Shwas Homes Private Limited vs The Presiding Officer Labour ...
2021 Latest Caselaw 21626 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943

                   WP(C) NO. 23887 OF 2021

PETITIONER:

           SHWAS HOMES PRIVATE LIMITED,
           REGISTERED OFFICE, GROUND FLOOR,
           SHWAS MYSTIC HEIGHTS 1,
           KANIYAMPUZHA ROAD, EROOR P.O,
           KOCHI - 682036,
           REPRESENTED BY ITS DIRECTOR,
           SREENI PARAMESWARAN,
           AGED 46 YEARS,
           SON OF M.G. PARAMESWARAN NAIR.
           BY ADVS.
           SRI.B.ASHOK SHENOY
           SRI.P.S.GIREESH
           SRI.ARJUN R. NAIK
RESPONDENTS:

    1      THE PRESIDING OFFICER
           LABOUR COURT,
           ERNAKULAM, KOCHI - 682034.
    2      SMITHA FRANCIS ALIAS SMITHA AJAY,
           VILLA NO.6, MYSTIC BELLS,
           KANIYAMPUZHA ROAD, EROOR P.O,
           VYTTILA, KOCHI - 682036.


           BY ADV.SABEENA P.ISMAIL, GOVT. PLEADER


     THIS WRIT PETITION      (CIVIL) HAVING COME UP      FOR
ADMISSION ON 02.11.2021,     THE COURT ON THE SAME       DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.23887/21                  -:2:-




                     BECHU KURIAN THOMAS, J.
                     -----------------------------------------
                        W.P.(C) No.23887 of 2021
                     ----------------------------------------
                 Dated this the 2nd day of November, 2021

                                JUDGMENT

Two preliminary orders passed by the Labour Court,

Ernakulam, in an industrial dispute, are the subject matter of

challenge in this writ petition.

2. Petitioner is a private limited company engaged in the

business of construction and sale of apartments. The second

respondent was employed as Senior Manager-Customer Care with

the petitioner. After conducting an enquiry, second respondent was

dismissed from service. She initiated an Industrial Dispute as I.A.

No.14 of 2017 before the Labour Court, Ernakulam. During the

course of the proceedings, petitioner filed two applications and

invited two orders from the Labour Court, which are impugned in this

writ petition.

3. By the first preliminary order of the Labour Court, produced

as Ext.P20, the second respondent, who was admittedly employed

as a Senior Manager of the Customer Care department, was held to

be a workman and found the dispute to be maintainable. By the

second preliminary order, which is produced as Ext.P21, the Labour

Court found that, the enquiry conducted into the allegations of

misconduct against the second respondent were made without a

charge sheet but based only on a show-cause notice issued by the

petitioner. On the aforesaid basis, by the impugned two orders, the

Labour Court found that the enquiry was not conducted in

compliance with the principles of natural justice and that the enquiry

report was liable to be set aside. The orders are challenged alleging

that they are vitiated by errors apparent on the face of the record and

are perverse.

4. At this juncture itself, it is necessary to observe that the

jurisdiction to interfere with preliminary orders of the Labour Court is

very limited. Every preliminary order cannot be the subject of a

judicial review under Article 226 of the Constitution of India. A

person aggrieved by a preliminary order of the Labour Court has the

remedy of raising the issue, even while challenging the final award.

Thus, no prejudice of any nature will be caused to a person

aggrieved by the preliminary order. Of course, this Court had

observed in St.Thomas Missions Hospital v. State of Kerala (2007

(2) KLT 415) that there should not be any hard and fast rules

regarding the challenge of preliminary orders in industrial disputes. It

was also observed therein that even though the Supreme Court had

held that parties should not be allowed to challenge preliminary

orders, the said proposition of law was not for universal application,

without any exception in all cases. The challenge of preliminary

orders under Article 226 of the Constitution must thus be only an

exception.

5. However, of late the contrary is happening. Challenging

preliminary orders is turning out to be a routine exercise. There is a

growing tendency amongst the management to invite preliminary

orders and then resort to challenging such orders and stall the

proceedings before the Labour Court or the Industrial Tribunals, for

years. The practice mentioned above, was in fact, deprecated by the

Supreme Court in D.P.Maheshwari v. Delhi Administration and

Others [(1983) 4 SCC 293], wherein it was observed that :

"It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High

Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. .........There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise, industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a tribunal so that a preliminary issue may be decided by them............. Tribunals and courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. ............. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues."

6. The above referred observations have significance and this

Court must be cautious in its approach while considering the

challenge against preliminary orders of Labour Courts or Industrial

Tribunal. The decision in Kerala Chemicals and Proteins Ltd. now

known as Nitta Gellatin India Ltd., Thrissur v. Labour Court,

Ernakulam and Another (2014 (4) KHC 107) is also relevant in this

context.

7. Coming to the circumstances arising in the instant case, the

Labour Court concluded that the employee is a workman by the first

preliminary order. Though the learned counsel for the petitioner

invited my attention to the reasons for the Labour Court to come to

the conclusion to treat the employee as a workman, I find that the

Labour Court had considered the oral evidence, the nature of duties

performed by the employee as well as various decisions of the

Supreme Court and thereafter concluded that the employee did not

have any power or duty to handle administrative affairs of the

company. The court also concluded that there was no evidence to

prove that the employee was vested with the power to grant leave or

to initiate disciplinary action against the subordinates. On a perusal

of the exhibits produced, I do not find any perversity in the

conclusion arrived at by the Labour Court in the first preliminary

order.

8. As far as the second preliminary order is concerned, the

Labour Court analysed the various circumstances that arose in the

case and the procedure adopted by the enquiry officer, who was

examined as MW2. After such a process, it was concluded by the

Labour Court that there was an absence of charge memo, that the

enquiry officer disallowed the application filed by the employee to get

details of the complaints filed against her, refused to direct the

management to produce witnesses cited by the employee, failed to

consider the explanation submitted by the employee on 15.10.2011,

wrongfully marked exhibits and arbitrarily closed the evidence

without providing an opportunity to the employee. It was concluded

on facts by the Labour Court that sufficient opportunity was not

granted to the employee to defend her case. The Labour Court

came to the conclusion that the enquiry report is liable to be set

aside as a cumulative effect of all the aforesaid factors.

9. The absence of a memo of charge served upon the

employee was only one of the factors that weighed with the Labour

Court to set aside the enquiry report. In such a view of the matter,

the contention of Adv.Ashok B.Shenoy, learned counsel for the

petitioner, that the decision in St.Thomas Missions Hospital v.

State of Kerala (2007 (2) KLT 415) has no application and the

preliminary orders passed in Ext.P20 and Ext.P21 are not

susceptible to challenge in exercise of the powers under Article 226

of the Constitution of India.

In view of the above deliberations, I find no merit in this writ

petition and the same is dismissed.

Sd/-

BECHU KURIAN THOMAS JUDGE vps

APPENDIX OF WP(C) 23887/2021

PETITIONER'S/S' EXHIBITS EXHIBIT P1 TRUE COPY OF APPOINTMENT LETTER DATED 7.1.2010 ISSUED BY PETITIONER TO 2ND RESPONDENT.

EXHIBIT P2 TRUE COPY OF LETTER DATED 7.4.2009 ISSUED BY PETITIONER TO 2ND RESPONDENT.

EXHIBIT P3 TRUE COPY OF LETTER DATED 4.5.2011 ISSUED BY PETITIONER TO 2ND RESPONDENT.

 EXHIBIT P4              TRUE    COPY    OF    OFFICE   CIRCULAR
                         NO.SH/CIR/21/09-10     DATED   6.4.2010
                         ISSUED BY PETITIONER.
 EXHIBIT P5              TRUE COPY OF RESIGNATION LETTER DATED

28.10.2010 SUBMITTED BY MARIAMMA THOMAS TO PETITIONER.

EXHIBIT P6 TRUE COPY OF RELIEVING ORDER DATED 1.11.2010 ISSUED BY PETITIONER TO MARIAMMA THOMAS.

 EXHIBIT P7              TRUE COPY OF SERVICE CERTIFICATE DATED
                         1.11.2010 ISSUED BY 2ND RESPONDENT TO
                         MARIAMMA THOMAS,
 EXHIBIT P8              TRUE COPY OF RESIGNATION LETTER DATED
                         20.04.2011    SUBMITTED   BY   RESHMA
                         KRISHNADAS TO PETITIONER.
 EXHIBIT P9              TRUE COPY OF RESIGNATION LETTER DATED
                         23.04.2011 SUBMITTED BY REMYA K.R. TO
                         PETITIONER.
 EXHIBIT P10             TRUE COPY OF RESIGNATION LETTER DATED

27.04.2011 SUBMITTED BY JOPHINCE JOSEPH TO PETITIONER.

EXHIBIT P11 TRUE COPY OF MEMO ISSUED BY PETITIONER TO 2ND RESPONDENT, DATED 7.10.2009 WHICH IS ACTUALLY 7.10.2010.

EXHIBIT P12 TRUE COPY OF EXPLANATION DATED 15.10.2011 SUBMITTED BY 2ND RESPONDENT TO PETITIONER.

EXHIBIT P13 TRUE COPY OF EMAIL DATED 16.12.2011 SENT BY 2ND RESPONDENT TO PETITIONER

WITH TRAILING EMAIL DATED 14.12.2011 OF PETITIONER TO 2ND RESPONDENT.

EXHIBIT P14 TRUE COPY OF ENQUIRY REPORT DATED 28.03.2015 PASSED BY ENQUIRY OFFICER, EXHIBIT P15 TRUE COPY OF ORDER DATED 12.05.2015 ISSUED BY PETITIONER TO 2ND RESPONDENT.

EXHIBIT P16 TRUE COPY OF APPLICATION DATED 7.3.2017 FILED BY 2ND RESPONDENT BEFORE 1ST RESPONDENT AS ID NO.14 OF 2017.

EXHIBIT P17 TRUE COPY OF WRITTEN STATEMENT DATED 28.06.2017 FILED BY PETITIONER BEFORE 1ST RESPONDENT IN ID NO. 14 OF 2017.

EXHIBIT P18 TRUE COPY OF REPLY STATEMENT DATED 23.10.2017 FILED BY 2ND RESPONDENT BEFORE 1ST RESPONDENT IN ID NO.14 OF 2017.

EXHIBIT P19 TRUE COPY OF PROOF AFFIDAVIT OF 2ND RESPONDENT DATED 22.10.2018 FILED IN LIUE OF HER EXAMINATION IN CHIEF ALONGWITH HER TESTIMONY IN CROSS EXAMINATION BEFORE 1ST RESPONDENT WITH ITS READABLE COPY.

EXHIBIT P20 TRUE COPY OF PRELIMINARY ORDER DATED 12.03.2019 IN ID 14 OF 2017 PASSED BY 1ST RESPONDENT.

EXHIBIT P21 TRUE COPY OF PRELIMINARY ORDER DATED 23.02.2021 IN ID 14 OF 2017 PASSED BY 1ST RESPONDENT.