IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 WP(C).No. 16844 of 2004(E) -------------------------------------- PETITIONER(S): ---------------------- THE RUBBER BOARD, P.B.NO.1122, SUB JAIL ROAD, KOTTAYAM-686 002, REPRESENTED BY ITS SECRETARY-IN-CHARGE, SRI.SIVANKUTTY ACHARY. BY SRI.JOSEPH MARKOSE, SENIOR ADVOCATE RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, LABOUR & REHABILITATION (A) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE LABOUR COMMISSIONER, THIRUVANANTHAPURAM. 3. THE SECRETARY, KERALA STATE RUBBER BOARD WATCHERS' UNION, UTC DISTRICT COMMITTEE, PATHANAMTHITTA. 4. THE PLANTATION LABOUR COMMITTEE, REPRESENTED BY ITS CHAIRMAN, THE LABOUR COMMISSIONER, THIRUVANANTHAPURAM. 5. INDUSTRIAL TRIBUNAL, ALAPPUZHA. * ADDL. R6 TO R12 IMPLEADED ADDL.R6 : C.S. SREEPRAKASH, WATCHER, RUBBER RESEARCH INSTITUTE OF INDIA, RUBBER BOARD, KOTTAYAM. ADDL.R7: K.J.MATHAI,WATCHER OF DO ADDL.R8: PURUSHOTHAMAN PILLAI,WATCHER, RUBBER BOARD CENTRAL EXPERIMENTAL STATION, RANNI. ADDL.R9: HARI BAHADUR TAPPA, WATCHER OF DO WP(C) NO.16844/2004-E ADDL.R10: KRISHNA PRASAD ADHIKARI, WATCHER OF DO ADDL.R11: O.M. BASHDUR,WATCHER RP II, KOTTAYAM ADDL.R12: C.K.MOHANAN, WATCHER OF DO *ADDL.R6 TO R12 IMPLEADED AS PER ORDER DT.8/12/2004 IN IA 14589/2004 ** ADDL.R13 TO R 26 IMPLEADED ADDL.R13: SAJAN.K.JOHN, SECURITY WATCHER RRII KOTTAYAM 9. ADDL.R14: K.K.SHAJI, SECURITY WATCHER RRII KOTTAYAM 9. ADDL.R15: P.O.SABU, SECURITY WATCHER RRII KOTTAYAM 9. ADDL.R16: T.K.SANTHOSH, SECURITY WATCHER RRII KOTTAYAM 9. ADDL.R17: CHOBNAH SHARMA, SECURITY WATCHER RRII KOTTAYAM 9. ADDL.R18: K.A.SASI, SECURITY WATCHER RRII KOTTAYAM 9. ADDL.R19: JOSE C. ISSAC, SECURITY WATCHER RRII KOTTAYAM 9. ADDL.R20: V.R.REJI,SECURITY WATCHER RRII KOTTAYAM 9. ADDL.R21: K.D.BABU, SECURITY WATCHER, REGIONAL RESEARCH STATION, PADIYOOR, KANNUR. ADDL.R22: T.C.RAMESH, SECURITY WATCHER, REGIONAL RESEARCH STATION, PADIYOOR,KANNUR. ADDL.R23: E.G.SHIBU, SECURITY WATCHER, REGIONAL RESEARCH STATION, PADIYOOR, KANNUR. ADDL.R24: K.P.SEBASTIAN, SECURITY WATCHER, REGIONAL RESEARCH STATION, PADIYOOR, KANNUR. ADDL.R25: JOHNKUTTY SEBASTIAN, SECURITY WATCHER, REGIONAL RESEARCH STATION, PADIYOOR, KANNUR. ADDL.R26: P.J.SABU,SECURITY WATCHER, REGIONAL RESEARCH STATION, PADIYOOR, KANNUR . ** ADDL.R13 TO R26 ARE IMPLEADED AS PER ORDER DT.3/8/2009 IN IA 9381/2009. WP(C) NO.16844/2004 *** ADDL.R27 TO 30 IMPLEADED ADDL.R27: DILLY PRASAD GHIMIRE, S/O. NANDALAL GHIMIRE,WATCHMAN, RR 11 RUBBER BOARD, KOTTAYAM. ADDL.R28: BHINU BHADUR BANIYA, S/O.NAV BHADUR , WATCHMAN, RR 11 RUBBER BOARD, KOTTAYAM. ADDL.R29: YUBARAJ REGANI, S/O. BAIKUNTHA RAJ REGANI, WATCHMAN, RR 11 RUBBER BOARD, KOTTAYAM. ADDL.R30: LAKSHMI PRASAD SHARMA, S/O. DEU PRASAD PATHAK,WATCHMAN, RR 11 RUBBER BOARD, KOTTAYAM. *** ADDL.R27 TO R 30 ARE IMPLEADED AS PER ORDER DT. 19/10/2009 IN IA .12869/2009. R1, R2 & R5 BY GOVERNMENT PLEADER SRI. K.SANIL KUMAR ADDL.R6 TO R32 BY ADVS. SRI.M.J.THOMAS R3 BY SRI.P.SANTHALINGAM, SENIOR ADVOCATE SRI.S.SHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2010, ALONG WITH WPC NO. 9134 OF 2009 & WPC NO. 32922/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.16844/2004 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE AWARD DATED 20/2/1999 PASSED BY THE INDUSTRIAL TRIBUNAL, ALAPPUZHA, IN I.D.NO.1 OF 1998. P2 COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 11/7/2003 IN O.P.NO.24008 OF 1999. P3 COPY OF THE LETTER DATED 17/12/2003 FROM THE PETITIONER TO THE 4TH RESPONDENT. P4 COPY OF THE MINUTED OF THE MEETING DATED 18/12/2003 OF THE 4TH RESPONDENT. P5 COPY OF THE LETTER DATED 26/3/2004 FROM THE PETITIONER TO THE 4TH RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ sts P.A.TO.JUDGE T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)Nos.16844/2004-E,9134/09-J & 32922/09-I -------------------------------------------------------------- DATED THIS THE 28th DAY OF OCTOBER, 2010 J U D G M E N T All these Writ Petitions concern common issues and therefore, they are disposed of together. W.P.(C)No.16844/2004 is filed by the Management, namely the Rubber Board. W.P.(C) No.9134/09 is filed by a Union of workers representing Watchers and W.P.(C)No.32922/2009 is filed by two persons who were working as Watchers in the Central Experiment Station, Chethakkal. 2. The facts leading to the dispute as detailed in W.P.(C) No.16844/04 are the following: The Rubber Board is a statutory body constituted under the Rubber Act, 1947. The 3rd respondent is a Union representing union of Watchers who raised an industrial dispute claiming monthly scale of pay instead of daily wages which was referred for adjudication to the Industrial Tribunal, Alappuzha. Exhibit P1 is the copy of the award. This award was under challenge at the instance of the 3rd respondent in O.P.No.24008/99 which was disposed of by Exhibit P2 judgment. In the light of the directions W.P.(C)Nos.16844/2004 & 9134 & 32922/09 -2- issued by this Court in Exhibit P2 judgment, the Plantation Labour Committee took a decision in the matter and a true copy of the minutes has been produced as Exhibit P4. It is under challenge in W.P.(C)No.16844/04 filed by the Rubber Board. 3. In W.P.(C)No.9134/09, the petitioner-Union seeks implementation of Exhibit P3 minuets of the Plantation Labour Committee (Exhibit P4 in W.P.(C)No.16844/04). In W.P.(C) No.32922/09, the petitioners were working as watchmen and the main prayer in the Writ Petition is to quash Exhibits P3 and P4 memos issued by the Board. They are seeking a further declaration that they are entitled to continue in service for two more years on the basis of Exhibit P2 decision, that is, minutes of the Plantation Labour Committee, which is under challenge in W.P.(C)No.16844/04. Therefore, the fate of these two cases will depend upon the decision in W.P.(C)No.16844/04. 4. The contention raised by the learned counsel for the petitioner in W.P.(C)No.16844/04 is mainly that the Plantation Labour Committee has travelled beyond the purview of the award Exhibit P1 and the direction issued by this Court in Exhibit P2 judgment and they have actually decided a different issue and W.P.(C)Nos.16844/2004 & 9134 & 32922/09 -3- therefore the proceedings will have to be set aside. My attention was invited to the issue that is referred to before the Industrial Tribunal. 5. A reading of the Award Exhibit P1 shows that the issue referred for adjudication was “whether the Watchers of Central Experimental Station, Chethakkal are eligible for monthly scale of pay”. The background under which the issue was raised is clear from paragraphs 5 and 6 of the award. The Union was representing certain workers who were engaged as Watchers in the Research Institute. Their contention was that they were appointed on the basis of interview and their appointments were later regularised and are doing perennial nature of work, and hence are entitled for monthly scale of pay as in the case of other staff members working in the Management establishment. Evidently, they were being paid wages on daily wage basis and ultimately, the Tribunal directed the Plantation Labour Committee to consider the fixation of monthly wages to the Watchers category as an agenda for discussion in the next meeting. It was also observed that if Medical Orderlies, Ward Boys and Ward Girls, Tapalman, Office Peon, etc. could be put in a specific monthly W.P.(C)Nos.16844/2004 & 9134 & 32922/09 -4- pay, there is no reason to keep out the Watchers from that category. The above view was taken by the Industrial Tribunal in the light of the fact that a conciliation settlement arrived at cannot be a matter for adjudication by the Industrial Tribunal. 6. In O.P.No.24008/99, which was disposed of by Exhibit P2 judgment wherein the above award was under challenge, this Court was of the view that the Plantation Labour Committee be directed to consider the award passed by the Industrial Tribunal in the next meeting in accordance with the observations made by the Tribunal. Therefore, the background under which the Plantation Labour Committee considered the matter is the award passed by the Industrial Tribunal and the direction issued by this Court in Exhibit P2 judgment. A reading of the minutes of the Plantation Labour Committee shows that after hearing the views of both sides it was decided that the persons who have been selected on the basis of a selection process and interview should be regularised as Watchers and they will be paid wages as that of the Last Grade employees. It was also observed that persons who are assigned watching duty from among general workers will not be governed by the above direction. W.P.(C)Nos.16844/2004 & 9134 & 32922/09 -5- 7. The learned counsel for the petitioner mainly contended that the Plantation Labour Committee actually travelled outside the issue that was referred for adjudication before the Industrial Tribunal and therefore Exhibit P4 suffers from a legal infirmity. It is pointed out that the question whether Watchers are entitled for regularisation, etc. was not an issue that was referred for adjudication before the Industrial Tribunal and in that view of the matter the direction issued in Exhibit P4 cannot survive. It is also pointed out that the direction will amount to creation of new posts of Watchers also. 8. The learned counsel appearing for the 3rd respondent- Union as well as additional respondents 6 to 12 submitted that the matter considered by the Industrial Tribunal was whether they are entitled for regularisation in the light of the fact that they had undergone a process of selection and interview and consequently whether they are entitled for payment of monthly wages and this issue was therefore referred for adjudication. It is therefore submitted that the distinction that is sought to be made by the learned counsel for the petitioner is really not discernible from the award that is passed as per Exhibit P1. W.P.(C)Nos.16844/2004 & 9134 & 32922/09 -6- 9. The persons who are appointed as Watchers are claiming monthly wages due to the nature of the work they are performing and the fact that they have been appointed after a process of selection. As far as the location of the Experimental Institute is concerned, it is attached to the rubber estate wherein the general workers are employed to do the work in the Plantation. True that persons from general workers are selected and employed as Watchers. But it is a fact that they are not deputed back as general workers and there is no inter-change among the general workers and Watchers. It is in that context they were claiming payment of wages on a monthly basis which is evident from the award Exhibit P1. In paragraph 5 of the award Exhibit P1, the contention of the workers have been referred to. It is pointed out therein, while noticing their contention, that since they were appointed on the basis of interview and their appointments were later regularised and they are doing perennial nature of work, they are entitled for monthly scale of pay as in the case of other staff members working in the Management Establishment. Therefore, even though the learned counsel for the petitioner submitted that the issue that is referred to is W.P.(C)Nos.16844/2004 & 9134 & 32922/09 -7- confined to eligibility for monthly scale of pay, the same actually emerges from the nature of work and duties they are performing. Therefore, it cannot be said that the Plantation Labour Committee travelled beyond the issue that is referred for adjudication and described in the Award, Exhibit P1. As far as the directions issued by this Court in Exhibit P2 are concerned, significantly, this Court also in paragraph 4 of the judgment directed the Plantation Labour Committee “to consider the award passed by the Industrial Tribunal on the next meeting of the Committee and take a decision in accordance with the observations made by the Industrial Tribunal.” The observation made by the Industrial Tribunal in the operative portion of the award is the following: “ ........... If Medical Orderlies, Ward Boys and Ward Girls, Tapalman, Office Peon, etc. could be put in a specific monthly pay, there is no reason to keep out the Watchers from that category. With this observation an award is passed”. 10. Therefore, strictly speaking, the Plantation Labour Committee had to consider the nature of appointment of the Watchers, namely whether they are deputed from among the category of general workers or they have been given the W.P.(C)Nos.16844/2004 & 9134 & 32922/09 -8- engagement after conducting a process of selection. If the question is analysed in such a manner, I find no infirmity in the minutes Exhibit P4. Naturally, the Committee was of the view that Watchers who have been appointed after interview and after undergoing a regular process of selection could be regularised as Watchers and they can be given monthly wages as applicable to Last Grade employees. It was also specified that persons who are deputed from among general workers for watching duty will not be governed by the above direction. Therefore, the directions are clear and specific and I find no legal infirmity as contended by the learned counsel for the petitioner. Therefore, the said Writ Petition fails. 11. In W.P.(C)No.9134/2009, the Union has come up seeking implementation of the minutes of the Plantation Labour Committee produced as Exhibit P3. Therein, in the statement filed by the Management, it is pointed out that after Exhibit P3 minutes were entered into, a subsequent settlement has been arrived at with the Union on 8.7.2005, a copy of which has been produced as Exhibit R1(c). It is pointed out that some of the workers, namely seven workers who are members of the Union W.P.(C)Nos.16844/2004 & 9134 & 32922/09 -9- are party respondents in W.P.(C)No.16844/2004. It appears that the Management has got a case that the said Union which is the 3rd respondent in W.P.(C)No.16844/2004 had changed its affiliation from UTUC to INTUC and the said Union has entered into the said settlement. The petitioner in W.P.(C)No. 9134/2009 is the Kerala State Rubber Board Watchers Union(UTUDC). Evidently, the INTUC union is not a party before me in any of these Writ Petitions. Therefore, the question whether the settlement Exhibit R1(c) is binding on the employees of that Union is left open. In the light of the fact that the challenge against Exhibit P3 has been repelled in the Writ Petition filed by the Management, no separate directions are called for in this Writ Petition,except to state that Exhibit P3 will be implemented, after completing other formalities. 12. In W.P.(C)No.32922/09, mainly it is pointed out that the petitioners are entitled for regularisation in the light of the decision of the Plantation Labour Committee, and are thus entitled for continuance upto the age of 60. The learned counsel for the Management submitted that the question whether the retirement age is 55 or 58 had been the subject matter of W.P.(C)Nos.16844/2004 & 9134 & 32922/09 -10- consideration before this Court in various Writ Petitions and true copies of the judgments have been produced as Exhibits R3(c) to R3(f). It is therefore submitted that the said issue is concluded by the judgments of this Court. The learned counsel for the petitioner submitted that these judgments do not cover the retirement age of Last Grade employees who are entitled for continuation upto the age of 60 years. The learned counsel for the Management submitted that some of the Watchers engaged were not covered by any process of selection and therefore such workers will not be entitled for the benefit of Exhibit P4 in W.P.(C) No.16844/04. Actually who among the Watchers were selected after the process of selection and interview and were subsequently been appointed as Watchers is not covered by the decision of the Plantation Labour Committee and those persons are to be identified by the Management itself after perusal of the records, etc. Therefore, the issue whether the petitioners can continue upto 60 years is really a matter which will have to be considered by the Management after settling the entire issues in the light of the minutes of the Plantation Labour Committee. Appropriate decision in that regard will be taken and W.P.(C)Nos.16844/2004 & 9134 & 32922/09 -11- communicated to the petitioners while implementing the minutes of the Plantation Labour Committee. In the light of the fact that the issue had been pending for a long time, the Management will take an appropriate decision for implementing Exhibit P4 within a period of two months and the decision will be communicated to all parties concerned. W.P.(C) No.16844/04 is thus dismissed. W.P.(C)Nos.9134/2009 and W.P. (C)No.32922/09 are disposed of as directed above. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. dsn