KALISTUS Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioners 1 to 22 in this Original Petition were originally appointed in the Kerala Fisheries Corporation Ltd. , a fully owned kerala Government undertaking as Skipper, Fishing Engineer, Deckhand and assistant Engineer etc. on various dates from 1975 onwards. Consequent on the heavy loss suffered by the Kerala Fisheries Corporation the Government vide G. O. Ms. No. 7/84/tf & PD dt. 27. 1. 1984 ordered the formation of Co-operative societies with the Fisheries Welfare societies as primary members and at State level Apex Federation, called 'kerala State Co-operative Federation for fisheries Development Ltd. ' (MATSYAFED ). It was ordered in this G. O. that simultaneous with the establishment of the Co-operative Organisation the functions of the State Public undertakings in the Fisheries Sector, namely, kerala Fisheries Corporation Ltd. etc. will be taken over by the new organisation namely, Matsyafed. According to the petitioners, the Kerala fisheries Corporation was accordingly wound up and its entire assets including deep sea fishing Trawlers were transferred to the Matsyafed. THE assets and liabilities were later assessed and published as on 31. 3. 1988 by Ext. P2 government Order, G. O. P. No. 28/887 F & PD dt. 14. 7. 1988. THE Government finalised the process of transfer as a result of which the Nylon Net Factory at ernakulam; the 4 deep Sea Trawlers; the Fish Meal Plant at Kozhikode; the canning & Freezing Plant at Cochin etc. were transferred to Matsyafed since these units are viable and profitable. Various other items were also transferred to the Matsyafed. In regard to the employees of the Fisheries corporation Ltd. , G. O. P. 28/88 dt. 14. 7. 1988 also made certain decisions. THE 107 employees working in the units, who were transferred to Government in 1977 were already absorbed by the Government. Besides this, by another order G. O. MS. No. 4/88/f & PD dt. 20. 2. 1988 the Government absorbed 40 persons from the Kerala Fisheries Corporation. Besides all these, the first respondent agreed to take over the pension liabilities of all the retired employees of the kerala Fisheries Corporation also. Some of them were duly retrenched after receiving the retrenchment compensation and other benefits. THEreafter the government had discussions with the Trade Union Leaders of the Kerala Fisheries corporation and ultimately the Government decided to take all the retrenched persons in the service of any of the agencies of the Government such as matsyafed, Welfare Fund Board and Campuram Primary Co-operative Society etc. THE remaining employees of the Kerala Fisheries Corporation were given option to have certain benefits on voluntary retirement. Those who were not prepared to have the option exercised for voluntary retirement were ordered to be absorbed in the Matsyafed or in the Kerala Fishermen's Welfare Fund Board or campuram Fisheries Co-operative Society or in any one of the 81 Fisheries development Welfare Co-operative Societies. Thus, according to the petitioners, the 222 members of the Staff of the Kerala Fisheries Corporation were either absorbed in any of the above mentioned institutions as permanent employees or in the Government Department itself except those who voluntarily opted for retirement after receiving certain benefits as specified in Ext. P2 Government order. As far as the petitioners were concerned, they could not be absorbed in the Matsyafed or in any other institutions' as permanent employees. On the contrary, they continued to serve the Matsyafed on yearly contract basis.

(2.) AS already noted, petitioners 1 to 22 were originally appointed in the Kerala Fisheries Corporation Ltd. as Skipper, Fishing engineer, Deckhand and ASsistant Engineer etc. on various dates from 1975 onwards. Petitioners 23 to 30 were appointed on different dates during 1989-90 in the Matsyafed in different posts on yearly contract basis. The various service details of the petitioners regarding joining time in the Fisheries corporation; their status and later their appointment in Matsyafed with reference to dates, category etc. are as follows : Ext. P3 is the proceedings issued by the Managing director, Kerala Fisheries Corporation granting extension of contract of service to the 28th petitioner for a period upto 31. 3. 1982 on the same terms and conditions as agreed upon in the Memorandum of Agreement executed on 11. 7. 1979. Ext. P4 is the appointment order issued to some of the petitioners by the Managing Director of the Kerala Fisheries Corporation.

(3.) AGAIN in U. P. LT. Dept. . C. P. S. W. Association v. Union of India (AIR 1988 SC 517) concerning Class IV employees who were found to be working on daily wages for nearly eight years or more in the Income-tax department, the Supreme Court following the decision reported in AIR 1987 SC 2342 supra directed the Government to pay wages to such workmen at the rates equivalent to minimum pay in scale of the regularly employed workers in the corresponding cadres and also directed to prepare scheme on a rational basis for absorbing such employees who have been continuously working for more than one year. AGAIN, in Jacob M. Puthuparambil v. Kerala Water Authority (AIR 1990 sc 2228) the summit Court while dealing with the appointment of employees possessing requiste qualifications by way of stop-gap arrangement which continued for more than two years till regular appointments were made observed as follows: "9. India is a developing country. It has a vast surplus labour market. Large-scale unemployment offers a matching opportunity to the employer to exploit the needy. Under such market conditions the employer can dictate his terms of employment taking advantage of the absence of the bargaining power in the other. The un organised job seeker is left with no option but to accept employment on take-it-or-leave it terms offered by the employer. Such terms of employment offer no job security and the employees is left to the mercy of the employer. Employers have betrayed an increasing tendency to employ temporary hands even on regular and permanent jobs with a view to circumventing the protection offered to the working classes under the benevolent legislations enacted from time to time. One such device adopted is to get the work done through contract labour. It is in this backdrop that we must consider the request for regularisation in service". The Court after surveying relevant decisions on the subject and after adverting to the pleadings directed the Kerala Water authority to regularise the services of ex-PHED employees without waiting for state Government approval, provided they possess the requisite qualification for the post prescribed on the date of appointment of the Concerned worker.