IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 WP(C).No. 14439 of 2005(R) -------------------------- PETITIONER(S): --------------- 1. TRIVANDRUM RUBBER WORKS LTD., CHACKAI, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE MANAGING DIRECTOR, TRIVANDRUM RUBBER WORKS LTD., CHACKAI, THIRUVANANTHAPURAM. BY ADV. SRI.U.K.RAMAKRISHNAN (SR.) SRI.SANDEEP.E. RESPONDENT(S): --------------- 1. THE KERALA LOK AYUKTHA, KERALA STATE, TRIVANDRUM. 2. M. VELAPPAN NAIR, KUNCHU VEEDU, KIZHAKKUMUGHAM, DEVA NAGAR-42, KAZHAKKUTTOM, TRIVANDRUM. 3. THE SECRETARY TO GOVERNMENT, AGRICULTURAL DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. THE SECRETARY TO GOVERNMENT INDUSTRIES, AND COMMERCE DEPARTMENT, SECRETARIAT, TRIVANDRUM. ADV. SRI.R.S.KALKURA FOR R2 SRI.M.R.SARIN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF G.O. DT.20.2.1964 REGARDING THE TAKING OVER OF ALL THE EXISTING WORKMAN. P2: TRUE COPY OF UNDERTAKING DT.18.2.1996 GIVEN BY R2. P3: TRUE COPY OF ORDER DT.20.2.96 ISSUED BY 2ND PETITIONER. P4: TRUE COPY OF COUNTER AFFIDAVIT DT.5.4.2003 FILED BY PETIIONERS (WITHOUT EXHIBITS). P5: TRUE COPY OF AFFIDAVIT DT.29.5.2004 FILED BY 2ND PETITIONER. P6: TRUE COPY OF ORDER OF R1 DT.15.3.2005. RESPONDENT'S EXHIBITS: R2(a): TRUE COPY OF G.O. DT.19.8.1999. R2(b): TRUE COPY OF PENSION PAYMENT ORDER ISSUED BY THE ACCOUNTANT GENERAL, KERALA. R2(c): TRUE COPY OF ORDER DT.20.2.1996 ISSUED BY R1. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.14439 of 2005 .................................................................... Dated this the 24th day of October, 2008. JUDGMENT The petitioners in the W.P., a Government of Kerala Company and it's Managing Director, are challenging Ext.P6 order of the Lok Ayuktha directing petitioners to pay pension to the second respondent who is a retired employee of the first petitioner-company. I heard Senior counsel Sri.U.K.Ramakrishnan appearing for the petitioners and Sri.R.S.Kalkura, counsel appearing for the second respondent. 2. Second respondent joined the service of an industrial undertaking by name Shark Lever Oil Products on 6.1.1959 which was run by the State Industries Department. He was later transferred to Travancore Rubber Works which again was an industrial undertaking run by the Industrial Department of the State. The Government formed first petitioner-company on 24.2.1964 to take over the industrial undertaking of Travancore Rubber Works with it's employees as a going concern. Government vide Ext.P1 order dated 20.2.1964 directed the first petitioner-company to absorb the workmen of the industry on terms and conditions not less favourable to them than what they were enjoying. Accordingly first petitioner absorbed 2 second respondent along with other employees in it's service. Being an industrial worker, second respondent was given all the benefits applicable to company employees. Even though retirement age of the State Government employees is 55 years, second respondent was allowed to continue upto 58 years which is the age of retirement of the employees of the first petitioner- company. However, when he was reaching 58 years, second respondent gave an undertaking vide Ext.P2 to the first petitioner-company stating that he should be given two years' extension of service available to similar Government employees without any claim for pension. The second petitioner vide Ext.P3 referred to Rule 60(b) of the Kerala Service Rules and ordered that second respondent can continue in service upto 60 years because Government under the Rule permits Last Grade employees to continue upto 60 years. Based on orders of the second petitioner, second respondent continued upto 60 years of age and retired from service of the first petitioner-company on 28.2.1998 and on retirement, he was released gratuity, Provident Fund and other benefits. The contention of the petitioners is that under the Pension Scheme of the Provident Fund, second respondent is also getting pension. However, in 2003, second respondent approached the Lok Ayukta claiming pension and Lok Ayukta vide Ext.P6 directed the petitioners to give pension to the second respondent. 3 3. The petitioner's case is that Ext.P6 order is not tenable because no Government employee whose services were taken over by the first petitioner-company was eligible for pension and in fact, nobody has claimed pension. The first petitioner has no scheme to give pension to it's employees and the only scheme is the pension scheme introduced by the Company through the fund operated by the Provident Fund under the contributory scheme which second respondent is getting. 4. I heard counsel appearing for the petitioners and counsel appearing for the second respondent. Counsel for the second respondent referred to Ext.P1 and contended that Service Rules applicable to Kerala Government employees were continuously made applicable to second respondent even after his joining service of the first petitioner. He has also relied on the observation of the second petitioner in Ext.P3 wherein he has referred to Rule 60(b) of the K.S.R. which authorises not only extension of age of retirement for Last Grade employees upto 60 years, but eligibility for pension also. Counsel for the second respondent further relied on Exts.R2 (a) and (b) pertaining to pension given to wife of one Sreedharan Pillai and to one Sri.Joseph Samuel. However, Senior counsel appearing for the petitioners contended that the person referred to in Ext.R2(a) served the Government and retired from Government service. Similarly, Sri.Joseph 4 Samuel whose pension is covered by Ext.R2(b) was never an employee of the first petitioner-company is the contention of the petitioners. In fact, it is further pointed out that the person referred to in Ext.R2(a) died even prior to formation of the first petitioner-company. I am unable to uphold the order of the Lok Ayukta because the Lok Ayukta's assumption that the second respondent joined and continued in the service of the first petitioner- company as a Government employee is incorrect. When the industry that engaged second respondent was taken over by the first petitioner-company as a going concern, automatically he becomes an employee of the company. Ext.P1 itself makes it very clear that the employees of the industry when taken over by the first petitioner-company become employees of the company and all what the Government instructed to the company was that they should be given equal or better terms which was in fact given by the company, is their case. In fact, second respondent himself appears to be aware of the ineligibility for pension because he has given up claim for pension when he applied for extension of service by two years based on the principle contained in Rule 60(b) of K.S.R. The second petitioner while extending the service of the second respondent upto 60 years only followed the principle contained in Rule 60(b) of K.S.R. which entitles a Last Grade Government employee to continue in service upto 60 years. However, the 5 adoption of a principle from a Government Rule does not make the Government Rule on pension applicable to the second respondent because second respondent has ceased to be a Government servant when he joined the service of the first petitioner, after the industry wherein he was employed was taken over by the first petitioner. Admittedly the pension claimed by the second respondent is the pension applicable to Government servants which cannot apply to him as he has ceased to be a Government employee on joining the service of the company in 1964. Second respondent has no case that the company has any independent pension scheme. On the other hand, all employees are getting pension under the Pension Scheme of the Provident Fund which second respondent admittedly is getting. The claim of second respondent that some of the employees of the company are getting pension is already found to be incorrect and unfounded. Consequently, I hold that the finding of the Lok Ayukta with regard to eligibility for pension of the second respondent is not tenable. The W.P. is accordingly allowed vacating Ext.P6 order. C.N.RAMACHANDRAN NAIR Judge pms