KUNJACHAN Vs. KERALA ELECTRICITY BOARD

JUDGEMENT

(1.) The Petitioner was a Winch driver in the Work Establishment of the Electricity Department till he was discharged from service by Ext. P1 memo dated April 13, 1957. On representations made by him subsequently, he was informed by Ext. P2 dated July 8, 1958 by the second respondent who is the Chief Operation Engineer of the first respondent, the Kerala Electricity Board, Trivandrum, that his prayer for re-entertainment in service cannot be allowed. This petition is to quash both Exts. P1 and P2, on the grounds, firstly, that though service in the Work Establishment personnel is temporary, by proceedings of Government, Ext. P4, dated May 20, 1954 such personnel were allowed the option to continue in service till their sixtieth year, that upon the transfer of such personnel, including the petitioner, from the Electricity Department to the first respondent, upon the formation of the Kerala Electricity Board subsequent to Ext. P4, their previous conditions of service were guaranteed by proceedings of Government, Ext. P5, dated April 3, 1957, and that therefore the petitioner is entitled to continue in service till his sixtieth year, secondly, that his removal from service was in violation of the guarantee under Art.311(2), and of the provisions of Art.320(3), of the Constitution, and thirdly, that the termination of his service was discriminatory, other employees in the Work Establishment being still permitted to continue in service even after they have attained fifty-five years of age.

(2.) It was common ground, that service in the Work Establishment has always been and is temporary. This was admitted by the petitioner in Para.2, 4 and 6 of the affidavit in support of his petition. The petitioners service was in the Work Establishment, even after his transfer from the civil branch to the electrical branch of the department a few years ago. The post of Winch driver was also borne on the Work Establishment and continued to be temporary till April 1, 1957, when it was made permanent and was placed on a superior cadre in regular service. According to respondents 1 and 2, the petitioner having completed fifty-five years of age on April 6, 1956, could not be borne on the regular cadre, and was not entitled to continue in service, and had therefore to be discharged, the irregularity in his continuance in service from April 1, when the post was made permanent, to April 13, when he was discharged, being condoned by special proceedings of the first respondent, Ext. B-1, dated January 9, 1959.

(3.) The contentions of respondents 1 and 2 in answer to the petition are, that Ext. P4 was applicable only to the Work Establishment personnel in the Public Works Department of the State and not in the former Electricity Department, and therefore the guarantee by the first respondent under Ext. P5, did not extend to the rights conferred by Ext. P4, that in any event, the post held by the petitioner having been temporary and having been abolished, his removal from service was not in fact by way of punishment, and could not be deemed to be so, Art.311 being therefore inapplicable, that there having been no disciplinary proceedings against the petitioner, Art.320(3) is also not attracted, and that Ext. P1 was not discriminatory. Both on the terms of Ext. P4 & on the title & the heading in it, there is considerable force in the contention of the learned counsel for the respondents, that Ext. P4 was intended to apply only to the Work Establishment personnel in the Public Works Department. The petitioner had no case, that he was at any time borne on the Work Establishment in that department and was transferred later to the Electricity Department. I am also unable to accept the argument of the petitioners learned counsel, based on Para.2, 5 and 6 of Ext. P5, that Ext. P4 was made applicable to the Work Establishment personnel in the Electricity Department. The guarantee under Ext. P5 by the first respondent, was only to the extent to which the Electricity Department stood committed in respect of the terms and conditions of service of its employees and not more. In others words, if Ext. P4 had no application to the Work Establishment personnel in the Electricity Department, Ext, P5 did not make it applicable. It does not matter in the least, that Ext. P5 had acquired statutory force by virtue of R.66 of the Kerala Electricity Rules, framed under the concerned Statute. But with all this, I still find difficulty in accepting the contention of the respondents fully, not so much for the reason, that it has not been alleged by them in the counter affidavit in categorical terms, that Ext. P4 is not applicable to the petitioner and others in the work establishment to which he appertained but more so because, some of those admittedly, employed in the Work Establishment in the Electricity Department are continuing in service even after their fifty-fifth year. If it were necessary to take a decision on this ground, I would have called upon the respondents to explain this, or to furnish further particulars. But I think, that the petitioner has to fail for a different reason, to be stated presently.