Kerala High Court
Shahal Hassan Musaliar vs State Of Kerala And Another on 4 September, 1997
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
TUESDAY, THE 6TH DAY OF NOVEMBER 2012/15TH KARTHIKA 1934
WP(C).No. 26913 of 2010 (L)
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PETITIONER(S):
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SHAHAL HASSAN MUSALIAR
S/O THANGAL KUNJU MUSALIAR, BELAIR BUNGLOW,
KILIKOLLOOR,KOLLAM-14.
BY ADVS.SRI.P.SANJAY
SMT.A.PARVATHI MENON
RESPONDENT(S):
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1. STATE OF KERALA AND ANOTHER
THE SECRETARY, INDUSTRIES (K) DEPARTMENT
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. THE DISTRICT LABOUR OFFICER,
KOLLAM.
ADDL.R3 BY ADV. SRI.C.UNNIKRISHNAN, SC, KSCDC LTD.
R1 BY ADV. ADVOCATE GENERAL
R1 BY ADV. GOVERNMENT PLEADER SRI.C.S.MANILAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-
11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WPC NO.26913 OF 2010
APPENDIX
PETITIONER'S EXHIBITS:
P1: COPY OF THE KERALA CASHEW FACTORIES (REQUISITIONING ACT 1979)
ACT 29 OF 1979 PASSED BY 1ST RESPONDENT.
P2: COPY OF THE KERALA CASHEW FACTORIES (REQUISITIONING ACT 1985
AMENDING KERALA CASHEW FACTORIES (REQUISITIONING) ACT 1979 WITH
EFFECT FROM 26.8.1982 PASSED BY 1ST RESPONDENT.
P3: COPY OF JUDGMENT IN O.PNO.16424 OF 1994 DATED 4.9.1997.
P4: COPY OF COMMON JUDGEMENT IN W.A.NO.1793 AND 1797 OF 1997 DATED
27.9.2001.
P5: COPY OF JUDGMENT IN CIVIL APPEAL NO.8247 OF 2001 DATED 16.3.2009.
P6: COPY OF JUDGEMENT IN W.A.1975 OF 2001 DATED 14.8.2002
P7: COPY OF THE MINUTES DATED 1.8.2005.
P8: COPY OF GOVERNMENT ORDER GO.RT.Mo.272/06ID DATED 9.3.2006.
P9: COY OF NOTICE DATED 17.3.2006 ISSUED BY PETITIONER.
P10: COPY OF NOTICE DATED 24.3.2006 ISSUED BY THE PETITIONER.
P11: COPY OF NOTICE DATED 16.1.2007 ISSUED BY THE PETITIONER.
P12: COPY OF PUBLIC NOTICE IN A MALAYALAM DAILY DATED 28.3.2007.
P13: COPY OF PUBLIC NOTICE IN MALAYALA MANORAMA DAILY DATED 29.8.2009
ISSUED BY PETITIONER.
P14: COPY OF REPRESENTATION DATED 4.9.2009 TO THE 3RD RESPONDENT BY'
THE PETITIONER.
P15: COPY OF CRIME NO.1415/09 OF KOTTARAKKARA POLICE STATION.
P16: COPY OF ORDER IN W.P(C) NO.25512 OF 2009 OF THIS HONOURABLE COURT
DATED 8.9.2009.
P17: COPY OF FIR IN CRIME NO. 1842/09 OF KOTTARAKKARA POLICE STATION.
P18: COPY OF NOTICE DATED 16.10.2009 ISSUED BY 1ST RESPONDENT TO THE
PETITIONER.
P19: COPY OF EXPLANATION DATED 16.11.2009 SUBMITTED BY THE PETITIONER.
P20: COPY OF INTERIM ORDER IN WP(C) NO.33136/09 DATED 18.11.2009.
P21: COPY OF ORDER DATED 8.12.2009 IN WP(C) NO.33136/09.
WPC NO.26913 OF 2010
2
P22: COPY OF THE ORDER DATED 18.12-2009 IN WP(C) NO.33136/09.
P23: COPY OF LETTER DATED 24.4.2010 ISSUED BY THE CASHEW EXPORTS
PROMOTION COUNCIL OF INDIA.
P24: COPY OF DOCUMENT NO.2796 OF 2010 OF KOTTARAKKARA SRO.
P25: COPY OF ORDER DATED 20.8.2010 ISSUED BY ADDL.CHIEF SECRETARY TO
THE GOVERNMENT.
P26: COPY OF MINUTES OF MEETING PETITION.
P27: COPY OF THE JUDGMENT IN WPC NO. 26911 OF 2010 DATED 8.2.2012.
RESPONDENT'S EXHIBITS:
R1(A): COPY OF THE MINUTES OF THE MEETING.
R1(A): COPY OF THE SUPREME COURT ORDER DATED 29.11.2001.
R1(B): COPY OF THE CLARIFICATION PETITIONER FILED BEFORE THE
HONOURABLE SUPREME COURT BY THE PETITIONER.
R1(C): COPY OF THE ORDER DATED 29.11.2002 PASSED BY THE HONOURABLE
SUPREME COURT IN ANNEXURE R1(B) PETITION.
R1(D): COPY OF MINUTES OF THE MEETING DATED 3.7.2003.
R1(E); COPY OF MINUTES OF THE MEETING HELD ON 21.10.03.
R1(F): COPY OF THE SUPREME COURT ORDER DATED 22.11.02.
R1(G): COPY OF THE SUPREME COURT ORDER DATED 5.7.2010.
\\ TRUE COPY \\
PA TO JUDGE
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C.K.ABDUL REHIM, J.
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W.P.(C) No. 26913 OF 2010
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Dated this the 6th day of November, 2012
JUDGMENT
Petitioner is challenging Ext.P25 notification issued by the State Government through which a cashew factory owned by him was declared as vested in the Government. The impugned notification was issued under Section 3(1) of the Kerala Cashew Factories (Acquisition) Act, 1974 (hereinafter referred to as the 'Acquisition Act'). The cashew factory was leased out to the Kerala State Cashew Development Corporation (hereinafter referred to as the 'Corporation') through a registered deed dated 17.07.1970, for a period of three years. The term of lease was extended subsequently, which ultimately expired on 16.07.1976. Despite expiry of the lease, possession of the cashew factory was not surrendered by the Corporation. In the year 1979, Government introduced Kerala Cashew Factories (Requisitioning) Act, 1979 (hereinafter referred to as the 'Requisitioning Act'). By virtue of a notification issued in exercise of power vested under Section 3(1) of the Requisitioning Act, the cashew factory in question was taken over for a period of five years, which term W.P.(C) No. 26913 OF 2010 :2: expired in the year 1985. The Corporation even then continued in possession of the factory. The State Government introduced the Kerala Cashew Factories (Requisitioning) Amendment Act, 1985 with retrospective effect from 26.08.1982 enabling continuation of the requisition, despite expiry of the period of five years. A further notification was issued under the amended provisions. The petitioner challenged validity of the Amendment Act before this Court. In Ext.P3 judgment, this Court held that, the amendment brought in to Section 3 of the Requisitioning Act is constitutionally invalid and it infringes fundamental rights of the petitioner. Therefore, the State Government and the Corporation were directed to return possession of the cashew factory to the petitioner. In Ext.P3 it was observed that the petitioner should employ all existing staff and workers other than those who were employed directly by the Corporation. It is also made clear that liabilities with respect to workers till the factory is returned to the petitioner shall be with the Corporation and thereafter such liability will be on the petitioner. The State Government and the Corporation had challenged Ext.P3 judgment in writ appeal W.P.(C) No. 26913 OF 2010 :3: before this Court and further in SLP before the Hon'ble Supreme Court. The appeals before the Hon'ble Supreme Court was dismissed confirming Ext.P3 Judgment. The petitioner filed a Contempt of Court case before this Court alleging non implementation of Ext.P3 Judgment. Since the Corporation failed to comply with the direction, this Court deputed an Advocate Commissioner to hand over possession of the factory to the petitioner and accordingly the factory in question was handed over to the petitioner on 4th and 5th of April, 2002.
2. It is averred in the writ petition that the Corporation failed in making payment of legitimate dues to the workers for the period during which the cashew factory was run by them, which lead to a situation of the workers started agitations. The trade unions representing the workers demanded for re- employment of the employees of the Corporation, against terms of Ext.P3 Judgment. There arose litigations also, at the instance of Factory Managers employed by the Corporation seeking continuance in service. A Division Bench of this Court in Ext.P6 Judgment reiterated that, the petitioner and other W.P.(C) No. 26913 OF 2010 :4: similar cashew factory owners are liable only to employ workmen, other than the staff and workers engaged by the Corporation. There were series of conciliations regarding the labour disputes raised. Ultimately a labour conference was convened in the presence of the Hon'ble Minister for Industries on 01.08.2005. Decision was arrived to re-open the factory on the undertaking that the petitioner will accommodate all the workers who were working in the factory while it was leased out to the Corporation. On the basis of the settlement Ext.P8 Government Order was issued.
3. On the basis of Ext.P8, the petitioner issued notice on 17.03.2006 calling upon a meeting of the trade unions for facilitating to start functioning of the cashew factory. On the basis of decision arrived, notices were issued calling upon the workers to attend duty from 27.03.2006 onwards. But no workers had turned up, because by the time all of them got employment in other factories. Thereafter the petitioner made various attempts to start the factory,which was not successful due to stiff opposition and agitations from the side of the trade unions, who prevented the workers from attending duty in the W.P.(C) No. 26913 OF 2010 :5: factory. They raised various demands with respect to settlement of claims pertaining to the period during which the factory was run by the Corporation. The petitioner issued Ext.P11 notice calling upon the willing workers to attend duty on 18.01.2007. Because of obstructions and threat from the side of the trade unions, no workers turned up. Ext.P12 is a public notice issued through newspapers calling upon the workers to report duty. But on the date proposed for starting of the factory, the trade unions caused physical obstructions and no work could be commenced. Thereafter, the petitioner identified 26 workers who were willing to join for duty. Accordingly, the work was scheduled to be commenced on 07.09.2009, but the workers failed to report duty. Again another notice was published as per Ext.P13 in the newspapers. On 07.09.2009, the willing workers have entered the factory premises for commencement of work. But by the time, a big crowd assembled at the instance of various trade unions and threatened to cause damages to the factory and its machineries demanding stoppage of work. The police had registered Ext.P15 case with respect to the incidents. W.P.(C) No. 26913 OF 2010 :6:
4. Thereafter, the petitioner filed W.P.(C) No.25512/2009 before this Court seeking police protection for the factory and its functioning. This Court issued direction to afford effective police protection to the petitioner to reopen the factory. Accordingly, the factory was opened on 09.11.2009. But none of the workers reported for duty. Hence, the petitioner commenced production with his own workers. But the striking workers had manhandled the workers of the petitioner, for which Ext.P17 Criminal Case was registered.
5. While things remain as above, Ext.P18 notice was issued by the 1st respondent calling upon the petitioner to submit objections if any against a proposal for taking action under the acquisition Act, 1974. The petitioner challenged the action before this Court in W.P.(C) No.33136/2009. Initially this Court issued Ext.P20 order staying the notice, which was modified in Ext.P21 directing the authority concerned to take a decision on this basis of the objections submitted to the notice in question. Further, by virtue of Ext.P22 order this Court directed that, if the order passed by the Government is adverse to the petitioner, it shall not be implemented for a period of W.P.(C) No. 26913 OF 2010 :7: one week from the date of its communication. The Government considered the objections and rejected the same through Ext.P25 order, confirming the actions as proposed. The petitioner is challenging sustainability of Ext.P25. Inter alia, he is seeking declaration to struck down Section 3(1)(C) of the Acquisition Act.
6. In the statement filed on behalf of the 1st respondent, it is contended that, at the time when the factory was handed over to the petitioner during April 2002, Ext.R1(a) interim order issued by the Hon'ble Supreme Court, was in force. In the said order the Hon'ble Supreme Court has recorded undertaking made by the petitioner that, upon restoration of possession of the factory, the factory shall be run by them and the workmen will be paid their salaries and other benefits on a regular basis. But the petitioner attempted to get the order clarified to the extent that, the petitioner is bound to employ staff and workers only to the extent necessary. But the Hon'ble Supreme Court declined to make any such clarification. Thereafter, the Corporation had moved the Hon'ble Supreme Court in contempt alleging that the petitioner had failed in reopening W.P.(C) No. 26913 OF 2010 :8: the factory. According to 1st respondent, the clarification sought for by the petitioner is indicative of the fact that the petitioner was reluctant in engaging employees of the factory. It is further pointed out that even in a meeting convened by the Hon'ble Minister on 03.07.2003, the representative of the petitioner had expressed reluctance in employing the entire workers. It is contented that even though the factory was returned as early as on 01.04.2002, still it remain closed and 674 employees of the factory are left without any employment for the past more than eight years, leading to large scale unemployment warranting invocation of Section 3(1) of the Acquisition Act. It is also alleged that the petitioner had sold a portion of the factory premises in contravention of Section 6 of the Act. Therefore the explanations offered by the petitioner for not opening the factory and commencing work, is devoid of any merit, is the contention.
7. Heard; counsel for the petitioner and Government Pleader appearing for the respondents. Learned counsel for the petitioner had drawn my attention to Ext.P27 Judgment rendered by this Court in W.P.(C) No.26911/2010. Notification W.P.(C) No. 26913 OF 2010 :9: issued under Section 3(1) of the Acquisition Act, with respect to another factory on an identical situation has been set aside by this Court. In view of the said Judgment, petitioner conceded that he is not pressing the grounds raised in challenge against validity of the provisions.
8. The facts born out in Ext.P27 case, with respect to attempts made for reopening of the factory after getting back possession from the Corporation, is almost identical in the present case. In Ext.P27 also the State Government and the Unions contended that there existed large scale unemployment justifying action under Section 3(1)(C) of the Act. Referring to various conciliation conferences held on different dates and various public notices issued by the owner of the factory inviting workers to report for duty, and also referring to various writ petitions filed by the owner seeking assistance of this Court for facilitating reopening, it was held that the reasoning mentioned in the impugned notification that there has been large scale unemployment is totally unsustainable. On analysing the relevant provisions, this Court observed that for warranting acquisition of the factory, it should be established W.P.(C) No. 26913 OF 2010 :10: that there is a large scale unemployment other than by way of lay off or retrenchment of the factory. It was observed that the term 'unemployment' denotes that there should be no scope for employment due to deliberate omissions and commissions on the part of the owner of the factory. The mere fact that the owner was unable to resume functioning of the factory due to any adamant attitude of the workers can not at all be termed as 'unemployment'. Referring to factual situations enumerated, it was held that the owner of the factory therein was keen in resuming functioning of the cashew factory at the earliest opportunity.
9. Learned Government Pleader raised contention that the fact situation prevailing in Ext.P7 case was totally different. But as discussed above, I am of the considered opinion that a perfectly identical situation prevails in this case also. There are sufficient materials to show that the petitioner had undertaken all earnest efforts to resume functioning of the factory, and the factory could not be reopened only due to adamant stand taken by the trade unions. Even there was forceful prevention with respect to the willing workers, and the W.P.(C) No. 26913 OF 2010 :11: petitioner had approached this Court seeking police protection. Therefore, I am of the view that the dictum laid in Ext.P27 Judgment squarely applies on the facts of this case.
10. Sri. C.S. Manilal, Sr. Government Pleader contended that in the case decided in Ext.P27, there existed other circumstances like refusal to grant renewal of licence as well as transfer of ownership of the cashew factory. But notwithstanding existence of any such circumstances, the reasoning given by this Court in Ext.P27 that there existed no large scale unemployment and the owner of the factory was virtually prevented from resuming functioning, is squarely analogous on the facts of the present case also. Therefore, I am of the view that Ext.P25 notification cannot be sustained for the very same reasons.
11. In Ext.P25 it is mentioned that, the Hon'ble Supreme Court while disposing the civil appeals had reserved liberty to the Government to take over the property for an indefinite period by way of acquisition, if the owner is not giving sufficient work as promised or is not able to provide work for more number of days than what was given by the Corporation in W.P.(C) No. 26913 OF 2010 :12: other factories, and if it is felt that the interest of workers is jeopardized. But there against, question to be decided as to whether there was any denial of employment from the side of the petitioners to any wiling workers. Fact situation remains that, in spite of keen attempts made the factory cannot be resumed functioning because of the non co-operation of the trade unions and workers. The statement in Ext.P25 to the extent that the strike and agitations of the workers were intended only to pressurize the petitioner to open the factory, cannot be accepted as true and correct in view of such factual situations enumerated. Conclusions contained in Ext.P25, that the owner is not willing to run the factory even after eight years and had miserably failed to provide work to the employees, cannot be sustained on the basis of the factual matrix.
12. Under the above mentioned circumstances, I do not find any distinguishing factors to deviate from the conclusions in Ext.P27 Judgment. It is conceded by learned Sr. Government Pleader that Ext.P27 was not challenge and the same had attained finality. Hence, for the very same reasonings as W.P.(C) No. 26913 OF 2010 :13: enumerated in Ext.P27 judgment, I am inclined to allow this writ petition, to quash the impugned proceedings.
13. However, it is pertinent to note that the undertaking given by the petitioner in Ext.P3 Judgment still survives and the petitioner is at an obligation to provide employment to any of the remaining workers who were employed at the time when the Corporation had taken over possession of the factory. Learned counsel for the petitioner undertakes that they will engage all such workers if any are willing and those who had not attained the age of superannuation. The above submission is recorded.
9. In the result, the writ petition is allowed and Ext.P25 is here by quashed. It is made clear that the petitioner is entitled to start functioning of the cashew factory, subject to obtaining of necessary licences and other permissions, and subject to the undertaking as recorded above.
Sd/-
C.K.ABDUL REHIM, JUDGE sd/