Karnataka High Court
M/S Mcf Limited vs Sri. Jagadish Kunder on 10 November, 2023
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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NC: 2023:KHC:40359
WP No. 52956 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
WRIT PETITION NO.52956 OF 2017 (L-RES)
BETWEEN:
M/S. MCF LIMITED
PANAMBUR,
MANGALURU - 575 010.
REPRESENTED BY ITS
GENERAL MANAGER - HR,
SRI. P.JAYASHANKAR RAI.
...PETITIONER
(BY SRI. S.N.MURTHY., SENIOR ADVOCATE FOR
SRI. SOMASHEKAR., ADVOCATE)
AND:
SRI. JAGADISH KUNDER
S/O LATE SRI. SHANKER POOJARY,
AGED ABOUT 62 YEARS,
R/A NEAR ST. ANTONY BAKERY,
Digitally signed by PANJI MOGURU, KULUR-KAVOOR ROAD,
THEJASKUMAR N MANGALURU TALUK - 575 110.
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (RESPONDENT - SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN
RELIEFS.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
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NC: 2023:KHC:40359
WP No. 52956 of 2017
ORDER
Sri.S.N.Murthy., learned Senior counsel on behalf of Sri.Somashekar., for the petitioner has appeared through video conferencing.
The notice to the respondent was ordered on 09.03.2018. The office note depicts that respondent is served. The respondent has neither engaged the services of an advocate nor conducted the case as party in person.
2. The brief facts are these:
On 14.10.1983, the petitioner signed settlement with the Union whereby the age of retirement was increased from 55 years to 58 years. On 24.02.2009, MCF Workers Union (having two members as on date) filed a petition seeking for enhancement of age of retirement from 58 years to 60 years. On 27.07.2009, the application was rejected by the Certifying Officer and age of retirement remained at 58 years. The MCF Workers again filed another petition after three years seeking for enhancement of age of retirement from 58 years to 60 years. The petitioner appeared and filed statement of objections and opposed the enhancement of age of retirement -3- NC: 2023:KHC:40359 WP No. 52956 of 2017 from 58 years to 60 years. On 16.07.2012, the Certifying Officer allowed the petition and enhanced the age of retirement from 58 years to 60 years. On 19.07.2012, the petitioner and Mangala Workers Union (Majority Union) entered into a settlement, whereby the age of retirement was retained at 58 years as per Clause 6.5 of the Settlement.
The respondent attained the age of superannuation of 58 years and was retired from the service on 05.04.2013. The respondent preferred a Writ Petition challenging his superannuation and the same was dismissed by this Court. The respondent filed an Industrial Dispute before the Labour Court, Mangalore in I.D.No.6/2013 challenging his order of superannuation. The petitioner filed its statement of objections. The petitioner aggrieved by the order of Certifying Officer preferred an appeal before the Appellate Authority under the Industrial Employment Standing Orders Act, 1946 which was dismissed by the Appellate Authroity on 21.07.2014. The order of the Appellate Authority was questioned before this Court in W.P.No.37386/2014. This Court on 05.06.2014 allowed the Writ Petition and remanded the matter back to the Certifying Officer. The Certifying Officer on hearing the matter, again -4- NC: 2023:KHC:40359 WP No. 52956 of 2017 allowed the application and enhanced the age of retirement to 60 years. The Certifying Officer passed the order on 18.08.2015. The Labour Court, Mangaluru vide award dated:09.08.2017 directed payment of backwages to the respondent from 05.05.2013 till 31.05.2013 and also payment of all other consequential benefits on the ground that the superannuation of the respondent amounted to termination. It is this award that is called into question in this Writ Petition on several grounds as set-out in the Memorandum of Writ Petition.
3. Learned counsel for the petitioner has urged several contentions. Heard, the contentions urged on behalf of the petitioner and perused the Writ papers with utmost care.
4. The short point that requires consideration is whether the Labour Court is justified in awarding monetary benefits to the respondent?
The facts are sufficiently stated and do not require reiteration. The respondent placed reliance on Ex.A.2. Ex.A.2 is the Order of Certifying Officer passed on 16.07.2012, wherein the age of superannuation determined was enhanced from 58 years to 60 years. It is pivotal to note that the respondent -5- NC: 2023:KHC:40359 WP No. 52956 of 2017 attained the age of superannuation on 05.04.2013. It is not in dispute that the order of the Certifying Officer was questioned by the petitioner before the Appellate Authority and the Appellate Authority rejected the appeal. That order was questioned before this Court. This Court remanded the matter back to the Certifying Officer. It is pivotal to note that the Certifying Officer on remand, passed the order only on 18.08.2015 and amended the Standing Orders and age of superannuation was fixed at 60 years. The Labour Court formulated four Issues. They are as under:
(1) Whether applicant is entitle to extension of his service up to attaining the age of 60 years?
(2) Whether opponent proves that the communication dated:05.04.2013 is legal and valid?
(3) To what relief applicant is entitle? (4) What order?
5. I have perused the award of the Labour Court with utmost care. The Labour Court extenso referred to the material on record and answered Issues 1 & 2 in the Negative. However, went ahead and erroneously granted monetary benefits to the respondent, which in my opinion is unsustainable in law. The reason is apparent. The Labour Court on an erroneous -6- NC: 2023:KHC:40359 WP No. 52956 of 2017 assumption, concluded that the age of superannuation is 60 years so far as respondent is concerned. This is incorrect, because the respondent was retired from service on 05.04.2013, whereas the order of Certifying Officer is dated:18.08.2015. Therefore, the respondent cannot claim benefit of the order of Certifying Officer to claim any monetary benefit. This aspect of the matter has been overlooked by the Labour Court and erroneously proceeded to conclude that he is entitled for monetary benefits.
For the reasons stated above, the award of the Labour Court is liable to be set-aside. Accordingly, it is set-aside.
6. The Writ of Certiorari is ordered. The award dated:09.08.2017 passed by the Labour Court, Dakshina Kannada, Mangalore in I.D.A.No.6/2013 vide Annexure-P is quashed.
7. Resultantly, the Writ Petition is allowed.
Sd/-
JUDGE MRP/TKN List No.: 1 Sl No.: 15