Kerala High Court
Kerala State Industrial ... vs K.V.Sasidharan on 24 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
WA NO. 942 OF 2021
AGAINST THE JUDGMENT IN WP(C).NO.10701/2021 OF THE HIGH COURT OF KERALA,
ERNAKULAM
APPELLANTS/1ST AND 2ND RESPONDENTS IN WP(C):
1 KERALA STATE INDUSTRIAL ENTERPRISES LIMITED,
ST. JOSEPH'S PRESS BUILDING, COTTON HILL, THIRUVANANTHAPURAM-
695014, REPRESENTED BY ITS MANAGING DIRECTOR.
2 THE MANAGING DIRECTOR,
KERALA STATE INDUSTRIAL ENTERPRISES LIMITED, ST. JOSEPH'S
PRESS BUILDING, COTTON HILL, THIRUVANANTHAPURAM-695014.
SRI. E.K.NANDAKUMAR (SR. ADV.) ALONG WITH SRI.M.GOPIKRISHNAN
NAMBIAR, STANDING COUNSEL,
ADVOCATES M/S.K.JOHN MATHAI, JOSON MANAVALAN, KURYAN THOMAS,
PAULOSE C. ABRAHAM, RAJA KANNAN
RESPONDENT/PETITIONER IN WP(C):
1 K.V.SASIDHARAN, AGED 58 YEARS,
S/O.UNNIKRISHNAN MARAR, ASSISTANT GENERAL MANAGER
(MARKETING), KERALA STATE INDUSTRIAL ENTERPRISES LIMITED,
ST. JOSEPH'S PRESS BUILDING, COTTON HILL, THIRUVANANTHAPURAM-
695014, RESIDING AT FLAT NO.2 H, PHASE-I, SOWPARNIKA RIVER
VIEW GARDEN, POOZHIKUNNU, PAPPANAMCODE INDUSTRIAL ESTATE
P.O., THIRUVANANTHAPURAM-695019.
BY ADV SRI.P.RAMAKRISHNAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.09.2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
ALEXANDER THOMAS & A.BADHARUDEEN, JJ.
===========================================
W.A. No. 942 of 2021
[arising out of the impugned judgment dated 23.6.2021 in
W.P.(C).No. 10701/2021]
===========================================
Dated this the 24th day of September, 2021
JUDGMENT
The sole respondent herein had filed the instant Writ Petition
(Civil) WP(C) No.10701/2021 with the following prayers [See pages 54 & 55
of the paper book of this Writ Appeal]:
"
a) A writ of mandamus or any other appropriate writ or order directing
the 1st respondent to re-fix the petitioner's pay in terms of Exhibits P-3
and Exhibit P-5 reckoning the service rendered by him under KSDP
Limited,
b) Hold that revision of pay has no nexus to re-fixation of pay in terms of
Exhibits P-3 and P-5 decisions and that petitioner is entitled to have his
pay re-fixed granting him service weightage for the service rendered in
KSDP, forthwith.
c) A writ of mandamus or any other appropriate writ or order directing
the 2nd respondent to take up and dispose of Exhibit P-6,
d) Issue such other writ, order or direction as are deemed just and proper
on the facts and circumstances of the case. "
2. The learned Single Judge, after hearing both sides, has
rendered the impugned judgment on 23.6.2021 disposing of above
WP(C) holding that, in view of the decisions already taken by the Board
of Directors of the Kerala State Industrial Enterprises Limited (KSIE) as
per Exts.P-3 & P-5, there cannot be any room for doubt that the earlier
service rendered by the writ petitioner with the Kerala State Drugs and
W.A. No. 942 of 2021
Pharmaceuticals Limited (KSDP), prior to his absorption under the present
employer - KSIE, is liable to be reckoned for calculating service weightage for
the purpose of fixing of his salary. The learned Single Judge specifically held
that the contention of the respondent therein/KSIE that service weightage is
liable to be computed only on implementation of subsequent pay revision
inasmuch as, the writ petitioner had been regularly absorbed in the KSIE only
after the last pay revision in the year 2006, etc. is liable to be rejected. Since,
no such restriction or condition has been placed in Exts.P-3 & P-5, the
learned Single Judge, as per the impugned judgment has allowed the main
plea in the writ petition and has directed the employer - KSIE to refix the
writ petitioner's pay in terms of Exts.P-3 & P-5 by reckoning the earlier
service rendered by him under the KSDP Ltd., and urgent action was ordered
to be taken in that regard taking note of the fact that the petitioner was then
due to retire on 31.7.2021, etc. Aggrieved by the abovesaid impugned
judgment dated 23.6.2021 rendered by the learned Single Judge disposing of
above WP(C), the 1st respondent therein has filed the present intra court
appeal under Sec.5(i) of the Kerala High Court Act.
3. Heard Sri.M.Gopikrishnan Nambiar, learned Standing Counsel for
the Kerala State Industrial Enterprises Limited (KSIE) appearing for the
appellants/R-1 & R-2 in the WP(C) and Sri.P.Ramakrishnan, learned counsel
appearing for the sole respondent herein/sole petitioner in the WP(C).
W.A. No. 942 of 2021
4. The writ petitioner was earlier working in another Public Sector
Undertaking fully owned by the Government of Kerala, viz the Kerala State
Drugs and Pharmaceuticals Limited (KSDP) w.e.f 26.7.1984 and later he was
appointed on deputation in the service of appellant employer - KSIE on
29.1.2009. Later, he had been regularly absorbed in the regular service of the
KSIE on 7.6.2010. After the rendering of impugned judgment in the WP(C) on
23.6.2021, the writ petitioner had already retired from service of the KSIE on
31.7.2021. The main grievance of the writ petitioner was regarding the refusal
of the employer - KSIE to reckon his earlier service in the KSDP for the
purpose of service weightage for refixing his salary. Main reliance has been
placed by the writ petitioner on the decision taken by the Board of Directors
of the KSIE as per Ext.P-3 dated 28.3.2012 and Ext.P-5 dated 13.8.2014.
5. Both these decisions at Exts.P-3 & P-5 have been taken after the
writ petitioner had been regularly absorbed into service of the employer -
KSIE. The decision of the KSIE as per Ext.P-3 dated 28.3.2012 reads as
follows[See page 60 of the paper book of this Writ Appeal]:
"Board noted that at present the service period on deputation in KSIE of the
deputationists, who were later absorbed in KSIE, is not considered for calculating
service weightage although such service are considered for gratuity purpose.
Board after discussion approved for consideration of the service period as above
for service weightage also."
6. Subsequently, decision as per Ext.P-5 dated 13.8.2014 has also
been rendered by the Board of Directors of the KSIE, which reads as follows
W.A. No. 942 of 2021
[See page 62 of the paper book of this Writ Appeal]:
"The 199th Board of KSIE approved for consideration of the Service Period for
service weightage to the deputationists, who were later absorbed in KSIE Ltd.
Even though the approval has been granted by the 199 th Board for giving
weightage to the deputationists, who were later absorbed in KSIE Ltd, for fixing
their salary, previous service period was not clearly specified.
Hence the Board may confirm that "Service periods of the deputationists, who were
later absorbed in KSIE Ltd. means; the total service period, the employee had
worked in his/her parent organization is to be considered for the service
weightage, for fixing their salary in KSIE."
7. No qualifications or conditions have been laid down either in
Ext.P-3 or Ext.P-5 that the benefit of service weightage for refixation of salary
of the incumbents who have been absorbed into service of the KSIE can be
considered only after they secure pay revision benefits. The objection raised
by the appellant KSIE is to the effect that the last pay revision in terms of
Anx.B proceedings G.O.(P) No.145/2006/Fin was on 25.3.2006. That, the
writ petitioner had not then been regularly absorbed into the service of the
KSIE inasmuch as, he was regularly absorbed only subsequently on 7.6.2010.
So, the main objection raised is that unless the incumbent has secured the
benefit of pay revision, there is no question of granting him/her the benefit of
service weightage as envisaged in Exts.P-3 & P-5.
8. Since, the appellant KSIE is an undertaking fully owned by the
Government of Kerala, we also wanted to know the stand of the State
Government in this regard. The writ petitioner has produced a document as
Anx.R-1(b) in this appeal which is the copy of letter No.B1/169/2021/ID
W.A. No. 942 of 2021
dated 27.7.2021 issued by the competent authority of the State Government in
the Industries Department. Therein, the State Government has stated that as
a matter of fact, the employer - KSIE has taken the decisions as per Exts.P-3
& P-5 independently and without reference to the Government, and therefore
the employer - KSIE is fully at liberty to exercise its discretion for complying
with the directions issued by the learned Single Judge in the present
impugned judgment dated 23.6.2021 in WP(C).No.10701/2021, regarding the
claim of the writ petitioner for grant of service weightage in terms of Exts.P-3
& P-5. Of course, the usual refrain of the Government is also mentioned in
Anx.R-1(b) that this shall not result in any extra expenditure. But, the heart
and core of the matter in Anx.R-1(b) would disclose the stand of the State
Government that the employer - KSIE can exercise their independent
discretion in the matter of complying with the directions issued by the
learned Single Judge in the present impugned judgment. If, as a matter of
fact, the benefit of service weightage in terms of Exts.P-3 & P-5 would have
been given to only incumbents who have been absorbed into service of the
KSIE after the last pay revision, then certainly, the Government would have
raised such an objection stating that in the case of the writ petitioner who had
been absorbed into service after the pay revision, his claim for service weightage
could be granted only after he secures the benefit of the pay revision.
9. Therefore, the view taken by the learned Single Judge appears to
W.A. No. 942 of 2021
be reasonable and proper in the facts and circumstances of this case. That
apart, from the pleadings in para 3 of the affidavit dated 11.8.2021 filed by the
appellant in this case, it can be seen that it is admitted by the appellant that
the pay scale of the petitioner was fixed in accordance with Pay Revision
Order dated 25.3.2006. A reading of Anx.C produced along with said affidavit
would also show that the formalities for approval of the next pay revision are
almost complete. We are told that as and when formal steps are taken for the
approval of next pay revisions, then it will have a retrospective effect from
1.10.2011 and 1.10.2016 for the two pending pay revisions. The writ petitioner
had already retired from service of the KSIE on 31.7.2021.
10. Taking into account the overall conspectus of the facts and
circumstances of this case and also taking into account the considered stand
of the State Government as mentioned above, we are of the view that the
learned Single Judge has not committed any illegality or unreasonableness in
rendering the impugned directions as per the impugned judgment in this
case. Hence, no interference is called for in the facts and circumstances of this
case. However, taking note of the delay that has occurred on the pendency of
this appeal and since the writ petitioner has already retired from service on
31.7.2021, it is ordered that the directions of the learned Single Judge in the
impugned judgment may be complied with by the appellant KSIE authorities
within one month from the date of receipt of a copy of this judgment.
W.A. No. 942 of 2021
11. The writ petitioner may forward copy of this judgment to the
competent authority of the KSIE for necessary information and compliance.
With these observations and directions, the above Writ Appeal will
stand dismissed.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
A.BADHARUDEEN, JUDGE
MMG
W.A. No. 942 of 2021
APPENDIX OF W.A.NO.942/2021
PETITIONERS' EXHIBITS
A TRUE COPY OF THE OFFER LETTER ISSUED TO
ANNEXURE A
THE RESPONDENT DATED 07.06.2010.
A TRUE COPY OF THE RELEVANT PORTION OF THE
GOVERNMENT ORDER BEING G.O.(P)
ANNEXURE B
NO.145/2006/FIN DATED 25.03.2006 ALONG WITH
INDEX.
RESPONDENT'S ANNEXURES
ANNEXURE R1(A) TRUE COPY OF NOTE PUT UP BY THE GENERAL
MANAGER (A & HR) IN CHARGE OF THE 1ST
RESPONDENT TO MANAGING DIRECTOR.
ANNEXURE R1(B) TRUE COPY OF LETTER NO.B1/169/2021 DATED
27/7/2021 FROM THE PRINCIPAL SECRETARY,
INDUSTRIES (B) DEPARTMENT TO THE MANAGING
DIRECTOR, KSIE
*ANNEXURE R1(A): A TRUE COPY OF THE MINUTES OF THE MEETING
ANNEXURE C: DATED 09.07.2021 OF THE PUBLIC ENTERPRISES
BOARD.
*ANNEXURE R1 (B) A TRUE COPY OF THE DETAILS OF DEPUTATIONISTS
ANNEXURE D: WHO WERE GIVEN BENEFITS OF SERVICE WEIGHTAGE
AS PER EXHIBITS P3 AND P5 BASED ON PAY
REVISION ORDER VIDE G.O.(P) NO.145/2006/FIN
DATED 25.03.2006.
* ANNEXURE R1(A) AND ANNEXURE R1(B) ARE CORRECTED AS
ANNEXURE C AND ANNEXURE D RESPECTIVELY AS PER ORDER DATED 24-9-21
IN I.A.NOS.3 & 4 OF 2021 IN WA 942/2021.
