Kerala High Court
Sheena Jacob vs State Of Kerala on 29 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
Friday, the 29th day of October 2021 / 7th Karthika, 1943
WA NO. 1405 OF 2021
AGAINST THE JUDGEMENT DATED 16.09.2021 IN WP(C) 19205/2021 OF THIS COURT
APPELLANT/PETITIONER:
SHEENA JACOB, AGED 47 YEARS, W/O.K.P.GEVAR, KUTHOOR VEEDU, WEST
BAZAR, P.O.PAZHNJI, KUNNAMKULAM, THRISUSR-680 542.
BY ADVS R.SUDHISH & M.MANJU
RESPONDENTS/RESPONDENTS:
1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF LABOUR
AND EMPLOYMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
2. THE LABOUR COMMISSIONER, OFFICE OF THE LABOUR COMMISSIONER, THOZHIL
BHAVAN, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033.
3. THE DISTRICT LABOUR OFFICER, OFFICE OF THE DISTRICT LABOUR OFFICER,
CIVIL STATION, AYYANTHOLE, THRISSUR-680003.
4. KAIPARAMBU PANCHAYATH VIVIDHODHESHA SAHAKARANA SANGHOM LIMITED
(R-1124), POST KAIPARAMBU, THRISSUR-680546, REPRESENTED BY ITS
SECRETARY.
5. THE BOARD OF DIRECTORS OF KAIPARAMBU PANCHAYATH VIVIDHODHESHA
SAHAKARANA SANGHOM LIMITED (R-1124), POST KAIPARAMBU,
THRISSUR-680546, REPRESENTED BY ITS PRESIDENT.
6. THE CHAIRMAN, DISCIPLINARY SUB COMMITTEE, (CONSTITUTED FOR
DISCIPLINARY ACTION AGAINST SHEENA JACOB), VIVIDHODHESHA SAHAKARANA
SANGHOM LIMITED (R-1124), POST KAIPARAMBU, THRISSUR-680546.
BY SENIOR GOVERNMENT PLEADER FOR R1 to R3
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the Appeal memorandum the High Court be pleased to
stay the operation of the Judgement of the learned single Judge dated
16.9.2021 in W.P.(C) No.19205 of 2021 till the disposal of this Writ
Appeal.
This Writ Appeal coming on for admission on 29.10.2021 upon
perusing the appeal memorandum, the court on the same day passed the
following:
EXHIBIT P1 : COPY OF THE DECISION OF THE 5th RESPONDENT DATED
14.5.2018 WITH ENGLISH TRANSLATION
th
EXHIBIT P9 : COPY OF THE ORDER OF THE 5 RESPONDENT ADMINISTRATIVE
BOARD DATED 24.4.2019 WITH ENGLISH TRANSLATION
th
EXHIBIT P16 : COPY OF THE DECISION OF THE 2 RESPONDENT LABOUR
COMMISSIONER DATED 9.6.2021 WITH ENGLISH TRANSLATION
EXHIBIT P17 : COPY OF THE LETTER ISSUED BY THE 3rd RESPONDENT TO THE
PETITIONER DATED 26.6.2021 WITH ENGLISH TRANSLATION
EXHIBIT P18 : COPY OF THE PLAINT OF A.R.C.NO.27 of 2018 FILED
BEFORE THE ARBITRATION COURT, KOZHIKODE DATED 23.6.2018 WITH ENGLISH
TRANSLATION
ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
================================================
W.A. No. 1405 of 2021
[arising out of impugned judgment dated 16.9.2021 in WP(C) No. 19205/2021]
=================================================
Dated this the 29th day of October, 2021
ORDER
Notices before admission for official respondents 1 to 3 have been
taken by the learned Senior Government Pleader. Issue notice before
admission to contesting respondents 4 to 6 by speed post returnable within
2 weeks.
2. It is urged by Sri.R.Sudhish, learned counsel appearing for the
appellant in the W.A./petitioner in the WP(C) that the impugned decision of
the 2nd respondent Labour Commissioner as per Ext.P-16 dated 9.6.2021 is
illegal and ultra vires, and would require judicial interdiction for reasons
more than one. Firstly, the main finding in Ext.P-17 is that the petitioner
has already invoked the Arbitration Reference remedy invoked under Sec.69
of the Kerala Co-operative Societies Act in relation to the present dispute
and therefore she cannot seek a second remedy on the same cause of action,
is plainly wrong on facts.
3. It is submitted that the only Arbitration Reference case initiated
at the instance of the writ petitioner in relation to her service conditions
with the respondent Co-operative Society is the one as per Ext.P-18
Arbitration Reference Case ARC No.27/2018 on the file of the State
Arbitration Court, Kozhikode. Further that, the subject matter of the
W.A. No. 1405/2021
complaint in the said ARC is as regards the legality and correctness of the
impugned Ext.P-1 order dated 14.5.2018 which is in relation to the action of
the respondent Society in keeping the writ petitioner out of service for a
period of 3 months, whereas the subject matter of the grievance which led to
the intiation of the conciliation proceedings in terms of the Industrial
Disputes Act is the one arising out of the dismissal order inflicted on the
petitioner subsequently by the respondent employer as per Ext.P-9 dated
24.4.2019. Hence, the substratum of the main reasoning in the rejection
order issued by the respondent Labour Commisioner would collapse.
Further that, a reading of Ext.P-17 letter dated 26.6.2021 issued by the
3rd respondent District Labour Officer (DLO) would show that the said
officer has already rendered a conciliation failure report on 29.12.2020, and
therefore even without a reference order passed by the 1st respondent State
Government under Sec.10 of the Industrial Disputes Act, the appellant can
directly approach the Labour Court as per Sec.2A(3) of the Industrial
Disputes Act, as the grievance is relating to dismissal of an individual
workman.
4. Taking note of the above submissions, we are of the view that
the petitioner has made out a strong prima facie case in the matter.
Accordingly, it is ordered that the operation and enforcement of the
impugned Ext.P-16 order dated 9.6.2021 issued by the 2 nd respondent
W.A. No. 1405/2021
Labour Commissioner shall remain stayed and shall be kept in abeyance.
5. The respondents, more particularly respondents 2 & 3 will give
specific instructions to the learned Senior Government Pleader as to which
Arbitration Reference Case is referred to in Ext.P-16, and whether the same
is the one as per Ext.P-18 ARC No.27/2018 on the file of the State
Arbitration Court, Kozhikode, and if that be so, how the 2 nd respondent
Labour Commissioner can justify the ground of rejection cited in Ext.P-16,
as the said Arbitration Reference Case has nothing to do with the dismissal
order, but with a previous impugned proceedings.
6. So also, the respondents may apprise this Court as to the
tenability or otherwise of the abovesaid contention of the petitioner that in
view of the failure report given by the 3 rd respondent DLO on 29.12.2020 as
referred to in Ext.P-17, whether he has right to directly approach the Labour
Court in terms of Sec.2A by filing application under Sec.2A(3), etc.
List the case on 22.11.2021.
Hand over.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
VIJU ABRAHAM, JUDGE
MMG
29-10-2021 /True Copy/ Assistant Registrar
