Dismissed

M/S. Sakhi Television Communications India Limited v. the District Labour Officer

Kerala HC30 Nov 2018WP(C)/27883/2018

Case brief

AI extract

What is this about?

The single-judge court dismissed a writ petition challenging wage recovery proceedings initiated under the Industrial Disputes Act. The court held that Section 33C applied to the case due to compulsory closure and dismissed the petition on merits and on account of the petitioner's misleading conduct.

What did the court decide?

Writ petition dismissed with Rs. 10,000 costs to the Kerala Legal Services Authority.

M/S. Sakhi Television Communications India… — Pension and Retirement Benefits | Kerala HC (2018)

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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 DAMA SESHADRI NAIDU

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FRIDAY ,THE 30TH DAY OF NOVEMBER 2018 / 9TH AGRAHAYANA, 1940

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WP(C).No. 27883 of 2018

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PETITIONER/S:

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M/S. SAKHI TELEVISION COMMUNICATIONS INDIA LIMITED CORPORATE OFFICE,TOWER VIEW, T.CNO.21/256, JUDGE ROAD,KARAMANA PO,THIRUVANANTHAPURAM REP BY ITS MANAGING DIRECTOR

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BY ADV. SRI.P.K.MOHAMED JAMEEL

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RESPONDENT/S:

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1 THE DISTRICT LABOUR OFFICER OFFICE OF THE DISTRICT LABOUR OFFICER,THOZHIL BHAVAN,THIRUVANANTHAPURAM 695001

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2 SAKHI TV EMPLOYEES (REPRESENTED BY MS.PONNEE MANESH, AREA MANAGER (MARKETING, CORPORATE OFFICE, TOWER VIEW, TC NO.21/256, JUDGE ROAD, KARAMANA P.O., THIRUVANANTHAPURAM - 695 002.

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3 THE DEPUTY TAHSILDAR THIRUVANANTHAPURAM TALUK OFFICE, FORT, TRIVANDRUM - 695 023. BY ADVS. GOVERNMENT PLEADER M.BALAGOVINDAN SRI.T.K.ANANDA PADMANABHAN

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OTHER PRESENT:

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SRI MATHEW GEORGE VADAKKEL, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC No.27883 of 2018 2

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JUDGMENT

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The petitioner, a Company, runs or ran a television channel— Sakhi T.V. It has about 50 permanent employees. But because of, as the Company claims, intense competition in the visual media, it sustained losses and shut down its operations.

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With no wages paid for many months, the employees through the Ext.R2(b) complained to the District Labour Officer (“DLO”). Then the DLO decided to conciliate the dispute; so he issued the Ext.R2(c) notice under Section 12 of the Industrial Disputes Act, followed by the Ext.R2(d). Of course, the petitioner claims to have received only one notice, that is the Ext.P2. As the petitioner did not respond, the DLO declared the conciliation failed. Then the DLO issued the Ext.P3 show cause notice on 20^th December 2017, under Section 33C of the I.D. Act. That notice was returned 'unclaimed'. So the DLO issued the Ext.P4 requisition, under Section 69(2) of the Revenue Recovery Act, to the District Collector, to recover the wage arrears from the petitioner. Then the revenue officials issued the Ext.P5 demand notice to the petitioner under Section 34. That notice was

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WPC No.27883 of 2018 3

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issued in March 2018.

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The petitioner claims that on 9^th May 2018, it requested the DLO and other officials through the Ext.P6 communication to provide it with a copy of the order the DLO passed under Section 33C—the Ext.P3 order. It also claims that it followed up that notice with the Ext.P7 notice, addressed to the revenue officials to keep the revenue recovery proceedings on hold, for the Ext.P3 proceedings are vitiated. Soon thereafter, it has filed this writ petition.

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This Court on 16.08.2018 stayed the revenue recovery proceedings for one month. Thereafter, the second respondent—the Group of employees—entered appearance, filed its counter affidavit and pressed for the vacation of the interim order. After taking a couple more adjournments, the counsel, then on record, on 12^th November 2018, reported to the Court that there was a connected matter before the Division Bench and the Division Bench desired to hear this writ petition too. Then she informed the Court that “the matter before the Division Bench is listed tomorrow; so this Court may wait for a couple of days to ascertain whether the Division Bench is bound to call for this writ petition as well”.

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When I queried whether the petitioner or its counsel has personal knowledge about the Division Bench's direction, the counsel has submitted that another counsel represents the petitioner before the Division Bench in WP(C) No.30563 of 2018. Indeed, the second respondent’s counsel, however, asserted that both the matters were unconnected and that the Division Bench never intended to hear this writ petition. Yet I adjourned the matter.

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On 16^th November 2018, the petitioner's counsel appeared and regretted her submission on the last occasion. She informed the Court that the petitioner had misled her and she would not want to hold the brief for it. Thus, she relinquished her vakalath. Under those circumstances, the petitioner has engaged the counsel now on record: Sri A.B. Mohankumar.

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Sri A. B. Mohankumar, the petitioner's counsel, has taken two contentions to advance the petitioner's cause: (1) the Ext.P3 order violates the principles of natural justice; and (2) the respondent's claim could not be sustained because what they have raised cannot be an industrial dispute under Section 2(k) and (s) of the I.D.Act. Section 33C(1) has no application. According to him, it must be invoked to

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enforce either a settlement or an award. And neither is present here. So he urges this Court to allow the Writ Petition and to set aside the Exts.P3 to P5.

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Sri M. Balagovindan, the learned counsel for the second respondent, on the other hand, strenuously contends that Section 33C(1) not only contemplates settlement or award, but also “any dispute or any contingency” as contemplated under Chapter 5A or 5B of the Act. He further alleges that the petitioner has approached this Court with uncleaned hands, both in this writ petition and in WPC No.30563 of 2018. The second writ petition before the Division Bench, he informs, is for police protection. He has narrated how the petitioner has tried to take undue advantage of the judicial proceedings.

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On the merits, he contends that the petitioner pleaded about

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one notice under Section 12 of the Act. In fact, the DLO served two notices; on neither occasion did the petitioner respond.

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To elaborate, Sri Balagovindan reminds the Court that the petitioner has claimed to have requested through the Ext.P6 for a copy of the Ext.P5 order. According to him, the petitioner has never communicated that notice to the DLO. Eventually, he pleads for the

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WPC No.27883 of 2018 6

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dismissal of the writ petition. In that regard, he relies on Ajith v Executive Engineer, KSEB¹ .

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Heard Sri A.B.Mohan Kumar, the learned counsel for the petitioner, Sri M.Balagovindan, the learned Standing Counsel, and Sri Mathew George Vadakkal, the learned Government Pleader besides perusing the records.

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Indeed, the facts are not in dispute. First, I may consider the alleged infraction of the natural justice. Here, under Section 12 of the

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I.D. Act, to resolve the dispute between the petitioner and his workmen, the DLO issued two notices. Despite receiving the notices, the petitioner never responded. So the conciliation failed. Then, the DLO issued a show cause notice under Section 33C. Again, the petitioner stultified it. In fact, the notice was returned 'unclaimed'. Yet the petitioner alleges to have asked for a copy of the Ext.P3 order passed under Section 33C(1) of the Act.

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Though the order was passed on 20^th December 2017, the petitioner, allegedly, submitted the Ext.P6 on 9.5.2018. But, as rightly contended by the second respondent's counsel, the petitioner has

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placed no proof before this Court that it actually communicated the 1 1987(1) KLT 272

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WPC No.27883 of 2018 7

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Ext.P6 to the DLO. On the contrary, when the District Revenue Administration, requisitioned by the Labour authorities, invoked the revenue recovery proceedings, the petitioner submitted the Ext.P7 request to them. That request was to have the recovery proceedings kept on hold. That notice does contain the District Collector's endorsement, to testify that it was, indeed, communicated. So I must draw an adverse inference against the petitioner’s claim on the Ext.P6 request. It contains no tell-tale signs that it was sent to the DLO. In other words, despite suffering the Ext.P3 adverse order, the petitioner did not bother to question it.

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The petitioner's another objection is that Section 33C(1) applies only to settlement or award and, here, neither is present. I may, to rule on that controversy, extract the provision to the extent relevant, and it reads:

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33C. Recovery of money due from an employer -

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(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter VA or Chapter VB], the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of

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WPC No.27883 of 2018 8

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the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue: Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer: Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.

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Plainly, the provision provides for three contingencies for

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anyone to invoke the recovery mechanism against an employer: if money is due to a workman from an employer under, (1) settlement (2) an award, (3) or under the provisions of the Chapter 5A or Chapter 5B of the Industrial Disputes Act. As seen, Chapter 5A deals with lay off and retrenchment, and Chapter 5B with special provisions relating to lay off, retrenchment, and closure of an establishment. Both in this writ petition and in WPC No.30563 of 2018, the petitioner did plead that because of serious competition in the visual media, the company became sick and the management was forced to stop its business operations or activities . Thus, what the petitioner has done could be termed a lay off or forced retrenchment. Therefore, I hold that the workmen's invoking Section 33C(1) cannot be found fault with.

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WPC No.27883 of 2018 9

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The petitioner’s last contention is that, of the 50 employees,

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most worked in managerial positions. So they should not be treated as

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workmen. Indeed, Section 2(k) defines an industrial dispute, and

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section 2(s) defines a workman. And they both read as follows:

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Sec.2(k) " industrial dispute" means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non- employment or the terms of employment or with the conditions of labour, of any person;

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Sec.2(s) " workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--

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(i) who is subject to the Air Force Act, 1950 (45 of 1950 ), or the Army Act, 1950 (46 of 1950 ), or the Navy Act, 1957 (62 of 1957 ); or

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(ii) who is employed in the police service or as an officer or other employee of a prison; or

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(iii) who is employed mainly in a managerial or administrative capacity; or

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(iv) who, being employed in a supervisory capacity, draws

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WPC No.27883 of 2018 10

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wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

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To ascertain whether some of the employees cannot be termed

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'workmen', the petitioner has had every opportunity before the DLO.

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But it could not avail itself of that. In other words, a workman's status

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is a disputed question of fact. As the petitioner has failed to raise the dispute, much less sustain it, before the primary authority, the Court in summary adjudication under Article 226 of the Constitution cannot go into the dispute.

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Indeed, this Court in Ajith has held thus:

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“At the time of hearing, Mr.Koshi produced before me the application filed by the petitioner before the Superintending Engineer, dated 31.12.1986, wherein the only endorsement made is to the following effect. “Forwarded (in original) to the Ex.Engineer, El.Dn.Mattancherry for disposal. Sd/31.12.86 S.E.(E) ENK.” Counsel for the petitioner was confronted with this. He has no answer. It is evident that the averments in paragraphs 4 and 6 of the original petition to the effect, that the Superintending Engineer recommended Ext.P1 application and that the recommendation of the superior officer has proved futile in the matter, have been deliberately made to mislead this Court. The said statements are misleading and inaccurate. The petitioner has not made a full and true disclosure of the facts. The petitioner did not fairly state the facts, but stated it in such a way as to mislead this Court as to the true state of affairs. There is misrepresentation or misstatement of the facts deliberately

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and calculatedly designed to carry the impressions that the respondent, notwithstanding the recommendation of the superior officer or authority, insisted upon payment of amounts which cannot be lawfully demanded. The misleading statements and incorrect information or misrepresentation are, in the circumstances, intended only to secure orders from this Court which this Court would not otherwise pass. The statements made were oblique and with ulterior purposes. This conduct of the petitioner is sufficient to deny the exercise of jurisdiction under Article 226 of the Constitution of India, without proceeding to adjudicate the merits of the case. I hold that the above conduct of the petitioner is sufficient to dissuade this Court from exercising the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. I deny jurisdiction.

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(internal citations omitted)

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Here, first, the petitioner has pleaded about one notice under

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Section 12 and suppressed the fact about the second notice. Then, it also asserted that it served the Ext.P6 notice on DLO but could not produce any proof that it had actually served notice on that authority. Finally, when this Court insisted that the matter must be argued, the petitioner then, as it appears, informed the counsel that the Division Bench wanted to hear the writ petition too. Thus, it secured an adjournment through a stratagem, as it were. Later, it turned out to be false, and that forced the previous counsel to relinquish her vakalath.

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Looked from any perspective, the petitioner's conduct does

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not inspire confidence to have any benefit extended to it, under equity dispensation. Besides that, the petitioner has also miserably failed on merits.

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Under these circumstances, I dismiss the writ petition with the cost of Rs.10,000/- to be paid to the Kerala Legal Services Authority.

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Sd/-

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DAMA SESHADRI NAIDU

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JUDGE

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APPENDIX OF WP(C) 27883/2018

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT DATED 8/11/2017. EXHIBIT P2 TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 21/11/2017. EXHIBIT P3 TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 20/12/2017. EXHIBIT P4 TRUE COPY OF THE REQUISITION IN FORM 24 DATED 26/2/2018 ISSUED FROM THE OFFICE OF THE FIRST RESPONDENT. EXHIBIT P5 TRUE COPY OF THE LETTER ISSUED BY THE DEPUTY TAHSILDAR TO THE PETITIONER DATED 30/03/2018.

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WPC No.27883 of 2018 13 EXHIBIT P6 TRUE COPY OF THE LETTER DATED 9/5/2018 SUBMITTED BY THE PETITIONER TO THE LABOUR SECRETARY AND OTHERS. EXHIBIT P7 TRUE COPY OF THE LETTER DATED 7/6/2018 SUBMITTED BY THE PETITIONER TO THE DEPUTY COLLECTOR, THIRUVANANTHAPURAM AND ANOTHER. css/

M/S. Sakhi Television Communications India Limited v. the District Labour Officer

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M/S. Sakhi Television Communications India Limited v. the District Labour Officer

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