ASH v. SRI.JOSIE MATHEW

A.RAJAMANY ALIAS GOURIMUTHU, S/O. ANTHONY, KONAMPUDUR, KANJIKODE P.O,PALAKKAD 678 621 R. MURALEEDHARAN, S/O. RAJAN, KONAMPUDUR, KANJIKODE P.O,PALAKKAD 678 621 K.N RADHAKRISHNAN, S/O. KUNJAPPAN, KONAMPUDUR, KANJIKODE P.O,PALAKKAD 678 621 A. JYOTHIPRAKASH, S/O. APPUNNI, KONAMPUDUR, KANJIKODE P.O,PALAKKAD 678 621 THE DISTRICT LABOUR OFFICER KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD 678 001 THE APPELLATE AUTHORITY, REGIONAL JOINT LABOUR COMMISSIONER,CIVIL STATION, KAKKANAD, ERNAKULAM 682 030 BY ADVS. SRI.M.N.MATHEW SR GP SRI BIMAL K NATH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.01.2024, ALONG WITH WA.592/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.Nos.104 & 592 of 2018 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 16TH DAY OF JANUARY 2024 / 26TH POUSHA, 1945 WA NO. 592 OF 2018 AGAINST THE JUDGMENT DTD.12.10.2017 IN WP(C) 13928/2010 OF HIGH COURT OF KERALA APPELLANT 1 S / RESPONDENT : S 2-4 2 3 R.MURALEEDHARAN S/O.RAJAN KONAMPUDUR, KANJIKODE P.O., PALAKKAD. K.N.RADHAKRISHNAN, S/O.KUNJAPPAN, KONAMPUDUR, KANJIKODE P.O., PALAKKAD. JYOTHI PRAKASH, S/O.APPUNNI, KONAMPUDUR, KANJIKODE P.O., PALAKKAD. BY ADVS. SRI.SAJITH KUMAR V. SRI.JOSIE MATHEW RESPONDENT : S / PETITIONER AND RESPONDENTS 1, 5 & 6 1 2 3 4 M/S.M.K.ASSOCIATES, KONAMPUTHUR, KANJIKODE P.O., PALAKKAD- 678001 REPRESENTED BY MANAGING PARTNER N.KRISHNA SWAMY- A.RAJAMANY ALIAS SOURIMUTHU S/O.ANTHONY, KONAMPUDUR, KANJIKODE P.O., PALAKKAD-678001 THE DISTRICT LABOUR OFFICER, PALAKKAD-678001 APPELLATE AUTHORITY, REGIONAL JOINT LABOUR COMMISSIONER, ERNAKULAM-682030 BY ADVS. SRI.JERRY JAMES (B/O) SRI.MATHEWS K.UTHUPPAN (B/O) M.N.MATHEW OTHER PRESENT: SR GP SRI BIMAL K NATH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.01.2024, ALONG WITH WA.104/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.Nos.104 & 592 of 2018 3 AMIT RAWAL & C.S. SUDHA, JJ. ======================== W.A.Nos.104 & 592 of 2018 ========================= Dated this the 16th day of January, 2024 JUDGMENT Amit Rawal , J . This judgment shall dispose of two intra-court appeals arising from the judgment in W.P.(C).No.13928 of 2010 preferred by the appellant-employer in W.A.No.104 of 2018 wherein the order of the competent authority under the Headload Workers Act ordering reinstatement and 50% backwages to the respondents in the writ petition/appellants in W.A.No.592 of 2018 has been modified by ordering compensation and backwages.

2. The facts in brief are that the workers had been on the rolls of the employer after having obtained the registraton and discharging the duties of headload workers as and when the situation and demand arose. One fine morning, i.e., on 26th of March, 2002 were denied the employment. Having left with no other option invoked the jurisdiction of the competent authority as referred to in W.A.Nos.104 & 592 of 2018 4 Section 21 of the Kerala Headload Workers Act, 1978. The conciliation proceedings failed, led to a decision under Section 22 ordering reinstatement with backwages. The afore-mentioned order dated 24.2.2010 of the competent authority under the Kerala Headload Workers Act is Ext.P9.

3. Against Ext.P9 employer preferred a writ petition raising numerous grounds including the lack of jurisdiction of the competent authority. Learned Single Bench, on the basis of the pleadings and on noticing the rival contentions, did not order for reinstatement but quantified the compensation and backwages by taking the income less than the one arrived at by the company. Aggrieved of the same, workers and Management have approached this Court in these two intra-court appeals.

4. Learned counsel appearing on behalf of the employer/appellant in W.A.No.104 of 2018 submitted that the competent authority did not have the jurisdiction and the trappings of Labour Court by ordering reinstatement and backwages. The remedy for the workers was to approach either Conciliation Officer or directly approach the Tribunal W.A.Nos.104 & 592 of 2018 5 under Section 10A of the Industrial Disputes Act, 1947.

5. Learned Single Bench did not deal with the objection of jurisdiction of the competent authority under the Headload Workers Act.

6. Workers failed to place on record any material to prove that during all controversial periods they were gainfully employed and therefore, in view of the law laid down by the Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak & Ors [(2013) 10 SCC 324] they are not entitled to backwages as ordered by the Authority and Single Bench.

7. Per contra, learned counsel appearing on behalf of the workers/appellants in W.A.No.592 of 2018 submitted that the learned Single Bench did not assign any reason for not ordering reinstatement as workers had been not able to earn their livelihood and to make both ends meet. It is in violation of Articles 19 and 21 of the Constitution of India.

8. Even the backwages assessed by the competent authority have been reduced on a figment of imagination without any material. All these factors if had been looked W.A.Nos.104 & 592 of 2018 6 into, the writ petition was liable to be dismissed.

9. We have heard learned counsel for the parties and appraised the paper books.

10. Sections 21 and 22 of the Headload Workers Act are produced herebelow:- “21. Settlement of disputes .-(1) Where a dispute which is connected with the employment or non- employment or the terms of employment or with the conditions of work, of any headload worker exists or is apprehended, the Assistant Labour Officer, having jurisdiction may hold conciliation conferences for the purpose of bringing about a settlement of the dispute and, if such settlement is not arrived at, send a report of the dispute to the Conciliation Officer. (2) On receipt of a report under subsection (1), the Conciliation Officer may hold conciliation proceedings and shall, for the purpose of bringing about a settlement of the dispute, without delay investigate the same and all matters affecting the merits and the right settlement thereof and may do all such things as he things fit for the purpose of promoting a fair and amicable settlement of the dispute. (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of conciliation proceedings the Conciliation Officer shall send a report thereof to the appellate authority. (4) If a settlement of the dispute or any of the matters in dispute is not arrived at, the Conciliation Officer shall take a decision on the dispute or, as the case may be, on the matters in respect of which no settlement has been arrived at and shall send a report of the dispute with a copy of his decision to the appellate authority. (5) The decision of the Conciliation Officer under subsection (4) shall, subject to the decision of the W.A.Nos.104 & 592 of 2018 7 appellate authority under subsection (7), be binding on all parties to the dispute. (6) Any person aggrieved by any decision of the conciliation Officer under subsection (4) may, within such time as may be prescribed, appeal to the appellate authority against such decision. (7) On receipt of an appeal under subsection (6), the appellate authority shall make such inquiries as it deems fit and after giving the parties an opportunity of being heard decide the appeal within a period of two week from the date of receipt of the appeal. (8) Notwithstanding anything contained in any law for the time being in force, the appellate authority shall not stay the operation of the decision of the Conciliation Officer pending its decision on the appeal except for good and sufficient reasons to be recorded in writing.

22. Reference or decision of disputes by Government .- (1) Notwithstanding anything contained in section 21, where any dispute exists or is apprehended, the Government may, by order in writing and for reasons to be stated therein,- (a) refer the dispute to the appellate authority constituted for the area iin which the dispute exists or is apprehended, for decision ; or (b) decide the dispute themselves. (2) Where a dispute is referred to an appellate authority under clause (a) of subsection (1) , that authority shall decide the dispute as if the reference by the Government were an appeal under subsection (6) of section 21.. (3) The decision of the Government referred to in clause (b) of sub section (1) shall be final and shall be given effect to by the parties to the dispute forthwith.”

11. On perusal of the above, it is evident that the W.A.Nos.104 & 592 of 2018 8 procedure prescribed under Section 10 of Industrial Disputes Act, 1947 dealing with the conciliation proceedings before referring the dispute by an appellate Government to the Labour Court is akin to Headload Workers Act and on refusal of the conciliation, competent authority would assume the role of a Labour Court. No provision of the Act has been referred to or are in existence specifying that the competent authority is denuded of the powers to decide the dispute including the employment and non-employment, question which has arisen in the present controversy.

12. The reasoning assigned by the learned Single Bench for not granting the reinstatement was that the litigation was already fifteen (15) year old and by that time the workers must have become overage and during the pendency, one of the workers, on the basis of some criminal acts, was convicted. Thus, the arguments of the counsel representing workers of reinstatement, in such circumstances, do not merit acceptance.

13. The question, now, arises is whether the order of the Single Bench would be sustainable on the touchstone of W.A.Nos.104 & 592 of 2018 9 equity and reasonability by quantifying the compensation and backwages. The answer is as under:

14. The Hon'ble Supreme Court in B.S.N.L v. Bhurumal [(2014) 7 SCC 177] in extenso dealt with the situation where the trust between an employer and employee over a prolonged litigation effaced and noticing that the reinstatement in such a situation may not be conducive as it may in future entail into embroilment, came out with a solution of bringing succor to the workers by quantifying the compensation. Paragraph 20 of the judgment in B.S.N.L (supra) reads as follows:- “20. The learned counsel for the appellant referred to two judgments wherein this Court granted compensation instead of reinstatement. In the case of BSNL vs. Man Singh[1], this Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In the case of Incharge Officer & Anr. vs. Shankar Shetty [2], it was held that those cases where the workman had worked on daily wage basis, and worked merely for a period of 240 days or 2- 3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement. In of Shankar Shetty (supra), this trend was reiterated by referring to various judgments, as is clear from the following discussion. judgment W.A.Nos.104 & 592 of 2018 10 “Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short “the ID Act”)? The course of the decisions of this Court in recent years has been uniform on the above question. In Jagbir Singh v. Haryana State Agriculture Mktg..Board[3], delivering the judgment of this Court, one of us (R.M.Lodha,J.) noticed some of the recent decisions of this Court, namely, U.P.State Brassware Corpn. Ltd. V. Uday Narain Pandey[4], Uttaranchal Forest Development Corpn. V. M.C. Joshi[5],State of M.P. v. Lalit Kumar Verma[6], M.P.Admn v.Tribhuban[7], Sita Ram v.Moti Lal Nehru Farmers Training Institute[8], Jaipur Development Authority v. Ramsahai[9], GDA v. Ashok Kumar[10] and Mahboob Deepak v.Nagar Panchyat, Gajraula[11] and stated as follows: (Jagbir Singh case, SCC pp.330 & 335 paras 7 & 14) “It is true that the earlier view of this Court articulated in many decision reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead W.A.Nos.104 & 592 of 2018 11 compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.” Jagbir Singh has been applied very recently in Telegraph Deptt. V. Santosh Kumar Seal[12], wherein this Court stated: (SCC p.777, para 11) “In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice.”

15. The competent authority by taking the income of the workers as Rs.400/- per day and working days in a month, determined the backwages as Rs.10,400/- per month; whereas the learned Single Bench noticing the factors like conviction and prolonged litigation, has taken the income as Rs.5,500/-. The law with regard to gainful employment is no longer res integra in view of the ratio decidendi in Deepali Gundu(supra).

16. The pleadings of the workers have been conspicuously silent with regard to gainful employment during all the period nor any additional affidavit at any point of time was filed. In such circumstances, in our considered view, we cannot remain oblivious of such provisions of the W.A.Nos.104 & 592 of 2018 12 law, thus, the backwages, in the absence of such pleadings, could not have been granted. The findings with regard to ordering the backwages are hereby set aside. Regarding the quantification for the purpose of compensation, it is ordered that the income assessed by the learned Single Bench as Rs.5,500/- on comparison of the salary of Rs.8,500/- being drawn by the Manager is perfectly legal and justified, do not require any clarification or modification. Thus, we hold that workers shall be entitled to compensation by taking their income as Rs.5,500/- per month, for the period they remained out of service from the date of denial till the date of passing of the order (Ext.P9) by the competent authority. With the afore-mentioned modification, writ appeals stand disposed off. Sd/- AMIT RAWAL JUDGE C.S. SUDHA JUDGE Sd/-