Disposed

Anulal O., v. the Union of India

Kerala HC27 May 2019WP(C)/9421/2019

Case brief

AI extract

What is this about?

In this writ petition, a Junior Customer Agent challenged an order de-rostering him from duties for alleged misconduct. The Court did not adjudicate the merits but directed the company to decide on wage payment from the order date till a final decision, to prevent idle bench sitting.

What did the court decide?

Direction to the fourth respondent to take a final decision on the petition within one week and pay wages from the date of the impugned order till the final decision.

Anulal O., Vs the Union of India — Service and Employment | 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 MR.JUSTICE S.V.BHATTI

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MONDAY, THE 27TH DAY OF MAY 2019 / 6TH JYAISHTA, 1941

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WP(C).No. 9421 of 2019

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PETITIONER/S:

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ANULAL O., AGED 27 YEARS S/O.OMANAKUTTAN, WORKING AS JUNIOR CUSTOMER AGENT IN AIATSL COMPANY, RESIDING AT VALAVILKIZHAKKATHIL, PUTHENTHURA P.O., NEENDAKARA, KOLLAM, PIN - 691 582.

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BY ADVS. SRI.C.S.AJITH PRAKASH SMT.T.N.SREEKALA SRI.A.TJOSE SRI.FRANKLIN ARACKAL SRI.M.B.SOORI SRI.PAUL C THOMAS SRI.P.D.JAYAN MON SRI.T.K.DEVARAJAN

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RESPONDENT/S:

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1 THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF LABOUR AND EMPLOYMENT, GOVERNMENT OF INDIA, SHRAM SHAKTI BHAWAN, RAFI MARG, NEW DELHI, PIN - 110 001.

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2 THE CHAIRMAN AND MANAGING DIRECTOR, AIR INDIA LTD., AIRLINES HOUSE NO.113, GURUDWARA RAKABGANJ ROAD, NEW DELHI - 110 001, REPRESENTED BY ITS MANAGING DIRECTOR.

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3 THE CHAIRMAN AND MANAGING DIRECTOR, M/S.AIR INDIA AIR TRANSPORT SERVICES LTD. (AIATSL), AIRLINES HOUSE NO.113, GURUDWARA RAKABGUNJ ROAD, NEW DELHI - 110 001.

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W.P.(C) No. 9421/2019

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4 M/S.AIR INDIA AIR TRANSPORT SERVICES LTD. (AIATSL), AIRLINES HOUSE NO.113, GURUDWARA RAKABGUNJ ROAD, NEW DELHI - 110 001, REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR.

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5 THE TERMINAL MANAGER, AIR INDIA AIR TRANSPORT SERVICES LTD., GSD MAINTENANCE HANGAR, COCHIN INTERNATIONAL AIRPORT POST, NEDUMBASSERY, KOCHI - 683 111.

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6 P.THAMILARASU, TERMINAL MANAGER - AIR INDIA/AIATSL, NODAL OFFICER-AIATSL, INCHARGE- AISTSL, AIR INDIA AIR TRANSPORT SERVICES LTD/AIR INDIA, AIR LINE OFFICES BUILDING, COCHIN INTERNATIONAL AIRPORT POST, NEDUMBASSERY, KOCHI - 683 111.

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BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.JOSON MANAVALAN SRI.K.B.SAJAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM

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OTHER PRESENT:

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ADV JAI MOHAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No. 9421/2019

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J U D G M E N T

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Heard Sri Ajith Prakash for the petitioner and Sri Jai

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Mohan, holding for Sri M. Gopikrishna Nambiar, counsel for the respondents.

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The petitioner as per Ext.P3 is contracted to work as Junior Customer Agent in the fourth respondent. The petitioner challenges Ext.P10 order dated 01.02.2019 derostering petitioner as illegal, the order suffers from the violation of principles of natural justice and amounts to denying the petitioner the contract appointment granted by Ext.P3 without just cause or reason. After referring to a few circumstances and treating the commissions noted by the fourth respondent as constituting misconduct, the fourth respondent through Ext.P10 de-rostered the petitioner from duties till further orders. This Court, with a view to briefly state the controversy between the parties, excerpts Ext.P10 for

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appreciation and immediate reference.

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“You had sent an email to [email protected] and [email protected] on 30.01.2019 at 2.55 PM stating that you require a name correction in ESI records. Since physical documents are required, you had been asked to meet the undersigned and you met the undersigned around 14.30 hours at International Terminal T3, Terminal in Charge Room. Mr.Santhosh, Duty Officer and Ms. Smitha Susan, JEP were present in the room. When I started explaining ESI procedures, you started recording my conversation in your mobile phone. After I told you 2 times, don't record, you stopped recording. After that I politely told you that I will solve your grievance and give the necessary ESI physical documents. You went out and again came inside and asked irrelevant questions and behaved unruly to the undersigned. The above comes under misconduct and gross insubordination. In this connection you are hereby derostered from your duties till further orders.”

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(emphasis supplied)

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The petitioner challenges Ext.P10 as completely

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illegal, contrary to Ext.P3 contract appointment and that deroster, through which the petitioner is prevented from

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discharging duties as Junior Customer Agent, neither is contemplated by Ext.P3 contract appointment nor that service regulations applicable to the case on hand justify de-rostering the petitioner from duties. In other words, firstly there is no enquiry pending against petitioner, secondly Ext.P3 virtually amounts to physically preventing the petitioner from working as Junior Customer Agent in fourth respondent Company. The petitioner therefore prays for setting aside Ext.P10 and for the payment of wages etc.

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The fourth respondent filed counter and opposes the writ prayer in all fours. The gist of the objections raised by the fourth respondent firstly is that the writ is not maintainable under Article 226 of the Constitution of India as none of the fundamental rights has been affected. It is submitted that the dispute comes under the Industrial Disputes Act and can be adjudicated before the Central Government Industrial Tribunal/

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Labour Court. He also opposes the writ petition contending that the petitioner is employed only on temporary contractual basis. The de-rostering is only a temporary suspension and not termination of services for the misconduct committed by the petitioner.

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The learned counsel for the petitioner contends that Ext.P10 is an order in the nature of imposing punishment on the petitioner and admittedly as on date the fourth respondent has not issued a charge memo or atleast shows inclination to enquire into the alleged misconduct or take a decision as is appropriate basing on the materials gathered in the course of enquiry. While adverting to the procedural omission in this behalf an attempt is also made by the counsel for the petitioner to convince this Court that the petitioner is completely innocent of the averments noted in Ext.P10 and indulgence of this Court is warranted. Therefore, he prays for setting aside

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Ext.P10, direct the fourth respondent to pay wages together with ancillary reliefs to which the petitioner is entitled in law.

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Sri Jai Mohan, counsel for the fourth respondent objects to the maintainability of writ petition under Article 226 of the Constitution particularly for the reliefs made in the writ petition and from any standard even assuming that, without admitting the same, the fourth respondent either through its actions or omissions denied to petitioner the opportunity of working and wages are not paid regularly, these commissions or omissions are matters to be enquired by a Labour Court in a dispute raised by the petitioner. The petitioner, therefore, ought to raise an industrial dispute and workout all the prayers available in this behalf. Without prejudice to the said contention it is alternatively argued that the substantial challenge in the writ petition is against de-rostering the petitioner from duties and de-rostering is not punishment or

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could be treated as severing the relationship under Ext.P3.

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It is further contended that the word 'de-rostering' employed in Ext.P10 in the facts and circumstances of the case will have to be understood as keeping the employee under suspension but not anything else . The petitioner since does not have the status of regular employment with the fourth respondent Company, the currency of Ext.P3 is still valid, a decision not to assign duty to petitioner is taken by fourth respondent and the decision is expressed in this fashion. The word 'de-roster' will have to be understood as a decision taken by the fourth respondent not to allot or assign work to the petitioner. The counsel for the fourth respondent fairly states that the fourth respondent, while taking note of the alleged misconduct referred to in Ext.P10, is keeping all options open in this behalf and could take a decision expeditiously. It is stated that the fourth respondent looks into the totality of

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circumstances and will take decision expeditiously.

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The contention of fourth respondent if finds

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acceptance of this Court then the next question would be whether the fourth respondent on one hand can de-roster the petitioner from assigning any duty and at the same time not pay wage to the petitioner at all. The record and particularly the stand taken in the counter affidavit do not show authority to deny wages to petitioner.

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The present writ petition reminds this Court the famous drama of William Shakespeare 'Much Ado About Nothing'. The petitioner by relying on the word 'de-roster' argues that Ext.P10 at the outset has the effect of denying not only employment but also wages, and is completely without jurisdiction, illegal and for all purposes denying livelihood to the petitioner. On the other hand, the fourth respondent

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explains that in the circumstances of the present case 'derostering' has limited connotation meaning that for the present fourth respondent does not want to entrust responsibility or duty to petitioner. In other words, the decision now taken through Ext.P10 is nothing but idle bench sitting by the petitioner. This Court if accepts the submission of fourth respondent that Ext.P10 in effect is suspension of petitioner from entrustment of work, still denial of wage to petitioner is unsustainable in law or in peculiar circumstances of the case.

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Therefore, the alleged misconduct is considered and examined by the fourth respondent, this Court is not examining the merits pleaded by the petitioner or the fourth respondent. But in the fitness of things and to meet the ends of justice this Court directs fourth respondent to take a decision on payment of wage to petitioner from the date of Ext.P10 till a decision is taken and pay the amounts to which the petitioner is entitled to

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without further loss of time. The fourth respondent concludes

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Ext.P10 and takes a final decision at the earliest so that idle bench sitting is avoided at the expense of the resources of the fourth respondent-Company.

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The writ petition is disposed of in the aforesaid view, all other aspects are not considered much less a view is expressed. The petitioner is given liberty to represent to fourth respondent by enclosing a copy of this judgment within one week from today and a decision on that representation is taken by fourth respondent within one week thereafter and amount payable to petitioner is paid.

Sd/-

S.V.BHATTI

JUDGE

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W.P.(C) No. 9421/2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	A TRUE COPY OF THE CERTIFICATE ISSUED BY THE DIRECTOR OF MOUNT AIR SKY ACADEMY PRIVATE LTD., DATED 15/12/2015.
EXHIBIT P2	A TRUE COPY OF THE INTERNSHIP AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE MANAGER HR, DELHI INTERNATIONAL AIRPORT DATED 20/02/2015.
EXHIBIT P3	A TRUE COPY OF THE CONTRACT APPOINTMENT DOCUMENT DATED 17/04/2017.
EXHIBIT P4	A TRUE COPY OF THE AIRPORT ENTRY PERMIT (AEP) ISSUED TO THE PETITIONER.
EXHIBIT P5	A TRUE COPY OF THE DISABILITY CERTIFICATE OF THE PETITIONER'S FATHER ISSUED BY THE DISTRICT HOSPITAL, KOLLAM.
EXHIBIT P6	A TRUE COPY OF THE DISABILITY CERTIFICATE OF THE PETITIONER'S MOTHER ISSUED BY THE DISTRICT HOSPITAL, KOLLAM.
EXHIBIT P7	A TRUE COPY OF THE MEDICAL ATTENDANCE CARD OF THE ESI CORPORATION.
EXHIBIT P8	A TRUE COPY OF THE RELEVANT PAGE OF REGISTRATION DETAILS OF THE ESI CORPORATION.
EXHIBIT P9	A HARD COPY OF THE E-MAIL COMMUNICATION SENT ON 30/01/2019.
EXHIBIT P10	A TRUE COPY OF THE LETTER NO.COK/AIATSL/02- 12/567 DATED 01/02/2019 ISSUED BY THE 6TH RESPONDENT.

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EXHIBIT P11 A TRUE COPY OF THE LETTER DATED 21/02/2019 ATTEMPTED TO BE SERVED ON THE 6TH RESPONDENT. EXHIBIT P12 A TRUE COPY OF THE REQUEST LETTER AND ITS COVERING E-MAIL COMMUNICATION. EXHIBIT P13 A TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.21571/2015. EXHIBIT P14 A TRUE COPY OF THE FINAL JUDGMENT DATED 22/03/2017 IN W.P.(C) NO.21571/2015. EXHIBIT P15 A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE HR MANAGER, IN THE HEAD QUARTERS WITH COPY TO THE TERMINAL MANAGER DATED 08.05.2019

Anulal O., v. the Union of India

Case brief

What is this about?

What did the court decide?

Anulal O., v. the Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

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