IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30264 of 2010(G)
1. P.VIJAYAKUMAR, AGED 41 YEARS,
... Petitioner
2. K.UMESHBABU,
3. V.SASI, AGED 49 YEARS, S/O.VELAYUDHAN,
4. K.NARAYANAN KUTTY, AGED 42 YEARS,
5. C.K.RATNAKUMAR, AGED 38 YEARS,
6. V.E.RAMACHANDRAN, AGED 45 YEARS,
7. N.A.SIDHARTHAN, AGED 44 YEARS,
8. K.J.SHAJU, AGED 43 YEARS, S/O.JACOB,
9. N.A.VINOD KUMAR, AGED 45 YEARS,
10. M.D.BABU (OUSEPH M.D.),
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. PUBLIC SERVICE COMMISSION,
3. THE KERALA STATE ELECTRICITY BOARD,
For Petitioner :SRI.G.D.PANICKER
For Respondent :SRI. ASOK M.CHERIYAN, SC, KSEB
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :07/12/2010
O R D E R
C.T.RAVIKUMAR, J.
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W.P. (C) NO.30264 OF 2010
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CONT.CASE(Civil) No.1156 OF 2008
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Dated this the 7th day of December, 2010.
JUDGMENT
Writ petitioners are petty contractors and contract line
workers under the Kerala State Electricity Board (for short ‘KSEB’).
This writ petition has been filed mainly to redress the grievances
relating non implementation of the award of the Industrial
Tribunal Palakkad in ID No. 27 of 2002. Further prayer is to issue
a direction to the first respondent to appoint a Deputy Labour
Commissioner and an Additional Labour Commissioner in
pursuance to the request dated 25.5.2010. Evidently, as per
Ext.P2 award the following directions were issued to the
management:-
” a) 25% of the existing vacancies as well as the vacancies
that may arise during a period of five years from the date
of this award shall be reserved for appointment from
among the petty contractors and contract line workers.
There shall be appropriate percentage of communal
reservation within this 25% in terms of Articles 16 and 335
of the Constitution of India.
b) The management shall in consultation with the State
Government nominate an officer not below the rank of
Deputy Labour Commissioner to prepare a State-wide
seniority list of petty contractors and contract line workers
who had worked not less than 1200 days preceding the
date of this award and the same shall be published on the
notice boards of all the offices of the management from
where this category of workmen are deputed for works.
Similarly an officer not below the rank of additional Labour
Commissioner in the State Labour Department shall be
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CONT.CASE(Civil) No.1156 OF 2008 2
authorised to finalise the seniority list after conducting
personal hearing of the workmen who have submitted
objections to the draft list and the final seniority list shall
also be published in the same manner as stated above.
c) All persons whose names figured in the final seniority
list and who satisfy all the qualifications for appointment
of electricity workers as per the orders of the management
which are in force as on the date of this award, except the
condition of maximum age limit, shall be eligible for
submitting applications for appointment in terms of this
award.
d) The maximum age limit for appointment as per this
award shall be 50 years as on the date of notification
inviting applications for appointment.
e) The management shall be free to formulate and finalise
a recruitment procedure incorporating the above directions
in consultation with KPSC as per Sec.3 of Kerala Public
service Commission (Addl. Functions) Act, 1963.
f) The KPSC shall be authorised to conduct a suitability
test/interview and submit a select list of successful
candidates.
g) The management shall comply with the above directions
and ensure that the selection process for appointment
against 25% of the existing vacancies is completed within
120 days from the publication/pronouncement of this
award and appointments are made within 60 days from the
date of publication of select list byh KPSC.
h) If sufficient candidates are not available for filling up
25% vacancies in terms of this award, the remaining posts
shall be treated as general.”
2. The said award was challenged before this Court in W.P.
(C) No. 28836 of 2005. As per Ext.P3 judgment the said writ
petition was dismissed with certain clarifications. Against Ext.P3
judgment two writ appeals viz., writ appeal Nos.627 of 2008 and
615 of 2008 were unsuccessfully attempted. The former writ
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CONT.CASE(Civil) No.1156 OF 2008 3
appeal was disposed of as per Ext.P5 judgment and latter writ
petition was disposed of as per Ext.P6 judgment. The Special
Leave Petition preferred against Ext.P5 judgment by the KSEB
was also dismissed. However, the respondents have not complied
with the directions in Ext.P2 award as clarified in Ext.P3 judgment.
The sum and substance of the petitioners’ contention is that the
3rd respondent is bound to comply with the directions given under
Ext.P2 award subject to the clarifications made under Ext.P3
judgment and the fruits of the award and the judgment shall not
be permitted to be deprived of.
3. I have heard the learned counsel appearing for the
petitioner, the learned Government Pleader the learned standing
counsel for the second respondent and also the learned standing
counsel for the third respondent.
4. A contempt case has also been filed on being aggrieved
by the non-compliance with the judgment in W.P.(C).No.28836 of
2005 dated 16.11.2007. It has been brought to my notice that
with a view to draw a seniority list in terms of the directions in
Ext.P2 award from amongst persons who are included in WW 23
and 24 referred to in Ext.P2 award, the Deputy Labour
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CONT.CASE(Civil) No.1156 OF 2008 4
Commissioner, Ernakulam was nominated as the officer. In fact,
the said nomination is in tune with the directions under Clause (b)
in paragraph 48 of Ext.P2 judgment. Evidently, the Deputy Labour
Commissioner is nominated to prepare a statewise seniority list
of petty contractors and contract line workers in terms of Ext.P2
award which was clarified as per Ext.P3 judgment. Going by
Ext.P2 and Ext.P3 an Additional labour Commissioner has also to
be nominated for the purpose of finalising the seniority list drawn
by the Deputy Labour Commissioner. After finalisation of such a
list qualified persons from among those included in WW 23 and 24
have to submit their applications. Obviously, as per the
directions issued under Ext.P2 award the eligibility and
entitlement to make such applications are limited to those who
fall within age limit specified thereunder, viz., 50 years.
Admittedly, the post identified for such appointments is Electricity
Worker. As per the award 25% of the existing vacancies of
electricity workers as well as the vacancies that may arise during
the period of 5 years from the date of award were to be reserved
for appointment for among the petty contractors and contract
line workers. Ext.P2 award is dated 15.12.2004 and Ext.P3
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CONT.CASE(Civil) No.1156 OF 2008 5
judgment is dated 16.11.2007. Nevertheless, the petitioners are
yet to receive the benefits arising out of Exts.P2 and P3. There
can be no dispute with respect to the position that further delay in
the matter of finalisation of the list and failure on the part of the
3rd respondent in calling for applications in terms of the award
from the finalised list would result in denial of the benefits of
Ext.P2 award to those persons who would cross the age limit of 50
years on the date of such invitation for application after following
the requisite procedures, in terms of directions (d) in Ext.P2. In
such eventuality, as per the terms of Ext.P2 award, such
vacancies would also be treated as general. Therefore, according
to the petitioners the matter cannot brook any further delay and
any such delay would hamper their chances of getting an
appointment in terms of the directions under Ext.P2 award which
stood modified as clarified as per Ext.P3. The said apprehension
cannot be said to be an unfounded one in the facts and
circumstance.
5. Obviously, for complying with the directions under (c) and
(g) of Ext.P2 award and Ext.P3 judgment the Deputy Labour
Commissioner is to be nominated for the purpose of preparing a
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CONT.CASE(Civil) No.1156 OF 2008 6
state wise seniority list of petty contractors and contract line
workers and an Additional Labour Commissioner has to be
nominated for the purpose of its finalisation. The final seniority list
is to be forwarded to the Kerala Public Service Commission on
receipt of such a list from the Additional Labour Commissioner.
The 3rd respondent is to formally finalise the recruitment
procedure incorporating the directions in Ext.P2 judgment which
stood clarified in Ext.P3 judgment in consultation with Kerala
Public Service Commission (Additional Functions) Act, 1963 in
terms of directions (e) in Ext.P2 judgment. In fact for a proper
implementation of the directions in the award, 3rd respondent
shall formally finalise such a recruitment procedure before
finalisation of the final seniority list. On receipt of such a final
seniority list applications have to be invited from eligible persons
who are included in the final seniority list. Appointments have to
be effected then, against vacancies specifically reserved in terms
of direction No. (a) in Ext.P2 award. As already noticed with a
view to implement the directions in Ext.P2 Government have
already nominated the Deputy Labour Commissioner as officer to
prepare a state wise seniority list in terms of Exts.P2 award and
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CONT.CASE(Civil) No.1156 OF 2008 7
P3 judgment. There is no dispute with respect to the liability of
the respondents to implement the various directions in Ext.P2
award in terms of Ext.P3 judgment. At the same time, as noticed
hereinbefore, any further delay in the matter of its
implementation may ultimately disentitle the petitioners and
certain other similar circumstances persons from enjoying the
fruits of Ext.P2 award in terms of Ext.P2. At any rate, such an
eventuality has to be averted. In the said circumstances the
Deputy labour Commissioner, Ernakulam who was nominated as
the Officer to prepare a state wise seniority list and petty
contractors and contract line workers in terms of the directions in
Ext.P2 award and Ext.P3 judgments shall draw draft seniority list
in terms of the directions thereunder expeditiously at any rate
within a period of one month from the date of receipt of a copy of
this judgment and forward the same to the KSEB to publish the
same in the manner and for the purpose, in terms of Ext.P2
award. In the meanwhile, the 3rd respondent shall formally
formulate and finalise the recruitment procedure incorporating
the directions in Ext.P2 award that stood clarified by Ext.P3
judgment in consultation with the Kerala Public Service
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CONT.CASE(Civil) No.1156 OF 2008 8
Commission as per Section 3 of Kerala Public Service Commission
(Additional Functions) Act 1963, in terms of Ext.P2 expeditiously
to enable the first respondent to implement the directions in
Ext.P2 award, in terms of this judgment. As already noticed the
said officer is only to identify the qualified persons from among
those included in WW 23 and 24 in Ext.P2 award. In the
meanwhile the first respondent shall nominate an Additional
Labour Commissioner in the State Labour Department for the
purpose of finalising the draft list to be drawn by the Deputy
Labour Commissioner, Ernakulam in terms of Ext.P2 award and
Ext.P3 judgment. The Additional Labour Commissioner has to be
nominated for that purpose by the first respondent within a period
of two weeks from the date of receipt of the copy of the
judgment. Needless to say that the Additional Labour
Commissioner, Ernakulam shall finalise the draft list in accordance
with the directions in Ext.P2 award and Ext.P3 judgment within
one month from the date of receipt of draft list. On its finalisation
the 3rd respondent shall take immediate steps for the purpose of
calling applications from among those who are included in the
final seniority list for appointment in terms of Ext.P2 award and
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CONT.CASE(Civil) No.1156 OF 2008 9
Ext.P3 judgment. It shall be done within one month from the date
of finalisation of the final the seniority list. In terms of Ext.P2
award the entire expenses have to be borne by the 3rd
respondent. The writ petition is disposed.
CONT.CASE(Civil) No.1156 OF 2008:
The above contempt petition has been filed alleging non
compliance with the directions in W.P.C.12473 of 2007 read with
judgment dated 1611 of 2007 in W.P.C.No.28836 of 2005. In view
of the judgment in W.P.(C) No. 36264 of 2010, this contempt
petition is closed.
C.T.RAVIKUMAR, JUDGE.
mns
