Fedex Express Services (India)Pvt.Ltd Vs Smt.Shiny.P.a.

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2025:KER:18808

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WP(C) Nos.21747 & 25379 of 2015

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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 P.M.MANOJ

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MONDAY, THE 3RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946

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WP(C) NO. 21747 OF 2015

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AGAINST THE ORDER/JUDGMENT DATED 25.03.2015 IN ID

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NO.1 OF 2013 OF LABOUR COURT, ERNAKULAM

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PETITIONER:

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FEDEX EXPRESS SERVICES (INDIA)PVT.LTD
(NOW KNOWN FEDEX EXPRESS TRANSPORTATION & SUPPLY
CHAIN SERVICES,INDIA PVT LTD)39/4706A-PRAKASH
COTTAGE, SREEKANDATH ROAD, RAVIPURAM, KOCHI 16.
REPRESENTED BY ITS MANAGER, MR JIBU K JOHN

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BY ADVS. SRI.P.V.VINOD (BENGALAM)
SMT.D.REETHA
SRI.MANU SEBASTIAN
DINESH P.V. (SR.)(D/258-A/1994)

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RESPONDENTS:

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1 SMT.SHINY.P.A. PALLIPARAMBIL HOUSE,ELAMAKKARA P O, KOCHI 26

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2 LABOUR COURT, ERNAKULAM, KOCHI 18

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BY ADVS. SRI.A.JAYASANKAR
SRI.MANU GOVIND
SRI.C.V.MANUVILSAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03.03.2025, ALONG WITH WP(C).25379/2015, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) Nos.21747 & 25379 of 2015

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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 P.M.MANOJ

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MONDAY, THE 3^RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946

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WP(C) NO. 25379 OF 2015

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AGAINST THE ORDER/JUDGMENT DATED 25.03.2015 IN ID

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NO.1 OF 2013 OF LABOUR COURT, ERNAKULAM

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PETITIONER:

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SHINY P.A., AGED 48 YEARS
PALAZHIYIL HOUSE, EDAPPALLY P O, KOCHI 682025

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BY ADVS. SRI.A.JAYASANKAR
SRI.MANU GOVIND
SRI.C.V.MANUVILSAN

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RESPONDENTS:

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1 LABOUR COURT ERNAKULAM 682031

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2FEDEX EXPRESS SERVICES
(INDIA)PVT LTD, 39/4706 A , PRAKASH COTTAGE,
SREEKANDATH ROAD, RAVIPURAM KOCHI 682016

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BY ADVS. SRI.P.V.VINOD (BENGALAM)
SMT.D.REETHA
SRI.MANU SEBASTIAN
DINESH P.V.(D/258-A/1994)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03.03.2025, ALONG WITH WP(C).21747/2015, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) Nos.21747 & 25379 of 2015

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JUDGMENT

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Dated this the 3rd day of March, 2025

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The captioned writ petitions are preferred challenging the award dated 25.03.2015 in Industrial Dispute No.1 of 2013 passed by the 2^nd respondent.

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For the purpose of convenience, the status of the parties shall be referred to as described in WP(C) No.21747 of 2015.

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The issue involved is that the 1^st respondent in WP(C) No.21747 of 2015, who is the petitioner in WP(C) No.25379 of 2015, was the Sales Executive of the FedEx Express Services (India) Pvt. Ltd. She was terminated from service as she failed to achieve the target allotted to her during the month of January to March 2012. The Labour Court passed the award with a direction for reinstatement with 50% back wages and consequential benefits. The employer challenges the reinstatement whereas the employee challenges granting of 50% of back wages instead of 100%.

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Short facts of the case are as follows:

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WP(C) Nos.21747 & 25379 of 2015

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Originally the 1^st respondent was serving in M/s. Prakash Air Prides Pvt. Ltd. She was designated as Sales Executive and posted at Regional Office at Ravipuram, Kochi. Later, M/s. Prakash Air Prides Pvt. Ltd. was takenover by FedEx. Since the performance level of the 1^st respondent was alleged to be not upto the mark, a performance appraisal was conducted by assigning certain targets. However, she was unable to achieve the target while her counterparts achieved the same in consecutive years. According to the petitioner, all the possible steps have been taken by them by giving her an opportunity to improve her performance. Unfortunately, she couldn’t achieve the target despite several opportunities being given. The period of assessment was between January and March 2012. Thereafter, she was issued with a warning memo. She submitted her explanation and the management issued show cause notice. That was also replied. Since the reply was not satisfactory, charge sheet was issued.

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An enquiry was commenced on 26.04.2012 by appointing a lady advocate, which was concluded on 27.04.2012. The enquiry officer submitted the enquiry report to

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WP(C) Nos.21747 & 25379 of 2015

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the management. The management called for the explanation from the 1^st respondent. Since the explanation offered by the 1^st respondent was not satisfactory, the management issued termination order on 10.05.2012. The termination was under challenge before the Labour Court as ID No.1 of 2013.

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By award dated 25.03.2015, the Labour Court set aside the enquiry report and found that the denial of employment to the workman by the management was illegal and unjustifiable and the management was directed to reinstate the workman with 50% of back wages and continuity of service. Being aggrieved by that the employer – petitioner herein has preferred WP(C) No.21747 of 2015 and the workman - 1^st respondent has preferred WP(C) No.25379 of 2015.

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The jurisdiction of this Court to examine the award passed by the Labour Court is (1) whether there is any jurisdictional error, (2) Whether there is any violation of Principles of natural justice (3) whether there is any patent illegality or perverse findings (4) whether there is any error of law apparent on the face of record (5) Whether there is contravention of constitutional provisions or public policy (6)

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WP(C) Nos.21747 & 25379 of 2015

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whether there is malafides or fraud (7) whether there is non application of mind.

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The interference envisaged by exercising jurisdiction under Article 226 of the Constitution of India is sparingly used only when the award suffers from one or more of the above mentioned defects.

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In the case on hand, going by the pleadings in both the writ petitions, I do not find any pleadings with respect to (1) the jurisdictional error, (2) violation of principles of natural justice, (3) patent illegality or perverse findings (4) error of law apparent on the face of record (5) contravention of constitutional provisions or public policy (6) malafides or fraud. However, the only contention is with respect to the non application of mind and in oral submissions, the learned counsel for the petitioner contended that the findings in the award of the Labour Court are perverse.

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For the purpose of examining the non application of mind, the decision taken by the Labour Court has to be considered at length. Similarly, to enter into a finding that the award is perverse, the findings of the Labour Court should be on

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WP(C) Nos.21747 & 25379 of 2015

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non evidences, misleading evidences or ignoring material facts. In the case on hand, the Labour Court has meticulously examined the documents produced before it and examined the witnesses on the side of the management as well as the workman. On the side of the management, two persons were examined. On the side of the workman, only the workman was examined. Exts.M1, M1(a) to M1(m) were marked. The workman has not marked any document. To a question, the learned counsel for the respondent submitted that the workman need not produce any fresh document, as she is relying on the documents produced by the management.

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The Labour Court has meticulously examined the procedures followed in the domestic enquiry conducted by the management. The Labour Court also examined the allegation with respect to the lack of performance by the 1^st respondent and it was found that the disciplinary proceedings were initiated merely on the basis of workman’s failure to achieve the target fixed by the management. In that regard, they reproduced the target given to the workman. On finding that the workman miserably failed to achieve the target, disciplinary proceedings

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WP(C) Nos.21747 & 25379 of 2015

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were initiated by appointing an enquiry officer. Enquiry officer conducted the enquiry. The Labour Court has gone through the process of enquiry and reassessed the documents produced before it as well as the enquiry authority and entered into a finding that from the evidences tendered by the management it appears that they fixed a target arbitrarily and in the performance assessment and improvement review meeting they found that the performance of the workman is not satisfactory.

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Above all, nothing is seen produced by the management to take the Court into confidence that the non attainment of the target fixed by the establishment is a cause sufficient to subject the workman to a domestic enquiry for misconduct and to show exit on the basis of that enquiry. I do not find any non application of mind in this finding, which appears to be quite reasonable. On such finding, the conclusion of the Labour Court that the denial of employment of a workman by the management was illegal and unjustifiable. Hence, there is no sufficient ground for interference with the award passed by the Labour Court to the extent it directs reinstatement of the workman and the finding that the domestic enquiry conducted

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WP(C) Nos.21747 & 25379 of 2015

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by the management was in gross violation of principles of natural justice and fairness.

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Similarly, the Labour Court entered into a finding that the management has not brought in any evidence to show that the workman was gainfully employed. Moreover, the workman deposed that she has not been gainfully engaged elsewhere. Therefore, the Labour Court concluded that the workman is entitled to back wages as there is denial of employment by the management without any reasonable cause. I do not find any unjustifiable reason in awarding back wages to the employee on the background that the Labour Court entered into a finding that the management denied the employment arbitrarily and illegally.

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On a subsequent development, due to the pendency of the litigation before this Court, an application under Section

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17B of the ID Act was preferred before this Court on a finding that the petitioner in the said petition remains unemployed and is waiting for reinstatement. That petition was allowed. However, in defence to the petition, the management has produced certain photographs whereby they tried to establish

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WP(C) Nos.21747 & 25379 of 2015

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that the petitioner in Section 17B petition is gainfully employed in DTDC. The evidence to prove such employment was the production of Exts.P17 to P20 photographs, whereby stated that two mobile numbers, provided in the Advertisement Board in DTDC are the mobile phone numbers used by the workman and two photographs, which were taken in the background of the posters of DTDC courier services and the profile picture of the facebook has been brought in to prove that she is gainfully employed in DTDC.

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Going by those evidences, I am not convinced that the 1^st respondent is gainfully employed and hence, that contentions cannot be countenanced and accordingly rejected. However, on practical side, accepting the contention that the petitioner herein stopped their operation within the jurisdiction of the State of Kerala, the implementation of the award to its fullest extent is not workable. Hence, the only interference made to that extent is the reinstatement of the workman to the petitioner - establishment is restricted to the date on which they stopped the operation within the jurisdiction of State of Kerala and the workman is liable to get back wages only upto that date.

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WP(C) Nos.21747 & 25379 of 2015

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Only to that extent, the impugned award is modified. Writ petition No.21747 of 2015 is disposed of accordingly.

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The prayers sought for in WP(C) No.25739 of 2015

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cannot be allowed in the aforementioned background and hence, the same is dismissed.

sd/-

P.M.MANOJ JUDGE

das

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WP(C) Nos.21747 & 25379 of 2015

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APPENDIX OF WP(C) 25379/2015

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PETITIONER EXHIBITS

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P1:-COPY OF THE AWARD DTD 25/3/2015 IN ID NO
1/2013 OF THE LABOUR COURT, ERNAKULAM

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WP(C) Nos.21747 & 25379 of 2015

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APPENDIX OF WP(C) 21747/2015

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PETITIONER EXHIBITS

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`EXHIBIT P1` `EXHIBIT P2`	`TRUE COPY OF THE ACCOUNT EXECUTIVE` `PERFORMANCE EXPECTATIONS FROM DULY SIGNED` `BY THE IST RESPONDENT IN 2010 DTD 27/8/2010` `TRUE COPY OF LETER DTD 21/7/2011 ON` `PERFORMANCE IMPROVEMENT OF IST RESPONDENT`
`EXHIBIT P3`	`TRUE COPY OF CALCULATIONS OF OVERALL` `PERFORMANCE REVIEW RATING DTD 25/6/2010 OF` `THE IS RESPONDENT`
`EXHIBIT P4`	`TRUE COPY OF LETTER DTD 23/5/2011 ISSUED TO` `IST RESPONDENT ON PERFORMANCE ASSESSMENT` `AND IMPROVEMENT REVIEW MEETING`
`EXHIBIT P5`	`TRUE COPY OF WARNING LETTER DTD 22/7/2011` `ISSUED TO THE IST RESPONDENT`
`EXHIBIT P6`	`TRUE COPY OF LETTER DTD 12/10/2011 ISSUED` `TO THE IST RESPONDENT ON PERFORMANCE` `ASSESSMENT AND IMPROVEMENT REVIEW MEETING`
`EXHIBIT P7`	`TRUE COPY OF WARNING LETTER DTD 15/10/2011` `WAS ISSUED TO THE IST RESPONDENT`
`EXHIBIT P8`	`TRUE COPY OF THE AN EMAIL SENT TO THE IST` `RESPONDENT ON 18/10/2011 DETAILING THE` `DISCUSSION AND RESPONSE DURING THE COURSE` `OF PERFORMANCE REVIEW MEETING ON 15/10/2011`
`EXHIBIT P9`	`TRUE COPY OF WARNING LETTER DTD 10/1/2012` `WAS ISSUED TO THE IST RESPONDENT`
`EXHIBIT P10`	`TRUE COPY OF A REPLY TO THE WARNING LETTER` `DTD 22/1/2012 BY THE IST RESPONDENT`
`EXHIBIT P11`	`TRUE COPY OF SHOW CAUSE NOTICE DTD` `23/2/2012 ISSUED TO THE IST RESPONDENT`
`EXHIBIT P12`	`TRUE COPY OF REPLY DTD 24/2/2012 BY THE IST`

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WP(C) Nos.21747 & 25379 of 2015

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RESPONDENT TO THE SHOW CAUSE NOTICE

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EXHIBIT P13TRUE COPY OF CHARGE SHEET DTD 23/4/2012
ISSUED TO THE IST RESPONDENT

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EXHIBIT P14TRUE COPY OF PETITTION DTD 29/12/2012 FILED
BY THE IST RESPONDENT BEFORE THE 2ND
RESPONDENT ID NO 1/2013

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EXHIBIT P15TRUE COPY OF WRITTEN STATEMENT DTD
11/6/2013 FILED BY THE PETITIONER IN ID NO
12013

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EXHIBIT P16TRUE COPY OF AWARD DTD 25/3/2015 BY THE 2ND
RESPONDENT IN ID NO 1/2013

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EXHIBITS P17A COPY OF THE ENQUIRY REPORT ON 23.04.2012

Fedex Express Services (India)Pvt.Ltd v. Smt.Shiny.P.a.

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Fedex Express Services (India)Pvt.Ltd v. Smt.Shiny.P.a.

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