Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 404 (KER)

N. VIJAYAN, S/o. NARAYANAN v. STATE OF KERALA

2025-02-28

HARISANKAR V.MENON

body2025
JUDGMENT : The petitioners, except the 16 th petitioner, are stated to be the ex-employee’s of the 2 nd respondent and the 16 th petitioner is the legal heir of one Sri.Chandrahasan Pillai, who was also working with the 2 nd respondent herein. The factories wherein the petitioners were working were taken over by the 2 nd respondent and on the basis of the judgment of the Apex Court, the factories were given back to the original owners like the 3 rd and 4 th respondents herein. In the meantime, the petitioners were denied employment. 2. Some other workers, similarly placed like the petitioners herein were before this Court, complaining about the afore action of the 2 nd respondent. By Ext.P3 judgment dated 15.11.2012, a learned Single Judge of this Court found the action of the 2 nd respondent not acceptable and hence directed the 2 nd respondent to pay salary/basic pay etc., along with the dearness allowance and other benefits to the petitioners before this Court, till the date of superannuation of the respective employers. The post retirement benefits were also directed to be extended. The findings in Exts.P5 stood confirmed by a Division Bench of this Court as per Ext.P4 judgment dated 26.03.2014. 3. On the basis of the afore directions, the petitioners herein filed W.P.(C)No.23306 of 2015, seeking the benefits extended pursuant to Exts.P3 and P4 judgments. By Ext.P5, dated 09.01.2017, a learned Single Judge of this Court found that if the petitioners are also similarly placed like the petitioners in Ext.P3 judgment, they were to be extended the same benefits as contained in Exts.P3 and P4. A similar writ petition came to be filed by two other employees and by Ext.P6 dated 23.02.2017, this Court directed the 2 nd respondent to consider as to whether similar benefits can be extended to the petitioners therein also. 4. The judgments at Exts.P5/P6 were challenged by the 2 nd respondent herein by No.1509 of 2017 and W.A.No.1794 of 2017. By Ext.P8 judgment, W.A.No.1570 of 2017 stood disposed of. A Division Bench of this Court in the afore judgment found that the findings in Exts.P5/P6 judgments is not to be interfered with. 4. The judgments at Exts.P5/P6 were challenged by the 2 nd respondent herein by No.1509 of 2017 and W.A.No.1794 of 2017. By Ext.P8 judgment, W.A.No.1570 of 2017 stood disposed of. A Division Bench of this Court in the afore judgment found that the findings in Exts.P5/P6 judgments is not to be interfered with. However, in paragraph 24 of the judgment, this Court took note of the contention raised by the 2 nd respondent herein that the petitioners (respondents before the Division Bench) were profitably/gainfully employed elsewhere and hence they are not entitled for similar treatment. A Division Bench of this Court taking note of the submission, permitted the Corporation to explore the afore aspect also while considering the claim on the basis of the directions contained in Exts.P5/P6 judgments. 5. It is on the basis of the directions issued as above, that the 2 nd respondent herein issued Exts.P10 to P12 orders refusing to extend the benefits to the petitioners herein. A reading of Exts.P10 to P12 would show that the benefits are sought to be denied, as according to the 2nd respondent-Corporation, the petitioners herein at the time of personal hearing admitted that they were employed elsewhere on better terms and that is why, the petitioner did not move a little finger even after they were allegedly denied employment from 2002 onwards. 6. It is in such circumstances that the captioned writ petition is filed by the petitioners challenging Exts.P10 to P12 issued by the 2 nd respondent herein. 7. I have heard Sri.R.Kishore, the learned counsel for the petitioner, Sri.Vipin P.Varghese, the learned counsel for the 2 nd respondent and Sri.P.Sanjay, the learned counsel for the 3 rd respondent herein. 8. The sustainability or otherwise of the findings contained in Exts.P10 to P12 issued by the 2nd respondent is the short issue arising for consideration. 9. True, the petitioners sought to seek the benefits from the 2nd respondent only in the year 2015, by filing a writ petition which led to the judgment at Ext.P5. However, this Court while rendering Ext.P5 had taken note of the alleged claim of the petitioner and found that “if the petitioners are similarly situated” they should be extended the benefits as extended in Ext.P3 and confirmed in Ext.P4. The 2nd respondent had filed an appeal not satisfied with the directions issued in Ext.P5 judgment. However, this Court while rendering Ext.P5 had taken note of the alleged claim of the petitioner and found that “if the petitioners are similarly situated” they should be extended the benefits as extended in Ext.P3 and confirmed in Ext.P4. The 2nd respondent had filed an appeal not satisfied with the directions issued in Ext.P5 judgment. But, a Division Bench of this Court refused to interfere with respect to the ultimate findings noticed as above. At the same time, the 2nd respondent was permitted to take note of the question as to whether the petitioners were otherwise employed. Presumably on the basis of the afore freedom granted to the 2 nd respondent, while considering the issue, the 2 nd respondent has taken the view that the petitioners were gainfully employed elsewhere and hence they are not extended the benefits. But a reading of Exts.P10 to P12 would show that the 2 nd respondent was only relying on the alleged “oral statement” made at the time of personal hearing before the Corporation. Sri.Vipin P.Varghese, the learned counsel for the 2 nd respondent would emphatically contend that it was for the petitioners to prove that they were not otherwise employed. However, it is a fundamental principle that a person would not be in a position to prove a negative. I note that the petitioners have specifically raised a contention that they were not employed. If that be the case, it was for the 2 nd respondent to have proven that the petitioners herein were otherwise employed and hence not entitled for the benefits sought for. But, no such effort is seen taken and the 2 nd respondent appears to have proceeded on the assumption that the petitioners continued to be otherwise employed. I am unable to agree with the afore stand of the 2 nd respondent. 10. I also note that the consideration by the 2 nd respondent can only be on the basis of the directions issued by the learned Single Judge in Exts.P5/P6 as confirmed in Ext.P7/P8. The zone of consideration at the hands of the 2 nd respondent was limited. 10. I also note that the consideration by the 2 nd respondent can only be on the basis of the directions issued by the learned Single Judge in Exts.P5/P6 as confirmed in Ext.P7/P8. The zone of consideration at the hands of the 2 nd respondent was limited. Insofar as the basis of the consideration as made in the impugned orders does not appear to be correct and on the basis of the averments contained in the writ petition, which have not been controverted, that they were not otherwise employed, I am of the opinion that the petitioners herein are similarly placed as the petitioners in O.P.No.10546 of 2002 and connected cases. 11. In such circumstances, I am of the opinion that the petitioners are entitled to succeed. Resultantly, this writ petition would stand allowed setting aside Exts.P10 to P12. There will be a direction to the 2 nd respondent to extend the bene extended in Ext.P3 judgment of this Court to the petitioners also, as expeditiously as possible, at any rate, within a period of six months.