Welfare Association Of Kitco ... vs Kerala Industrial And Technical ...
2023 Latest Caselaw 3111 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
  THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
                      WP(C) NO. 9928 OF 2023
PETITIONERS:

    1     WELFARE ASSOCIATION OF KITCO EMPLOYEES (WAKE)
          ROOM NO. 102, FEMITH'S P.B. NO. 4407,
          PUTHIYA ROAD, NH BYPASS,
          VENNALA, KOCHI - 682028
          REPRESENTED BY ITS GENERAL SECRETARY,
          MR. RAJEEV G, AGED 50 YEARS.

    2     BOBY P. THEKKAN
          AGED 54 YEARS
          SPECIAL ASSISTANT GRADE I (DRAUGHTSMAN),
          KITCO LTD., MM GARDENS, CHURCH LANDING ROAD,
          KOCHI - 682016.

    3     SREEKUMAR M
          AGED 61 YEARS
          SINDHOORAM, HOUSE NO. J-33A,
          JYOTHI NAGAR, KESAVADASAPURAM,
          PATTOM P.O.,
          THIRUVANANTHAPURAM - 695004.

          BY ADVS.
          ABRAHAM JOSEPH MARKOS
          V.ABRAHAM MARKOS
          ISAAC THOMAS
          P.G.CHANDAPILLAI ABRAHAM
          ALEXANDER JOSEPH MARKOS
          SHARAD JOSEPH KODANTHARA
          JOHN VITHAYATHIL
          AIBEL MATHEW SIBY


RESPONDENTS:

    1     KERALA INDUSTRIAL AND TECHNICAL CONSULTANCY
          ORGANISATION (KITCO)
          M M GARDENS, CHURCH LANDING RD,
          PALLIMUKKU, KOCHI - 682016
          REPRESENTED BY ITS MANAGING DIRECTOR.
 W.P.(C) No.9928 of 2023
                             2


    2    SMALL INDUSTRIES DEVELOPMENT BANK OF INDIA
         SIDBI TOWER, 15, ASHOK MARG, LUCKNOW,
         UTTAR PRADESH PIN - 226001
         REPRESENTED BY ITS CHAIRMAN &
         MANAGING DIRECTOR.

    3    GOVERNMENT OF KERALA
         DEPARTMENT OF INDUSTRIES & COMMERCE,
         SECRETARIAT, THIRUVANANTHAPURAM - 695001
         REPRESENTED BY ITS PRINCIPAL SECRETARY.

    4    UNION OF INDIA
         MINISTRY OF FINANCE 3RD FLOOR,
         JEEVAN DEEP BUILDING SANSAD MARG,
         NEW DELHI - 110001
         REPRESENTED BY ITS JOINT SECRETARY.

         BY ADVS.
         GOPIKRISHNAN NAMBIAR M
         S.MANU, DSGI
         ANIMA M..GP.

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C) No.9928 of 2023
                                   3


                         JUDGMENT

Dated this the 23rd day of March, 2023

The Welfare Association of KITCO Employees (WAKE)

represented by its General Secretary has filed this writ petition

seeking to set aside Exts.P9, P11, P20(a) and P20(b)

communications issued by the 1st respondent and to declare that

any amendment to Rule 7 of the KITCO Staff Rules which has the

effect of varying the conditions of service to the detriment of an

employee, can apply only prospectively to appointments made

after such amendments.

2. In effect, the petitioners are challenging the amendment

made to the retirement age of the employees of the 1 st

respondent-Kerala Industrial and Technical Consultancy

Organisation (KITCO).

3. This Court has considered the issue as to whether the

Kerala Industrial and Technical Consultancy Organisation is a

State or not, within the meaning of Article 12. W.P.(C) No.9928 of 2023

3. In the judgment in K.J. Johnson v. Kerala Industrial

and Technical Consultancy and others [ILR 1992 (1) Kerala

808], this Court held that the respondent-Company is not a State

and writ petition under Article 226 is not maintainable against

KITCO. If the 1st respondent is not a State or not an

instrumentality of the State, then no writ petition will be

maintainable against the KITCO in respect of service matters. It is

to be further noted that in W.P.(C) No.26071/2021 and W.P.(C)

No.30515/2021 also, this Court took the view that the

1st respondent-KITCO will not fall within the ambit of the 'State'

under Article 12 of the Constitution of India. In view of the afore

judgments, this Court cannot entertain the matter agitated by the

Welfare Association of KITCO employees in respect of a service

matter.

The writ petition is therefore dismissed.

Sd/-

N. NAGARESH JUDGE ams W.P.(C) No.9928 of 2023

APPENDIX OF WP(C) 9928/2023

PETITIONERS' EXHIBITS Exhibit P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE 1ST PETITIONER DATED 20.02.2019 Exhibit P1(a) TRUE COPY OF THE LIST OF MEMBERS OF THE 1ST PETITIONER ASSOCIATION Exhibit P1(b) TRUE COPY OF THE MEMORANDUM AND ARTICLES OF ASSOCIATION OF THE 1ST RESPONDENT Exhibit P2 TRUE COPY OF THE SMALL INDUSTRIES DEVELOPMENT BANK OF INDIA ACT, 1989 Exhibit P3 TRUE COPY OF THE CERTIFICATE OF INCORPORATION DATED 03.06.1972 Exhibit P3(a) TRUE COPY OF THE MASTER DATA OF THE 1ST RESPONDENT AS AVAILABLE ON THE MINISTRY OF CORPORATE AFFAIRS WEBSITE Exhibit P3(b) TRUE COPY OF THE GST REGISTRATION CERTIFICATE OF THE 1ST RESPONDENT DATED 21.09.2017 Exhibit P4 TRUE COPY OF APPENDIX II TO THE REPORT NO. 2 OF 2005 (PSUS) PREPARED BY THE COMPTROLLER AND AUDITOR GENERAL OF INDIA (CAG) WHEREIN THE 1ST RESPONDENT IS SHOWN AS A DEEMED GOVERNMENT COMPANY Exhibit P5 TRUE COPY OF ANNUAL CAG REPORT OF THE ACCOUNTS OF THE 1ST RESPONDENT COMPANY FOR THE YEAR 2020 Exhibit P6 TRUE COPY OF THE G.O. (P) NO.

67/2021/FIN. DATED 28.04.2021 Exhibit P6(a) TRUE COPY OF G.O. (P) NO. 104/2022/FIN.

DATED 02.09.2022 Exhibit P6(b) TRUE COPY OF LETTER DATED 29.01.2015 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT W.P.(C) No.9928 of 2023

Exhibit P6(c) TRUE COPY OF LETTER DATED 07.09.2014 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT Exhibit P7 TRUE COPY OF THE ORDER DATED 02.07.2010 OF THE STATE CHIEF INFORMATION COMMISSIONER Exhibit P8 TRUE COPY OF THE APPOINTMENT LETTER DATED 05.01.2000 ISSUED BY THE 1ST RESPONDENT TO THE 2ND PETITIONER Exhibit P8(a) TRUE COPY OF THE PROMOTION OF THE 2ND PETITIONER ON PROBATION BY LETTER DATED 25.05.2012 Exhibit P8(b) TRUE COPY OF THE CONFIRMATION LETTER DATED 28.11.2012 IN RESPECT OF THE 2ND PETITIONER Exhibit P9 TRUE COPY OF THE COMMUNICATION DATED 25.11.2022 ISSUED BY THE HR DEPARTMENT OF THE 1ST RESPONDENT TO THE 2ND PETITIONER Exhibit P10 TRUE COPY OF THE REPLY LETTER DATED 16.01.2023 SENT BY THE 2ND PETITIONER Exhibit P11 TRUE COPY OF THE REPLY LETTER TO EXHIBIT P10 DATED 24.01.2023 ISSUED BY THE HR DEPARTMENT OF THE 1ST RESPONDENT Exhibit P12 TRUE COPY OF THE REPRESENTATION DATED 22.02.2023 FILED BY THE 2ND PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P13 TRUE COPY OF THE KITCO STAFF RULES 1985 Exhibit P14 TRUE COPY OF THE KITCO STAFF RULES 1985 AS AMENDED ON 01.12.2012 Exhibit P15 TRUE COPY OF THE BOARD OF DIRECTORS RESOLUTION SAID TO HAVE BEEN MADE ON 28.06.2014 Exhibit P16 TRUE COPY OF RULE 7(2) OF THE KITCO STAFF RULES AS ON 17.11.2017.

W.P.(C) No.9928 of 2023

Exhibit 17 TRUE COPY OF THE REPRESENTATION DATED 26.02.2022 OF THE 1ST PETITIONER TO THE 1ST RESPONDENT Exhibit P17(a) TRUE COPY OF THE REPRESENTATION DATED 16.07.2022 OF THE 1ST PETITIONER TO THE 1ST RESPONDENT Exhibit P18 TRUE COPY OF THE RELEVANT PAGES OF CAG AUDIT OF THE 1ST RESPONDENT FOR THE YEAR

Exhibit P18(a) TRUE COPY OF THE KITCO RULES OF GROUP GRATUITY CUM LIFE ASSURANCE SCHEME Exhibit P19 TRUE COPY OF THE CIRCULAR NO. 19/2022-23 DATED 28.06.2022 ISSUED BY THE 1ST RESPONDENT Exhibit P20 TRUE COPY OF COMMUNICATION DATED 06.07.2021 RECEIVED BY AN EMPLOYEE MR. BIJU K MATHEW FROM THE 1ST RESPONDENT Exhibit P20(a) TRUE COPY OF COMMUNICATION DATED 25.11.2022 RECEIVED BY AN EMPLOYEE MR. BIJU K MATHEW FROM THE 1ST RESPONDENT Exhibit P20(b) TRUE COPY OF COMMUNICATION DATED 02.07.2022 RECEIVED BY ANOTHER EMPLOYEE MS. SUNITHA K.P FROM THE 1ST RESPONDENT Exhibit P21 TRUE COPY OF THE LETTER DATED 26.09.2022 OF THE 3RD PETITIONER ISSUED TO THE 1ST RESPONDENT Exhibit P22 TRUE COPY OF THE REPLY LETTER DATED 28.10.2022 ISSUED BY THE 1ST RESPONDENT TO THE 3RD PETITIONER