IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 WA.No. 976 of 2011() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.6023/2007 Dated 14/06/2011 .................... APPELLANT(S): PETITIONER ------------------------ K.KUNHIKANNAN, S/O.KANARAN, KAKKALATH HOUSE, P.O.KILUR, PAYYOLI, KOYILANDY. BY ADV. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENT(S): RESPONDENTS ------------------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT(REVENUE), DEVASWOM DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER (HR & CE), CIVIL STATION, KOZHIKODE. 3. THE DEPUTY COMMISSIONER (HR & CE), CIVIL STATION, KOZHIKODE. 4. THE BOARD OF TRUSTEES, KIZHUR SIVA TEMPLE, MELADY, KOYILANDY TALUK, REPRESENTED BY ITS CHAIRMAN. R1 TO R3 BY SR.GOVT.PLEADER SMT.K.MEERA R4 BY SRI.K.LAKSHMINARAYANAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J & P.R.RAMACHANDRA MENON, J. ---------------------------------------------- W.A.No. 976 of 2011 ---------------------------------------------- Dated this the 28th day of July, 2011 JUDGMENT Ramachandra Menon, J. Alleged infringement of Section 25F(b) of the Industrial Disputes Act, with regard to the termination of service of the appellant is the issue involved herein. 2. The appellant was appointed as a supervisor under the fourth respondent temple in the year 1971. His service was terminated as per Exhibit P1 order dated 8.2.1992 for the reason that the post stood abolished, which, in turn, was subjected to challenge by resorting to the statutory remedy under Section 49 of the Hindu Religious and Charitable Endowments Act, 1951 before the third respondent. The third respondent allowed the appeal. It was sought to be challenged by the fourth respondent by preferring a further appeal before the second respondent, who set aside the impugned order and the matter was remanded for fresh consideration to the third respondent. 3. In view of the delay in finalising the matter, the appellant approached the Government by filing a petition, wherein Exhibit WA.976/11 2 P4 order was passed reinstating the petitioner/appellant. This was challenged by the fourth respondent by filing O.P.No.23240 of 1998, which was disposed of directing the third respondent to take up the issue pursuant to the order of remand and to pass appropriate orders in accordance with law. Accordingly, the third respondent considered and passed Exhibit P6 order, whereby the contention raised by the fourth respondent that the post was abolished was accepted. The appellant preferred Exhibit P7 appeal against Exhibit P6 order before the second respondent. It is stated that the fourth respondent filed an application before the second respondent to transfer the case, as it was earlier considered by the Commissioner, in his capacity as the Deputy Commissioner, which was placed for consideration of the Government. The application preferred by the petitioner/appellant for transfer of the proceedings from the second respondent was considered by the Government, who passed Exhibit P8 order confirming the termination of the appellant's service, which in turn was challenged before this Court raising the following prayers in the Writ Petition:- “i. To issue a writ of certiorari or any other appropriate writ, order or direction calling for WA.976/11 3 the recfords leading of Ext.P1, P6 and P8 and quash the same. ii. To issue a writ of mandamus or any other appropriate writ, order or direction directing the 4th respondent to reinstate the petitioner as Supervisor in the Kizhur Siva Temple with effect from 1.10.91 with back wages and to grant all arrears of pay and allowances with interest within a time frame to be fixed by this Hon'ble Court. iii. To issue a writ of mandamus or any other appropriate writ, order or directions directing the 4th respondent to give compensation for the illegal termination and for the expenses incurred to the petitioner for the litigation which had a cheered career and for his mental and physical agony caused to the petitioner, as this Hon'ble Court may deem fit and proper. iv. To award the cost of these proceedings to the petitioner and v. To grant such other and further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” 4. The prayers sought for were seriously opposed by the fourth respondent by filing a detailed counter affidavit. It was brought to the notice of the Court by the learned Standing Counsel for the Commissioner (HR & CE), Kozhikode that the abolition of the post and re-organisation was duly approved by WA.976/11 4 the statutory authorities. After hearing both sides, interference was declined by the learned Single Judge. However, it was observed that the termination of service pursuant to abolition of the post effected in the year 1992 could be considered as 'retrenchment' and accordingly, retrenchment compensation was ordered to be paid to the writ petitioner, with gratuity, taking into account his service from 1973 to 1.10.1991 along with the notice pay, calculated on the basis of his last drawn salary. The appellant in the instant appeal challenges the said verdict, raising a totally new ground as incorporated by Ground-A, contending that the termination of service effected in the year 1992 was without complying with the requirement under Section 25F(b) of the Industrial Disputes Act and hence it is presumed that the appellant is still continuing in service, thus praying for all consequential benefits. Reliance is also sought to be placed on the decision rendered by this Court in Kumaran v. Idukki JMM Sangh (1994(2) KLT SN 24). 5. The case as projected in the Writ Petition was with reference to the service admittedly governed by the provisions of the Hindu Religious and Charitable Endowments Act,1951 and not with reference to any of the provisions contained in the WA.976/11 5 Industrial Disputes Act. If at all the appellant was aggrieved of the alleged violation of the provisions of the Industrial Disputes Act, the remedy open to the party was to have raised an 'industrial dispute' under the relevant provisions of law. However, without pursuing such remedy, the appellant chose to approach the authorities contemplated under the Hindu Religious and Charitable Endowments Act, 1951 and thereafter approached this Court by filing the Writ Petition with reference to the provisions of the HR & CE Act. Quite strangely, the appeal comes up with a totally new ground, referring to the provisions of the Industrial Disputes Act, which plea was never raised any time before. We find that there is no merit or bonafides in the appeal. The appeal fails and it is dismissed accordingly. J.CHELAMESWAR, CHIEF JUSTICE P.R.RAMACHANDRA MENON, JUDGE vgs