Disposed

Hitech Logistics and Marketing Pvt.Ltd v. K.Vijayakumar

Kerala HC9 Oct 2017WP(C)/5856/2017

Case brief

AI extract

What is this about?

The High Court modified an impugned Labour Court award which directed reinstatement. While finding the transfer to a separate legal entity constituted termination, the Court awarded retrenchment compensation of Rs.2,00,000 in lieu of reinstatement and discharged the pending proceedings before the Labour Court.

What did the court decide?

Directing the petitioner to pay the respondent a sum of Rs.2,00,000/- within one month of receiving the judgment copy, operating as full and final settlement in lieu of reinstatement and discharge of

Hitech Logistics and Marketing Pvt.Ltd Vs… — Labour and Industrial Disputes | Kerala HC (2017)

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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 A.K.JAYASANKARAN NAMBIAR

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MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939

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WP(C).No. 5856 of 2017 (F)

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PETITIONER(S):

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HITECH LOGISTICS AND MARKETING PVT. LTD., NEW NO.42, KODAMBAKKAM HIGH ROAD, M.K.M CHAMBERS, CHENNAI - 600 034, REPRESENTED BY ITS MANAGING DIRECTOR

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THROUGH ITS POWER OF ATTORNEY HOLDER, VINOD N.

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BY ADV. SRI.C.AJITH KUMAR.

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RESPONDENT(S):

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1. K. VIJAYAKUMAR, VIJAY NIVAS, PUTHENPALLY, VARAPPUZHA - 683 517.

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2. THE LABOUR COURT, ERNAKULAM.

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R1 BY ADVS. SRI.A.JAYASANKAR,

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SRI.MANU GOVIND, SRI.ASHWIN SETHUMADHAVAN, SMT.B.MEERA, SRI.S.SABARINADH.

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R2 BY GOVT. PLEADER SRI.V.K. SHAMSUDHEEN.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 5856 of 2017 (F)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXHIBIT P1 TRUE COPY OF I.D. NO. 10/2013 FILED BY RESPONDENT BEFORE THE LABOUR COURT.

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EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN I.D NO.10/2013 ON THE FILES OF LABOUR COURT.

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EXHIBIT P3 TRUE COPY OF THE AWARD DATED 27/04/2016 IN I.D. NO. 10/2013 PASSED BY THE LABOUR COURT, ERNAKULAM.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

A.K.JAYASANKARAN NAMBIAR, J.

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W.P.(C). No. 5856 of 2017

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===================================================== Dated this the 9^th day of October, 2017

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JUDGMENT

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The management in Industrial Dispue (I.D) No. 10 of 2013 on the files of the Labour Court, Ernakulam is the petitioner in this writ petition, challenging Ext.P3 award passed by the said Tribunal. By the said award, the Tribunal found that there was a denial of employment to the 1^st respondent workman by he petitioner management and therefore, directed the petitioner to reinstate the workman with full back wages, continuity of service and all other consequential benefits. The brief facts, as noticed in the award of the Tribunal are that, the 1^st respondent workman was initially employed as a warehouse assistant in a Company by name Omega Cables Ltd., in the year 1993 and his services under the said Company were confirmed in 1994. He worked in the said Company till 2004, when the said Company wound up its business activities at Kochi. The 1^st respondent workman was however, accommodated in the petitioner Company in the year 2004, since the petitioner Company was one of the group Companies of Omega Cables Ltd. The 1^st respondent was confirmed in the services of the petitioner Company with effect from 01.04.2005. While working under the petitioner Company, pursuant to a claim for minimum

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W.P.(C). No. 5856 of 2017

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wages, the 1^st respondent had sought the assistance of a Trade Union for representing his case before the management. Possibly on account of the conduct of the 1^st respondent, and the management's displeasure with the same, the petitioner transferred the 1^st respondent to the Chennai Office of the Omega Cables Ltd. It would appear that the 1^st respondent refused to comply with the transfer order and consequently, he did not join the Chennai Office of Omega Cables Ltd. Thereafter, he filed an Industrial Dispute under Section 2A (2) of the Industrial Disputes Act, challenging the alleged denial of employment by the petitioner management with effect from 06.10.2012. The petitioner management appears to have been set ex parte in the proceedings before the Industrial Tribunal. Although there is a reference to the marking of one document in the initial stages of enquiry before the Industrial Tribunal, the management did not participate in the subsequent stage and therefore, based on the evidence available before the Tribunal, it passed Ext.P3 award holding that there was indeed a denial of employment to the 1^st respondent by the petitioner management. As already noted, the Tribunal also directed the petitioner to reinstate the workman with full back wages and continuity of service and all consequential benefits.

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W.P.(C). No. 5856 of 2017

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This writ petition was admitted by this Court on 21.2.2017 and the operation of the award was stayed by an interim order of the same date. The said interim order continues to be in force even today. In the meanwhile, on a Section 17 B application preferred by the 1^st respondent, the petitioner was directed to pay an amount of Rs.5,000/- per month, by way of wages, to the 1^st respondent during the period from 20.02.2017 till the disposal of the writ petition. It is stated that an amount of Rs.35,000/- has been paid to the 1^st respondent by the petitioner on that account.

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I have heard the learned counsel appearing for the petitioner, the learned counsel appearing for the 1^st respondent as also the learned Government Pleader appearing for the 2^nd respondent .

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On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that this is a case where, with effect from 06.10.2012, the 1^st respondent was transferred by the petitioner to the office of Omega Cables Ltd., at Chennai. It is not in dispute that Omega

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W.P.(C). No. 5856 of 2017

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Cables Ltd. Chennai, although a group Company, was a separate legal entity from the petitioner, and the 1^st respondent, who was an employee of the petitioner Company, was effectively removed from the services of the petitioner Company, and accomodated as an employee in Omega Cables Ltd. Thus, as far as the petitioner Company was concerned, the services of the 1^st respondent were terminated with effect from 06.10.2012 namely, the date of transfer of the employee. On the 1^st respondent refusing to comply with the order of transfer, the issue arose as to whether refusal on the part of the 1^st respondent could be seen as a misconduct on the part of the 1^st respondent, or an act that was justified with the 1^st respondent taking a stand that the transfer order was effectively a termination of the services under the petitioner Company without following the procedure contemplated under the Industrial Disputes Act. Inasmuch as it is not in dispute that Omega Cables Ltd., is a distinct legal entity from the petitioner Company, the removal from the services of the 1^st respondent with effect from 06.10.2012 has necessarily to be treated as a denial of employment and consequential retrenchment for the purposes of the ID Act. This is more so because the 1^st respondent never consented to the said transfer. The 1^st respondent, must therefore,

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W.P.(C). No. 5856 of 2017

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be held entitled to compensation under Section 25 (FFF) for the period from 06.10.2012 till the date of denial of his employment.

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I note in this connection that it is the case of the petitioner before me that the office of the petitioner at Kochi discontinued business in 2012 itself. Although there is no material produced before me to indicate this to be the position, I also find that there was no material produced before the Tribunal to show that there was a discontinuation of the business at Kochi since 2012. Under the said circumstances, I am inclined to hold that, till the date of award of the Tribunal, namely 27.04.2016, the petitioner Company should be deemed as having been in existence for the purposes of accommodating the 1^st respondent. Based on the submission of the learned counsel for the respondent before me that the activities of the Company have since ceased, I am inclined to treat the Company as having closed its business operations at Kochi with effect from the date of award of the Tribunal. I also note that it is not the case of the respondent that he is ready to take up services in any branch of the petitioner Company outside Kerala. Under the said circumstances, I am of the view that the ends of justice would require to met to find in

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favour of the 1s respondent to the limited extent of entitling him to retrenchment compensation for the period from 06.10.2012 to 27.04.2016, the date of award of the Industrial Tribunal. Calculating the compensation payable @ Rs.5,000/- per month, for 43 months, to cover the period from 06.10.2012 to 27.04.2016, the compensation payable would be in an amount of Rs.2,15,000/-. From the said amount, although the amount of Rs.35,000/- that was paid by the petitioner to the 1^st respondent during the pendency of the writ petition by way of wages would have to be deducted, since I have found that the compensation payable is only for the period till 27.04.2016, there is also the aspect of a possible claim for gratuity from the 1^st respondent for the period that he worked with the petitioner Company. The learned counsel appearing before me have agreed to settle the liability at a figure of Rs.2,00,000/- by considering all these aspects, and on the understanding that the payment of the aforesaid sum of Rs.2,00,000/- by the petitioner to the 1^st respondent, would be effected within a period of one month from the date of receipt of a copy of this judgment, and would operate in full and final settlement of all disputes between the 1^st respondent and the petitioner Company. Accordingly, while modifying Ext.P3 award to

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W.P.(C). No. 5856 of 2017

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the extent indicated in this judgment, I dispose the writ petition, directing the petitioner to effect payment of the aforesaid amount of Rs.2,00,000/-to the 1^st respondent, within a period of one month from the date of receipt of a copy of this judgment. Immediately on the payment of the said amount, the fact of payment shall also be brought to the notice of the Labour Court, the 2^nd respondent herein, in C.P.No.40 of 2016, which is stated to be pending before the said Court, at the instance of the 1^st respondent, so that the said proceedings can be closed on the basis of the directions in this judgment.

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Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE

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das/ 10.10.2017

Hitech Logistics and Marketing Pvt.Ltd v. K.Vijayakumar

Case brief

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Hitech Logistics and Marketing Pvt.Ltd v. K.Vijayakumar

Case brief

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