere fact that there is an admission on behalf of the 2nd respondent that the amount paid to Sri. George was on a mistake will not enable the petitioner to build up any case on the said basis. 6. A mistake which has been committed by the employer by itself shall not afford any enforceable right in favour of the employees. I do not therefore find any grounds to issue any directions as such in favour of the petitioner in this writ petition. But I am constrained to take note of the manner in which the W.P ( C) No.5446 of 2008 5 counter affidavit has been filed by the 2nd respondent without adequate verification of the facts. It does not seem to inspire confidence in the mind of the Court. I also take note of the fact that the 2nd respondent has not even taken care to express an apology before this Court for the mistake which obviously has permeated in the 1st counter affidavit. This Court has already in t order dated 7.4.2008, expressed an opinion that what is of concern is that public authority has acted in a cavalier manner. The 2nd respondent seems to be oblivious to the expression of dis-satisfaction made by this Court. Suffice it to say this Court is constrained to express it's displeasure for the manner in which the 2nd respondent has filed a counter affidavit. 7. For these reasons even while declining to issue any directions in favour of the petitioner, I think the expression of dis-satisfaction which this Court had made in this judgment merits an appraisal by the Government, taking note of the fact the Coir Corporation is a Government of Kerala Undertaking. In the result, Registry shall forward a copy of the judgment to the Principal Secretary for the Industries W.P ( C) No.5446 of 2008 6 Department taking note of the manner in which the counter affidavits have been filed before this Court by the 2nd respondent. It is up to the Government to take suitable and appropriate action in this regard. V.GIRI, JUDGE ma W.P ( C) No.5446 of 2008 7 V.GIRI,J. ------------------------- W.P ( C) No.5446 of 2008 -------------------------- Dated this the 7th April, 2008 O R D E R After hearing counsel on both sides, though I am convinced that the amount as claimed by the petitioner is not due to him, merely because the pay revision order has been given retrospective effect from 1.4.2002, I am still not been able to understand how arrears of salary consequent upon the pay revision has been given to one Sri.K.F George as admitted in para 12 of the counter affidavit. According to the Managing Director, who has sworn to the affidavit, the same has been done on the basis of a legal opinion. Learned counsel for the respondents submits that on further verification it has been realised that it was a mistaken legal opinion and steps will now be taken to recover any amounts which have been so given to any retired employee. The question as to whether the respondents have taken steps to recover any amounts from the W.P ( C) No.5446 of 2008 8 person referred to in para 12 of the counter affidavit is not a matter of concern in these proceedings. What is of concern is that a public authority seems to have acted in such a cavalier manner. The counter affidavit filed is thoroughly unsatisfactory. It is open to the 2nd respondent to file an additional affidavit, if so advised. Post on 26.5.2008. (V.GIRI, JUDGE) ma W.P ( C) No.5446 of 2008 9