IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 32733 of 2008(V) --------------------------------------- PETITIONER(S): ------------------------ SYED BADARUDDIN (FORMERLY ASSISTANT SUPERINDENTENT, KERALA SOAPS AND OILS LTD) 3/228 A, AFREEN, PARANKAVU PARAMBA, PULIKKAL LANE NADAKKAVU P.O.,KOZHIKODE 673 011. BY ADV. SMT.P.V.ASHA RESPONDENT(S): ------------------------- 1. THE KERALA SOAPS AND OILS LTD. REPRESENTED BY ITS MANAGING DIRECTOR, KOZHIKODE 673 005 2. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF INDUSTRIES, SECRETARIAT,THIRUVANANTHAPURAM. R1 BY ADV.MR.B.SAJEEV KUMAR,SC,KERALA SOAPS & OILS MR.THANKAPPAN, SC R2 BY GOVT. PLEADER MR.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/10/2009, ALONG WITH WPC NO. 32797 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.32733/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.P0/02290/94 DTD. 5.1.94 OF IST RESPONDENT. P2:- COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY IST RESPONDENT. P3:- COPY OF THE LETTER PO:LL: 96/2290-DTD. 9.11.96 OF IST RESPONDENT. P4:- COPY OF THE LETTER DTD. 17.11.1996 OF PETITIONER. P4(a):- COPY OF THE LETTER DTD. 24.11.96 OF PETITIONER. P5:- COPY OF THE LETTER NO.PO/2290/96 DTD. 25.11.96 OF IST RESPONDENT. P6:- COPY OF THE LETTER PO/VRS/96/2290 DTD.07.12.97 OF IST RESPONDENT. P7:- COPY OF THE LETTER NO.PO/LL/2290/97 DTD. 04.1.97 OF IST RESPONDENT. P8:- COPY OF THE LETTER NO./PO/RETRCHT/2290/97 DTD. 10.3.97 IST RESPONDENT. P9:- COPY OF THE JUDGMENT DTD. 29/3/2005 IN OP./11447/98. P10:- COPY OF THE REPRESENTATION DTD. 10/08/2005 OF PETITIONER. P10(a):- COPY OF THE REPRESENTATION DTD. 6.11.06 OF PETITIONER. P11:- COPY OF THE G.O.(MS) NO.58/2008/ID DTD. 5.5.08. P12:- COPY OF THE G.O.(MS) 109/2008/ID DTD. 15.7.08. P13:- COPY OF THE G.O.(MS) NO.105/2008/ID DT. 22.7.08. P14:- COPY OF THE NOTICE DTD. 22.9.2008 OF IST RESPONDENT. P15:- COPY OF THE APPLICATION DTD. 24.9.08 OF PETITIONER. TRUE COPY P.S. TO JUDGE tss V.GIRI, J. --------------------------- W.P.(C) Nos.32733 & 32797 of 2008 --------------------------- Dated this the 9th day of October, 2009 JUDGMENT Common issues arise for consideration in these two writ petitions and therefore, they have been heard and are being disposed of by this common judgment. I will refer to W.P.(C) No.32797 of 2008 in the first instance and the discussion therein will comprehend the other writ petition also. W.P.(C) No.32797 of 2008 2. The petitioner was working as Plant Supervisor in the 1st respondent, the Kerala Soaps and Oils Limited, since 1.2.1979. The petitioner in W.P.(C) No.32733 of 2008 commenced service as Assistant Superintendent (Soaps). 3. While so, taking note of the financial crisis the company was facing from 1970 and cessation of production in the year 1992 as also consequent on non- payment of salary to the employees from 1992, the company W.P.(C)Nos.32733/08 & 32797/08 :: 2 :: advised the employees to seek other employment. The petitioner then submitted an application on 26.3.1995 for Leave Without Allowance for a period of two years. As per Ext.P2 he was granted special leave for two years from 1.4.1995 for the specific purpose of taking up employment abroad, subject to certain conditions, including one which required him to rejoin duty on 1.4.1997. The petitioner was, therefore, relieved and he joined a Company in Uganda on a contract basis. It seems that the 1st respondent issued Ext.P3 letter dated 9.11.1996 alleging that the petitioner did not report for duty even after the expiry of the leave and threatening removal from the rolls, if he does not report for duty within 7 days. The petitioner submits that the letter was a cyclostyled copy of a letter sent to several employees. Obviously, the petitioner's leave was to continue till 1.4.1997. The petitioner received Ext.P3 only on 21.1.1997. He sent a reply to the Personnel Manager of the 1st respondent stating the fact that he was on leave. He W.P.(C)Nos.32733/08 & 32797/08 :: 3 :: received another letter dated 7.12.1996, Ext.P5, asking him to show cause why he should not be removed from the rolls, since he did not report for duty and the same amounts to a major misconduct. Since the petitioner did not receive any reply to Ext.P4, he submitted an application, Ext.P6, requesting extension of the leave. He then received a letter, Ext.P7, wherein he was informed that his name was removed from the rolls of the company. The request for consideration of his case for voluntary retirement from service was also declined, stating that since he did not join duty as per the direction of the company, his name was removed from the rolls of the company. 4. The petitioner, after completion of his contract, returned from Uganda and reported for duty on 31.3.1997. He was not permitted to join duty. Therefore, he approached this court in O.P.No.7035/97. He then filed an application in the said writ petition for a direction to the respondents to consider his application for voluntary W.P.(C)Nos.32733/08 & 32797/08 :: 4 :: retirement under the scheme which was then floated. His application was directed to be considered as per Ext.P9 order dated 3.4.2003. It was not accepted. Later Ext.P11 new revised voluntary retirement scheme was introduced by the Government for the 1st respondent company. This was followed by Exts.P12 and P13 laying down modalities for the voluntary retirement package. 5. This writ petition has been filed seeking appropriate reliefs against the respondents to consider the application filed by the petitioner under the voluntary retirement package floated as per Exts.P12 and P13. Ext.P16 is the application filed by the petitioner in W.P.(C) No.32797/08 and Ext.P15 is the application filed by the petitioner in W.P.(C)No.32733/08. The petitioner also challenges Ext.P7. 6. A counter affidavit has been filed by the 1st respondent and a reply affidavit has been filed by the petitioner. W.P.(C)Nos.32733/08 & 32797/08 :: 5 :: 7. It is clear from the facts mentioned above that the petitioner should be treated as in the employment of the company, when it was ordered to be closed down on 15.12.2002, which is the date now being given by the 1st respondent. The order which purports to remove the petitioner from the rolls of the company, Ext.P7 is clearly unsustainable, since such an order is issued during the currency of the leave, that was validly sanctioned in favour of the petitioner. The petitioner had reported for duty on 1.4.1997, on expiry of the leave. May be, the company might have been closed by that time. But that does not mean that the petitioner ceased to be an employee of the company. 8. A revised voluntary retirement package has been announced by the Government under Ext.P11. The petitioner should be considered under the said voluntary retirement Scheme. W.P.(C)Nos.32733/08 & 32797/08 :: 6 :: 9. Learned counsel for the 1st respondent submits that the company is totally non-functioning and there is no incumbent in the office of the Chairman and Managing Director. The company is a Government company and voluntary retirement package is formed by the Government as evidenced by Ext.P11. There does not seem to be any regular incumbent in the office of Managing Director. 10. In these circumstances, the case of the petitioner ought to be considered by the Government. Therefore, the following directions are issued: (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. W.P.(C)Nos.32733/08 & 32797/08 :: 7 :: (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. W.P.(C) Nos.32733 of 2008 The discussion and directions in W.P.(C) No.32797 of 2008 would govern the petitioner in this case also. Writ petitions are disposed of as above. Sd/- (V.GIRI) Judge sk/ //true copy// W.P.(C)Nos.32733/08 & 32797/08 :: 8 ::