Kerala High Court
Fertilisers And Chemicals Travancore ... vs Secretary
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
FRIDAY, THE 14TH DAY OF DECEMBER 2012/23RD AGRAHAYANA 1934
WP(C).No. 36492 of 2004 (T)
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PETITIONER:
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FERTILISERS AND CHEMICALS TRAVANCORE LTD.
COCHIN DIVISION, AMBALAMEDU
REPRESENTED BY ITS DEPUTY GENERAL MANAGER
MR.N.RAJASEKHARAN.
BY ADVS.SRI.E.K.NANDAKUMAR
SMT.PRIYA MAHESH
SMT.PRIYA MANJOORAN
RESPONDENTS:
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1. SECRETARY, FACT (CD) WORKERS' CONGRESS (INTUC).
AMBALAMEDU.
2. LABOUR COURT, ERNAKULAM.
R1 BY ADV. SRI.P.RAMAKRISHNAN
R2 BY G.P. SRI.P.V.ELIAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
14-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 36492 of 2004 (T)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: TRUE COPY OF THE AWARD IN ID NO.81/95 OF THE 2ND RESPONDENT
DATED 16.3.04.
EXT.P2: TRUE COPY OF THE ABSENCE NOTICE DATED 22.9.87.
EXT.P3: TRUE COPY OF THE ABSENCE NOTICE DATED 6.10.87
EXT.P4: TRUE COPY OF THE ACKNOWLEDGEMENT CARD DATED 14.10.04.
EXT.P5: TRUE COPY OF THE ORDER DATED 27.10.87 BEFORE THE 2ND
RESPONDENT.
EXT.P6: TRUE COPY OF THE ACKNOWLEDGMENT CARD DATED 2.11.87.
EXT.P7: TRUE COPY OF THE CIRCULAR DATED 20.11.85 BEFORE THE 2ND
RESPONDENT.
EXT.P8: TRUE COPY OF THE COMPLAINT OF THE UNION DATED 7.7.89
ADDRESSED TO THE DIST. LABOUR OFFICER, ERNAKULAM.
EXT.P9: TRUE COPY OF THE WRITTEN STATEMENT DATED NIL 10-97 FILED
BEFORE THE 2ND RESPONDENT BY THE PETITIONER.
EXT.P10: TRUE COPY OF THE REJOINDER DATED 1.7.98 FILED BY THE 1ST
RESPONDENT BEFORE THE 2ND RESPONDENT.
// TRUE COPY //
TKS
P.S. TO JUDGE
C.T.RAVIKUMAR, J.
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W.P.(C)No.36492 of 2004
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Dated 14th December, 2012
JUDGMENT
Fertilizers and Chemicals Travancore Limited, Cochin Division, Ambalamedu, the management filed this writ petition challenging Ext.P1 award passed by the Labour Court, Ernakulam in I.D.No.81/1995. As per Ext.P1 award, the Labour Court directed the petitioner to reinstate the workman without backwages, but with continuity in service.
2. The workman Shri. V.Ayyan, commenced his career under the service of the petitioner as Loading Helper on 30.5.1977. Admittedly, he obtained the said employment based on eviction packages. The petitioner contends that, ever since, his entry in service, he was irregular in attending the duties. The petitioner remained absent from 22.8.1987, continuously without permission and thereupon invoking the procedures prescribed under Ext.P7 (Ext.M4 in I.D No.81/95), the Head of the Department issued Ext.M1 notice. It is the case of the petitioner that despite the receipt of Ext.M1, the workman did not turn up for duty. Thereupon, Ext.M2 notice was issued. Even then the workman did not report for duty. Thereafter, Ext.M3 dated 27.10.1987 was passed. In the WP(C).No.36492/2004 2 said circumstances, his name was removed from the rolls of the company. That was communicated to the workman. On receipt of Ext.M3 whereby he was removed from the rolls of the company with effect from 16.10.1987, he approached his union and the union took up the matter before the District Labour Officer. Admittedly, the conciliation proceedings failed and ultimately after complying with the procedures, the State Government as per Government Order (R.T. No.1522/95/LBR, dated 28.6.1995), referred the dispute. The dispute referred reads as follows:-
"Whether the removal of Shri. V.Ayyan, casual labourer from the rolls of the company is justifiable or not? If not, the relief which he is entitled to?"
In the claim statement, the union produced the reference order and it was contended that the workman Shri.V.Ayyan was given appointment as loading helper in the company on 30.5.1977, when his land and building were acquired for the Cochin Division of FACT Ltd. During 1987, he became sick and was unable to attend duty and when he approached the petitioner to rejoin duty with the relevant ESI certificates, the management terminated his service with effect from 15.10.1987, on the WP(C).No.36492/2004 3 ground of his continued absence from duty. It has been specifically contended that workers with more days of absenteeism, both in the managerial and non-managerial cadre and who were terminated twice were taken back and are still continuing in the service of the company. Based on such contentions, the union sought for reinstatement of the workman, with back wages and continuity in service. The management filed a written statement, raising the following contentions:-
Though, the workman was removed from the rolls of the company in 1987, the reference was made only in 1995. Being a highly belated reference, the reference itself is not maintainable. The worker was continuously absent from 22.8.1987. Exts.M1 and M2 notices were issued in the said circumstances. Despite the receipt of Exts.M1 and M2 notices, the workman failed to report for duty. According to the petitioner/management, it was in the said circumstances, his name was removed from the rolls of the company as per Ext.P2 dated 27.10.1987 with effect from 16.10.1987. It is further contended that Ext.M3 is legal and sustainable, as it was issued strictly adhering to the provisions in the standing orders, as is evident from Ext.M4, viz; Ext.P7 in these proceedings. The union filed a rejoinder, refuting the contentions raised in the written statement and reiterating the claims. WP(C).No.36492/2004 4
3. On the side of the management/petitioner MW1 (Shri. P.V. Unnikrishna Pillai, Asst. Manager) was examined and Exts. M1 to M20 were marked. On the side of the union, the worker was examined as WW1 and one Mr. Gopi was examined as WW2. Exts. W1 to W4 were marked on the side of the union. Based on the rival contentions, Labour Court framed the following points for consideration:-
"1. Whether the removal of Shri. V.Ayyan, the workman involved in the present case, from the rolls of the company is justifiable?.
2. The relief, if any, due to the worker."
4. In the Labour Court the fact that the workman Sri. V.Ayyan was a permanent employee, was not disputed. As noticed hereinbefore, the main objection of the petitioner/management was that the reference itself was highly belated. That question was considered by the Labour Court and found that no laches or lapses could be attributed against the union or workman. The copy of the complaint preferred before the D.L.O which was attached along with the reference order would reveal that the union filed the complaint before the District Labour Officer on 7.7.1989. Going by Ext.M3, dated 27.10.1987, the workman WP(C).No.36492/2004 5 was removed from the rolls of the company with effect from 16.10.1987. The specific case of the union before the Labour Court was that, Exts.M1 and M2 were not received by the workman. The Labour Court took note of the fact that, though the conciliation proceedings were initiated in 1989, the delay in referring the matter occurred from the part of the Government. Taking into account all those facts, the Labour Court found that the contention of the petitioner/management that the reference was highly belated could not be sustained.
5. The case of the writ petitioner/management was that the name of the workman was removed from the rolls of the Company as per Ext.M3 dated 27.10.1987 by invoking clause 12(E) of the Certified Standing Orders of the Company. Evidently, his name was so removed without following the procedures envisaged under the Industrial Disputes Act. Evidently, the Labour Court took note of the fact that the Standing Orders provide for initiation of disciplinary proceedings against persons who are remaining unauthorizedly absent for long periods. True that, the case of the petitioner was that the Standing Orders also provide for treating such persons who are remaining unauthorizedly absent for longer periods as voluntarily abandoning their service by virtue of the WP(C).No.36492/2004 6 provisions under Ext.M4. Ext.P1 award would reveal that taking note of the said contention and also the provisions under the Standing Orders the Labour Court considered the question as to whether Ext.M3 was issued strictly adhering to the procedures contemplated under Ext.M4. The petitioner management contended that it was in terms of the provisions under the Standing Orders that Exts.M1 and M2 notices were issued. MO1 notice was issued by the Head of the Department and on account of the failure on the part of the workman to report for duty Ext.M2 notice dated 6.10.1987 was issued by the Personnel Department. The first respondent herein, the union, refuted the said claim and contended that Exts.M1 and M2 notices were not actually received by the workman and further that on receipt of Ext.M3 notice the original of Ext.W3 was sent on 19.11.1987. According to the first respondent herein, the workman had also produced the original of Ext.W1 medical certificate dated 2.12.1985 and the original of Ext.W2 document issued by the ESI Department recommending for leave. Ext.M4 is, in fact, a copy of the Circular bearing No.GM/P/IC-412/85 dated 20.11.1985 prescribing the procedures to be followed in cases of long absenteeism of employees. It is to be noted that the very case of the petitioner herein is that Exts.M1 and M2 were issued in terms of the WP(C).No.36492/2004 7 procedures prescribed under Ext.M4. The Labour Court found that in spite of the specific denial on the part of the union that Exts.M1 and M2 were not received by the workman the management had not chosen to produce the acknowledgment cards evidencing the receipt of Exts.M1 and M2 by the workman. In terms of the provisions under Ext.M4 such notices contemplated under Ext.M4 are to be registered in the name of the concerned workman with acknowledgment due. If that be so, in order to hold that Exts.M1 and M2 are the notices sent in terms of the provisions under Ext.M4 they must have been sent by registered post with acknowledgment due. Had Exts.M1 and M2 been registered in the name of the workman viz., V.Ayyan, with acknowledgment due, definitely the acknowledgment cards received could have been produced. Taking note of the admitted failure for the production of the acknowledgment cards showing the serving of Exts.M1 and M2 notices on the concerned workman by registered post, I have no hesitation to hold that the Labour Court has rightly drawn an adverse inference. In fact, it is in tune with the provisions under the General Clauses Act. Therefore, the finding of the Labour Court that the management failed to issue notices in compliance with the provisions under Ext.M4 even by resorting to the procedures contemplated under ExtM4 can only be upheld. Going WP(C).No.36492/2004 8 by the Certified Standing Orders remaining unauthorizedly absent for more than a particular period is absenteeism. The Standing Orders also provide for initiation of disciplinary proceedings against the workman for commission of misconduct or for an action which would fall under the definition of misconduct. Evidently, in this case, no disciplinary proceedings were initiated against the workman. As noticed hereinbefore, the finding of the Labour Labour Court is that the petitioner had failed to issue proper notices in terms of Ext.M4 which prescribed the procedures to be followed in cases of long absenteeism. Even if, owing to long absenteeism a worker can be held as remained unauthorizedly absent and thereby abandoned his service it will not permit the employer to do away with the procedures to be followed mandatorily. In other words, the prescribed procedures under Ext.M4 had to be followed in such circumstances, as well. Though the scope of opportunity provided under Ext.M4 is very limited the said limited opportunity was also not actually afforded to the workman. Evidently, the first respondent herein relied on the decisions in D.K. Yadav v. J.N.A. Industries Ltd. (1993 II JLJ 696), Scooter India Limited v. M.Mohammed Yaqub and another (2001 I LLJ 7) and Lakshmi Precision screws Ltd. v. Ram Bahagat (2002 III LLJ 516) to canvass the position that Certified WP(C).No.36492/2004 9 Standing Orders though possess the statutory force, the provisions would become unsustainable in case the provisions thereunder are not in conformity with the principles of natural justice. In other words, any provisions which failed to recognize the principles of natural justice cannot be allowed to stand. On the other hand, relying on the decision in National Engineering Industries Ltd., Jaipur v. Hanuman (1967 II LLJ 883) the petitioner contended that undue reliance on the principles of natural justice would lead to miscarriage of justice. The said decision was relied on to canvass the position that the said decision recognized only the principle that no man shall be condemned, either civilly or criminally, without being afforded an opportunity of being heard in answer to the charge made against him. I am afraid, the said decision would not give any support to the position canvassed by the petitioner in this case. Going by the said decision, evidently, no one can be punished unheard. As noticed earlier, even the very limited opportunities provided in Ext.M4 have not been extended to the workman in this case, inasmuch as Exts.M1 and M2 were not actually served on the workman in the manner prescribed in Ext.M4. On scanning the evidence, the Labour Court found that the petitioner had miserably failed to establish that they followed the procedures prescribed under Ext.M4 and therefore the WP(C).No.36492/2004 10 contention that the workman had abandoned the service by not responding to Exts.M1 and M2 was also repelled. When once it is found that the procedures contemplated under Ext.M4 or in the Standing Orders in cases of long absenteeism empowering the management to hold such absentees as have been voluntarily abandoned their service, were not followed the order holding the concerned workman as a person who abandoned the service cannot be permitted to stand. That exactly was done by the Labour Court as per Ext.P1. Based on the evidence on record the Labour Court found that the management had miserably failed to establish that before issuing Ext.M3 whereby the name of the workman was removed from the rolls of the Company even Exts.M1 and M2 notices were not served by registered post with acknowledgment due as contemplated under Ext.M4 and therefore, the procedures followed by the management that culminated in Ext.M3 can only be illegal and the finding of the Labour Court in that regard therefore calls for no interference. It is based on such finding that the Labour Court held that removal of the workman from the rolls of the Company could only be treated as an illegal retrenchment. No doubt that the normal relief that could be granted in case of an illegal retrenchment is reinstatement with backwages. But, there is no inviolable position that whenever an order WP(C).No.36492/2004 11 of reinstatement is ordered, it shall be followed by a direction for payment of backwages. In appropriate cases backwages can be denied. A scanning of Ext.P1 would reveal that sufficient and sustainable reasons have been assigned by the Labour Court for denying the relief of backwages. As a matter of fact, the denial of backwages has not been challenged by the workman. Having held the removal of the workman from the rolls of the company as one amounting to illegal retrenchment as per Ext.P1 the Labour Court directed the petitioner herein to reinstate the workman without backwages but with continuity in service. The award was ordered to be taken into effect within one month after its pronouncement in open court. The order was pronounced in the open court on 16.3.2004. Therefore, on 17.4.2004 Ext.P1 had taken its effect. In the said circumstances, I find no reason whatsoever to interfere with Ext.P1 award.
6. As per Ext.P1 award the order was to take its effect after one month from the date of its pronouncement in open court. That order was pronounced in open court on 16.3.2004 and therefore, it took its effect from 17.4.2004. While admitting this writ petition, this Court granted interim stay of operation of Ext.P1 on 16.12.2004 and the said WP(C).No.36492/2004 12 order is still in force. Earlier, the workman filed I.A.No.3312 of 2005, application under Section 17B of the Industrial Disputes Act. A counter affidavit has been filed by the petitioner herein in the said I.A. resisting the claim of the workman for payment of the wages under Section 17B of the Industrial Disputes Act. An order was passed on I.A.No.3312 of 2005 on 27.1.2006. Admittedly, the order directing payment to the concerned workman in terms of the provisions under Section 17B has been complied with and the concerned workman was paid wages under Section 17B till he attained the age of superannuation. The workman concerned attained the age of superannuation on 31.1.2009. In the said circumstances, there can be no doubt that the concerned workman is entitled to wages at the rate to which he is entitled to at the relevant point of time less the amount already paid in compliance with the orders under Section 17B.
With the said observations this writ petition is dismissed.
Sd/-
C.T.RAVIKUMAR Judge TKS/ss