IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28843 of 2005(H)
1. KUNJIRAMAN,S/O.KRISHNAN,AGED 49
... Petitioner
2. RAGHAVAN,S/O.POTHAYAN,AGED 47 YEARS
3. VELLAN,S/O.SELVAN,AGED 54 YEARS,
4. VASUDEVAN,S/O.CHINNU,AGED 47 YEARS
5. SREEDHARAN,S/O.THOLAN,AGED 51 YEARS,
6. BHASKARAN,S/O.KUNJIRAMAN,AGED 51 YEARS,
7. ANANTHAN,S/O.ARAMBA,AGED 48 YEARS,
8. KESAVAN,S/O.KARIYAN,AGED 56 YEARS,
Vs
1. POOKKOT GIRIJAN COLLECTIVE FARMING
... Respondent
2. THE MANAGING DIRECTOR,POOKKOTT
3. STATE OF KERALA REP. BY GOVERNMENT
For Petitioner :SRI.P.P.JACOB
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :15/06/2009
O R D E R
ANTONY DOMINIC, J.
================
W.P.(C) NOs. 28843 OF 2005
& 24082 OF 2007
=====================
Dated this the 15th day of June, 2009
J U D G M E N T
The issues raised in the writ petitions are common and I
shall be referring to the facts as stated in WP(C) No.24082/07.
2. Petitioners were employees of the Pookkot Girijan
Collective Farming Co-operative Society, Pookkot, Wayanadu, a
society administered and controlled by the 1st respondent. It
would appear from the pleadings that consequent on the abolition
of bonded labour system in Kerala, the Government of Kerala had
established a tribal collective farm at Pookkot in 1979 to
rehabilitate a section of the freeded bonded labour. The Pookkot
Tribal Collective Farming Co-operative Society (‘society’ for short)
was also formed for the effective management of the project.
3. Right from the inception, society was incurring losses
and finally the General Body Meeting of the society resolved to
wind up the society w.e.f. 8/5/2003. Ext.P1 is the scheme
formulated by the 1st respondent providing for the benefits that
are to be paid to the employees who are retrenched. This
interalia provides that retrenchment compensation shall be paid
WPC 28843/05 & 24082/07
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for every completed period of service upto May 2003.
Complaining that the scheme was not implemented, a writ
petition was filed before this Court as WP(C) No.19777/04. That
writ petition was disposed of by Ext.P2 judgment dated 26th of
July, 2004 recording the submission of the learned Government
Pleader that 50% of the amount due under Ext.P1 has already
been paid. Parties are in agreement that such payment was
made on 30/6/2004. In Ext.P2 judgment, the submission that
further payments will also be made was also recorded.
4. According to the petitioners, during this period, despite
the resolution to wind up the society and the partial payment of
retrenchment compensation, they continued in service. It is
stated that they were also paid salary till December, 2003. As
they were continuing in service even beyond December 2003,
they represented to the Government for wages for the
subsequent period. It is stated that the Government therefore
called for a report from the 4th respondent. Ext.P3 is the letter
given by the 4th respondent to the Government suggesting inter
alia that employees were continuing in service. Even, during this
period, balance 50% was remaining unpaid and therefore WP(C)
WPC 28843/05 & 24082/07
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No.4490/05 was filed before this Court. That writ petition was
disposed of by Ext.P4 judgment directing that the balance amount
shall be paid within 3 months. Petitioners are referring to Ext.P5,
which according to the petitioners show the balance amount that
was due.
5. It is stated that on account of the non compliance with
Ext.P4 judgment, contempt of court case was filed as COC
No.693/05 resulting in Ext.P6, where the respondents were
directed to see that the petitioners were paid for the actual days
they worked. It is stated that accordingly, the 1st respondent
passed Ext.P7 and para 9 of which reads as under:
Government have examined whole matter in detail
and found that the service of the employees of the
society stood terminated with effect from 8.5.2003,
vide the proceedings read as the sixth paper above
and as reported by the District Collector, Wayanadu
and Chairman of the Pookkot Girijan Collective
Farming Co-operative Society vide the letter read as
the tenth paper above, that there were no
circumstances for the employees of the society to
work beyond 8.5.2003.
6. It is this order which is under challenge and order for
payment of salary is also sought for. A reading of para 9 of Ext.P7
gives the impression that the 1st respondent has negatived the
petitioners claim for wages beyond 8/5/2003 on the ground that
WPC 28843/05 & 24082/07
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the petitioners have not actually worked in the society.
Petitioners submit that it was by Ext.P10 dated 13/5/2005, their
services were ordered to be terminated w.e.f. 8/5/2003. It is
stated that Ext.P10 itself show that the petitioners have served
the society subsequent to 8.5.2003. They are also referring to
Ext.P4 report and also Ext.P11, a notice issued by the Managing
Director of the Society in this behalf.
7. In this writ petition, what the petitioners mainly
complain is that although they were paid salary upto December,
2003 despite the fact that their termination was only by Ext.P10,
they have not been paid wages till May 2005.
8. The respondents have filed a counter affidavit.
According to the respondents, right from the inception, the
society was incurring heavy loss, as a result of which, the general
body had resolved to wind up the society w.e.f. 8/5/2003. It is
stated that this necessitated the formation of Ext.P1
retrenchment scheme and that 50% of the benefits of the scheme
were extended to the workers on 30/6/2004 and the balance 50%
was paid in June, 2005. It is stated that Ext.P1 contemplated
retrenchment of the employees w.e.f. May 2003 and that they
WPC 28843/05 & 24082/07
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had no occasion to work in the society thereafter. It is also stated
that the District Collector, Wynad who was the Chairman of the
Society, had reported to the Government that there were no
circumstances for the employees of the society to work beyond
8.5.2003. It is stated that the claim of the petitioners that they
were attending office after 8.5.2003 is baseless and that the
respondents had issued no such instructions. Counter would also
suggest that the Managing Director and the then Secretary of the
Society are hand in glove with the petitioner to sustain this
unjustified claim.
9. Similar is the claim raised by the petitioners in WP(C)
No.28843/05, who were also employees of the society itself.
10. The controversy in these writ petitions can therefore be
seen to be for wages for the period subsequent to December
2003 till May 2005. Admittedly, the employees are retrenched
workmen of the society. The scheme for retrenchment formulated
by the Government is Ext.P1. The scheme contemplates payment
of retrenched compensation taking wages in May 2003 and
quantification of the benefits on that basis. Although Ext.P1 is
dated 15/6/2004, the amount due to the workmen were quantified
WPC 28843/05 & 24082/07
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and 50% thereof was paid on 30/6/2004 and the balance 50% in
3/6/2005. These averments were accepted and there is no
challenge to the provisions of Ext.P1 scheme. Two things are to
be noticed here. One is that Ext.P1 contemplated reckonable
service only till May 2003 and consequently at least technically
retrenchment came into force from May, 2003. Once the factum
of retrenchment is accepted from May, 2003, there cannot be a
claim for employment thereafter unless the person retrenched is
reemployed. There is no such case here. If that be so, the
entitlement of the petitioners and the other employees of the
society will have to be governed by the terms of Ext.P1 and is
only upto May 2003.
11. The benefits of Ext.P1 have been paid, though in two
instalments. If that be so, the employees in question who were
retrenched as per Ext.P1 scheme, having been paid the amount
due under Ext.P1, cannot claim anything more than what they
have been paid and accepted without protest.
12. True, by Ext.P10 dated 13/5/2005, their services were
terminated w.e.f. 8/5/2003. On this basis, learned counsel for the
petitioners contend that for the period upto 13/5/2005, they are
WPC 28843/05 & 24082/07
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entitled to be paid wages. In my view, an employee who accepts
the factum of retrenchment on the basis of Ext.P1 scheme cannot
claim that the employer employee relationship continued
thereafter and therefore, even if Ext.P10 was not issued, the
situation would not have been different. The fact that Ext.P10
was issued will not in any manner improve the case of the
petitioners for wages beyond the period , May 2003. I am not
persuaded to grant any relief.
Writ petitions fail and are dismissed.
ANTONY DOMINIC, JUDGE
Rp