Partly allowed

Kerala State Beverages (Manufacturing and Marketing) Corporation v. Kerala State Beverages Corporation Staff Organization, Intuc.

Kerala HC6 Mar 2024WA/1790/2022

Case brief

AI extract

What is this about?

Writ appeal against directions to conclude conciliation proceedings over regularization of security guards engaged via a contractor. The Division Bench upheld the conciliation directions but vacated the status quo order, finding no material showing employment by the Corporation under clause 7 of the agreement.

What did the court decide?

Status quo order vacated; other Single Bench directions upheld; Corporation at liberty to plead maintainability before Industrial Tribunal.

Kerala State Beverages (Manufacturing and… — Labour and Industrial Disputes | Kerala HC (2024)

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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 AMIT RAWAL

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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WEDNESDAY, THE 6^TH DAY OF MARCH 2024 / 16TH PHALGUNA, 1945

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WA NO. 1790 OF 2022

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AGAINST THE JUDGMENT DATED 20.09.2022 IN WP(C) NO.982 OF 2016 OF HIGH COURT OF KERALA

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APPELLANT/4TH RESPONDENT IN THE WPC:

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KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LTD, REPRESENTED BY ITS MANAGING DIRECTOR, P.B. NO. 2263, SASTHAKRIPA OFFICE COMPLEX, SASTHAMANGALAM, THIRUVANANTHAPURAM. NEW ADDRESS. BEVCO TOWER, VIKAS BHAVAN P.O., PALAYAM,THIRUVANANTHAPURAM., PIN - 695033 BY ADV NAVEEN.T

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RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 IN THE WPC:

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1 KERALA STATE BEVERAGES CORPORATION STAFF ORGANIZATION, (INTUC).REG. NO. 481/86, HEAD OFFICE, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, BIJU M.J., AGED 52 YEARS, SON OF M.I. JOY, MEKKATTU HOUSE, PARAVATTAM, MANIYAR P.O., PUNALUR., PIN - 691333

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2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION, SAINIK WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001

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3 THE LABOUR COMMISSIONER OFFICE OF THE LABOUR COMMISSIONER, THOZHIL BHAVAN, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM., PIN - 695033

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4 THE ADDITIONAL LABOUR COMMISSIONER IR. OFFICE OF THE LABOUR COMMISSIONER, THOZHIL BHAVAN, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM., PIN - 695033 BY ADVS. Ashok Shenoy B P.S.GIREESH(K/341/2013)

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OTHER PRESENT:

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SR GP SRI BIMAL K NATH

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A No.1790 of 2022

JUDGMENT

AMIT RAWAL, J.

Present appeal is directed against the judgment of the Single Bench whereby the claim of the writ petitioner has been allowed by issuing direction to the Labour Commissioner for determination of the claim with

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regard to the regularization of service in a time line manner with continuation of status quo granted on 12.01.2016 till such time.

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Succinctly the facts in brief are that the Kerala State Beverages Corporation for the purpose of providing security guards (unarmed) at the head office and FL-9 warehouses has been engaging the services of the security guards and for that purpose, causing tender for inviting bids from various security agencies. After completing the process of tender, an agreement Ext.R4(a) dated 16.07.2012, containing terms and conditions was executed. Clause (7) of the said agreement postulates that the security personnel provided by the Security agency would be the employees of the security agency. During the currency of the agreement, Government of Kerala came out with a circular dated 1^st October 2012 that henceforth onwards Beverages Corporation shall employ security guards from Kerala State Ex-servicemen Development and Rehabilitation Corporation (KEXCON) constituted by the Government for the welfare and

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W.A No.1790 of 2022

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rehabilitation of the Ex-Servicemen and their dependents. Apprehending discontinuation respondents-writ petitioners approached this Court vide two writ petitions, W.P(C) Nos.1437/2013 and 8023/2015 by claiming following reliefs were sought in W.P(C) No.8023/2015:

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i) To call for the records leading upto Exhibits P1 and P2 and quash the same by the issuance of a Writ of Certiorari or any other appropriate writ, order or direction.

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ii)To declare that the Government of Kerala have no authority to issue any direction to the State owned Corporation like the Kerala State Beverages Corporation not to enter into contract by the Corporation itself and any person.

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iii)To declare that the decision to terminate the services of the members of the 1st petitioner association including the 2nd petitioner from the Kerala State Beverages Corporation as Security personnel is violative of Articles 14, 16, 19 and 21 of the Constitution of India

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iv) To issue a Writ of Mandamus forbearing the 2nd respondent Corporation from terminating the services of the members of the 1st petitioner association including the 2nd petitioner as Security Personnel either in pursuance to

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Exhibits P1 and P2 or otherwise.

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v)To issue such other writs, orders or directions as this

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Hon'ble Court may deem fit and proper in the circumstances of the case.

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On 23.03.2015, an interim order was passed which was modified on 10.04.2015 and permitted to continue and discharge the duties in terms of the interim order. Both the aforementioned writ petitions came to be disposed by rendering infructuous owing to the expiry of the agreement. The Single Bench passed the following order in W.P© No.8023/2015 on 08.09.2015.

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“The petitioners a Trade Union and a member of the Trade Union is before this Court challenging Ext.P1. The petitioners are said to be aggrieved by the decision of the Government at Ext.P1 since according to them it would result in cancellation of the contract given to one M/s Force India Management Services & Securities. It is to be noticed that the said organisation is not before this Court and the trade Union has merely come up before this Court challenging Ext.P1 apprehending termination. The learned Standing Counsel for the Corporation submits that the tender granted to M/s Force India Management Services & Securities expired on 16.07.2015. In such circumstance, nothing survives in the writ petition. Writ petition would stand dismissed.”

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W.A No.1790 of 2022

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On the same day, another Single Bench of this Court closed the

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other writ petition number W.P(C) No. 1437/2013 vide order extracted

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herein below:

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“The writ petition is filed challenging a contract. In view of the fact that the contract period is already over, this Court is of the view that, no further grievance exists in this writ petition and accordingly it is closed, leaving open the petitioner to raise all the issue for other purpose.”

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On 16^th September, 2015, the respondent employees of the Organisation submitted a complaint before the Labour Court, seeking regularization of their services on the premise that they have been in the employment of Kerala State Beverages Corporation for a number of years; the only difference is that the agency which has been successful in the tender process have been retaining the services, thus, there was a direct relationship of employer and employee and their services were liable to be regularized. This Court on 12.01.2016 in W.P(C) No. 982/2016 granted status quo.

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Appellant Kerala State Beverages Corporation countered certain pleas by denying the relationship of employer and employee, placed on record the agreement dated 16.07.2012 containing certain conditions reflecting that the members of the security guards provided by the

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security agencies shall be the employees of security agencies and not that of the Corporation, that is, the Kerala State Beverages Corporation. It was candidly averred that they could not assume character of regular employees of the Corporation for, they were engaged by security service provider on the basis of the agreement which was cancelled in the light of the circular, but were retained under stay and on expiry of its validity, the writ petition was closed and interim order stood vacated.

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The interim order passed in the earlier round of litigation, in W.P(C).1437/2013), was assailed before the Division Bench of this Court in Writ Appeal No.435/2014 whereby liberty was granted to the Corporation to exercise power under clause 18 of the agreement to terminate the agreement.

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Learned Single Judge noticing the aforementioned contentions allowed the writ petition in the following manner:

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“In view of the facts and circumstances discussed above, the writ petitions are disposed of with the following directions:

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(1). It is declared that a conciliation proceeding under the Industrial Disputes Act, 1947 is pending WP(C)Nos.982 and 1002 of 2016, 3038/2018 and 4004/2019 26 before the conciliation officer pursuant to Ext. P4 in W.P (C) No. 982 of 2016 and the same has commenced w.e.f the date specified

W.A No.1790 of 2022

therein.

(2). The Additional Labour Commissioner (IR), Office of the Labour Commissioner, Thiruvananthapuram shall conclude the conciliation proceedings pursuant to Ext. P4 in W.P (C) No. 982 of 2016 within a period of three months from the date of receipt of a certified copy of this judgment and the order of status quo passed by this Court in W.P.(C) No. 982 of 2016 will continue during the pendency of the conciliation proceedings.

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(3). Ext. P14 in W.P. (C) No. 3038 of 2018 is set aside and the Managing Director, KSBC is directed to pass fresh orders on Ext. P11 representation therein dated 01.08.2017 after hearing the petitioner Union, Force India Management Services and Securities and any other persons likely to be affected by the orders to be passed by the KSBC. The KSBC shall also consider the applicability of Ext.P7 notification to the security guards deployed in FL-9 warehouses and the head office of KSBC. Along with the same, the Managing Director, KSBC shall take up for consideration Exts. P3 to P6 representations of the security agency in W.P. (C) No. 4004 of 2019 and pass appropriate orders, in accordance with law. Orders as above shall be passed and communicated to the parties by KSBC within a period of two months from today.”

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Learned Counsel appearing on behalf of the Corporation submitted

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that the claim of the Organisation before the Labour Court was not sustainable in the absence of employer-employee relationship. Be that as

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it may. It would be in the domain of the Labour Court to decide the said claim but the status quo order passed in the writ petition created a very anomalous situation for, the employees were never in the employment at the time when status quo order was passed on 23.03.2015 as the agreement had come to an end in July 2015 for, the writ petition wherein the status quo granted, was dismissed on 08.09.2015. Status quo would be construed as it stood on the day when the previous writ petition was disposed of. Appellant has not placed on record any relevant material to substantiate the relationship of employer – employee, either with the security agency or with the Kerala State Beverages Corporation. Therefore the direction No.2 in the judgment of the single Bench, ordering status quo is required to be vacated. It would create chaotic impression between the set of the employees who are discharging the duties of security guards or providing security cover to the Head Office at warehouses much less there can be a law and order situation. 10. On the other hand, learned Counsel Sri.B Ashok Shenoy, on behalf of the respondents, employees/Staff organisation supported the findings and submitted that the appellant Corporation should not have aggrieved of the innocuous direction as it is the Labour Commissioner who had been directed to conclude the conciliation proceedings within a period of

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three months and till such time status quo order has been passed. There was no grievance against the status quo order from 2016 to 2022, till the disposal of the writ petition and prayed for dismissal of the appeal.

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We have heard the learned Counsel for the parties and appraised the paper book.

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Clause 7 of the agreement, on perusal, leaves no manner of doubt that there was no relationship of employer and employee between the appellant Corporation and the respondents. There may have been a truthfulness in the assertion with regard to continuous service, for, the employees had been on the payroll but that cannot be a ground for seeking regularization. We would not be commenting upon the claim of regularization as the matter is pending before the Labour Cour but the fact remains that the status quo order could not have been permitted to continue in the absence of any material prima facie, or on record regarding the continuation of the services under the employment of the appellant. Moreover, respondents have not placed on record any material that during all such period, they have been in employment and getting the salary from the appellant.

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Thus while upholding the entire directions contained in the judgment under challenge except with a slight modification that the

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status quo order shall not continue to exist, it is ordered that the status order is vacated, writ appeal stands disposed off. Appellant Corporation shall be at liberty to take all the pleas in pending conciliation proceedings regarding the maintainability before the Industrial Tribunal Thiruvananthapuram.

Sd/-

AMIT RAWAL

JUDGE

Sd/-

C.S. SUDHA

JUDGE