IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 36864 of 2003(L)
1. K. PANKAJAKSHNAN, LABELLING WORKER,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
2. MANAGING DIRECTOR, KERALA STATE
3. COMPANY SECRETARY, KERALA STATE
4. THE MANAGER, BONDED WARE HOUSE
For Petitioner :SMT.V.P.SEEMANDINI
For Respondent :SRI.K.P.DANDAPANI
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :15/03/2007
O R D E R
J.B.KOSHY & T.R.RAMACHANDRAN NAIR, JJ.
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W.P.(C)Nos.36864, 39147 of 2003, 34088 of 2004,
6781, 16434, 19904, 24160, 24196, 24779, 25888,
26721, 28857, 29683, 29851, 29976, 30534 of 2005,
14516, 15337, 22757 of 2006, 1589 & 2787 OF 2007
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Dated 15th March, 2007
JUDGMENT
Koshy,J
.
All these writ petitions are filed by the employees
of the Kerala State Beverages Corporation Ltd. (hereinafter
referred to as the Corporation) for enhancing the age of
superannuation. Kerala State Beverages Corporation Ltd. is a
Company registered under the Companies Act and it is fully
owned by the Government of Kerala. As per the Articles of
Association, service conditions of the employees including
retirement age can be changed only with the permission of the
Government. Management and administration of the company is
done by the Board of Directors of the company. Decisions of
the board are not generally interfered by the Government
unless it is against the policy of the Government or against
the interest of the Government. Board of Directors of the
company unanimously decided to increase the retirement age to
58 subject to consonance of the Government. But, the
Government of Kerala refused to concur with the decision of
the Board of Directors by order dated 02.7.2005 (produced as
Ext.P3 in W.P.(C)No.15337 of 2006) on the ground that
W.P.(C)Nos. 36864/2003 & connection 2
Government policy is against increasing the age of
superannuation to 58 from the age of 55. This order is
challenged in all these writ petitions.
2. There are 113 public sector undertakings owned
by the Kerala Government out of which in seven undertakings
like Kerala Agro Industries Corporation Ltd. etc. the
retirement age of employees is 60 years. In majority of
the undertakings, now the retirement age is 58 years. In
Public sector undertakings of Central Government in State
of Kerala the age of superannuation is 60. In Travancore
Sugars & Chemicals Ltd., one of the Kerala Government
company, the age of retirement is 60 and it is a sick
industry. The Board of Directors decided to reduce the age
to 58 as it is a sick industry, but, Government decided to
roll back the retirement age to 60 years itself as can be
seen from Ext.P8 in W.P.(C)No.15337 of 2006 dated
24.6.2006. However, even though in five companies the
retirement age is 55 years, in majority of the public
sector undertakings owned by the Kerala Government, the
retirement age is 58. The retirement age of the Government
employees in Kerala is only 55, but, Government employees
have got various chances of promotion and they are entitled
to get Government pension. Even though in five of the
Government Companies the age of retirement is 55, the major
Government Companies where retirement age is fixed as 55
are four in number viz., Kerala State Road Transport
W.P.(C)Nos. 36864/2003 & connection 3
Corporation, Kerala State Electricity Board, Kerala Water
Authority and Kerala State Housing Board. In those
undertakings there is a good pension scheme. But, as far
as Kerala State Beverages Corporation is concerned, there
is no pension scheme. Of course, they will be entitled to
some sort of contributory pension because of the pension
scheme under the Employees Provident Fund Pension Scheme.
But, for entitlement of full pension, they have to attain
the age of 58. In another similarly placed public sector
undertaking (LBS Centre), Directors decided to extend the
age of retirement from 55 to 58 so as to get the pension
from EPF pension scheme. Ext.P4 is produced to prove the
same. In paragraph 1 of Ext.P4 it is stated as follows:
“The Director, LBS Centre for Science
and Technology has reported that the centre
is following the EPF pension scheme and as
per the EPR pension scheme 1995 a member is
eligible for Superannuation after attaining
the age of 58 years. Hence the Governning
Body of the centre at its 19th meeting held
on 22.10.2001 had decided to fix the
retirement age of its members at 58 years.”
The Government approved the above decision. There is no
need to discriminate Beverages Corporation employees.
3. In 90% of the Government companies, where
there is no pension scheme like Government, age of
retirement was increased to 58 and in some Government
companies retirement age is 60. Hence it cannot be
W.P.(C)Nos. 36864/2003 & connection 4
contended that policy of the Government is not to increase
the retirement age to 58. This Corporation is one of the
few Government companies which earns profits and no grounds
are stated in Ext.P3 indiscriminating this corporation from
other Government companies on the ground of policy.
Petitioners have to be treated at par with other Government
employees especially when Board of Directors decided so
considering the fact of absence of pension scheme etc..
4. During the pendency of the writ petitions, the
employees were allowed to continue up to the age of 58 by
various interim orders of this court. The whole question
is whether the Government Order in not approving the
resolution of the Beverages Corporation in increasing the
retirement age to 58 is arbitrary so as to get interference
from this court as it is violative of Article 14 of the
Constitution of India. It is true that this court by its
own cannot direct the Government or Government Corporation
to increase the age of superannuation in a petition under
Article 226 of the Constitution of India. It is well
settled principle that Government employees’ age cannot be
increased by an order of the court. It is for the
Government to take a policy decision. Here, the entire
scenario is different. The respondent Corporation is a
profit making Corporation. Board of Directors decided to
increase the age of superannuation considering various
W.P.(C)Nos. 36864/2003 & connection 5
circumstances especially considering the fact that in
majority of the similarly placed public sector
undertakings, the age of retirement was adopted as 58 and
also considering the fact that even for getting
contributory pension under the Employees Provident Fund
Scheme, the employees have to attain the age of 58 and
majority employees of the Corporation, superannuation age
is 60 and 58 and the Board decided so, of course, subject
to the Government concurrence. The case of the petitioners
is that even in sick industries, the age of retirement is
60 in certain cases and 58 in majority cases unless there
is a separate beneficiary pension scheme. There is no
rhyme and reason for the Government to reject the
recommendation of the Board of Directors. In this
connection, we refer to the decision of the Supreme Court
in British Paints (India) Ltd. v. Workmen (AIR 1966 SC 732)
where it was held by the Supreme Court as follows:
“But time in our opinion has
now come considering the Improvement in
the standard of health and increase in
longevity in this country during the last
fifty years that the age of retirement
should be fixed at a higher level, and we
consider that generally speaking in the
present circumstances fixing the age of
retirement at 60 years would be fair and
proper, unless there are special
circumstances justifying fixation of a
lower age of retirement.”
W.P.(C)Nos. 36864/2003 & connection 6
5. After considering reports of various
committees, the retirement age of Central Government
employees was enhanced to 60. The present conditions
cannot be lost sight of. The total number of employees
employed in the Corporation is about 2700 out of which 339
employees are regular workers, about 1500 workers are
abkari workers and about 650 employees are deputed from
other Corporations where retirement age is 58. These
deputationists are allowed to work in the Corporation on
deputation even beyond their age of 55 years up to 58
years. For getting pension under the Abkari Welfare
Scheme, abkari workers have to work up to the age of 60.
Government Pleader submitted that they have no objection in
extending the age of superannuation of the abkari workers
of Beverages Corporation to 60. The orders are passed and
Government decision is mentioned in the counter affidavit.
These abkari workers were also absorbed by the Corporation
when retail shops were nationalized. These abkari workers
are members of the Abkari Workers Welfare Fund Board which
has the superannuation age as 60 years. Hence the
permanent abkari workers who are employees of the
Corporation have their retirement age fixed as 60 years.
Hence, majority of employees in this Corporation itself can
work beyond 58 years whereas only minority of 339 regular
workers have to retire at the age of 55.
W.P.(C)Nos. 36864/2003 & connection 7
6. In this connection, we also refer to the
decision of the Apex Court in Osmania University v.
V.S.Muthurangam and others ((1997) 10 SCC 741). The
employees of the Corporation are members of Employees’
Provident Fund. In the Employees Provident Fund a separate
Employees Provident Fund Pension Scheme has been introduced
effective from 1995. The pension fund scheme envisages
pension contribution by the employee/employer up to the age
of 58 years of an employee for the employee to get the full
benefit of pension under the scheme. Hence, the following
resolution was passed by the Corporation:
“Resolved to recommend to Government
the raising of retirement age in the
Corporation from 55 years to 58 years as is
followed in Public Sector Companies and
place proposals before the Government.
We request that the decision of the
Corporation’s Board of Directors to raise
the retirement age of the employees of KSBC
from 55 years to 58 years and incorporate
suitable amendment in clause 43 of the
Service Rules.”
7. When the abkari workers’ age is also increased
to 60 and the deputed workers are working up to 58, there
is no rhyme or reason to say that regular workers should be
retired at the age of 55. Even though they are not
entitled to the pension like the Government employees,
there is no reason for rejecting the proposal of the
W.P.(C)Nos. 36864/2003 & connection 8
Corporation in extending the age of superannuation up to 58
and that rejection is in violation of Article 14 of
Constitution of India. There is hostile discrimination
between similarly placed employees in other Corporations
and even the employees working in the same Corporation. We
hold that the regular employees of the Kerala State
Beverages Corporation are entitled to continue till the age
of 58 as decided by the Director Board of the Corporation
and rejection of the above request by Government is
violation of Article 14 of the Constitution of India. Of
course, as decided by the Government, abkari workers can
continue up to the age of 60 and we are not interfering
with the above order.
All the writ petitions are allowed to the above
extent.
J.B.KOSHY
JUDGE
T.R.RAMACHANDRAN NAIR
JUDGE
tks