Remanded

Vijayakumar S.G v. * State of Kerala * Corrected

Kerala HC12 Oct 2021WA/1000/2021

Case brief

AI extract

What is this about?

The Court set aside a single Judge's order dismissing writ petitions challenging the dismissal of contractual employment. The Court remitted the issue of the upper age limit for ex-servicemen security guards to the State Government for a final decision after hearing concerned parties, while maintaining an interim order for service continuation.

What did the court decide?

Impugned judgment set aside; matter remanded to State Government for consideration and decision on upper age limit after hearing; interim order on continuation of engagement maintained.

Vijayakumar S.G Vs * State of Kerala *… — Pension and Retirement Benefits | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

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TUESDAY, THE 12^TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943

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WA NO. 1035 OF 2021

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AGAINST THE ORDER/JUDGMENT IN WP(C) 15181/2021 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANTS:

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RAJAN.K.R AGED 60 YEARS S/O. RAGHAVAN PILLAI, SHYLAJA MANDIRAM, CHENDHAPUR, DECENT JUNCTION P.O. KOLLAM DISTRICT 691 577

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BY ADV B.RENJITHKUMAR

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RESPONDENTS:

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1 *STATE OF KERALA * CORRECTED. REPRESENTED BY ITS SECRETARY, DEPARTMENT OF INTERNAL SECURITY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT 695 001. THE DESCRIPTION OF R1, STATE OF KERALA IS SUO MOTU CORRECTED AND ALTERED AS "STATE OF KERALA,REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT,POWER DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695 001. " AS PER ORDER DATED 12.10.2021 IN W.A.NO.1035/2021. 2 KERALA EX-SERVICEMEN WELFARE AND REHABILITATION CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR KEXCON, OPP. AMRITH HOTEL, THYCAUD, THIRUVANANTHAPURAM. 695 001. 3 KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM , THIRUVANANTHAPURAM DISTRICT 695 004. 4 THE DEPUTY CHIEF ENGINEER KSEB (ELECTRICAL CIRCLE OFFICE), KOLLAM-691001. BY ADVS. R.S.KALKURA N.SATHEESH

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA NO. 1035 OF 2021, WA NO. 1035 OF 2021 & WA NO. 1000 OF 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

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TUESDAY, THE 12^TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943

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WA NO. 1000 OF 2021

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AGAINST THE ORDER/JUDGMENT IN WP(C) 15216/2021 OF HIGH COURT OF KERALA,

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ERNAKULAM

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APPELLANT:

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VIJAYAKUMAR S.G AGED 61 YEARS S/O. M.O.GOPINATHAN UNNITHAN, AVITTAM, NEAR GANGADHARAM ROAD, CHAVAR KODU, PARIPPALLY P.O., PIN-691574. BY ADV B.RENJITHKUMAR

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RESPONDENTS:

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1 * STATE OF KERALA * CORRECTED REPRESENTED BY ITS SECRETARY, DEPARTMENT OF INTERNAL SECURITY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PIN-695001.

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THE DESCRIPTION OF R1, STATE OF KERALA IS SUO MOTU CORRECTED AND ALTERED AS "STATE OF KERALA,REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT,POWER DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695 001. " AS PER ORDER DATED 12.10.2021 IN W.A.NO.1000/2021. 2 KERALA EX-SERVICEMEN WELFARE & REHABILITATION CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, KEXCON, OPP. AMRITHA HOTEL, THYCAUD, THIRUVANANTHAPURAM-695001. 3 KERALA STATE ELECTRICITY BOARD, REP. BY IT'S SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM DISTRICT, PIN-695004. 4 THE EXECUTIVE ENGINEER KSEB 66 KV GIS SUB STATION, KOLLAM, KOLLAM DISTRICT, PIN690518. BY ADVS. N.SATHEESH R.S.KALKURA

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SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA NO. 1035 OF 2021, WA NO. 1035 OF 2021 & WA NO. 1000 OF 2021 3

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

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TUESDAY, THE 12^TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943

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WA NO. 1038 OF 2021

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AGAINST THE ORDER/JUDGMENT IPPEAL HAVING COME UP FOR ADMISSION ON

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12.10.2021, THE COURT ON THN WP(C) 15205/2021 OF HIGH COURT OF

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KERALA, ERNAKULAM

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APPELLANT/S:

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VIJAYAN GOPALAN, AGED 60 YEARS

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S/O GOPALAN, VEDISSRIL, MARU SOUTH, ALUMKADAVU, KOLLAM DISTRICT, PIN-690 573.

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BY ADV B.RENJITHKUMAR

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RESPONDENTS:

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1 *STATE OF KERALA, *CORRECTED REPRESENTED BY ITS SECRETARY, DEPARTMENT OF SAINIK WELFARE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PIN-695 001.

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2 KERALA EX-SERVICEMEN WELFARE AND REHABILITATION CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, KEXCON, OPP. AMRITHA HOTEL, THYCAUD. THIRUVANANTHAPURAM-695 001.

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3 KERALA STATE ELECTRICITY BOARD , REP BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM DISTRICT, PIN-695 004.

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4 THE EXECUTIVE ENGINEER KSEB 66 KV SUB STATION, KARUNAGAPPALLY, KOLLAM

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WA NO. 1035 OF 2021, WA NO. 1035 OF 2021 & WA NO. 1000 OF 2021

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DISTRICT, PIN-690 518.

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BY ADVS. R.S.KALKURA N.SATHEESH

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.10.2021, THE COURT ON

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THE SAME DAY DELIVERED THE FOLLOWING:

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WA NO. 1035 OF 2021, WA NO. 1035 OF 2021 & WA NO. 1000 OF 2021 5

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ALEXANDER THOMAS & VIJU ABRAHAM, JJ.

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===================================

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W.A.No.1035 of 2021

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(arising out of the judgment dated 30.07.2021 in W.P.(C) No.15181/2021 ) W.A.No.1000 of 2021 (arising out of the judgment dated 30.07.2021 in W.P.(C) No.15216/2021 ) W.A.No.1038 of 2021

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(arising out of the judgment dated 30.07.2021 in W.P.(C) No.15205/2021 ) =========================================

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Dated this the 12th of October, 2021

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JUDGMENT

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Alexander Thomas, J

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These intra-Court appeals arise out of the impugned common judgment rendered by the learned single Judge on 13.07.2021 dismissing the above captioned writ petitions.

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The issues raised in these cases are identical. The matters arise out of the contractual employment of the appellants as security Guards at the premises of the respondent Kerala State Electricity Board after being sponsored through the respondent – KEXCON. In view of these aspects, these cases are disposed of on the basis of a common judgment and W.A. No.1035/2021 is taken as the lead case for easy reference.

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The appellant in W.A. No. 1035/2021 has filed WP(C) No. 15181 of 2021 with the following prayers.

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WA NO. 1035 OF 2021, WA NO. 1035 OF 2021 & WA NO. 1000 OF 2021

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(I) Issue a writ of Certiorari or any other appropriate writ, order or direction to set aside Ext.P1 and P2. (ii) Issue an order declaring the upper age limit or an empaneled ex-serviceman in the panel of 2^nd respondent as 65 years of age. (iii) Grant such other reliefs as this Hon'ble Court would deem fit and proper. (iv) Allow the costs of the petitioner.

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Similar prayers are made by other writ petitioners. The learned Single Judge as per the impugned common judgment rendered on 30.07.2021 has held that the appellants have an alternate and efficacious remedy by raising an Industrial Dispute in appropriate proceedings as envisaged as per the Industrial Disputes Act, 1947 and that in view of the availability of such efficacious statutory remedy, this Court's writ jurisdiction is to be declined and it is on this premise, that the writ petitions have been dismissed. Being aggrieved by the dismissal of the WP(C)s, the instant intra-court appeals have been preferred by the above unsuccessful writ petitioners in terms Section 5(i) of the Kerala High Court Act.

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Heard Sri.B.Renjith Kumar, learned counsel appearing for the appellants in these writ appeals/petitioners in the WP(C)s, Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for R1, State of Kerala, Sri. R.S. Kalkura, learned Standing Counsel for R2, Kerala Ex-servicemen Welfare & Rehabilitation Corporation, KEXCON, Sri. N. Satheesh, learned standing counsel

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WA NO. 1035 OF 2021, WA NO. 1035 OF 2021 & WA NO. 1000 OF 2021

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appearing for Kerala State Electricity Board Limited for R3 and R4.

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The factual aspects of these cases are broadly as follows:

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That, based on the requisition of the 3^rd respondent KSEB,

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for making available the contractual services of security guards to man the premises of the 3^rd respondent KSEB Ltd, R2-KEXCON, which is a company fully owned by the Government of Kerala and which is established for the promotion of rights and interest of ex-servicemen and to provide services of ex-servicemen on contractual basis to various establishments. As per the Government norms, Government Corporations / Government Agencies can engage security Guards on contractual basis only on the basis of sponsorship of 2^nd respondent KEXCON. It is on this basis that the 2^nd respondent KEXCON has sponsored eligible ex-servicemen like the appellants herein on contractual basis to man the establishment and premises of KSEB. From the pleadings placed on record, more particularly, the counter affidavit filed by the 2^nd respondent KEXCON, it appears that the 3^rd respondent KSEB was insisting that the upper age limit of security guards to be provided by KEXCON at any rate shall not exceed 60 years. Whereas, Ext.P2 proceedings in these cases of the 2^nd respondent KEXCON reads as follows:

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“Extract copy of minutes of Board Meeting held on 19 May 2015

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WA NO. 1035 OF 2021, WA NO. 1035 OF 2021 & WA NO. 1000 OF 2021

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'അജണ ഇനന 1 & 20

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അജണ ഇനന 20 വവിഷയന കകേക്സസസ്കൊണണ വഴവി വ വ ിവിധ സസ്കൊപനങളവിൽ നവിയമവിക്കസപടുന വവിമകഭടൻമസ്കൊരസടയന അവരസട ആശശ്രീതരസടയന വവിരമവിക്കൽ പസ്കൊയന 60 ൽ നവിനന 62 അയവി കൂട്ടുനതണ സനബനവിചണ.

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മസ് ക ൊനജവിങണ ഡയറകണ വവിഷയന അവതരവിപവിച. ചചകേർ ൾക്കണ കശേഷന ജശ്രീവനക്കസ്കൊരസട പസ്കൊയപരവിധവി 60 ൽ നവിനണ 62 ആയവി വധവിപവിക്കസ്കൊർ ൻ തശ് ര ീമസ്കൊനവിച. 62 വയസവിനകമൽ പസ്കൊയമള ജശ്രീവനക്കസ്കൊസര നവിലനവിതനർ കേസ്കൊരരന അവശേര സസ്കൊഹചരരതവിൽ പപവറണ സസകേക്യൂരവിറവി സറഗകലഷൻ ആകണ 2005, ഡവി. ജവി. ആർ പഗൈഡണ പലൻസണ അനസരവിച 6 മസ്കൊസകതക്കണ വശ്രീതന നവിയമവികവസ്കൊൻ മസ് ക ൊനജവിങണ ഡയറകക്കണർ തശ് ര ീമസ്കൊനന എടുക്കസ്കൊവുനതസ്കൊണണ”. അജണ ഇനന 21 & 26”

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However due to the insistence of the respondent KSEB and also on the ground that other unemployed ex-servicemen should also be given due turn for getting contractual employment as security guards, the 2^nd respondent KEXCON has taken the stand that the services of security guards who have already been sponsored to the premises of the 3^rd respondent KSEB, may not continue beyond the age of 60. It is in the basis of these aspects that Ext.P1 requisitions made by the 3^rd respondent KSEB has asked that the upper age limit of the security guards sponsored by KEXCON may not exceed 60 years. It is in the light of these aspects that the appellants who are security guards engaged on contractual basis in the premises of the respondent KSEB has faced disengagement, as they have completed 60 years of age. They consequently approached this Court by filing the instant WP(C) and the pleas of the WP(C) has been repelled by

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WA NO. 1035 OF 2021, WA NO. 1035 OF 2021 & WA NO. 1000 OF 2021

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the learned Single Judge on the ground that the petitioner exservicemen who are serving as contractual ex-servicemen would go to the definition of workmen as envisaged in the Industrial Disputes Act and that the disputes relating to upper age limit for engagement of such ex-servicemen as in the instant case would eminently fall within the broad ambit and scope of Industrial Disputes as envisaged in the Industrial Disputes Act, 1947 and that therefore, the writ petitioners have efficacious alternate and statutory remedy by raising industrial disputes in terms of the Industrial Disputes Act, 1947 and hence discretionary writ jurisdiction has been denied in these cases.

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We have heard the parties in extenso. During admission of these Writ Appeals, Sri.B.Renjith Kumar, learned counsel appearing for the appellants in these cases had urged before us that Section 10(1)(b) of the Private Security Agencies (Regulation) Act, 2005, Central Act, (29 of 2005) brought into force with effect from 23.6.2005 mandates that the upper age limit of the security personnel to be engaged by Private Security Agency should not have attained the age of 65 years. Taking note of the said prescription made by the Parliament, we passed out interim orders in these cases, ordering that since the writ appellants have just crossed the age of 60

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WA NO. 1035 OF 2021, WA NO. 1035 OF 2021 & WA NO. 1000 OF 2021

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and have not at any rate completed the upper age limit of 65 as envisaged in the above said Act, their engagement/contractual service may be continued by the respondent KSEB for the time being. The said interim order passed by this Court is still in force. Sri. R.S. Kalkura, learned Standing Counsel for KEXCON appearing for R2 would strongly urge that the above said Central Act, 29 of 2005 will not be applicable to the 2^nd respondent KEXCON, since the same is a Government Agency, more so particularly as it is a company fully owned by the Government of Kerala which has been established at the behest of the State Government for promoting the rights and interests of ex-serviceman and therefore, the 2^nd respondent KEXCON will not come within the definition of Private Security Agency as understood under Section 2(g) of the above said Act and that the said Act will not be applicable to the respondent KEXCON.

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After hearing both sides, we see strong force in the said submissions of Sri.R.S.Kalkura, learned Standing Counsel for the respondent KEXCON. However, we cannot be oblivious to the crucial legislative fact that the Parliament in its wisdom has engrafted the above legislation wherein among other things it has been envisaged that the upper age limit of a security personnel,

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WA NO. 1035 OF 2021, WA NO. 1035 OF 2021 & WA NO. 1000 OF 2021 11

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though to be engaged at the behest of a private security agency may not exceed the age of 65 years. Prima facie we are of the view that the said legislative policy engrafted by the Parliament in Section 10(1)b is the one relevant aspect that can be taken into consideration by the respondents in the this matter. True that the said Act by itself will not apply to the respondent KEXCON. What we are only observing is that prima facie we would opine that the said Legislative Policy engrafted by the Parliament, may not be completely overlooked by the respondents while they take their decisions including policy decisions in relation to engagement of contractual security personnel, though at the behest of Government agency like KEXCON. Further we see in the detailed counter affidavit filed by KEXCON that the respondent KSEB has been insisting KEXCON that the upper age limit of the security personnel to be engaged on contractual basis, as sponsored by KEXCON shall not exceed 60 years. Series of documents in that regard has been produced in the counter affidavit filed by the respondents KEXCON. So also, one of the documents has been produced by the respondent in their pleadings which would show that the respondent KSEB has given insistence in those proceedings that the upper age limit may not

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WA NO. 1035 OF 2021, WA NO. 1035 OF 2021 & WA NO. 1000 OF 2021 12

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exceed 55 years. However, the fact of the matter is that the respondent KEXCON in its wisdom and in view of its autonomy in functioning as a company has taken resolution in terms of Ext.P2 as above.

¶102

Ext. P2 would indicate that the respondent KEXCON is actually contemplating to enhance the upper age limit to 62 years. Ofcourse, even if respondent KEXCON takes up a decision, it is certaninly open to the respondent KSEB to insist that the security personnel to be sponsored by KEXCON may not exceed a particular age limit as stipulated by respondent KSEB if the same is supported by good and valid reasons. Sri. B. Renjith Kumar, learned counsel appearing for the appellants would point out that it is a well-known fact which this Court and the respondents can take cognizance that the personnel in the military like Indian Army, after their discharge, will be serving as private staff for some time and may be even establishing their business etc and many of them due to further lack of employment or due to business failure etc will be compelled to again seek job and one of the last resort is for seeking engagement as security personnel. Many a times, they would exceed the age of 50 years or so. It is in the light of these aspects that the Parliament in

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WA NO. 1035 OF 2021, WA NO. 1035 OF 2021 & WA NO. 1000 OF 2021 13

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its legistlative wisdom has engrafted the above provision, Section 10(1)(b) of the above said Act that the upper age limit to be upto 65 years.

¶105

After hearing both sides, we are of the view that these are matters which may essentially fall within the prerogatives of the terms and conditions of the employment. The respondent KSEB is amenable to policy directions that may be issued by the respondent State Government from time to time. In view of the above said aspects, we are of the view, that it may not be right and proper for us to adjudicate these issues straight away and that too, for the first time, and the proper and better course of action in judicial review would be to remit the matter to the competent Authority of the State Government to consider these aspects, after ascertaining the considered views of the respondent KEXCON and the respondent KSEB and ofcourse, after affording an opportunity of being heard to the appellants as well as their associations, if any. Accordingly it is ordered that the matters as to whether the upper age limit of the security personnel to be sponsored by respondent KEXCON to the establishment of respondent KSEB should be above the age of 60 years, and should go up to the age of 65 years as contended by the

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WA NO. 1035 OF 2021, WA NO. 1035 OF 2021 & WA NO. 1000 OF 2021 14

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Appellants or should be upto 62 years as contemplated by the respondent KEXCON in Ext.P2 etc, will be considered by R-1 State Government. It may all be appropriately considered by the competent authority of the 1^st respondent State Government in the Power Department. We are told that the competent Authority of the State Government which is the Power Department is the Administrative Department concerned as far as the respondent KSEB is concerned. To effectuate further consideration, it is ordered that the appellants may file their detailed representation in the matter before the competent Authority of the 1^st respondent State government who is the Power Department and copies thereof should be given in advance to the respondent KSEB and the respondent KEXCON. The respondent KSEB and the respondent KEXCON will give their considered views in this matter in writing to the first respondent within three weeks from the date of receipt of a copy of this judgment. The appellants may give any supplementary submissions by giving any additional representations in the matter which they may do within one week from the date of receipt of a copy of the communication in writing that may be received by the respondent KEXCON and the respondent KSEB. Thereafter, the first

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WA NO. 1035 OF 2021, WA NO. 1035 OF 2021 & WA NO. 1000 OF 2021 15

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respondent will invite the appellants for personal hearing in the matter and the representatives of the respondent KSEB and the respondent KEXCON may also be allowed to take part in such personal hearing. The appellants may be afforded reasonable opportunity of being heard in the matter by the 1^st respondent through their authorized representatives/authorized counsel if any, after hearing the appellants and after taking into account the considered views of the respondent KSEB and the respondent KEXCON. The competent authority of the 1^st respondent State Government in the Power Department may take an appropriate decision in the matter, on the above said issues regarding the upper age limit that may be followed by respondent KSEB in the case of engagement of security personnel though the sponsorship of the respondent KEXCON as above without much delay, preferably within a period of three months from the date of filing of the representations along with certified copy of this judgment. Until a decision is taken by the 1^st respondent as above, the interim order passed by this Court to continue the engagement of the appellants in the establishment of the KSEB will be in force. The said order has been passed by us, only to ensure the preservation of subject matter of lis.

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WA NO. 1035 OF 2021, WA NO. 1035 OF 2021 & WA NO. 1000 OF 2021 16

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Consequently it is ordered that the impugned judgment dated 30.07.2011 rendered by the learned Single Judge in the above said WP(C) will stand set aside. The 1^st respondent will also be at liberty to hear any association of ex-servicemen security guards before the decision is taken as aforesaid.

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With these observations and directions, the above writ appeals will stand finally disposed of.

Sd/-

ALEXANDER THOMAS

JUDGE

Sd/-

VIJU ABRAHAM

JUDGE

Nsd

//TRUE COPY//

PA TO JUDGE

Vijayakumar S.G v. * State of Kerala * Corrected

Case brief

What is this about?

What did the court decide?

Vijayakumar S.G v. * State of Kerala * Corrected

Case brief

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What did the court decide?

What the court decided

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