Allowed

Kairali Ayurvedic Health Resorts (Pvt) Ltd. v. State of Kerala

Kerala HC5 Nov 2019WP(C)/4851/2016

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition seeking to quash a government order referring a dispute involving an individual workman to the Industrial Tribunal. The court held that the dispute was a deemed industrial dispute under Section 2A and set aside the reference, allowing the workman to challenge the subsequent termination order before the Tribunal.

What did the court decide?

Ext.P5 reference order setting aside; liberty granted to challenge termination order before Industrial Tribunal within one month.

Kairali Ayurvedic Health Resorts (Pvt) Ltd. Vs… — Labour and Industrial Disputes | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941

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WP(C).No.4851 OF 2016(F)

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PETITIONER :-

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KAIRALI AYURVEDIC HEALTH RESORTS (PVT) LTD. OLASSERY P.O., KODUMBU, PALAKKAD DISTRICT, KERALA - 678 551, REPRESENTED BY ITS GENERAL MANAGER

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BY ADV. SRI.JACOB SEBASTIAN

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RESPONDENTS :-

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1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, LABOUR AND SKILLS (A) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001.

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2 THE DISTRICT LABOUR OFFICER PALAKKAD - 678 001.

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3 THE INDUSTRIAL TRIBUNAL, PALAKKAD - 678 002

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4 R.RAVINDRAN

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SON OF RAJAN, GEETHANJALI HOUSE, PALLATHUMPULLY, TATHAMANGALAM, PALAKKAD - 678 100.

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BY SMT. K.R. DEEPA, SR.GP. BY ADV. SRI.RAJESH SIVARAMANKUTTY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.4851 OF 2016(F)

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-: 2 :-

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JUDGMENT

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This writ petition is filed seeking the following prayer :-

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“Call for the records leading to exhibits P4 and P5 and quash them, issuing a writ in the nature of certiorari”

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Heard the learned counsel for the petitioner and the learned Government Pleader as well as the learned counsel appearing for the contesting 4^th respondent.

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The petitioner is a company registered under the Companies Act. It is running a health resort at the given address. The 4^th respondent was working as house keeper under the Management. On the ground that he was unauthorisedly absent from 14.11.2013, Ext.P1 show cause notice was issued to him. He did not reply. Thereafter another notice along with a memo of charges was again issued to the 4^th respondent. No response was received to the memo of charges. Subsequently, an Enquiry Officer was appointed and notice of enquiry was served on the 4^th respondent. Since the 4^th respondent refused to attend the enquiry, Ext.P3 report was submitted finding that the 4^th respondent was unauthorisedly absent. Copy of the report was served on the 4^th respondent. In the mean while, the 4^th respondent approached the 2^nd respondent Conciliation Officer with a complaint of denial of employment. The Kerala State Human Rights Commission was also

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WP(C).No.4851 OF 2016(F)

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-: 3 :-

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approached. It is stated that the 2^nd respondent conducted conciliation proceedings and by Ext.P4, recorded that the conciliation has failed. Ext.P4 report was forwarded to the Government by the 2^nd respondent stating that the dispute is to be referred to the Industrial Tribunal, Palakkad. Accepting the said recommendation, Ext.P5 order was issued by the Government referring the dispute for adjudication to the Industrial Tribunal, Palakkad. The question referred was whether the denial of employment to the 4^th respondent with effect from 18.2.2014 is justifiable or not and if so, what relief he is entitled to.

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The learned counsel for the petitioner would contend that the denial of employment of an individual workman is not a matter which is liable to be referred in terms of Section 10. Relying on the decision of this Court in Mangalam Publications (India) Pvt. Ltd v. Thampy [2006 (2) KLT 327], it is contended that Section 2A carves out an exemption from the general rule that the disputes have to be espoused by unions and that no reference can be made in terms of Section 10 where the dispute involves an individual workman and is not taken up by any union except as provided in Section 2A. The decision of the Apex Court in Nedungadi Bank Ltd v. Madhavankutty [2000 KHC 109] is also relied on to contend that the issue of jurisdiction of the Labour

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WP(C).No.4851 OF 2016(F)

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-: 4 :-

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Court to consider a dispute can be considered by the Writ Court when the matter is brought before it in exercise of its jurisdiction under Article 226 of the Constitution.

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A counter affidavit has been placed on record by the 1^st respondent contending that the complaint revealed that the employee had been denied employment without justification and that the enquiry proceedings were started only after the 4^th respondent submitted his complaint before the Labour Commissioner. It is stated that the complaint was submitted before the 2^nd respondent on 18.02.2014 and conciliation proceedings were started. It is stated that Ext.P4 conciliation failure report was forwarded to the Government and on considering the same, the Government had, on being satisfied that an industrial dispute exists, referred the matter. It is further stated that the denial of employment of an individual workman is also an industrial dispute as provided in Section 2A of Industrial Disputes Act and therefore Exts. P4 and P5 are legal and valid.

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The 4^th respondent has also placed a counter affidavit on record stating that he had met with a road accident on 14.11.2013 and had suffered serious head injury. It is stated that this was the reason why he could not participate in the enquiry conducted against him. It is stated that Ext.P3 letter of termination was

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WP(C).No.4851 OF 2016(F)

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-: 5 :-

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issued only in January 2015 during the pendency of the proceedings before the 2^nd respondent and that as such, the 4^th respondent's complaint with regard to the denial of employment has to be considered by the Tribunal in pursuance to Ext.P5. A reply affidavit has also been placed on record.

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Section 2A of the Industrial Disputes Act, 1947 provides that where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between the workman and his employer connected with or arising out of such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute.

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It is admitted by both sides that the adjudication of the dispute referred by Ext.P5 did not take place due to the pendency of this writ petition. In the meanwhile, after Ext.P5 order referring the dispute has been rendered, it is the common case of the parties that Ext.R4(a) order of termination has been issued by the petitioner on 27.1.2015. The question as to the legality of the reference of the dispute by Ext.P5 is therefore no longer relevant in view of the fact that an order of termination, which is liable to be raised before the Industrial Tribunal as a dispute under Section 2A, has been passed in the meanwhile. I am therefore of the opinion

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WP(C).No.4851 OF 2016(F)

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that the said dispute which is a deemed industrial dispute in terms of Section 2A can be raised by the 4^th respondent before the appropriate forum, in terms of the Industrial Disputes Act. The Industrial Disputes Act being a beneficial legislation, I am of the opinion that the right of the aggrieved workman cannot be denied on the ground that the matter has been pending before this Court on the issue of legality of Ext.P5.

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In the above view of the matter, Ext.P5 reference is set aside. However, the 4^th respondent will be at liberty to challenge Ext.R4(a) order of termination issued by the petitioner on 27.1.2015, in view of the fact that the matter was pending consideration before this Court. In case the petitioner raises a dispute before the competent labour court/Industrial Tribunal challenging the termination order issued on 27.1.2015 within a period of one month from the date of receipt of a copy of this judgment, the dispute shall be appropriately adjudicated by the competent authority with notice to the parties.

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The writ petition is ordered accordingly.

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Sd/ANU SIVARAMAN JUDGE

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Jvt/16.12.2019

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WP(C).No.4851 OF 2016(F)

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-: 7 :-

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 07.04.2014 ALONG WITH POSTAL ACKNOWLEDGEMENT

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EXHIBIT P2 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED MAY 7 2014 ALONG WITH THE MEMO OF CHARGES ISSUED TO THE WORKMEN ALONG WITH THE POSTAL ACKNOWLEDGEMENT

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EXHIBIT P3	A TRUE COPY OF THE ENQUIRY REPORT DATED DECEMBER
	10, 2014 ISSUED BY THE ADVOCATE JAGAL BOSE

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EXHIBIT P4 A TRUE COPY OF THE REPORT OF THE 2ND RESPONDENT DATED OCTOBER 9, 2014

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EXHIBIT P5	A TRUE COPY OF THE GOVERNMENT ORDER DATED
	NOVEMBER 20, 2014 ISSUED BY THE 1ST RESPONDENT
RESPONDENTS'	EXHIBITS:

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EXHIBIT R4(a) : TRUE COPY OF THE LETTER DATED 27.1.2015 ISSUED BY THE COMPETENT AUTHORITY OF THE PETITIONER.

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//TRUE COPY//

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P.A. TO JUDGE

Kairali Ayurvedic Health Resorts (Pvt) Ltd. v. State of Kerala

Case brief

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Kairali Ayurvedic Health Resorts (Pvt) Ltd. v. State of Kerala

Case brief

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