Kerala High Court
K. Manoj vs The General Secretary on 15 January, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
MONDAY, THE 15TH DAY OF JANUARY 2024 / 25TH POUSHA, 1945
WP(C) NO. 38286 OF 2015
PETITIONER:
K. MANOJ
AGED 38 YEARS
PROPRIETOR, MOUNT MORIA CASHEWS, CHEPRA, P.O.KOLLAM.
BY ADVS.
SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.BENNY THOMAS
SRI.P.GOPINATH
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
RESPONDENTS:
1 THE GENERAL SECRETARY
CASHEW INDUSTRIES STAFF ASSOCIATION (INTUC) KOLLAM-
691001.
2 THE LABOUR COURT
KOLLAM-691013.
3 RAVEENDRAN K.
PROPRIETOR, KAMALA CASHEW COMPANY, VAPPALA, CHEPRA
P.O., PIN-691520, KOLLAM DISTRICT.
BY ADVS.
SRI.S.K.ADHITHYAN
SRI.B.MOHANLAL
SRI.P.MOHANDAS ERNAKULAM
SRI.MUHAMMED IBRAHIM ABDUL SAMAD
DR.K.P.SATHEESAN SR.
SRI.K.SUDHINKUMAR
SRI.S.VIBHEESHANAN
OTHER PRESENT:
SR GP SRI T K VIPINDAS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON
15.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 38286 OF 2015
2
JUDGMENT
1. Award of the labour court dated 8.9.2015 in I.D No.24/2013 ordering reinstatement with full backwages is under challenge in the present writ petition.
2. The facts, in brief, are as under:
Petitioner, Management had vide lease agreement executed in February 2009 taken the Kamala Cashew Company, Vappala on lease. Workman was already in the employment of the Factory. All the employees in the absence of the lease agreement placed on record (emphasis supplied) continued to be the employee of the lessee, which was for a period of 5 years. Owing to certain administrative reasons, as per the stand of the management, workman was ordered to be transferred to another cashew factory owned by the petitioner.
The Management did not permit him to join on account of his transfer. Charge sheet was served upon the workman on the ground of misconduct in not adhering to the order of the transfer and resulted into dismissal on 5.3.2013 with effect from 9.8.2011.
WP(C) NO. 38286 OF 2015 3
3. It is pertinent that the workman for vindication of the grievance, approached the Labour Conciliation Officer. Management appeared and had taken all the please except for the order of dismissal as it came to pass only after the order of the reference based upon the report of the Commissioner, Labour. Reference order is dated 16.2.2013. Both the parties submitted the claim and response Exts.P2 and P3. In the claim statement, workman stated his woeful story and also about the dismissal effected during the pendency of the matter before the labour court. Plea of maintainability of the claim in view of the subsequent event was also objected to.
4. Labour court on the basis of the variance, framed the following issues:
I. Whether there is denial of employment to K.Kunjumon, Naduvilakunnathu Charuvila Veedu, Kalappila, Chepra P.O, Kollam by the management of M/s. Mount Cashew, Vappala P.O., Kollam.
II. If so, what reliefs are he entitled to?
5. The labour court found that the management had before the enquiry officer examined two witnesses, MW1 and MW2 and brought on record Exhibits M1 to M11. The labour court on the veracity of the enquiry report, considered the WP(C) NO. 38286 OF 2015 4 preliminary issue and overruled the objection of the management with regard to the non maintainability of the reference, ordered reinstatement with backwages.
6. Learned counsel appearing for the petitioner, in support of the grounds taken in the writ petition by laying challenge to the award, buttressed his argument by raising the following submissions:
7. The labour court exceeded the jurisdiction in deciding the question of transfer which was not under adjudication as per the reference order Ext.P1 and the issues framed thereon. In support of the contentions, relied upon various judgments; Delhi Cloth General Mills Co.Ltd v.
Workman, AIR 1967 SC 469, State Bank of Bikaner v. Om Prakash Sharma, (2006) 5 SCC 123, Pottery Mazdoor Panchayat v. Perfect Pottery Co.Ltd., (1979) 3 SCC 762.
8. It was next contended that the role of the labour court is to confine to the reference and it cannot be enlarged beyond the language prescribed under sub Section 4 of Section 10 ie., the expression 'incidental' which has also been in extenso detailed the relevant paragraphs of the judgment ie., Para 21 of Delhi Cloth General Mills Co.Ltd (supra), Para 12 WP(C) NO. 38286 OF 2015 5 and 14 of State Bank of Bikaner (supra) and Para 11 of Pottery Mazdoor (supra).
9. Even otherwise assuming for an argument sake that the dismissal order was subsequent to the reference dated 5.3.2013, in the absence of any pleadings in a claim statement with regard to the gainful employment, there was no question of granting the backwages. In support of the contention, relied upon the judgment of the Supreme Court in Management of Regional Chief Engineering, PHED, Ranchi v. Workmen (2019) 18 SCC 814 (Para 12 and 13 of the judgment). Non filing of the claim under Section 17(b) is the testimony that the workman was gainfully employed.
10. On the other hand, learned counsel appearing on behalf of the workman submitted that the award of the labour court is justiciable as no explicable reasons have been assigned by the management regarding the jurisdictional error of the labour court, for, the order of termination was passed on 5.3.2013 after the date of the reference dated 16.2.2013. Thus at the relevant point of time, the grievance of the workman was only denial of the employment. Management failed to place on record, copy of the lease agreement to WP(C) NO. 38286 OF 2015 6 establish the terms and conditions of the worker, already in employment of the cashew factory owned by the lesser. This court cannot sit in an appeal and examine the evidence afresh led before the enquiry officer to form different opinion while exercising the power of judicial review under Article 226 of the Constitution of India.
11. I have heard the learned counsel for the parties and appraised the paper book. It would be expedient to extract the relevant portion of the reference order, the same reads thus:
Read: Letter No. 1(3)2517/2012 dated 28-1-2013 from the Labour Commissioner.
ORDER Whereas, the Government are of opinion that an industrial dispute exists between (1) Sri. K. Manoj, Mount Moria Cashews, Vappala, Chepra P.O., Kollam, (2) Sri. Raveendran. K. Kamala Cashew Company, Vappala, Chepra P.O., Kollam and the workman of the above referred establishment Sri. Kunjumon, Naduvila Konath Charuvila Veedu, Kalaveela, Chepra PO., represented by the General Secretary, Cashew Industries Staff Association (INTUC), Kollam in respect of matters mentioned in the annexure to this order, And whereas, in the opinion of Government it is necessary to refer the said industrial dispute for adjudication; Now, therefore, in exercise of the powers conferred by Section 10(1) (c) of the Industrial Disputes Act of 1947 (Central Act XIV of 1947) the Government hereby direct that the said industrial dispute be referred for adjudication to the Labour Court, Kollam. The Labour Court will pass the award within a period of three months.
WP(C) NO. 38286 OF 2015 7
12. Concededly, the order of dismissal is on 5.3.2013. Thus the question which was referred to the Labour court was to decide the denial of the employment and not dismissal. The disobedience of the transfer order entailed into dismissal. Section 10(4) of the Industrial Disputes Act provides as under:
10(4) Where in an order referring an industrial dispute to [a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, [the Labour Court or the Tribunal or the National Tribunal, as the case may be], shall confine its adjudication to those points and matters incidental thereto.
13. The expression 'incidental' referred to had been the matter of discussion and the debate / ponderance by the Supreme Court and various other courts. Para 21 of Delhi Cloth General Mills Co.Ltd (supra), Para 12 and 14 of State Bank of Bikaner (supra) and Para 11 of Pottery Mazdoor (supra) are extracted herein below:
Delhi Cloth General Mills 21: From the above it therefore appears that while it is open to the appropriate Government to refer the dispute or any matter appearing to be connected therewith for adjudication, the Tribunal must confine its adjudication to the points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto. The word "incidental" means according to Webster's New World Dictionary:
"happening or likely to happen as a result of or in connection with something more important; being an incident; casual; hence, WP(C) NO. 38286 OF 2015 8 secondary or minor, but usually associated:"
"Something incidental to a dispute" must therefore mean something happening as a result of or in connection with the dispute or associated with the dispute. The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct. In the light of the above, it would appear that the third issue was framed on the basis that there was a strike and there was a lockout and it was for the Industrial Tribunal to examine the facts and circumstances leading to the strike and the lockout and to come to a decision as to whether one or the other or both were justified. On the issue as framed it would not be open to the workmen to question the existence of the strike, or, to the Management to deny the declaration of a lockout. The parties were to be allowed to lead evidence to show that the strike was not justified or that the lockout was improper. The third issue has also a sub-issue, namely, if the lockout was not legal, whether the workmen were entitled to wages for the period of the lockout. Similarly, the fourth issue proceeds on the basis that there was a sit-down-strike in the Swatantra Bharat Mills on 23-2-1966 and the question referred was as to the propriety or legality of the same. It was not for any of the Unions to contend on the issues as framed that there was no sit-down strike. On their success on the plea of justification of the sit-down strike depended their claim to wages for the period of the strike.
State Bank of Bikaner 12: The specific issue which was, therefore, referred for determination by the Labour Court, related to the dispute as regards violation of Section 25-H of the Act. If the said provisions had not been found to be violated, the question of setting aside the order of termination by the Labour Court did not and could not arise. The learned Single Judge proceeded on the premise that the High Court, in exercise of its writ jurisdiction, cannot sit in appeal over the award of the Labour Court. The learned Single Judge was right, but then, only because the jurisdiction of the High Court, while exercising of its power of judicial review was limited, it would not mean that even a jurisdictional error could not have been corrected. The provisions of Articles 226 and 227 of the Constitution of India would be attracted if the inferior Tribunal has, inter alia, committed a jurisdictional error. What would be the ground for judicial review, in regard to the orders passed by an inferior Tribunal is no longer res integra.
14: In the instant case, the award of the Labour Court suffers from an illegality, which appears on the face of the record. The WP(C) NO. 38286 OF 2015 9 jurisdiction of the Labour Court emanated from the order of the reference. It could not have passed an order going beyond the terms of the reference. While passing the award, if the Labour Court exceeds its jurisdiction, the award must be held to be suffering from a jurisdictional error. It was capable of being corrected by the High Court in exercise of its power of judicial review. The High Court, therefore, clearly fell in error in refusing to exercise its jurisdiction. The award and the judgment of the High Court, therefore, cannot be sustained. Consequently, the appeal is allowed and the judgment of the High Court is set aside. The award is set aside to the extent of the order of reinstatement with back wages. The writ petition filed by the appellant in the High Court is, thus, allowed.
Pottery Mazdoor 11: Having heard a closely thought out argument made by Mr. Gupta on behalf of the appellant, we are of the opinion that the High Court is right in its view on the first question. The very terms of the references show that the point of dispute between the parties was not the fact of the closure of its business by the respondent but the propriety and justification of the respondent's decision to close down the business. That is why the references were expressed to say whether the proposed closure of the business was proper and justified. In other words, by the references, the Tribunals were not called upon by the Government to adjudicate upon the question as to whether there was in fact a closure of business or whether under the pretence of closing the business the workers were locked out by the management. The references being limited to the narrow question as to whether the closure was proper and justified, the Tribunals by the very terms of the references, had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management.
14. There is no doubt to the ratio decidendi culled out in the judgments. The labour courts are enjoined upon an obligation to remain within the parameters of the reference and cannot commit any jurisdictional error as tried to be projected.
15. The veracity of the enquiry report entailing into dismissal of the workman was a point of consideration before WP(C) NO. 38286 OF 2015 10 the Labour court and on perusal thereof, it was found that on the basis of an administrative order, workman was ordered to be transferred to other cashew factory and charge sheet was imposed upon the workman on the ground of misconduct ie., in not adhering to the order of the transfer and resulted into dismissal from the service. The labour court remain oblivious of the terms and conditions of the lease agreement pertaining to employment conditions of the employees of the erstwhile management viz-a-viz the petitioner. The lower court findings cannot be beyond the scope of provisions as provided under the sub Section 4 of Section 10 and also the ratio decidendi culled out in the judgment, as it was incidental thereto. But considering all these facts, reinstatement should not have been ordered with backwages, for, both the management and the employees have lost trust. Thus by upholding the order of the labour court, I deem it appropriate to modify the operative part of the award in view of the law laid down by the the Supreme Court in B.S.N.L v. Bhurumal (2014) 7 SCC 177.
16. Since the workman was suspended on 9.8.2011, ie., he was out of service for almost two (2) years, I deem it appropriate to grant damages to the tune of Rs.2 (two) lakhs WP(C) NO. 38286 OF 2015 11 which would include the cost of litigation and the arrears of the salary. Writ petition is allowed to the aforementioned extend. Petitioner is directed to make the payment of Rupees two lakhs against a valid receipt and the other benefits which the workman is entitled to within a period of one month from the date of receipt of a certified copy of this judgment.
SD/-
sab AMIT RAWAL
JUDGE
WP(C) NO. 38286 OF 2015
12
APPENDIX OF WP(C) 38286/2015
PETITIONER ANNEXURES
P3 : TRUE COPY OF THE WRITTEN OBJECTION
WITHOUT ANNEXURES, FILED BY THE PETITIONER IN ID 24/13 DT.NIL IN FEB.2014.
P1 : TRUE COPY OF THE REFERENCE ORDER DT.16-2-13.
P2 : TRUE COPY OF THE CLAIM STATEMENT DT.25-9-13 FILED BY THE WORKMAN CONCERNED IN ID 24/13.
P4 : TRUE COPY OF THE AWARD DT.8-9-15 PASSED BY R2 IN ID 24/13.