T.R.Rajesh vs Malabar Cements Ltd
2021 Latest Caselaw 15691 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
           THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
                         WP(C) NO. 16410 OF 2020
PETITIONERS:

    1      T.R.RAJESH
           FOREMAN (INSTRUMENTATION), M/S.MALABAR CEMENTS LTD.,
           WALAYAR, PALAKKAD-678624.

    2      MANOJ V.,
           FOREMAN (INSTRUMENTATION), M/S.MALABAR CEMENTS LTD.,
           WALAYAR, PALAKKAD-678624.

    3      K.K.JOSEPH,
           FOREMAN (MECHANICAL), M/S.MALABAR CEMENTS LTD.,
           WALAYAR, PALAKKAD-678624.

    4      T.S.SATHEESH KUMAR,
           FOREMAN (MECHANICAL), M/S.MALABAR CEMENTS LTD.,
           WALAYAR, PALAKKAD-678624.

    5      ANANDARAJ P.,
           FOREMAN (MECHANICAL), M/S.MALABAR CEMENTS LTD.,
           WALAYAR, PALAKKAD-678624.

           BY ADVS.
           N.SATHEESH
           PRIYA CAROL



RESPONDENTS:

    1      MALABAR CEMENTS LTD.
           REPRESENTED BY ITS MANAGING DIRECTOR, WALAYAR,
           PALAKKAD-678624.

    2      THE MANAGING DIRECTOR,
           M/S.MALABAR CEMENTS LTD., WALAYAR, PALAKKAD-678624.

    3      THE DEPUTY GENERAL MANAGER,
           M/S.MALABAR CEMENTS LTD., WALAYAR, PALAKKAD-678624.

    4      THE CHIEF MANAGER (P AND A),
           M/S.MALABAR CEMENTS LTD., WALAYAR, PALAKKAD-678624.
 WP(C) NO. 16410 OF 2020
                                2

    5     STATE OF KERALA,
          REPRESENTED BY PRINCIPAL SECRETARY TO INDUSTRIES
          DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT,
          THIRUVANANTHAPURAM.

    6     ADDL R6, VISHNUDAS.G,
          OVERSEER, M/S.MALABAR CEMENTS LTD,
          GEN.SECRETARY(INTUC), MALABAR CEMENTS EMPLOYEES
          ASSOCIATION, WALAYAR, PALAKKAD PIN-678 624
          ADDL R6 IMPLEADED AS PER ORDER DATED 04-11-2020 IN IA
          N0.2/2020 IN WP(C)16410/2020

    7     ADDL R7, MOHAMMED BASHEER C.O,
          HEAVY EQUIPMENT OPERATOR, M/S.MALABAR CEMENTS LTD.
          GENERAL SECRETARY, MCL EMPLOYEES ORGANIZATION (STU),
          WALAYAR, PALAKKAD DISTRICT.
          ADDL R7 IMPLEADED AS PER ORDER DATED 04-11-2020 IN IA
          1/2020 IN WP(C)16410/2020.

          BY ADVS.
          SMT.LATHA ANAND
          SRI.M.N.RADHAKRISHNA MENON
          SRI.K.R.PRAMOTH KUMAR
          SRI.SAJIKUMAR.K.K.
          SRI.N.SREEJITH (MAKALIYAM)




          SRI. SUNIL KUMAR KURIAKOSE - GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 16410 OF 2020
                                   3

                              JUDGMENT

The petitioners, who stated to have been working as

Foreman at the time when this writ petition was filed, impugns

Exts.P9 to P13 orders dated 08.08.2020, whereby the respondent

- M/s. Malabar Cements Ltd. (hereinafter referred to as the

"Company" for case) cancelled their engagement in such posts,

thus reverting them as Instrument Mechanics and such other,

which they were originally holding.

2. The petitioners' specific contention is that they were

engaged as Foreman Trainee for a period of two years in the year

2017, based on a Memorandum of Settlement entered by the

Company with their registered Trade Unions; but that after they

completed their period of training and that probation, instead of

absorbing them substantively, they have now been directed to be

reverted to their original positions. The petitioners, therefore,

assert that the impugned orders are wholly irregular and illegal

and consequently pray that the same be set aside by this Court. WP(C) NO. 16410 OF 2020

3. I have heard Sri.N.Satheesh - learned counsel

appearing for the petitioners and Smt.Latha Anand - learned

Standing Counsel appearing for the respondent - Company.

4. Smt. Latha Anand commenced her submissions by

referring to the counter affidavit filed by the respondents 1 to 4,

wherein it has been conceded that Ext.R2(b) Memorandum of

Settlement had been proposed between the Management of the

Company and the various Trade Unions. She, however, added

that this settlement never transmuted itself into a Statutory

Settlement as defined under Section 2(p) of the Industrial

Disputes Act (ID Act), because none of the requirements and

procedural formalities which were required for such purpose had

been completed. She pointed out that, going by Section 2(p) of

the ID Act, the Management and the Trade Unions ought to have

jointly sent the Memorandum of Settlement to the competent

Authority under the ID Act for its approval; but that in this case,

none of such procedures had been complied with.

5. Smt.Latha Anand then added that the Company has WP(C) NO. 16410 OF 2020

recognized and approved Recruitment Rules, which was brought

into force based on the Award of the competent Labour Court in

ID No.42 of 1995 and argued that, in fact, Ext.R2(b)

Memorandum of Settlement is in complete dissonance with

many of its provisions. She submitted that, therefore, when the

Board of Directors of the Company came to understand that

Ext.R2(b) Settlement ran contrary to the approved Recruitment

Rules, they adopted R2(b) Resolution in their 223 rd meeting held

on 27.06.2020, resolving that the Company should follow only

the Promotion Policy approved by it and the Government of

Kerala for no-managerial employees and resultantly, that the

Settlement arrived in the year 2017 between the Management

and Trade Unions will stand revoked. The learned Standing

Counsel asserted that the respondent - Company was well within

its powers to have adopted Ext.R2(d) Resolution; and that, in any

event of the matter, the petitioners cannot maintain this writ

petition, without challenging the same appropriately. She,

therefore, prayed that this writ petition be dismissed. WP(C) NO. 16410 OF 2020

6. In response, Sri.N.Satheesh - learned counsel

appearing for the petitioners, submitted that he is not aware if

Ext.R2(b) Memorandum of Settlement had gone through the

procedural requirements, as are required under Section 2(p) of

the ID Act; but predicated that, notwithstanding the same, when

promotions were given to his clients by the Company itself, as is

evident from Exts.P2 to P6, they are now estopped from

reverting them to the original posts without assigning any cogent

reason, but merely saying that Ext.R2(b) settlement has been

revoked unilaterally by them. Sri.N.Satheesh vehemently

maintained that the respondent - Company cannot revoke the

settlement on their own, nor can they act contrary to its terms,

since they themselves have admitted unequivocally in Exts.P2 to

P6 that the offers of promotion were given to his clients based on

the same. Sri.N.Satheesh, therefore, reiteratingly prayed that this

writ petition be allowed.

7. The afore dialectical contentions of the parties being so

recorded, I proceed to now analyse the submissions of the WP(C) NO. 16410 OF 2020

Company, as argued by their learned Standing Counsel - Smt.

Latha Anand. It is without doubt - having been expressly

conceded by the learned Standing Counsel for the Company -

that if Ext.R2(b) is in force, then certainly the action of the

Company in having issued the impugned orders cannot be found

to be in favour. Therefore, the crucial question is whether

Ext.R2(b) is a valid settlement, falling within the contours of

Section 2(p) of the ID Act. It is vehemently asserted by the

learned Standing Counsel for the Company that none of the

procedural requirements as are imperatively mandated under the

said Section has been fulfilled in the case of this Settlement and,

therefore, that in the eyes of law, it is non est. She further

submits, as I have already recorded above, that this Settlement

goes contrary to the Recruitment Rules approved by the

Government and therefore, that unless the Settlement can have

the force of law, its provisions cannot derogate from the said

Rules .

8. It, therefore, is rendered ineluctable that on one hand, WP(C) NO. 16410 OF 2020

the Company asserts that the Settlement was not forwarded

jointly by them and the Trade Unions to the competent Authority;

while on the other, the petitioners are unable to affirm

conclusively whether these assertions are right or wrong. In fact,

Sri.N.Satheesh - learned counsel for the petitioner, submitted

that he would require time to confer with his client on this issue,

but conceded that there is nothing on record to show that the

Settlement had been properly processed and approved as per the

provisions of the ID Act.

9. If, therefore, presents to be a clear case of dispute

between the parties and since this disputation is in the realm of

facts, this Court becomes proscribed from entering into its

merits, going by the well recognized constraints of jurisdiction

of this Court in dealing with question of facts.

10. I am, therefore, of the firm view that if the petitioners

require any relief in this matter, they will have to approach the

Labour Court/Industrial Tribunal for such purpose, because the

question whether Ext.R2(b) is a valid Settlement or otherwise, WP(C) NO. 16410 OF 2020

will have to be established based on cogent and reliable

evidence, along with substantiating materials, which this Court

cannot evaluate for the reasons already stated above.

11. Presumably discerning my mind as afore,

Sri.N.Satheesh - learned counsel for the petitioner, submitted

that if the view of this Court is as afore, then his clients may be

given liberty to invoke the remedies under the ID Act

appropriately, for which purpose, all their contentions be left

open.

12. When I hear Sri.N.Satheesh as above, it is needless to

say that, since this Court is unable to evaluate the contentions of

the petitioners on their merits, it will certainly be open to pursue

all of them before the competent Tribunal/Court, when they

invoke their remedies under the ID Act.

In the afore circumstances, I close this writ petition without

entering into the merits of any of the contentions of the rival

parties and leaving full liberty to the petitioners to invoke their

available remedies under the ID Act appropriately, for which WP(C) NO. 16410 OF 2020

purpose all contentions are left open. At this time, Sri.N.Satheesh

submitted that, since his clients will require at least a month's

time to approach the competent Forum, the interim order granted

by this Court on 12.08.2020 be extended for at least a period of

45 days, so as to enable them to invoke their remedies without

the threat of immediate demotion.

The afore request of Sri.N.Satheesh certainly is justified

because I notice that the interim order of this Court referred to by

him was issued as early as on 12.08.2020 and that the same

continues to be in force even now. Resultantly, I order that the

interim order granted by this Court on 12.08.2020, as per which

the operation of Exts.P9 to P13 orders have been ordered to be

kept in abeyance, will continue to be in force for a period of 45

days from the date of receipt of a copy of this judgment.

Sd/-

DEVAN RAMACHANDRAN JUDGE SAS/30/07/2021 WP(C) NO. 16410 OF 2020

APPENDIX OF WP(C) 16410/2020

PETITIONERS' EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE NOTICE DATED 6.10.2017 PUBLISHED BY THE 1ST RESPONDENT COMPANY.

EXHIBIT P2 A TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT, DATED 6.3.2018 ENGAGING THE 1ST PETITIONER AS FOREMAN (INSTRUMENTATION) TRAINEE.

EXHIBIT P3 A TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 6.3.2018 ENGAGING THE 2ND PETITIONER AS FOREMAN (INSTRUMENTATION) TRAINEE.

EXHIBIT P4 A TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 6.3.2018 ENGAGING THE 3RD PETITIONER AS FOREMAN (MECHANICAL) TRAINEE.

EXHIBIT P5 A TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT, DATED 6.3.2018 ENGAGING THE 4TH PETITIONER AS FOREMAN (MECHANICAL) TRAINEE.

EXHIBIT P6 A TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT, DATED 6.3.2018 ENGAGING THE 5TH PETITIONER AS FOREMAN (MECHANICAL)TRAINEE.

EXHIBIT P7 A TRUE COPY OF THE PAY SLIP OF THE 1ST PETITIONER FOR THE SALARY PERIOD FROM 21.5.2020 TO 20.6.2020 ISSUED IN JUNE 2020.

EXHIBIT P8 A TRUE COPY OF THE PAY SLIP OF THE 2ND PETITIONER FOR THE SALARY PERIOD FROM 21.5.2020 TO 20.6.2020 ISSUED IN JUNE 2020.

EXHIBIT P9 A TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 8.8.2020.

EXHIBIT P10 A TRUE COPY OF THE ORDER ISSUED BY THE 2ND WP(C) NO. 16410 OF 2020

RESPONDENT DATED 8.8.2020.

EXHIBIT P11 A TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 8.8.2020.

EXHIBIT P12 A TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 8.8.2020.

EXHIBIT P13 A TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 8.8.2020.

RESPONDENTS' EXHIBITS

EXHIBIT R2A TRUE COPY OF THE JOINT REPRESENTATION SIGNED BY THE SECRETARIES OF THE RECOGNIZED TRADE UNIONS

EXHIBIT R2B TRUE COPY OF THE MEMORANDUM OF SETTLEMENT SIGNED ON 20.07.2017

EXHIBIT R2C TRUE COPY OF PETITION SUBMITTED BY THE TRADE UNIONS

EXHIBIT R2D TRUE COPY OF BOARD RESOLUTION NO.3136

EXHIBIT R2E TRUE COPY OF OFFICE ORDER PA-1/AD-11/2020 DATED 07.08.2020

EXHIBIT R2F TRUE COPY OF THEIR ORIGINAL PAY SLIP