Kerala High Court
The Fertilizers And Chemicals ... vs James Philip on 23 July, 2020
Equivalent citations: AIRONLINE 2020 KER 450
Author: A.M.Badar
Bench: A.M.Badar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BADAR
THURSDAY, THE 23RD DAY OF JULY 2020 / 1ST SRAVANA, 1942
WP(C).No.29814 OF 2019(B)
PETITIONER:
THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD
(FACT), HEAD OFFICE UDYOGMANDAL, ERNAKULAM-683501,
REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR.
BY ADVS.
SMT.LATHA ANAND
SRI.M.N.RADHAKRISHNA MENON
SRI.K.R.PRAMOTH KUMAR
SRI.S.VISHNU (ARIKKATTIL)
SRI.RADHAKRISHNA PILLAI B
SHRI.SIDHARTH P.S.
SRI.ROHITH MOHAN
SHRI.S.S VISHNU
RESPONDENTS:
1 JAMES PHILIP,
VALIATHARAYIL, ANTONY VILLA, AKSHYA GARDENS,
CHEMBUKAVU, THRISSUR CITY.P.O., PIN CODE-680 020.
2 THE ASSISTANT LABOUR COMMISSIONER (CENTRAL),
OFFICE OF THE DY.LABOUR COMMISSIONER, KENDRIYA SHRAMA
SADAN, OLIMUGHAL, KAKKANAD, KOCHI-682 030.
3 THE GOVERNMENT OF INDIA,
REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA,
MINISTRY OF LABOUR & EMPLOYMENT, SHRAMA SAKTHI SADAN,
RAFFI MARG, NEW DELHI-110 001.
4 THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR
COURT, 38/377, A3, KARITHALA LANE, KARSHAKAKA ROAD,
ERNAKULAM, KOCHI-682 016.
R1 BY ADV. SRI.P.RAMAKRISHNAN
R1 BY ADV. SMT.PREETHI RAMAKRISHNAN (P-212)
R1 BY ADV. SRI.T.C.KRISHNA
R1 BY ADV. SRI.C.ANIL KUMAR
R1 BY ADV. SMT.ASHA K.SHENOY
R1 BY ADV. SRI.PRATAP ABRAHAM VARGHESE
R2 TO R4 BY ADV. SRI.C.DINESH
OTHER PRESENT:
SRI.P VIJAYAKUMAR, ASGI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
23.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.29814 OF 2019 2
JUDGMENT
Dated this the 23rd day of July 2020 By this petition, the petitioner, who happens to be the employer of the 1st respondent-workman, is praying for the following reliefs:
(a) Issue appropriate writ or order calling for the records relating to Ext.P16 proceedings of the 2 nd respondent Assistant Labour Commissioner and quash the same.
(b) Issue appropriate writ or order to the 2 nd respondent Assistant Labour Commissioner to hold conciliation proceedings with regard to the entitlement of reinstatement and attendant benefits in view of disobedience of Exhibit P4 order issued by the petitioner and submit appropriate report to the 3rd respondent recommending adjudication of the dispute in the event of non-settlement of the issue.
(c) Issue appropriate writ or order directing the 3rd respondent to refer the dispute as to entitlement of reinstatement and attendant benefits despite disobedience of Exhibit P4 order issued by the petitioner for adjudication to a competent Forum in exercise of their powers under Section 10(1) of the Industrial Disputes Act.
2. The facts in brief necessary for deciding the petition are thus:
The 1st respondent-James Philip was working with the petitioner-W.P.(C) No.29814 OF 2019 3
Company as Supervisor in the Civil Maintenance Department at its Udyogmandal Division. He came to be removed from service by the petitioner-Company on 09.11.1993. An Industrial Dispute came to be raised regarding removal of the 1st respondent and on failure of conciliation, considering the report of the Conciliation Officer, the State Government was pleased to refer the following Industrial Dispute for adjudication to the Labour Court, Ernakulam:
Whether the removal of Sri.James Philip from the Rolls of employer on the ground of prolonged absence can be justifiable or not? If not what relief he is entitled to?
After adjudication of the Industrial Dispute which was registered as ID No.160 of 1995, the Labour Court, Ernakulam was pleased to pass the following Award:
"In the result, an award is passed finding that the removal of Sri.James Philip from the Rolls of employer on ground of prolonged absence is not justifiable and he is entitled to be reinstated with ¼ backwages and continuity in service".
3. The petitioner-employer challenged the Award passed by the Labour Court, Ernakulam by filing W.P.(C) No.5191 of 2004 which ultimately came to be dismissed by this Court on 28.05.2008. Feeling aggrieved by the dismissal of the writ W.P.(C) No.29814 OF 2019 4 petition, the petitioner-employer filed Writ Appeal No.1719 of 2008. On 26.08.2008, the Hon'ble Division Bench of this Court was pleased to stay the impugned Award in so far as it relates to backwages awarded to the 1st respondent. Ultimately, by Ext.P6 judgment dated 13.08.2014, the said Writ Appeal came to be dismissed. The Review Petition seeking review of the judgment in the Writ Appeal also came to be rejected by order dated 19.11.2015 (Ext.P7) with the observation that the offer for reinstatement does not provide any ground for seeking review of the judgment in the Writ Appeal.
4. It is the case of the petitioner-employer that during the pendency of the Writ Appeal, vide communication dated 07.04.2009 (Ext.P4), the petitioner offered to reinstate the 1st respondent in service as Supervisor (Civil) with basic pay of Rs.5696/- in the scale of Rs.5400-148-6140-161-9360. This offer was met with a response dated 18.04.2009 (Ext.R1(b)) by the 1st respondent to the effect that he has right to be reinstated in service with continuity of service and appropriate pay fixation in accordance with the Award passed by the Labour Court, Ernakulam in I.D No.160 of 1995. Obviously, the 1 st respondent seems to be of the opinion that the petitioner-employer had not offered to grant W.P.(C) No.29814 OF 2019 5 him the benefit of continuity in service and appropriate pay fixation in terms of the Award.
5. The 1st respondent-workman then filed a claim petition by resorting to the provisions of Section 33C(2) of the Industrial Disputes Act, 1947 for computation of various benefits as per the Award passed by the Labour Court, Ernakulam. Before filing of the claim petition under Section 33C(2) of the Act, the 1 st respondent- workman, by taking recourse to the provisions of Section 29 of the Act, preferred an application to the Regional Labour Commissioner (Central), Kochi requesting the said authority for initiation of proceedings under Section 29 of the said Act for prosecuting the petitioner for breach of Award passed by the Labour Court, Ernakulam, and a show cause notice came to be issued by the Assistant Labour Commissioner (Central), Ernakulam to the petitioner-employer regarding non implementation of the Award passed by the Labour Court, Ernakulam. By the said show cause notice, the petitioner was asked to show cause as to why legal action should not be initiated against the management for non- implementation of the Award passed by the Labour Court. The said show cause notice came to be replied by the petitioner vide communications dated 15.06.2018 and 02.07.2019 (Exts.P14 and W.P.(C) No.29814 OF 2019 6 P15 respectively). Similarly, a letter dated 03.02.2016 came to be issued by the petitioner (Ext.R1(f)) to the 1 st respondent-workman. By this letter it was informed to the 1st respondent-workman that the petitioner-Company is taking action to issue order of reinstatement to the 1st respondent as directed by the Labour Court, Ernakulam.
6. According to the petitioner-employer, despite issuance of letter of reinstatement dated 07.04.2009 (Ext.P4), the 1st respondent did not report for work and therefore, he has lost his future right of employment and consequential benefits emanating from the Award, Ext.P1. Learned Senior Counsel appearing for the petitioner vehemently argued that the 1 st respondent had already refused the offer of reinstatement and as he had not joined employment in terms of communication dated 07.04.2009 (Ext.P4), he is not entitled for backwages. So far as the claim for promotion is concerned, the same can be considered on the basis of vacancy and selection. It is not automatic. Learned Senior Counsel also urged that as the amount under the Award is not quantified and is pending adjudication in a petition under Section 33C(2) of the Act, penal consequences for non- implementation of the Award cannot be attracted. It is further W.P.(C) No.29814 OF 2019 7 argued that vide communication at Exts.P14 and P15, appropriate authority was already informed about implementation of Award by offering reinstatement to the 1st respondent-workman. With this, according to the learned Senior Counsel, no action for prosecution can be taken against the employer as such action requires strict proof of non implementation of Award. The petitioner also raises a ground that the Assistant Labour Commissioner ought to have conciliated in the matter. If ultimately the conciliation fails, then he ought to have submitted failure report to the appropriate Government. The Conciliation Officer had no authority to take a decision in the matter of industrial dispute.
7. I have also heard the learned counsel appearing for the 1st respondent. He argued that the offer of reinstatement vide Ext.P4 was without granting any continuity in service and basic pay of Rs.5696/- was offered to the workman after 16 years of his removal from service. The 1st respondent had repeatedly requested for reinstatement with continuity in service and pay fixation as would reflect from Exts.R1(b) to R1(i). There is voluminous evidence to show that there is refusal to implement the Award by the employer and therefore, the impugned action of the Assistant Labour Commissioner is perfectly correct. W.P.(C) No.29814 OF 2019 8
8. I have carefully considered the submissions advanced. It is not in dispute that the Labour Court, Ernakulam has awarded reinstatement to the 1st respondent along with continuity in service and ¼ backwages from the date of removal i.e. 09.11.1993 till his reinstatement. It is sought to be demonstrated that vide communication dated 07.04.2009 (Ext.P4), there was an offer of reinstatement. But the 1st respondent attempted to demonstrate that the said offer was not a bonafide and honest one as it was without granting continuity in service to the 1 st respondent and the benefits thereof such as, appropriate pay fixation. It is also sought to be demonstrated that the communication dated 03.02.2016 (Ext.R1(f)) by the petitioner-employer informing the 1 st respondent that the petitioner-Company is taking action to issue order of reinstatement to the 1st respondent makes it clear that the communication dated 07.04.2009 (Ext.P4) was not a real offer of reinstatement in terms of the Award. Be that as it may, it is borne from record that the Award was for reinstatement with continuity in service and for payment of ¼ backwages from the date of removal of 1st respondent i.e. 09.11.1993 till his reinstatement. In the interregnum, there was stay to backwages for the period from 26.08.2008 till 13.08.2014 when Writ Appeal No.1719 of 2008 W.P.(C) No.29814 OF 2019 9 came to be dismissed by the Hon'ble Division Bench of this Court. As of now, the petitioner has not paid or deposited ¼ backwages due and payable to the 1st respondent in terms of the Award of the Labour Court dated 21.07.2003. When the Award is made conferring benefit of reinstatement and when the employer refused to allow the workman to join duty or when the question is of computation of benefit of backwages due under the terms of Award of reinstatement, the Labour Court, in exercise of power under Section 33C(2) of the Act, can very well undertake the task of computation of benefits of reinstatement as per the Award as well as backwages due under the terms of the Award. However, it needs to be noted that the effect of order of reinstatement is to set at naught the order of wrongful removal of the employee by the employer and to reinstate him in service as if contract of employment originally entered into had been continuing. The terms and conditions of contract entered into between the employer and workman prior to his wrongful removal continues to govern the relation between the parties. The workman as such continues to be in employment under those terms of contract of employment.
9. In the case in hand, undisputedly, the Award passed by W.P.(C) No.29814 OF 2019 10 the Labour Court in I.D No.160 of 1995 between the parties directing reinstatement with continuity in service along with ¼ backwages has attained finality. For implementing this Award, the petitioner ought to have paid ¼ backwages from the date of removal of the 1st respondent i.e. from 09.11.1993 atleast till the date of Award i.e. 21.07.2003. The petitioner-employer cannot be heard to say that this amount is not quantified and is under adjudication in a petition under Section 33C(2) of the Act.
10. The failure to implement an Award or breach of Award is made an offence punishable with imprisonment for a term which may extend to six months, or with fine, or with both in terms of Section 29 of the Act. This penal provision can be set in motion by filing of a complaint by or under the authority of appropriate Government in view of the provisions of Section 34 of the Act. The 1st respondent had initially approached the Assistant Labour Commissioner in view of the provisions of Section 34 of the Act with a request to initiate proceedings by filing a complaint for prosecuting the petitioner's management under Section 29 of the Act for non implementation of the Award passed by the Labour Court, Ernakulam in I.D No.160 of 1995. It is not in dispute that even as on date not a single pie towards backwages is paid to the W.P.(C) No.29814 OF 2019 11 1st respondent-workman by the petitioner leave apart the fact as to whether there was genuine offer for reinstatement of the 1st respondent and whether the 1st respondent refused to avail such offer.
11. The offence under Section 29 of the Act is an offence arising under the social beneficial legislation which does not require any mens rea. On the face of record, it is clear that as yet not a single pie is paid to the 1st respondent or is deposited in the Labour Court, Ernakulam by the petitioner towards backwages as awarded in I.A No.160 of 1995. Pendency of a petition under Section 33C(2) of the Act cannot absolve the employer from penal consequences as envisaged by Section 29 of the Act. Recovery of money due and payable to the workman has no relevance with the prosecution and consequent punishment to the employer for committing breach of Award as these two proceedings cover two entirely different fields. Therefore, it cannot be said that proceedings for initiation of complaint for the offence punishable under Section 29 of the Act suffer from any error of law. As the proceedings initiated in pursuance to the request made vide communication dated 12.10.2015 (Ext.R1(d)) at the instance of the 1st respondent-workman are in respect of filing of complaint for W.P.(C) No.29814 OF 2019 12 the offence punishable under Section 29 of the Act by or under the authority of appropriate Government, there is no need of initiation of any conciliation proceedings or submission of failure report by the Conciliation Officer to the appropriate Government requesting for prosecuting the employer for committing breach of Award passed by the Labour Court. By the communication dated 12.10.2015 (Ext.R1(d)), no industrial dispute is sought to be raised. It is with a specific pleading about non-implementation of Award by the petitioner with a request to take necessary steps for setting the criminal law in motion.
In the result, this writ petition fails and therefore, the same is dismissed.
Sd/-
A.M.BADAR JUDGE smp W.P.(C) No.29814 OF 2019 13 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF AWARD DATED 21.7.2003 IN ID.160/1995.
EXHIBIT P2 TRUE COPY OF JUDGMENT DATED 28.5.2008 WPC.NO.5191/2004.
EXHIBIT P3 TRUE COPY OF INTERIM ORDER DATED 26.8.2008 IN WA.1719/2006.
EXHIBIT P4 TRUE COPY OF REINSTATEMENT ORDER DATED 7.4.2009.
EXHIBIT P5 TRUE COPY OF LETTER DATED 7.4.2009 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 13.08.2014 IN WA.NO.1719/2006.
EXHIBIT P7 TRUE COPY OF ORDER DATED 19.11.2015 IN REVIEW PETITION NO.494 OF 2015.
EXHIBIT P8 TRUE COPY OF CLAIM PETITION DATED 26.12.2015 FILED BY THE PETITIONER BEFORE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL.
EXHIBIT P9 TRUE COPY OF WRITTEN OBJECTION OF THE PETITIONER TO THE CLAIM PETITION.
EXHIBIT P10 TRUE COPY OF REPRESENTATION DATED 5.1.2018 BY THE PETITIONER TO THE ASST. LABOUR COMMISSIONER.
EXHIBIT P11 TRUE COPY OF REPRESENTATION DATED 26.4.2018 BY THE PETITIONER TO THE ASST. LABOUR COMMISSIONER.
EXHIBIT P12 TRUE COPY OF REPRESENTATION DATED 8.6.2018 BY THE PETITIONER BEFORE THE ASST. LABOUR COMMISSIONER.
EXHIBIT P13 TRUE COPY OF SHOW CAUSE NOTICE DATED 22.05.2018 PROPOSING TO PROSECUTE THE PETITIONER FOR NON-IMPLEMENTATION OF THE AWARD.
W.P.(C) No.29814 OF 2019 14EXHIBIT P14 TRUE COPY OF REPRESENTATION DATED 15.6.2018 BY THE PETITIONER BEFORE THE ASST. LABOUR COMMISSIONER.
EXHIBIT P15 TRUE COPY OF REPRESENTATION DATED 2.7.2019 OF THE PETITIONER.
EXHIBIT P16 TRUE COPY OF THE PROCEEDINGS OF THE ASSISTANT LABOUR COMMISSIONER DATED 11.10.2019.
RESPONDENT'S EXHIBITS:
EXHIBIT R1(a) TRUE COPY OF THE LETTER DATED 19.2.2009 FROM THIS RESPONDENT TO THE PETITIONER.
EXHIBIT R1(b) TRUE COPY OF THE LETTER DATED 18.4.2009 FROM THIS RESPONDENT TO THE CHIEF MANAGER(H.R) EXHIBIT R1(c) TRUE COPY OF THE LETTER DATED 9.1.2015 FROM THIS RESPONDENT TO THE CHIEF PERSONAL MANAGER.
EXHIBIT R1(d) TRUE COPY OF THE LETTER DATED 12.10.2015 FROM THIS RESPONDENT TO THE REGIONAL LABOUR COMMISSIONER (CENTRAL) EXHIBIT R1(e) TRUE COPY OF THE LETTER DATED 26.11.2015 FROM THE OFFICE OF THE DY.CHIEF LABOUR COMMISSIONER TO THE PETITIONER.
EXHIBIT R1(f) TRUE COPY OF THE LETTER DATED 3.2.2016 FROM THE PETITIONER TO THIS RESPONDENT EXHIBIT R1(g) TRUE COPY OF THE LETTER DATED 17.11.2017 FROM THIS RESPONDENT TO THE PETITIONER.
EXHIBIT R1(h) TRUE COPY OF THE LETTER DATED 12.12.2017 FROM THE 2ND RESPONDENT TO THE PETITIONER.
EXHIBIT R1(i) TRUE COPY OF THE LETTER DATED 5.2.2018 FROM THIS RESPONDENT TO THE 2ND RESPONDENT True Copy P.S to Judge smp