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2018 Supreme(Ker) 1516
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. Asha, J.
Berly A. J. - Appellant
Vs.
Chairman Kerala State Warehousing Corporation - Respondent
W.P. (Civil) No. 31678 of 2017, 31723 and 32655 of 2017
Decided On : 24-01-2018
N.N. Sugunapalan, Adv., S. Sujin, Adv., Nita N S, Adv., S.P. Aravindakshan Pillay, Adv., N. Santha, Adv., K.A. Balan, Adv., V. Varghese, Adv., Peter Jose Christo, Adv., S.A. Anand, Adv., L. Annapoorna, Adv., B. Ananjana, Adv., K.N. Remya, Adv., Majnu Komath, Adv., Binoy Chandran, Adv.
Headnote:
The Kerala State Warehousing Corporation Staff Regulation, 1963 - Clause 7(ii) of Chapter II -Appointments were made in violation clause 7(ii) of Chapter II of the Kerala State Warehousing Corporation Staff Regulation, 1963 (the contract appointment made for 6 years which led to Ext.R2(a) termination order dated 03.02.2007, which was upheld by all the courts, as well as the settlement and re-appointment were made by the very same Managing Director who joined the Corporation again, would all show the foul play, suppressing the intervening events and the dubious practice adopted to perpetuate illegality, to protect vested interest. All this would show that reappointment was an act of fraud itself. The petitioners cannot be permitted to derive any benefit out of such fraudulent activities.
Statement of facts:
Petitioners in these cases are challenging the orders of termination of their service from the post of Class-IV employees from the Kerala State Warehousing Corporation (herein after referred to as the Corporation for short). Parties and documents referred to are as described in W.P.(C) No.32655 of 2017, unless otherwise specified.
Finding of the court:
The 2nd respondent has retained any person appointed otherwise than in accordance with the Regulations, as argued on behalf of the petitioners, it will not in way validate the illegal appointment/re-appointment of the petitioners-Such appointments, if any, are not under challenge in these writ petitions, this court is not called upon to decide on it in this case. At any rate it will be incumbent on the 2nd respondent to act in accordance with rules.
Result: Writ petitions are dismissed.
P.V.Asha, J.
Petitioners in these cases are challenging the orders of termination of their service from the post of Class-IV employees from the Kerala State Warehousing Corporation (herein after referred to as the Corporation for short). Parties and documents referred to are as described in W.P.(C) No.32655 of 2017, unless otherwise specified.
2. The petitioners were initially appointed on daily wages in the Corporation in the year 2002. While working so, the Board of Directors of the Corporation in its meeting held on 15.3.2006 passed resolution no.2531 to engage 110 daily waged hands like petitioners on contract basis for 6 years. They were accordingly appointed on contract basis for 6 years. While so there was a change in the Board of Directors. Seeing the illegality in the appointments, the new Board of Directors in its meeting held on 13.11.2006 resolved to terminate their services. The orders of termination were challenged before this Court in W.P.(C) No.5183 of 2007. This court by judgment dated 2.4.2007 [produced as Ext.R2(b)] dismissed the writ petition observing that public employment cannot be made on contract appointment on long term basis that too with the intention to put the daily rated workers on continuous engagement. Even though the petitioners took up the matter in W.A.No.2050 of 2007, that writ appeal was dismissed as per judgment dated 19.9.2007 [Ext.R2(c)]. The SLP preferred against it was also dismissed by the apex court on 9.1.2008 [Ext.R2(d)]
3. While so, some of those who had lost before this court, raised the question of their termination from service in industrial dispute and that was referred to the Labour Court which was numbered as ID No.41 of 2014. The management filed Ext.P1 written statement objecting to the claims raised by the workmen. However subsequently on the request of both parties, the matter was referred for mediation. In the mediation center, the parties arrived at Ext.P3 settlement, in which the Corporation agreed that there were vacancies in the post of Class IV Gr.II and the question of regularization of petitioners who were relieved from the Corporation as per the board decision dated 13.11.2006 was under consideration of Government. Hence Corporation undertook to consider the petitioners' appointment as per Government direction/Court direction. On production of the settlement, the Labour Court found that what survived thereafter was only to pass an award in terms of the memorandum of agreement entered between the parties. Accordingly, Ext.P2 award dated 24.11.2014 was passed recording that the memorandum of agreement dated 15.10.2014 will form part of the award and that will take effect after one month from the date of pronouncement of the award. Thereafter Government issued Ext.P4 letter on 21.5.2015 referring to letters dated 27.5.2014 and 13.11.2014 from the Chairman of the Corporation informing the Managing Director that Government had agreed to the suggestion of the Chairman regarding the reinstatement of Class IV employees as per the award of Labour Court for preparing rank list to fill up the vacancies and to absorb the 14 award holders and to fill up existing vacancies from the rank list. The said letter was issued by one Mr.P.K.Mohanan, Dy.Secretary on behalf of Secretary to Government, who was one in the Board of Directors.
4. In the light of Ext.P4 letter of Government and the award of the Labour Court, the Board of Directors in its 277th meeting held on 11.6.2015 resolved to constitute a committee for conducting an interview and preparation of rank list to fill up the existing vacancies by appointing the contract Class IV employees who worked on contract basis during 2007. The Managing Director was authorised to appoint persons against the existing vacancies as per the recommendations of the said committee. Accordingly orders similar to Ext.P5 were issued on 10.08.2015 appointing 47 persons including the petitioners as Class IV Gr.II in the scale of pay of Rs.4
