IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 WP(C).No. 1161 of 2006(L) ------------------------- PETITIONER: ------------ 1. C. RAGHUVARAN NAIR, SENIOR OPERATOR, K.S.E.D.C., CALCUTTA BRANCH (NOW WORKING ON DEPUTATION TO KERALA POLLUTION CONTROL BOARD, PILAMOODU, PATTOM P.O. 2. V.K. JANARDANAN, SENIOR OPERATOR, K.S.E.D.C., CALCUTTA BRANCH, (NOW WORKING ON DEPUTATION TO WARE HOUSE OF KERALA STATE BEVERAGES CORPORATION LTD. 3. P.R. RAMACHANDRAN, SENIOR OPERATOR, K.S.E.D.C., CALCUTTA BRANCH (NOW WORKING ON DEPUTATION TO WARE HOUSE OF KERALA STATE BEVERAGES CORPORATION LTD.) 4. N. SAROJINI, STATE BEVERAGES CORPORATION LTD., H.S.T. II, KELTRON COMPONENT COMPLEX LTD., KELTRON NAGAR, KALLIASSERI P.O., CANNANORE. 5. K.L. VALSALA, H.S.T.II, KELTRON COMPONENT COMPLEX LTD., KELTRON NAGAR, KALLIASSERRY P.O., CANNANORE. 6. K.R. KAMALAM, H.S.T.II, KELTRON COMPONENT COMPLEX LTD., KELTRON NAGAR, KALLIASSERRY P.O., CANNANORE. 7. K.R. RADHA, H.S.T. II, KELTRON COMPONENT COMPLEX LTD., KELTRON NAGAR, KALLIASSERRY P.O., CANNANORE. 8. H.I. MAGGIE, H.S.T. II, KELTRON COMPONENT COMPLEX LTD., KELTRON NAGAR, KALLIASSERRY P.O., CANNANORE. 9. P.I. KHADEEJA, H.S.T. II, KELTRON COUNTERS LTD., SREEKARIAM, THIRUVANANTHAPURAM. (NOW WORKING ON DEPUTATION) TO WARE HOUSE OF KERALA STATE BEVERAGES CORPORATION LTD.) WP(C).No. 1161 of 2006 -2- 10. A.J. PHILOMINA, H.S.T. II, KELTRON COUNTERS LTD., SREEKARIAM, THIRUVANANTHAPURAM. (NOW WORKING ON DEPUTATION TO WARE HOUSE OF KERALA STATE BEVERAGES CORPORATION LTD. 11. A. SAROJA, SENIOR STENOGRAPHER-I, KELTRON ELECTRO CERAMICS LTD., KUTTIPURAM. 12. P.R. MALLIKA, H.S.T.II, KELTRON ELECTRO CERAMICS LTD., KUTTIPPURAM. 13. P.A. KOUSALLIA, OPERATOR-II, KELTRON ELECTRO CERAMICS LTD., KUTTIPURAM. 14. V.C. VISWAMBHARAN, K.S.E.D.C., CHENNAI BRANCH. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENTS: ------------- 1. SECRETARY TO GOVERNMENT, DEPARTMENT OF INDUSTRIES, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE MANAGING DIRECTOR, KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION, KELTRON HOUSE, VELLAYAMBALAM, THIRUVANANTHAPURAM. 3. THE MANAGING DIRECTOR, KELTRON COMPONENT COMPLEX LTD., KELTRON NAGAR, KALLIASSERRY P.O., CANNANORE. 4. THE CHIEF EXECUTIVE, KELTRON ELECTRO CERAMICS LTD., KUTTIPPURAM. 5. THE MANAGING DIRECTOR, KERALA STATE BEVERAGES CORPORATION LTD., THIRUVANANTHAPURAM. 6. THE SECRETARY, KERALA STATE POLLUTION CONTROL BOARD, PLAMOODU, PATTAM P.O. WP(C).No. 1161 of 2006 -3- ADDL.R7 7. LIQUIDATOR, KELTRON POWER DEVICES LTD., (OFFICIAL LIQUIDATOR), HIGH COURT OF KERALA, ERANAKULAM (Impleaded as per dated 1.3.2006 in I.A.2929/06) BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,POLU.C. SRI.K.P.DANDAPANI SRI.T.P.KELU NAMBIAR (SR.) SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.MONI GOVERNMENT PLEADER SRI. NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 1161 of 2006 APPENDIX PETITIONER'S EXHIBITS EXT.P1- TRUE COPY OF THE MEMORANDUM OF SETTLEMENT DATED 16.5.98 EXT.P2- TRUE COPY OF THE REQUEST FOR APPROVAL WITH ANNEXURE-I DATED 5.2.99 EXT.P3- TRUE COPY OF THE LETTER DATED 31.3.99 EXT.P4- TRUE COPY OF THE ORDER DATED 21.4.99 EXT.P5- TRUE COPY OF THE ORDER DATED 21.4.99 EXT.P6- TRUE COPY OF THE ORDER DATED 30.4.99 EXT.P7- TRUE COPY OF THE ORDER DATED 30.4.99 EXT.P8- TRUE COPY OF THE ORDER DATED 26.10.95 EXT.P9- TRUE COPY OF THE ORDER DATED 21.4.99 EXT.P10- TRUE COPY OF THE ORDER DATED 24.8.98 EXT.P11- TRUE COPY OF THE PROCEEDINGS DATED 30.5.01 EXT.P12- TRUE COPY OF THE JUDGMENT DATED 14.11.05 EXT.P13- TRUE COPY OF THE WINDING UP ORDER DATED 14.11.05 (TRUE COPY) P.A TO JUDGE V.GIRI, J ------------------- W.P.(C). 1161/2006 -------------------- Dated this the 18th day of March, 2008 JUDGMENT Petitioners were employed in different capacities of Kerala Power Devices Limited (KPDL), which is a subsidiary company of the Kerala State Electronics Development Corporation (KSEDC). Apparently, KPDL was declared as sick unit by the BIFR and, as is evidenced by Ext.P13, this Court by order dated 14.11.2005 in C.P.40/2001, proceeded to order the winding up of the said company. A perusal of Ext.P12 order shows that apparently unions representing the workers of the company were also heard in the winding up proceedings. 2. In 1998, as per Ext.P1 memorandum of settlement, that is after the BIFR had declared the company as sick unit but before the winding up of the company, it was inter alia agreed to between the company and the units that those among the employees of the KPDL opting for VRS shall be paid compensation at the rate mentioned therein. Employees, who did not opt for VRS were to be W.P.(C).1161/2006 2 considered for re-deployment. Implementation of Ext.P1 agreement was subject to the approval of the Government. Ext.P2, which is a communication sent by the Managing Director of KPDL to the Government on 5.2.1999, will show that out of 130 employees, 104 opted for VRS. Out of the remaining 26 employees, five were even then on deputation to different subsidiary companies of the KSEDC and other State Government undertakings. Remaining 21 persons had opted for re- deployment and accordingly, a scheme for re- deployment of such persons was forwarded to the Government. The said proposal met with the approval of the Government under Ext.P3. Many among the petitioners were re-employed in different units of the KSEDC, which is a holding company. But a few among the petitioners had opted for deputation to other Government Companies including the Kerala State Beverages Corporation (KSBC), the fifth respondent. They were therefore, sent on deputation and persons who have been deputed to other Government Companies W.P.(C).1161/2006 3 continued on deputation even as on date. As mentioned above, it was under Ext.P12 order that the employer Company of the petitioners namely the Kerala Power Devices Limited was directed to be wound up. Petitioners have essentially sought for a direction to the respondents to allow them to continue wherever they are currently functioning, on deputation, with all consequential emoluments attached to the post. They have also sought for a direction to the respondents to absorb them in the posts where they are currently functioning on deputation. It is the stand of the petitioners that they have severed ties of employment with KPDL in terms of Exts.P1. P2, P3 and P10. 3. Counter affidavits have been filed by the Government and other contesting respondents. I heard learned counsel for the parties. 4. There is no material on record to come to the conclusion that the petitioners are the employees of the W.P.(C).1161/2006 4 KSEDC. In fact the petitioners admitted that they were employees of the Kerala Power Devices Limited, and Kerala State Electronics Development Corporation was only the holding company of KPDL. It is admitted that under orders of this Court, Kerala Power Devices Limited has been wound up. In such circumstances, under Section 445 of the Companies Act, an order of winding up is deemed to be a notice of discharge to the Officers and employees of the Company except when the business of the Company is continuing. There is no contention that the business of the Company is continuing. 5. But being a Government undertaking, the petitioners and others were proposed to be re-deployed in different units of the holding company and accordingly, they have been re-deployed to different units of the holding company and other Government of Kerala undertakings. As is evidenced by Ext.P2 the question of their permanent absorption and other related W.P.(C).1161/2006 5 matters were to be considered in due course on merits and the arrangement proposed under Ext.P2 was to be treated as temporary measure. By Ext.P3, the Government granted approval for the sake of re- deployment of 21 employees as detailed in Annexure to Ext.P2. Exts.P4, P5, P6, P7, P8, P9 orders will show that some of the petitioners were deputed to the different units of KSEDC. Petitioners 2, 3, 9 and 10 were deputed to the KSBC. 6. Learned counsel for the petitioners submits that though the terminology employed in Exts.P4 to P9 is that of a deputation, essentially the petitioners have been re- deployed to the other units of the holding company or in certain cases, as noted above, to other Government of Kerala undertakings. He, therefore, contends that such persons must therefore, be directed to be absorbed into the services of the Company where they have been deployed or deputed as such. It is further submitted that an order of winding up, which came to be passed W.P.(C).1161/2006 6 subsequently, should not affect the status of the petitioners in as much as that they have been re- deployed to other units as early as in 1999, well before the order of winding up was passed. They have continued in service in different units. They cannot now be sent out. 7. In so far as the contention that the holding company is bound to treat the petitioners as permanently absorbed into the service of the different subsidiary units is concerned, there is no material brought to my notice to indicate that there is any final decision taken either by KSEDC, the holding company, or by the Government to treat the former employees of the KPDL who had not opted for VRS, but who had agreed for re-deployment in different units of the holding Company, as permanent employees of the holding company as such. In fact Exts.P2 and P3 will clearly indicate that the arrangement is temporary and final orders were only in contemplation even then. For all intents and purposes, W.P.(C).1161/2006 7 petitioners continued as employees of KPDL until the order of winding up and thereafter, their status was to be governed by Section 445 (3) of the Companies Act. Therefore, I cannot issue a direction to the holding company to straight away absorb the petitioners into its establishment. 8. Apart from the lack of any enforceable right on the part of the petitioners to seek such a relief, the facts also do not justify a mandamus as sought for by the petitioners. 9. But this does not mean that the petitioners should go without any remedy as such. After all, they did not opt for VRS and the Government had also granted its approval for re-deployment of such persons in the manner suggested in the Annexure to Ext.P2. Many of them are well past the maximum age for public employment and it would neither be fair and reasonable nor justified to simply declare that they W.P.(C).1161/2006 8 have ceased to be in the employment of KPDL and that therefore, they should search for alternate employment. In my view, there is an obligation on the Government in the first instance to consider the measures that may have to be adopted to either see that the re-deployment of the petitioners in the subsidiary units of the holding company or in other Government company for that matter is effectuated in a manner as suggested in Ext.P2, subject of course, to any changes that may have to be absorbed due to passage of time and also due to the fact that the holding company itself is before the BIFR at this stage. 10. The aforementioned situation would apply to most among the petitioners, apart from petitioners 2, 3, 9 and 10 who were on deputation to the KSBC. First petitioner is presently on deputation to the Pollution Control Board. There is no separate counter affidavit by the Pollution Control Board. But the KSBC has filed a counter affidavit and an additional counter affidavit. Paragraph 3 W.P.(C).1161/2006 9 of the additional counter affidavit reads as follows:- “Out of the 14 petitioners in the above case, 4 petitioners are employed in KSBC on deputation from Kerala Power Devices Limited, (hereinafter referred to as KPDL).” Their names and details are given below:- Sl.No. Name Date of Birth Deputation of 5 years' completion on 1 V.K.Janardhanan (2nd petitioner) 20.6.1956 11/11/06 2 P.R.Ramachandran (3rd petitioner) 20.8.1959 11/11/06 3 P.I.Khadeeja (9thpetitioner) 23.5.1956 05/11/06 4 A.J.Philomina (10thpetitioner) 03/09/59 23.9.2009 11. Therefore, it is clear that petitioners 2, 3 and 9 had completed the period of deputation as early as in W.P.(C).1161/2006 10 November, 2006. But they have been still continuing on deputation with the KSBC under the interim orders passed by this Court. KSBC is entitled to repatriate petitioners 2, 3 and 9 to the Company from which they came on deputation, in circumstances where the period of deputation is over. The stand taken is supported by Kunal Nanda v. Union of India and Another (2000 (5) SCC 362). I take note of the submission made by the learned counsel for the petitioners that what is involved in the present case, though termed as deputation was not deputation but re-deployment. But that principle will apply, if applicable, only in relation to subsidiary units of the holding Company and it could not offer enforceable right to the persons who have been on deputation to an independent entity like KSBC or for that matter to a statutory authority like the Kerala Pollution Control Board. But I hasten to make it clear again at this stage, that if either the Pollution Control Board or the KSBC are not averse to extend the period of deputation of any one of these persons, then, in the W.P.(C).1161/2006 11 peculiar facts of the case, it is open to them to do so. In my view, the case of petitioners 1, 2, 3, 9 and 10 will also have to be decided by the KSEDC in the first instance subject of course, to a final decision by the Government. 12. In the circumstances, writ petition is disposed of in the following terms:- (i). KSEDC will take a decision as to the re- deployment of the petitioners, the former employees of the KPDL, in the light of Exts.P1,P2, P3, P4, P5 and P10 within a period of three months from the date of receipt of a copy of this judgment. Whatever is the decision so taken by the KSEDC, it shall be placed before the Government within one month of the decision being taken. There upon, the first respondent shall take a decision on the question of approval of the decision taken by the second respondent within three months thereafter. The decision to be taken by the second respondent shall be treated as final W.P.(C).1161/2006 12 only on approval being granted in that regard by the Government and once such decision is taken, it shall be deemed to be a decision of the Government as such. (ii). If the decision to be taken by the Government is in any manner adverse to the interest of the petitioners, then they shall be heard before such decision is taken. Status quo as regards the deployment/deputation of the petitioners, except petitioners 2, 3 and 9, shall be maintained till the Government takes a decision as aforementioned. (iii). It is made clear that the KSBC is entitled to repatriate petitioners 2, 3 and 9 to the parent Company, since they have completed the period of deputation. In so far as petitioners 2, 3 and 9 are concerned, if the KSBC decides not to extend the period of deputation, they shall immediately report before the second respondent and subject to a final decision to be taken as aforementioned, second respondent shall, on an adhoc basis, depute them to any other subsidiary unit of the KSEDC. The said arrangement will prevail till W.P.(C).1161/2006 13 the Government takes a decision as directed above. Their continuance thereafter, will be on a par with the other petitioners in relation to whom status quo is ordered as above. (iv). In so far as the tenth petitioner is concerned, he shall be permitted to complete his period of deputation as mentioned in the additional affidavit filed by the KSBC, subject to the right of the second respondent and of course, the Government to terminate his deputation and call him back for re-deployment to any other unit of the KSEDC, in the course of final decision to be taken by the Government, as aforementioned. (v). In so far as the first petitioner is concerned, since there is no objection by the Pollution Control Board for his deputation, he shall be permitted to continue on deputation with the Pollution Control Board subject to the termination of the deputation, in the same manner as has been mentioned in relation to the tenth petitioner as above. His case shall also be considered on a par with the other petitioners. W.P.(C).1161/2006 14 If any of the petitioners have crossed the age of superannuation, their case shall be independently considered by the Government in consonance with the directions already issued above. V.GIRI, Judge mrcs W.P.(C).1161/2006 15