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Kerala High Court
Kerala Electricity Employees ... vs State Of Kerala on 22 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
WP(C) NO. 14656 OF 2023
PETITIONER:
UNITED DEMOCRATIC ELECTRICITY EMPLOYEES' FRONT (UDEEF),
REGISTERED TRADE UNION WITH REGISTRATION NO. 01-01/2003 V P
MARAKAR SMARAKA MANDIRAM, AMBUJAVILASOM ROAD,
THIRUVANANTHAPURAM -695001 REPRESENTED BY ITS GENERAL
SECRETARY SHRI. SUNIL KUMAR K.P.AGED 54 YEARS, SON OF LATE
K.V.PURUSHOTHAMAN NAIR, RESIDING AT KUNNAPPALLIL HOUSE, 12TH
MILE, PALA P.O., KOTTAYAM- 686575.
BY ADVS.
DEEPU LAL MOHAN
AISWARYA
RESPONDENTS:
1 KERALA STATE ELECTRICITY BOARD LIMITED,
VYDYUTI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. -695004
REPRESENTED BY ITS SECRETARY (ADMINISTRATION).
2 THE CHAIRMAN AND MANAGING DIRECTOR,
KERALA STATE ELECTRICITY BOARD LIMITED, VYDYUTI BHAVANAM,
PATTOM, THIRUVANANTHAPURAM-695004.
3 THE CHIEF ENGINEER (HUMAN RESOURCE MANAGEMENT),
KERALA STATE ELECTRICITY BOARD LIMITED, VYDYUTI BHAVANAM,
PATTOM, THIRUVANANTHAPURAM 695004, PIN - 695004
4 THE CHIEF PERSONAL OFFICER,(SPECIAL OFFICER, REFERENDUM),
KERALA STATE ELECTRICITY BOARD LIMITED,VYDYUTI BHAVANAM,
PATTOM, THIRUVANANTHAPURAM 695004
5 THE LABOUR COMMISSIONER,
THOZHIL BHAVAN, VIKAS BHAVAN P.O.,THIRUVANANTHAPURAM -695033
6 KSEB WORKERS ASSOCIATION (CITU),
B.T.R. MEMORIAL, MELE THAMPANOOR, THIRUVANANTHAPURAM
-695001.
BY ADV ANTONY MUKKATH
B.PRAMOD, SC
GOVERNMENT PLEADER K B SONY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.05.2024,
ALONG WITH WP(C)NO.21777/2023, THE COURT ON 22.05.2024 DELIVERED THE
FOLLOWING:
WP(C) Nos.14656 & 21777 of 2023
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
WP(C) NO. 21777 OF 2023
PETITIONER:
KERALA ELECTRICITY EMPLOYEES CONFEDERATION (INTUC)
REGISTRATION NO.01 - 04/87, AFFILIATION NO.10485, V.P.
MARAKKAR SMARAKA MANDIRAM, AMBUJAVILASOM ROAD,
THIRUVANANTHAPURAM, REPRESENTED BY ITS GENERAL
SECRETARY., PIN - 695001
BY ADV G.S.REGHUNATH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS PRINCIPAL SECRETARY, SECRETARIAT,
POWER DEPARTMENT, THIRUVANANTHAPURAM,, PIN - 695001
2 KERALA STATE ELECTRICITY BOARD LTD
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,
VYDUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN -
695004
3 THE LABOUR COMMISSIONER
THOZHIL BHAVAN, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN
- 695033
4 K.S.E.B. WORKERS ASSOCIATION (CITU),
BTR MEMORIAL BUILDING, THAMPANOOR, THIRUVANANTHAPURAM,
PIN - 695001
5 THE CHIEF PERSONNEL OFFICER
(SPECIAL OFFICER, REFERENDUM), KERALA STATE
ELECTRICITY BOARD LTD, VYDUTHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM,, PIN - 695004
BY ADVS.
GOVERNMENT PLEADER SMT.K B SONY
ANTONY MUKKATH
SRI B PRAMOD, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.05.2024, ALONG WITH WP(C).14656/2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C) Nos.14656 & 21777 of 2023
3
M.A ABDUL HAKHIM, J
----------------------
WP(C) Nos.14656 & 21777 of 2023
--------------- ------
Dated this the 22nd May, 2024
JUDGMENT
1. The petitioners in these two writ petitions are Trade Union having the employees of the Respondent No.1 as its members. Since the impugned orders in both these writ petitions are one and the same both these writ petitions are considered together. WP(C) No.14656/2023 is treated as the leading case, since the respondents 1 to 3 have filed counter affidavit in the said writ petition. The parties are referred according to their status in WP(c) 14656/2023.
2. The brief facts are: Ext.P7 is the Guidelines for general transfer of employees issued by the Respondent No.1. Clause (VII) in Ext.P7 deals with protection from transfer. It provides that protection from transfer will be given to recognized general Trade Union at 1% of the workmen employed in the entire establishment of the 1st respondent subject to a maximum of 100. It also provided that membership of the unions will be verified from time to time in a Referendum as prescribed for the purpose. The last Referendum was conducted on 28.04.2022 and out of WP(C) Nos.14656 & 21777 of 2023 4 the seven participating Trade Unions, the Respondent No.6 alone secured the minimum 15% votes required for the recognition of Trade Union as mandated under Proviso to Section 5(4) of the Kerala Recognition of Trade Union Act, 2010. The Respondent No.6 secured 53.42% of the total votes polled whereas the other six Trade Unions could secure less than 15% of the total votes polled. The Registrar of Trade Unions certified the Respondent No.6 alone as the recognized Trade Union. Consequently the 100% of the transfer protection is available to the Respondent No.6 alone for nominating its members for protection from transfer. Though the Respondent No.6 is entitled to get 100% of the 100 Nos. of employees reserved for transfer protection, with respect to the year 2023 the Respondent No.6 submitted that it intended to limit the protection from transfer only to 80 employees and requested to give the balance 20 Nos. to three other trade unions - KEWF(AITUC)- 15 Nos, INTUC- 4 Nos and BMS- 1 Nos. On the basis of such request the Respondent No.4 passed Ext.P11 order recommending protection from transfer of 100 employees listed therein with respect to the general transfer of the year 2023. On the basis of Ext.P11 recommendation the Chairman and the Managing Director of the WP(C) Nos.14656 & 21777 of 2023 5 Respondent No.1 passed Ext.P13 order accepting the recommendation. It is Ext.P11 and P13 that are impugned in these writ petitions.
3. Respondents Nos. 1 to 3 have filed a Counter Affidavit dated 19.07.2023 opposing the prayers in the writ petition. The petitioner filed a Reply Affidavit dated 05.08.2023 controverting the averments in the Counter Affidavit filed by the Respondent Nos.1 to 3.
4. Though notice was served on Respondent No.6 there is no appearance.
5. Heard Sri. G.S Reghunath counsel for the petitioner in WP(C) No.21777/2023 and Sri. Deepulal Mohan, Counsel for the petitioner in WP(C) No.14656/2023 and Sri Antony Mukkath, who appeared for the respondents No.1 to 4.
6. Though the counsels for the petitioners raised various grounds challenging the impugned orders, as rightly pointed out by the Counsel for Respondents Nos.1 to 4, the impugned orders are with respect to the general transfer of the year 2023 and the same is already implemented and hence the challenge against the same cannot be sustained now.
7. Counsel for the petitioners submitted that if the grounds raised by them are not considered, the same illegalities will be committed in the coming years also with respect to the general transfer based on the very same Referendum. The petitioners have no quarrel with respect to the WP(C) Nos.14656 & 21777 of 2023 6 Referendum conducted on 28.04.2022 and the percentage of votes secured by each of the participating Trade Unions. They have no quarrel with respect to the facts that on account of the votes secured by the Trade Unions in the Referendum, Respondent No.6 alone is recognised and that consequently, the Respondent No.6 alone is entitled to get the total 100 Nos. reserved for protection from transfer. But according to them if the Respondent No.6 relinquishes any part of their entitlement the utilization of such relinquished part is to be decided by the respondent No.1 and is not to be done as per the dictation of the Respondent No.6. They added that the Respondent No.6 has no right to select from among the other trade Unions or from the members of other Trade Unions for distributing the numbers relinquished by it. I find force in the said submission since going by Clause VII in Ext.P7 General Guidelines for Transfer, the recognized Trade Union can nominate only its members for protection from transfer. There is no provision enabling the recognized Trade Union to nominate members of any other Trade Union. That apart, it is for the other Trade Unions to sponsor their members for protection from transfer.
8. Though I find that the challenge against the impugned orders have become infructuous, in view of the declaratory reliefs sought by the WP(C) Nos.14656 & 21777 of 2023 7 petitioner in WP(C) 14656/2023, I dispose this Writ Petition holding that in the coming years in case a recognized Trade Union relinquishes a part of its entitlement for protection from transfer, the utilization of such relinquished part is a matter to be decided by the Respondent No.1 in accordance with law and the recognized Trade Union who relinquished has no say in the matter of utilization of the part relinquished by it.
The above writ petitions are disposed of accordingly.
SD/-
M.A Abdul Hakhim, Judge jma WP(C) Nos.14656 & 21777 of 2023 8 APPENDIX OF WP(C) 14656/2023 PETITIONER EXHIBITS Exhibit-P1 THE PHOTOCOPY OF CERTIFICATE OF REGISTRATION OF TRADE UNION DATED 25-01- 2003 ISSUED TO THE WRIT PETITIONER BY THE DEPUTY REGISTRAR OF TRADE UNIONS, (KERALA STATE) Exhibit-P2 THE PHOTOCOPY OF CERTIFICATE OF RECOGNITION OF TRADE UNION BEARING NO. PS (B)/1465/2010 DATED 28-05-2016 ISSUED TO THE WRIT PETITIONER BY THE SECRETARY (ADMINISTRATION) OF THE 1ST RESPONDENT Exhibit-P3 THE PHOTOCOPY OF CERTIFICATE FOR RECOGNITION OF TRADE UNION BEARING NO.
LCO/2225/2022-IR(5) DATED 07-07-2022, ISSUED IN FORM-D, IN TERMS OF RULE 8 (1) OF THE KERALA RECOGNITION OF TRADE UNIONS RULES, 2011 ALONG WITH TYPED COPY Exhibit-P4 THE PHOTOCOPY OF B.O. (CMD) NO. 752/2016 (PS (B)/1465/2010) DATED 04-03-2016 ISSUED BY THE 1ST RESPONDENT Exhibit-P5 THE PHOTOCOPY OF CERTIFICATE OF RECOGNITION OF TRADE UNION BEARING NO. PS1 (A)/KSEBL/REFERENDUM/2022 DATED 02-08-2022, ISSUED BY THE 1ST RESPONDENT IN FORM-F, IN TERMS OF RULE 36 (1) OF THE KERALA RECOGNITION OF TRADE UNIONS RULES, 2011 Exhibit-P6 THE PHOTOCOPY OF ORDER NO.
EB2/SE(ELE)/GT2022/22-23 DATED 02-07-2022 ISSUED BY THE 3RD RESPONDENT Exhibit-P7 THE PHOTOCOPY OF B.O. (FTD) NO.
83/2023[PS1(A)/OLGT-2023/GUIDELINES FOR WORKMEN DATED 27-02-2023 ISSUED BY THE 1ST RESPONDENT Exhibit-P8 THE TRUE COPY OF LIST OF 101 WORKMEN PUBLISHED BY THE 4TH RESPONDENT IN THE OFFICIAL WEBSITE OF THE 1ST RESPONDENT Exhibit-P9 THE TRUE COPY OF LIST OF 100 WORKMEN PUBLISHED BY THE 4TH RESPONDENT IN THE OFFICIAL WEBSITE OF THE 1ST RESPONDENT WP(C) Nos.14656 & 21777 of 2023 9 Exhibit-P10 THE PHOTOCOPY OF NOTICE NO.
E.B.7/GENERAL/TRANSFER/2023 DATED 13-04- 2023 ISSUED BY THE 3RD RESPONDENT Exhibit-P11 THE PHOTOCOPY OF LETTER DATED 13-04-2023 SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 4TH RESPONDENT ALONG WITH APPENDED LIST OF 100 WORKMEN Exhibit-P12 THE PHOTOCOPY OF REPRESENTATION DATED 19- 04-2023 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT Exhibit P13 THE PHOTOCOPY OF OFFICE ORDER (CMD) NO.
744/2023 [PS1 (A)/KSEBL/REFERENDUM/2022] DATED 27-05-2023 ISSUED BY THE 1ST RESPONDENT Exhibit P14 THE TRUE COPY OF LIST OF 100 WORKMEN PUBLISHED BY THE 4TH RESPONDENT IN THE OFFICIAL WEBSITE OF THE 1ST RESPONDENT RESPONDENT EXHIBITS Exhibit R-1(a) A true copy of the Proceedings No. LCO/2225/2022-IR (5) dated 25-06-2022 of the Labour Commissioner Exhibit R-1(b) A true copy of the Office Order dated 27- 05-2023 PETITIONER EXHIBITS Exhibit P15 THE TRUE PRINTOUT OF THE DETAILS OF TRACK CONSIGNMENT IN RESPECT OF CONSIGNMENT NUMBER "EL347392475IN" PUBLISHED IN THE OFFICIAL WEBSITE OF POSTAL DEPARTMENT IN ITS TRACK CONSIGNMENT WEB PORTAL Exhibit-P16 THE PHOTOCOPY OF FORMAT OF MEDICAL CERTIFICATE OF KSEBL EMPLOYEES/DEPENDANTS FOR AVAILING TRANSFER/PROTECTION PUBLISHED BY THE 1ST RESPONDENT WP(C) Nos.14656 & 21777 of 2023 10 APPENDIX OF WP(C) 21777/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REGISTRATION CERTIFICATE Exhibit P2 TRUE COPY OF ORDER DATED 4.3.2016 ISSUED BY THE 4TH RESPONDENT Exhibit P3 TRUE COPY OF THE GENERAL TRANSFER ORDER PUBLISHED ON 2.7.2022 ISSUED BY THE 4TH RESPONDENT Exhibit P4 TRUE COPY OF THE LETTER DATED 13-04-2023 GIVING 80 PROTECTION TO THE 4TH RESPONDENT Exhibit P5 TRUE COPY OF THE GUIDELINES DATED 27-02- 2023 FOR TRANSFER Exhibit P6 TRUE COPY OF THAT REPRESENTATION DATED 22.05.2023 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT Exhibit P7 TRUE COPY OF THAT ORDER DATED 27-05-2023 ISSUED BY THE 2ND RESPONDENT