IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 WP(C).No. 8736 of 2006(M) ------------------------- PETITIONER ------------------- * P.P. SATHYADAS, SECURITY GUARD/NIGHT WATCHMAN, KALLAR DAM, IDUKKI DISTRICT, RESIDING AT PALLIVEEDU, CHARAMANGALAM, MUHAMMA P.O., CHERTHALA, ALAPPUZHA DISTRICT. ( DIED) * GIRIJA SATHYADAS, W/O.LATE P.P.SATHADAS, PALLIVEETIL HUSE CHEMBALAM PO, KALLAR, NEDUMKANDAM, IDUKKI DISTRICT, IS SUBSTITUTED AS THE PETITIONER IN THE PLACE OF THE DECEASED PETITIONER AS PER ORDER DATED 20.3.09 IN IA 3813/09. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): ------------------------- 1. THE SECRETARY TO GOVERNMENT, POWER AND ENERGY DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR, OFFICE OF THE DEPUTY DIRECTOR, K.S.E.B., RESEARCH DIVISION NO.II, VAZHATHOPE, IDUKKI. 4. THE ASSISTANT EXECUTIVE ENGINEER, K.S.E.B., OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, VADAKKEPUZHA SUB DIVISION, KULAMAVU, IDUKKI. R1 BY GOVERNMENT PLEADER SRI.ANTONY MUKKATH R2 TO 4 BY ADVS. SRI.K.S.ANIL, SC, KSEB SRI. ASOK M.CHERIYAN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/09/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8736 of 2006(M) ------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF THE IDENTITY CARD ISSUED TO THE PETITIONER BEARING NO.2928. EXT.P2. COPY OF THE JUDGMENT IN OP NO.3732/04 EXT.P3. COPY OF THE ORDER IN R.P. NO.293/04 EXT.P4. COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P5. COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER. EXTP6. COPY OF THE ORDER APPOINTING THE PETITI0NER WITH EFFECT FROM 1.4.1992. EXT.P7. COPY OF THE POSTING ORDER ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER, KULAMAVU. EXT.P8. COPY OF THE LETTER DATED 9.7.1998 ISSUED BY THE DY DIRECTOR, RESEARCH DIVISION NO.S VAZHATHOPPU. EXT.P9. COPY OF THE RESIDENTIAL CERTIFICATE ISSUED BY THE PAMPADUMPARA GRAMA PANCHAYATH. EXT.P10. COPY OF THE RELEVANT PORTION OF THE RATION CARD. EXT.P11. COPY OF THE RELEVANT EXTRACT SHOWING THE LAST ATTENDANCE MARKED BY THE PETITIONER. EXT.P12. COPY OF THE NEWS ITEMS APPEARED IN MALAYALA MANORAMA DAILY DATED 2.1.2004. EXT.P13. COPY OF THE JUDGMENT IN OP NO.16565/2001. RESPONDENT'S EXHIBITS : NIL -------------------------------------- / TRUE COPY / P.A. TO JUDGE VK S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 8736 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 19th day of September, 2011. J U D G M E N T The petitioner is a member of an Ex-service men's organisation by name Kerala State Ex-services League Society Organisation (hereinafter referred to as the KELSO). The Kerala State Electricity Board invited tenders for supply of Security Guard/Watchmen for guarding its premises. The KELSO submitted tenders. Their tender was accepted and pursuant to the same, the KELSO deputed the petitioner and others to the establishments of the Kerala State Electricity Board for doing duties as watchman/security guard. While that contract was in force, a litigation arose as to the propriety of the Kerala State Electricity Board accepting tenders for amounts, which would result in payment of less than the minimum wages, to employees deputed as per the contract. This Court, in several writ petitions, held that the Electricity Board cannot accept tenders for amounts less than the minimum wages payable to the security guards/watchmen supplied by the contractors, who submit tenders for the work. In the course of the litigation, the Electricity Board assured this Court that they will not accept tenders, which would result in payment of wages less than the minimum wages to the employees employed through the contractor. In the meanwhile, the petitioners' engagement through KELSO was continued beyond the contract period. Now the petitioner is seeking minimum wages at the rate of Rs.140/- for the period from April, 2004 to March, 2005. Earlier, W.P(C) No. 8736 of 2006 -: 2 :- this Court directed consideration of the representation filed by the petitioner in this regard. By Ext.P4 order, the Kerala State Electricity Board rejected the claim of the petitioner. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: “i. to issue a writ of certiorari quashing Ext.P4 order issued by the 2nd respondent; ii. to issue a writ of mandamus commanding the 2nd respondent to disburse the arrears of wages and wages to the petitioner from April 2004 to March 2005 at the rate of Rs.140/- taking note of the judgment of this Court in O.P.No. 16565/01, W.P(C) No. 3732/04 and R.P.No. 293/04; iii. to declare that the petitioner is entitled to wages and arrears of wages at the rate of Rs.140 in the light of the judgment in O.P.No. 16565/05; iv. to issue order or direction commanding the 1st respondent to consider and pass appropriate orders from Ext.P5 representation.” 2. A counter affidavit has been filed by the 2nd respondent. A reply affidavit has been filed by the petitioner. 3. I have considered the rival contentions in detail. 4. The petitioner's own case in this writ petition is that the petitioner was a member of the KELSO and through KELSO the tender was submitted for supply of personnel as security guards/watchmen, which was accepted by the Kerala State Electricity Board. KELSO formed by ex-service men as members including the petitioner. As such, essentially, the petitioner is part of KELSO itself. The KELSO submitted the bid fully knowing W.P(C) No. 8736 of 2006 -: 3 :- the minimum wages payable by it to the personnel supplied by them. The Kerala State Electricity Board is liable to pay amounts as per the agreement executed by KELSO with the Kerala State Electricity Board and it is the KELSO who pays wages to the personnel deputed by them pursuant to the contract. Therefore, essentially, the employer of the petitioner is KELSO and not the Kerala State Electricity Board. Of course, if anybody approaches this Court challenging the action of the Kerala State Electricity Board in the matter of accepting bid by persons like KELSO for amounts, which result in payment of less than the minimum wages to the employees employed pursuant to the contract, certainly this Court would have accepted that contention as in Ext.P13 judgment of this Court in O.P.No. 16565/2001. But, here, the petitioner is part of KELSO, which itself submitted the tender, which has been accepted by the Kerala State Electricity Board. The Kerala State Electricity Board is bound to pay only the contract amount to the KELSO. Perhaps, in order to get the contract, the KELSO may have submitted tenders for lower amount the responsibility for which would lie with KELSO itself and not to the Kerala State Electricity Board. After having submitted tender and getting the same accepted as the lowest tender, I do not think that the petitioner can come forward with a case that although the amount quoted by KELSO was less than the minimum wages, the Kerala State Electricity Board is bound to pay to the petitioner minimum wages. At the most, the Kerala State Electricity Board W.P(C) No. 8736 of 2006 -: 4 :- would only be a principal employer and not the employer of the petitioner. The employer of the petitioner is KELSO, who only is liable to pay wages to the petitioner. Therefore, it is for the petitioner to approach the KELSO seeking minimum wages and the petitioner cannot seek a direction to the Kerala State Electricity Board to pay minimum wages to the petitioner as an employer. In fact, the petitioner has not even impleaded the KELSO as a party to the writ petition. In fact, the petitioner wants to direct the Kerala State Electricity Board to fulfil the statutory obligations of the KELSO. Apart from that, the petitioner has not produced any material to prove the wages paid to the petitioner. In the above circumstances, I am of opinion that the petitioner's remedy lies in filing an application under the Minimum Wages Act or Payment of Wages Act against the KELSO before the authority constituted under the said legislations. Therefore, without prejudice to that right, this writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/