Kerala High Court
Grasim Industries Limited vs State Of Kerala
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY,THE 4TH DAY OF JULY 2016/13TH ASHADHA, 1938
OP.No. 11020 of 1998 (J)
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PETITIONER :
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GRASIM INDUSTRIES LIMITED.,
PULP DIVISION, BIRLAKOOTAM, MAVOOR,
KOZHIKODE-673 661, REPRESENTED BY ITS FACTORY
MANAGER SHRI.T.P.HARIDAS.
BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
GOVT. SECRETARIAT, THIRUVANANTHAPURAM.
2. SECRETARY TO GOVERNMENT,
LABOUR AND REHABILITATION DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
3. DIRECTOR OF FACTORIES AND BOILERS
(CHIEF INSPECTOR OF FACTORIES AND BOILERS),
GOVERNMENT OF KERALA, FORT, THIRUVANANTHAPURAM.
4. MRS. SHIRLY JOSE, W/O.M.D.JOSE,
RESIDING AT FLAT NO.C-2, DREAM CITY APARTMENTS,
THIRUTHIYAD, MAVOOR ROAD, KOZHIKODE-673 004
R1 TO R3 BY GOVERNMENT PLEADER SRI.JIBU P. THOMAS
R4 BY ADV. SRI.SIVAN MADATHIL
THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD
ON 04-07-2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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OP.NO.11020/1998
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE ORDER DATED 16/2/96 ISSUED BY THE PETITIONER TO THE
4TH RESPONDENT
P2 COPY OF THE ORDER DATED 6/3/96 ISSUED BY THE PETITIONER TO THE 4TH
RESPONDENT
P3 COPY OF THE ORDER DATED 7/1/97 FROM THE PETITIONER TO THE 4TH
RESPONDENT
P4 COPY OF THE ORDER DATED 19/9/97 FROM THE PETITIONER TO THE 4TH
RESPONDENT
P5 COPY OF THE LETTER DATED 23/9/97 FROM THE 4TH RESPONDENT TO THE
PETITIONER.
P6 COPY OF THE LETTER DATED 26/9/97 FROM THE PETITIONER TO THE 4TH
RESPONDENT
P7 COPY OF THE MEMORANDUM OF APPEAL DATED 1/10/97 WITHOUT THE
DOCUMENTS MENTIONED THEREIN, SUBMITTED BY THE 4TH RESPONDENT
BEFORE THE 3RD RESPONDENT
P8 COPY OF THE COUNTER STATEMENT (STATEMENT OF OBJECTIONS)
WITHOUT THE DOCUMENTS ANNEXED THERETO, FILED BY THE PETITIONER
BEFORE THE 3RD RESPONDENT
P9 COPY OF THE ORDER DATED 26/11/97 PASSED BY THE 3RD RESPONDENT
P10 COPY OF THE APPEAL MEMORANDUM DATED 12/12/97 WITHOUT THE
ANNEXURES MENTIONED THEREIN, FILED BY THE PETITIONER BEFORE THE
2ND RESPONDENT
P11 COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN
O.P.NO.22157/97 DATED 19/12/97.
P12 COPY OF THE ORDER DATED 5/6/1998 ISSUED BY THE 2ND RESPONDENT
P13 COPY OF THE LETTER DATED 19/6/92 ISSUED BY THE SR. INSPECTOR OF
FACTORIES & BOILERS, KOZHIKODE
P14 COPY OF THE LETTER DATED 4/9/92 FROM THE DIRECTORATE OF
FACTORIES & BOILERS
P15 COPY OF THE LETTER DATED 5/4/93 FROM THE SENIOR INSPECTOR OF
FACTORIES & BOILERS, KOZHIKODE
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OP.NO.11020/1998
P16 COPY OF THE LETTER DATED 28/5/93 FROM THE SR. INSPECTOR OF
FACTORIES & BOILERS, KOZHIKODE
P17 COPY OF THE LETTER DATED 1/7/1993 FROM THE DIRECTOR OF FACTORIES
AND BOILERS
P18 COPY OF THE ORDER DATED 19/1/94 APPOINTING SHRI.K.K.VIJAYAKUMAR AS
LABOUR WELFARE OFFICER.
P19 COPY OF THE ORDER DATED 10/5/96 ISSUED TO SHRI. JOSEPH KURIAN
P20 COPY OF THE ORDER DATED 10/5/96 ISSUED TO MRS. VINEETHA JOSEPH.
RESPONDENT'S EXHIBITS:
R4(1) COPY OF THE APPOINTMENT ORDER F.M. 95-96 P. DEPT. 6554 FROM
PETITIONER TO R4 DATED 11/3/96
R4(2) COPY OF THE BIO-DATE OF R4 SENT BY THE PETITIONER TO R3 DATED
11/3/96
R4(3) COPY OF THE CLARIFICATION LETTER NO.4/439/96 FROM R3 TO THE
PETITIONER DATED 29/11/96
R4(4) COPY OF THE REQUEST LETTER SENT BY R4 TO THE PETITIONER DATED
15/3/97
R4(5) COPY OF THE EXPLANATION LETTER A-439/96 ISSUED BY R3 OFFICE TO THE
PETITIONER DATED 16/7/97
R4(6) COPY OF THE LETTER NO.DGM(L) 97-98 7440 DATED 26/7/97 MADE BY
PETITIONER TO R3
R4(7) COPY OF THE APPOINTMENT LETTER OF MR.JOSEPH KURIAN ISSUED BY
PETITIONER DATED 19/9/97
R4(8) COPY OF THE ADVERTISEMENT IN MALAYALA MANORAMA DATED 26/9/97
R4(9) COPY OF THE INTERIM ORDER NO.C3-13023/97/F&B ISSUED BY R3 TO THE
PETITIONER FOR MAINTAINING STATUSQUP DATED 6/10/97
R4(10) COPY OF THE INTERIM ORDER NO.03/13023/97/F&B ISSUED BY R3 TO
PETITIONER DATED 15/10/97
R4(11) COPY OF THE JUDGMENT PASSED BY THE HON'BLE COURT IN
O.P.NO.19048/97(P) DATED 10/11/97
R4(12) COPY OF THE REQUEST LETTER GIVEN BY R4 TO THE PETITIONER DATED
3/12/97
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OP.NO.11020/1998
R4(13) COPY OF THE EXTRACT OF THE MEMORANDUM OF WRIT APPEAL NO.2338/97
(PAGE 7) FILED BY THE PETITIONER.
R4(14) COPY OF THE REQUEST LETTER SENT BY R4 TO THE PETITIONER WITH
ACK/DUE DATED 13/6/98
/TRUE COPY/
P.A.TO JUDGE
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P.V.ASHA, J.
O.P. No.11020 of 1998
Dated this the 4th day of July, 2016
JUDGMENT
Grasim Industries Limited has filed this writ petition challenging the order passed by respondents 2 and 3 by which the 4th respondent's transfer from the post of Labour Welfare Officer to the HRD Department was found to be in violation of the provisions contained in Kerala Factories (Welfare Officers) Rules, 1957 (hereinafter referred to as the 'Rules') and directed that the 4th respondent shall be allowed to continue in service as Labour Welfare Officer from the date of appointment without break with all benefits.
2. The petitioner Company appointed the 4th respondent as per Ext.P1 order, on the basis of an interview conducted on 6.2.1996. The order of appointment was issued on 16.2.1996 appointing her in the HRD Department. On appointment, she was to be on training for a period of six months from the date of joining and on completion of the same, she was to be on probation for a period of six months. During the period of training, she was eligible for stipend of Rs.2,000/- (Rupees Two thousand only) and on completion of training she was eligible for a consolidated pay of Rs.2,500/- (Rupees Two thousand five hundred only) during the period of probation. Among the general O.P. No.11020 of 1998 :2: conditions of appointment clause 13 (b) provided as follows "your services shall be subject to transfer to any of the departments/divisions of the Company". Thereafter by Ext.P2 the petitioner appointed the 4th respondent designating her as Labour Welfare Officer (on probation) and transferring her to Labour Welfare Department with immediate effect. Clauses 2 and 3 of the order of appointment -Ext.P1, were also modified stating that she would be on probation for a period of one year from 1.3.1996 on consolidated salary of Rs.2,000/- with eligibility for enhanced salary of Rs.2,500/- for the next six months in the event of her performance being found satisfied. It was also stated that on completion of probation, she will be subjected to a test and if found suitable she would be confirmed. As per Ext.P3 order dated 7.1.1997 she was confirmed with effect from 1.1.1997 on a consolidated pay of Rs.3,750/- (Rupees Three thousand seven hundred and fifty only) from 1.1.1997. While issuing Ext.P2 order it was stated that all other conditions of the order of appointment-Ext.P1 would continue. Thereafter by Ext.P4 order dated 19.9.1997, the petitioner informed the 4th respondent that the management had decided to transfer her to HRD Department where she was originally posted. The reason stated was that the petitioner has not received any approval for her appointment from the Directorate of Factories and Boilers and as per the provisions O.P. No.11020 of 1998 :3: contained in the Rules, the appointment of Welfare Officer has to be got approved by the Directorate of Factories and Boilers.
3. The 4th respondent thereupon submitted a representation to the President of the petitioner refusing to accept the transfer and requesting to withdraw the same. She pointed out that after confirming her appointment as Labour Welfare Officer, the transfer effected from the Labour Welfare Department to HRD Department was against natural justice, discriminatory and arbitrary. It was also stated that since the approval was not rejected, there was no reason for transferring her. She filed an appeal before the Inspector (Chief) of Factories and Boilers under section 6(6)(a) of the Rules challenging the order Ext.P4 and praying for directions to allow her to continue in service as Labour Welfare Officer in the Labour Welfare Department. After hearing the petitioner and the 4th respondent, the Director of Factories and Boilers- the appellate authority, passed Ext.P9 order directing that the 4th respondent shall be allowed to continue in service as Labour Welfare Officer from the date of appointment without break along with all benefits.
4. The appellate authority found that the only requirement for the appointment of Labour Welfare Officer under the Rules is that the appointee should have the qualification prescribed under the Statute and she should have come out successfully in the interview held by the O.P. No.11020 of 1998 :4: Company. On such appointment, she has to carry out the duties of Welfare Officer as defined under rule 7 of the the Rules. It was found therein that the post to which the 4th respondent was transferred was not mentioned either in the order of transfer or even at the time of hearing. In those circumstances, the appellate authority found that transfer was not effected as a Welfare Officer under the same management and therefore amounted to termination of service as Welfare Officer. The petitioner had raised objection with respect to the maintainability of the appeal raising the contention that the transfer of the 4th respondent did not amount to termination of service or even a penalty. Seeing that the transfer was in effect a termination, the appellate authority rejected that contention. Accepting the contentions of the 4th respondent that her application was to the post of Labour Welfare Officer, pursuant to advertisement in the leading dailies dated 27.11.1995, the appellate authority found that the transfer of the 4th respondent to the HRD Department without assigning duties, responsibilities, status etc was against the Statute and under rule 6(4) any penalty on a Welfare Officer can be imposed by the management only after informing the grounds on which the action is proposed and after giving reasonable opportunity to defend. The appellate authority further found that her replacement resorting to a temporary appointment followed by advertisement for fresh recruitment to the O.P. No.11020 of 1998 :5: post of Labour Welfare Officer also indicated that the alleged transfer amounted to termination and accordingly the appeal was allowed directing her reinstatement as Labour Welfare Officer.
5. The petitioner Company filed a second appeal before the Government and by Ext.P12 order the appeal was dismissed upholding the order of the appellate authority. The Government found that if a person appointed in a statutory post after fulfilling all the statutory requirements, is transferred from that post without assigning duties and functions and without specifying the status, it is termination. On appointment as Labour Welfare Officer, the 4th respondent was to carry out the duties of Welfare Officer as defined under rule 7 of the the Rules and at that stage the management was not supposed to transfer/terminate the appointment of a Welfare Officer for reasons other than that of the terms of contract. Seeing that the transfer does not mention to which post she has to go, it was found that it was not a mere transfer. Further the provisional appointment made in order to replace her followed by the notification of vacancy for fresh appointment were also found in favour of the 4th respondent. Government came to the conclusion that the transfer of 4th respondent from the statutory post amounted to termination. Referring to rule 6 (4), Government held that the termination was effected in the nature of transfer without observing any of the procedural formalities. O.P. No.11020 of 1998 :6:
6. The contention raised by the petitioner is that as per Ext.P1 order the 4th respondent was liable to be transferred to any department and Ext.P4 order was also a transfer like that and there was no change in her status or other conditions of service effected on account of this transfer. Therefore it cannot be termed as termination, especially when the conditions stipulated in the order of her appointment remained the same.
7. Even though there was no representation for the 4th respondent, it is seen that a counter affidavit has been filed disputing the contentions of petitioner and explaining the circumstances under which she happened to be appointed and thereafter the impugned order was passed. According to the 4th respondent, she submitted application for the post of Labour Welfare Officer on 4.12.1995, on the basis of the notification published in newspaper daily dated 24.11.1995 and attended the interview; her appointment on 11.3.1996 as Labour Welfare Officer was made as per rule 5 of the the Rules and the interview conducted by the committee constituted under rule 5(2) thereof and that the committee found her suitable for selection; petitioner Company had notified her appointment to the 3rd respondent along with her bio-data and all details of appointment; even though interview held by the petitioner for appointment in both the Labour Welfare Department and HRD Department, the petitioner O.P. No.11020 of 1998 :7: Company had selected and appointed her to the post of Labour Welfare Officer; she had accepted her initial appointment in HRD Department reluctantly and immediately thereafter she was appointed in the Labour Welfare Department and she joined in that department only; the petitioner Company cannot invoke the power of transfer when she was holding a statutory post and the conditions in the contract of service can only be subject to the statutory rules. Therefore, even if Ext.P1 order of appointment provided for transferability to any other department she could not have been transferred from the post of Labour Welfare Officer and any action in violation of the provisions contained in Rule 6(4), is illegal and hence she is entitled to be reinstated as directed by the Appellate Authority and the Government.
8. Government have also filed a counter affidavit justifying the stand adopted in Ext.P12. According to the Government, if a person is appointed against a statutory post then transfer can be effected only after intimation and after affording opportunity of hearing.
9. I heard the learned counsel appearing for the petitioner and learned Government Pleader. There is no representation for the 4th respondent. It is pointed out that the petitioner Company closed its operations long back.
10. The question to be considered is whether order Ext.P4, O.P. No.11020 of 1998 :8: though styled as a transfer would amount to a penalty as provided under rule 6 (4) of the Rules. Rule 6(3) provided as follows:
"No penalty shall be imposed upon a Welfare Officer by the management unless he has been first informed in writing of the grounds on which it is proposed to take action and has been afforded adequate opportunity of defending himself. Clause 4 provides for the termination of service of a Welfare Officer otherwise than under the terms of contract. It provides that the reason for termination shall be reported to the Chief Inspector of Factories.
11. In this case by Ext.P4, the 4th respondent was transferred to the HRD Department. The reason stated was that approval from the Directorate of Factories and Boilers was not received. From the pleadings it is seen that the appointment of the 4th respondent was made after inviting applications for the post of Labour Welfare Officer by advertisement in dailies as required under Rule 5 of the Rules, even though it is admitted that recruitment was made to the HRD Department as well as the Labour Welfare Department simultaneously. The first appointment of the 4th respondent was as per Ext.P1 to the HRD Department and she was immediately thereafter appointed to the Labour Welfare Department. By Ext.P3 order her appointment was also confirmed. It is after a period of 9 months of the confirmation that she was transferred. The Appellate Authority as well as the Government O.P. No.11020 of 1998 :9: found that the post to which she was transferred or the conditions of service on her transfer were not specified in the order of transfer.
12. In this context the provisions contained in Ext.P1 order of appointment is also relevant, according to which under Clause 13(b) it was provided that her services shall be subjected to transfer to any of the departments/divisions of the Company. While appointing her as Labour Welfare Officer this condition continued to govern her appointment in the Labour Welfare Department also. Therefore the order passed cannot be said to be contrary to the conditions in the contract of service.
13. In the writ petition as well as before the Appellate Authority and Government the stand taken by the petitioner is that the transfer was without affecting any of the service conditions of the 4th respondent. As per clause 6(2) of the Rules the conditions of service of Welfare Officer shall be the same as those of other members of the staff of corresponding status in the factory. Clause 1 of Rule 6 provides that the scale of pay, D.A and other allowances and the grade and the status of a Welfare Officer shall be equivalent to those of the head of a Department in the factory. Therefore when a person is transferred to a post having the grade and status as that of Welfare Officer, it cannot be said that the transfer of the petitioner amounted to a penalty or termination. Since the respondents have stated that O.P. No.11020 of 1998 :10: the transfer was ordered without affecting the status or grade or any peculiar benefits available to her, the finding of the Appellate Authority and the Government that the transfer amounted to termination of service cannot be accepted. The Appellate Authority as well as the Government gave much weight to the non-disclosure of her grade or status on her transfer, in arriving at the finding that transfer amounted to a punishment. The subsequent developments including advertisement issued for fresh appointment also were taken note of by the Appellate Authority as well as the Government. But it is relevant to note that the 4th respondent kept herself away from the premises subsequent to the issuance of Ext.P4 order and was not available in the office ever since she was transferred. Moreover as per the Rules the only method of appointment is by direct recruitment.
14. In the above circumstances, it cannot be said that the transfer amounted to termination and it was in violation of Rule 6(3) and (4) of the Rules. In the light of Rule 6(2) read with Clause (b) of condition No.13 in Ext.P1, it cannot be said that the transfer of the 4th respondent was in any way in violation of the Rules. Of course it is seen that the reason stated for her transfer was irrelevant. It is pointed out that the Company has stopped functioning. Now that the petitioner Company is closed down. In these peculiar circumstances of this case, I find that the orders passed by the Appellate Authority and O.P. No.11020 of 1998 :11: Government in Exts.P9 and P12 are not arrived at in the correct perspective.
Under the above circumstances, I set aside Exts.P9 and P12 orders. This original petition is allowed.
Sd/-
P.V.ASHA JUDGE rkc/AS