Partly allowed

The Manager,Parvathy Mills v. M.Dominic & Another

Kerala HC24 Jun 2016WP(C)/7893/2009

Case brief

AI extract

What is this about?

The Court upheld the Labour Court's award dismissing the Manager's appeal against the termination of a workman. The termination under ESI Regulation 98 was found illegal as standing orders lacked such a provision. While reinstatement was ordered, back wages were denied due to the workman's habit of absenteeism and failure to explain absence.

What did the court decide?

Petition dismissed; Labour Court's reinstatement order upheld; back wages declined to 80%; regular wages payable with continuity of service.

The Manager,Parvathy Mills Vs M.Dominic & Another — Kerala HC (2016) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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FRIDAY, THE 24TH DAY OF JUNE 2016/3RD ASHADHA, 1938

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WP(C). No.7893 of 2009 (F)

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PETITIONER(S):

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THE MANAGER, PARVATHY MILLS, KOLLAM, (A UNIT OF NATIONAL TEXTILE CORPORATION). BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN

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RESPONDENT(S):

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M.DOMINIC, KUTHUVAYALIL PURAYIDOM, KAIKULANGARA, WEST KOLLAM.

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THE LABOUR COURT, KOLLAM.

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R1 BY ADV.SRI.B.ASHOK SHENOY

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R2 BY GOVERNMENT PLEADER SRI.M.R.ARUN KUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-06-2016, ALONG WITH WPC. NO.10046/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C). No.7893 of 2009 (F)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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P1:- COPY OF THE ORDER OF THE MANAGEMENT DTD.23.2.1990 ISSUED TO THE FIRST RESPONDENT.

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P2:- COPY OF THE SHOW CAUSE NOTICE DTD.9.12.89 ISSUED BY THE MANAGEMENT OF THE FIRST RESPONDENT.

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P3:- COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER MANAGEMENT TO THE FIRST RESPONDENT.

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P4:- COPY OF THE JUDGMENT IN W.P(C) nO.15068 OF 2004 DATED 30.7.2008 OF THIS HONOURABLE COURT.

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P5:- COPY OF THE STANDING ORDER OF THE PETITIONER MANAGEMENT APPLICABLE TO WORKMAN.

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P6:- COPY OF THE AWARD DTD.28.10.2008 IN ID. NO.131 OF 1990 OF THE LABOUR COURT, KOLLAM.

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P7:- COPY OF THE GRATUITY WAGE REGISTER.

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RESPONDENTS' EXHIBITS:-NIL

KRJ

//TRUE COPY//

P.A TO JUDGE

K.VINOD CHANDRAN, J

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W.P(C) Nos.7893 & 10046 of 2009

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Dated this the 24^th day of June, 2016

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J U D G M E N T

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The Management and workman, are both before this Court challenging the award of the Labour Court, Kollam in I.D No.131 of 1990. The dispute was referred at the instance of the workman who was terminated from service and the issue referred was the justifiability of such termination. The ground on which the workman was terminated was that the workman had been continuously absent for medical reasons, for more than 6 months and had also been availing of the disability benefit under the Employees' State Insurance Act, 1948. The Management hence invoked Rule 98 of the Employees' State Insurance (General) Regulations, 1950.

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Regulation 98 indicates that if the conditions of service of any employee so allow, an employer may discharge or reduce on due notice an employee, inter alia , who has been in receipt of disablement benefit for temporary disablement, after he has been in receipt of such benefit for a continuous period of six months or more. This is the specific clause under which the termination was effected. The short question before the Labour Court was whether the workman's conditions of service provide for such discharge.

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WPCs.7893&10046/09

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-:2:-

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The Standing Orders of the Management establishment were produced before the Labour Court and also marked herein as Ext.P5. There is no such condition in Ext.P5. The learned counsel appearing for the Management would refer to two clauses, clauses 8 (3) and 21(r), to contend that the service conditions provided for an action of termination under these heads and hence, though the termination was effected under Regulation 98, it could be sustained under these heads. The wrong quoting of a provision would not lead to setting aside of an order is the compelling argument made by the learned counsel for the Management.

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Clauses 8(3) and 21(r) are extracted hereunder:

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“8.(3) If the workman remains absent beyond the period of leave originally granted or subsequently extended, he shall lose his appointment unless he (a) returns within three days of the expiry of the leave and (b) explains to the satisfaction of the Manager his inability to return before the expiry of his leave. In case the workmen loses his lien on his appointment he shall be entitled to kept on the substitute list.

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The following acts will be treated as misconduct. (r) Habitual absence without leave.”

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Sub-clause (3) of clause 8 only entitles a person who

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remained absent, beyond the sanctioned leave and who does not

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WPCs.7893&10046/09

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-:3:-

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return within three days of the expiry of the leave; to be kept on the substitute list. This is not an authorisation for termination. Clause 21(r) also speaks of a misconduct being committed by habitual absence without leave. This again would require a proper disciplinary enquiry in which the workman is given every opportunity to defend himself.

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In this case, the Management had issued the employee with a show cause notice which admittedly, he did not reply to and on that basis alone, the Management terminated the workman. Admittedly, no charge sheet was issued against the workman. In such circumstance, the order issued cannot be termed to be one which merely quoted a wrong provision. The intention of the Management was to invoke Regulation 98 of the Regulations of 1950 to terminate the workman which has been rightly found by the Labour Court to be not permissible and legal. As has been found above, sub-clause (3) of clause 8 of the Standing Orders also does not entitle the Management to terminate a workman, abruptly, as has been ordered herein. In such circumstance, the finding of the Labour Court that the termination was illegal has to be upheld. Necessarily, what would follow is the order of reinstatement which has been granted by the Labour Court and which has to be sustained.

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WPCs.7893&10046/09

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-:4:-

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The contention raised in the writ petition filed by the workman was that he is entitled to the full backwages. Looking at the Labour Court's award, it is seen that that the learned Judge has considered the aspect on the basis of the antecedents of the workman and also the conduct when the show cause notice was issued. The workman on being issued with a show cause notice failed to submit any explanation thereto. The document produced by the workman as Ext.W5 would reveal that he is having 15% disability and the workman did not produce any document to show that he was fit for duty after the expiry of the leave on 25.2.1990. As to the antecedents, the Labour Court relied on Ext.M15 to hold that the workman was a habitual absentee from work. Even in the earlier years, the workman had been a habitual absentee right from the year 1984 to 1987.

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Considering the entire circumstances and the Labour Court having exercised the discretion with proper reasoning, this Court is not inclined to interfere with the order declining backwages to the extent of 80%. In such circumstances, W.P(C) No.10046 of 2009 shall stand dismissed.

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W.P(C) No.7893 of 2009 would also stand dismissed. The workman will be entitled to the regular wages in the post he was

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WPCs.7893&10046/09 -:5:-

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holding when he was terminated, with effect from one month of the publication of the award in I.D No.131 of 1990. The 17B wages paid to him shall be deducted and the balance paid. The workman shall also be entitled to continuity in service deeming him to have continued from the date of termination till the date of retirement. However if there had been any closure of the establishment or change in status, in the meanwhile, the necessary consequences would regulate the relationship between the management and the workman as to the reinstatement and amounts payable. The said observation is only made since it is submitted by the learned counsel for the Management that the establishment is declared sick and pending rehabilitation before the BIFR. Ordered accordingly. No Costs.

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Sd/- K.Vinod Chandran Judge

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krj.25/6/16

The Manager,Parvathy Mills v. M.Dominic & Another

Case brief

What is this about?

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The Manager,Parvathy Mills v. M.Dominic & Another

Case brief

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