IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 WA.No. 714 of 2011 -------------------- AGAINST THE JUDGEMENT IN WPC.28346/2009 DATED 05/03/2010 .................... APPELLANTS/RESPONDENTS 2, 3, 4 & 6 IN THE WPC: ----------------------------------------------------------- 1. VEGETABLE AND FRUIT PROMOTION COUNCIL KERALAM, REPRESENTED BY ITS BOARD OF DIRECTORS, KAKKANAD, ERNAKULAM. 2. THE CHIEF EXECUTIVE OFFICER, VEGETABLE AND FRUIT PROMOTION COUNCIL KERALAM, KAKKANAD, ERNAKULAM. 3. THE BOARD OF DIRECTORS REPRESENTED BY ITS CHAIRMAN, VEGETABLE AND FRUIT PROMOTION COUNCIL KERALAM, KAKKANAD, ERNAKULAM. 4. THE MANAGER, PROJECT AREA, VEGETABLE AND FRUIT PROMOTION COUNCIL KERALAM, KANNUR. BY ADV. SRI.N.SUGATHAN RESPONDENTS/PETITIONER & RESPONDENTS 1 & 5 IN THE WPC: ------------------------------------------------------------------------ 1. BABURAJ M., S/O.GOVINDAN M. KRISHNAKRIPA, MANGALATHIDAM P.O., KUTHUPARAMBA - 670 643, WORKING AS ASSISTANT MANAGER GRADE II, VEGETABLE AND FRUIT PROMOTION COUNCIL KERALAM, KANNUR. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, AGRICULTURE DEPARTMENT, THIRUVANANTHAPURAM 3. KERALA KERAKARSHAKA SAHAKARANA FEDERATION LTD.NO.4378, KERAFED, REPRESENTED BY ITS MANAGING DIRECTOR, ARISTO JUNCTION, THIRUVANANTHAPURAM R2 BY SENIOR GOVT. PLEADER, SRI.BENNY GERVACIS. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & Antony Dominic, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 714 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of June, 2011 JUDGMENT J.Chelameswar, C.J. This is an appeal by respondents 2, 3, 4 and 6 in W.P.(C) No. 28346 of 2009. The first appellant is a Company, appellants 2 and 4 are its employees and the third appellant is shown to be the Board of Directors represented by its Chairman of the first appellant Company, though we have grave doubts whether a legal proceeding can be maintained by or against such a body (3rd respondent), we do not propose to go into that question. 2. The first respondent herein was an employee of the third respondent herein. The third respondent, it is said, is a Co-operative Society functioning under the Kerala Co-operative Societies Act. While so, for some mysterious reasons, which are not discernible from the records, the second appellant herein appears to have addressed a letter dated 02.06.2004 to the State of Kerala (second respondent herein) WA No. 714 of 2011 -:2:- and pursuant to the said letter an order dated 26.06.2004 is passed purportedly by the Government of Kerala. The relevant portion reads as follows: “- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - AGRICULTURAL (PB) DEPARTMENT G.O.(Rt)No.906/04/ADDated, Thiruvananthapuram: 26-6-2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Read:- Letter number VFPCK/06/HR/2004/311 Dated: 2-6-04 from the Chief Executive Officer, Vegetable and Fruit Promotion Council, Keralam. O R D E R In the circumstances reported by Chief Executive Officer, Vegetable and Fruit Promotion Council, Keralam in his letter read above Government are pleased to accord sanction for the deputation of Sri.M.Babyraj, Assistant(HG), Kerafed to Vegetable and Fruit Promotion Council,Keralam as Assistant Manager for a period of one year on the usual terms and conditions of deputation. By Order of the Governor, K.Krishnakumary Amma, Under Secretary.” 3. From the language of the order it appears that the order purports to sanction the deputation of the first respondent from the third respondent's service to the first appellant's service. There is nothing on the record to establish that such a “deputation” is authorised under any law between two private bodies. Worse is the situation when it comes to the question of sanction by the Government. Nothing is brought to the notice of WA No. 714 of 2011 -:3:- this Court to establish that such a sanction of the Government is required for the purpose of the so called deputation mentioned above. Admittedly, neither the first appellant company is a Government Company within the meaning of Section 617 of the Companies Act nor there is anything on record to establish that the third respondent is subjected to any law which requires the sanction of the Government when anyone of its employees is proposed to secure employment with another body. One of the intriguing aspect of the matter is that the so called order of sanction dated 25.06.2004 extracted above is purported to have been signed by an Under Secretary to Government, one Smt.K.Krishnakumary Amma. 4. Subsequently, at some stage the Board of Directors of the first appellant took a decision to absorb the first respondent into its service. As a consequence of such a decision, letter No.VFPCK/06HR/01/5041/2006/840 dated 25.05.2006 of the second appellant informed as follows: “This has reference to your request to absorb you in the service of the Council. We have examined the matter in detail WA No. 714 of 2011 -:4:- and placed the matter before the 25th Board Meeting held on 28th April, 2006. The Board has decided to absorb you in the Council and offer you permanent appointment in a suitable post. Therefore, you are requested to get relieved from your parent organization(KERAFED) and join in the Council on or before 15th June, 2006. The appointment order is herewith enclosed.” As mentioned in the above extracted letter, an order of appointment was also enclosed. In view of the said appointment order, the first respondent tendered his resignation to the service with the third respondent which was duly accepted. 5. As the matter stood thus, the first respondent was served with Ext.P7 letter from the second appellant herein which reads as follows: “Please note the Board of Council declined to approve your direct appointment in the Council. However, it has been decided to allow your continue on deputation from KERAFED. Hence you are requested to obtain “No Objection Certificate' from KERAFED in order to process your deputation.” 6. It was followed by another communication dated 05.10.2009, the first respondent was informed as follows: “Vide reference 1st cited the government have issued directions to the KERAFED to re admit Sri.Baburaj M, higher grade assistant. Since his absorption in the service of VFPCK was WA No. 714 of 2011 -:5:- termed as irregular and with out government sanction. In this regard as per reference 2nd cited the council has requested KERAFED. In the light of the directions issued from the government as per reference 1st cited above, the council is relieving him from the service w.e.f 06.10.2009 so as to rejoin KERAFED. The manager project area is directed to relieve him from duties and responsibilities and report the CEO at the earliest. ” 7. In substance the service of the first respondent was terminated. Aggrieved by the same, the first respondent approached this Court by way of a writ petition with prayers as follows: “i. Issue a writ of mandamus or any other writ or order directing the 2nd, 3rd and 4th respondents not to relieve the petitioner of his duties. ii. Issue a writ of certiorari or any other writ or order calling for the records relating to exhibit P7, P9 and P12and to quash the same. iii. Issue a writ of mandamus or any other writ or order directing the 3rd respondent to permit the petitioner to continue his duties as Assistant Manager Grade II, under the 2nd respondent.” 8. By the judgment under appeal, the said writ petition was allowed. The learned Judge declared that the WA No. 714 of 2011 -:6:- petitioner is entitled to be treated as an employee of the first appellant herein. 9. As already noticed earlier there is no material on record to establish that the approval or sanction of the Government is in any way obligatory under the law for the first appellant to absorb the first respondent into its service. It is recorded by the judgment under appeal that, the first respondent/State of Kerala did not file any counter affidavit in the writ petition. Nor is any material placed either before the learned Single Judge or before us to demonstrate that the sanction of the Government is legally required for absorption of the first respondent. In the absence of any such authority in law, employment is a matter of contract between the employer and the employee. The first appellant by its proceedings dated 26.06.2004 referred to earlier appointed the first respondent. The relevant portion of the proceedings reads as follows: “With reference to the decision taken in the 25th Board Meeting held on 28.4.2006, we are pleased to inform you that you are appointed as Senior Executive Assistant (Asst. Manager Grade II) subject to the following terms and conditions.” WA No. 714 of 2011 -:7:- 10. Therefore, the subsequent proceedings purporting to terminate the service of the first respondent on the basis of some unsubstantiated requirement of the approval or sanction of the Government, in our opinion, is illegal and the learned Single Judge rightly declared that the first respondent is entitled to be treated as an employee of the first appellant. We see no reason to interfere with the judgment under appeal. The appeal is dismissed at the admission stage. J.Chelameswar, Chief Justice. Antony Dominic, Judge. ttb WA No. 714 of 2011 -:8:-