Apollo Tyres Ltd vs The Labour Court
2023 Latest Caselaw 4768 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE AMIT RAWAL
    THURSDAY, THE 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945
                        WP(C) NO. 24327 OF 2014
 AGAINST THE ORDER/JUDGMENTID 10/2012 OF LABOUR COURT, ERNAKULAM
PETITIONER/S:

          APOLLO TYRES LTD.
          REGD. OFFICE, 6TH FLOOR, CHERUPUSHPAM BUILDINGS,
          SHANMUGHAN ROAD, KOCHI - 682 031, REPRESENTED BY
          MR.A.S.GIRISH, HEAD (HR & ADMN.)

          BY ADV SRI.SAJI VARGHESE



RESPONDENT/S:

    1     THE LABOUR COURT
          ERNAKULAM, - 682 031.

    2     C.P SEBASTIAN
          CHENGINIMATTOM HOUSE, PALACE ROAD, CHALAKKUDI - 680
          307.

          BY ADVS.
          A.K.PREETHA
          SRI.T.N.MANOJ




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.04.2023, ALONG WITH WP(C).14825/2014, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 24327 OF 2014 and conctd. Case
                               2



          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MR. JUSTICE AMIT RAWAL
  THURSDAY, THE 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945
                   WP(C) NO. 14825 OF 2014
    AGAINST THE ORDER/JUDGMENTID 10/2012 OF LABOUR COURT,
                          ERNAKULAM
PETITIONER/S:

         C.P SEBASTIAN
         S/O.CHENGINTIMATTOM PAULSON, PALACE ROAD, EAST
         CHALAKUDY.

         BY ADV A.K.PREETHA



RESPONDENT/S:

    1     APPOLO TYRES LTD
          A COMPANY HAVING ITS OFFICE AT PERAMBRA, THRISSUR
          DISTRICT, REPRESENTED BY ITS DEPUTY GENERAL
          MANAGER, PIN - 680 001.

    2     THE LABOUR COURT
          ERNAKULAM - 682 031.

         BY ADVS.
         SMT.MARIAM MATHAI
         SRI.SAJI VARGHESE




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 13.04.2023, ALONG WITH WP(C).24327/2014, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 24327 OF 2014 and conctd. Case
                                  3

                             JUDGMENT

This order of mine shall dispose of two writ petitions filed by

the Management ie., W.P.(C) No.24327 of 2014 challenging the

award of the labour court dated 15.1.2014 rendered in ID No.10 of

2012 whereby the respondent workman has been ordered to be

reinstated with 25% of backwages and WP(C) No.14825 of 2014

on behalf of the workman claiming 100% backwages.

2. Workman was working in the factory of the

management at Perambra as a Tyre Builder, alleged to have

resorted to acts of violence and other acts of misconduct including

obstructing and confining Executives and threatening and

intimidating them. Accordingly, disciplinary action was taken and

was placed under suspension. An unconditional apology was

submitted by giving assurance that he would not resort to such

acts of misconduct in future. Considering the apology and

assurances, a lenient view was taken but was transferred to

Company's Registered Office at Ernakulam. At the relevant point

of time, he was working as an Assistant in the Registered office

since there was no post of Tyre builder, available in the factory.

While working in the Registered office, he was promoted as Junior

Officer (Administration) on 22.9.1999, a post of supervision. After WP(C) NO. 24327 OF 2014 and conctd. Case

having accepted the promotion, attended to several duties came

out with a plea that the promotion given to him was not acceptable

and relinquished the promotion. Thereafter again transferred

back to the post where he was working prior to the order of

transfer. Workman filed civil suit bearing No.2098 of 1999

claiming declaration of workman under the Industrial Disputes Act

and other consequential reliefs. The said suit was dismissed by

the trial court on 5.10.2000. Appellate court vide judgment and

decree dated 25.1.2001 reversed the finding of trial court holding

the suit to be not maintainable and remanded the matter to the

trial court. Miscellaneous appeal was preferred before this Court

on behalf of the management which was dismissed on 6.9.2002.

The matter reached the Supreme Court through SLP which was

assigned C.A No.7007 of 2003. Vide judgment dated 30.4.2009

appeal was allowed and it was held that the suit as per the

provisions of Section 14(1)(b) of the Specific Relief Act was

barred. During the pendency of the appeal before the Supreme

Court, the workman superannuated on 31.5.2008. Conciliation

proceedings commenced on 11.8.2009 at the behest of the

workman and ultimately the matter was referred to the labour

court. The labour court on preponderance of the evidence lead by

both the parties allowed the claim petition and ordered for WP(C) NO. 24327 OF 2014 and conctd. Case

reinstatement with back wages.

3. Counsel representing the management in support of the

grounds taken in the writ petition submitted that a retired

employee as per the provisions of Section 2(s) of the Industrial

Disputes Act would not be a workman and therefore the Industrial

dispute in the eyes of law was not maintainable. In other words,

labour court did not have the jurisdiction. Labour court

erroneously arrived at a finding that the promotion and transfer

was malafide and was issued with an intention to bring down the

workman and an act of victimization. However the said finding is

absolutely incorrect as it was challenged in this Court, which was

set aside by this Court. In support of the contentions relied upon

the judgment of this Court in Everestee v District Labour

Officer (1999(2) KLT 560).

4. On the other hand, learned counsel appearing on behalf

of the workman submitted that the labour court has not assigned

any reasons for confining the backwages to the extent of 25%.

Once it was held to be a case of termination of retrenchment,

backwages to the extent of 100% was inevitable. It is a

continuation of the cause of action which occurred during the

employment, for, the order of the appellate court and of this Court

were pending adjudication before the Supreme Court. The WP(C) NO. 24327 OF 2014 and conctd. Case

decision of the Supreme Court came in 2009 whereas the

superannuation was on 31.5.2008. Therefore the management

cannot take the aid of the provisions of Section 2(s) of ID Act by

denying the status of workman.

5. I have heard the learned counsel for the parties and

appraised the paperbook. Labour court while overruling the

objection of the management in paragraph 16 held that cause of

action was continuance as dispute had already been raised by the

workman while he was in service, therefore, selection of a wrong

forum on the basis of wrong advice cannot curtail the right of the

workman. It also found that the promotion and transfer was an

act of victimization as the management did not want the presence

of workman at a place where he was working. The Muster roll

Ext.M16 reflected that the workman attended the Cochin office

from 1.9.99 to 23.9.99 whereas the order of the promotion was

issued on 22.9.1999. The controversy with regard to non joining,

promotion and withdrawal was kept aside for the reason that the

workman had invoked the jurisdiction of the Civil Court. The

Supreme Court in the present case decided in favour of the

management and said judgment has been reported as Apollo

Tyres Limited v. C.P Sebastian (2009) 14 SCC 360 wherein by

relying upon the provisions of Section 14(b) of the Specific Relief WP(C) NO. 24327 OF 2014 and conctd. Case

Act, it was held that the contract of personal services cannot be

enforced. The finding of the labour court viz. continuation of the

cause action is wholly unsustainable, for, workman was aware of

the fact that the said objection would definitely be raised as and

when the event of superannuation take place. Even if such

situation was not envisaged, no liberty was sought in the reported

judgment between the lis. It was a case of abandonment of the

service for the reason that the workman neither responded to the

place of transfer nor joined the services but diverted focus into the

litigation. It is not the case of the workman or the management

that during all such period he had been paid the salary. It was a

case of No work No pay. The conduct of such employee cannot be

condoned clothing it to be a continuous cause of action. I would

be in failing my duties in not extracting the definition of workman

prescribed under Section 2(s) of the ID Act. The same reads as

under:

"(s) "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment had led to that dispute, but does not include any such person;

6. On plain and simple reading of the aforementioned WP(C) NO. 24327 OF 2014 and conctd. Case

provisions, undoubtedly the workman has to be an employee. The

aforementioned view of mine is derived from the ratio decidendi

culled out in Everestee (supra) wherein in paragraph 9 it was

held as under:

9. In order to appreciate the rival contentions, it is beneficial to extract Section 2(s) of the Industrial Disputes Act:

"(s) "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment had led to that dispute, but does not include any such person;

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957; or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."

The definition of 'Workman' in Section 2(s) in connection with persons employed in an industry falls in three parts. The first part of the definition gives the statutory meaning of workman. The second part is designed to include something more in what the term primarily denotes. By this part of the definition, persons who have been dismissed, discharged or retrenched in connection with an industrial dispute; or whose dismissal, discharge or retrenchment has led to an industrial dispute. This part WP(C) NO. 24327 OF 2014 and conctd. Case

specifically excludes the categories of the persons specified in Clauses (i) to (iv) of Section 2(s). The third part connotes that even if a person satisfied the requirements of any of the first two parts, if he falls in any of the four categories in the third part, he shall be excluded from the definition of 'workman'. In our opinion, the appellant, having voluntarily tendered his resignation pursuant to a scheme for voluntary retirement, the resignation having been accepted by the management and all the benefits arising out of such resignation has been paid by the management and received by the appellant, he cannot be treated as a 'workman' coming under Section 2(s) of the Industrial Disputes Act. As already noticed, the definition only includes persons who are presently employed, or who have been dismissed, discharged or retrenched from the service of the employer. In fact, dismissal, discharge or retrenchment is an act of the employer, whereas terminating the contract of service by way of resignation By the workman is his own act. We are, therefore, of the opinion that the claim of the appellant is misconceived and beyond the scope of Section 2(s) of the Industrial Disputes Act. A perusal of the petition submitted by the appellant before the Labour Officer and also the Original Petition filed before this Court reveals that the appellant had accepted the benefits offered to him in pursuance of the Voluntary Retirement Package announced by the management and on being satisfied about the calculation and the quantum thereof, chose to tender his resignation and thereafter, on diverse dates, received benefits confirming each time that the management had fully and finally settled the accounts, thereby severing the employer-employee relationship once and for all. Counsel for the appellant, however, submitted that the benefits due to the appellant was not properly quantified and paid, and therefore, he would be entitled to maintain a petition before the Labour Officer. As already discussed and decided, the only remedy available to the appellant is to approach the management and not to make a petition before the Labour Officer, who has no jurisdiction to decide the matter. Counsel for the appellant also referred to the payments made to some others who were also workmen in the skilled category. If there is any anomaly in regard to the payments made to the appellant and the other workmen, it is for the appellant to bring the same to the notice of the management by way of a fresh representation. If such a representation is filed within one month from today, the management is directed to consider the same and pass appropriate orders in accordance with law within one month from the date of receipt of the representation. Learned counsel for the management submitted that though the matter is concluded between parties the management is willing to consider the representation, if any made by the appellant, as per the directions now issued by this Court.

WP(C) NO. 24327 OF 2014 and conctd. Case

For the reason aforementioned, the award of the labour court

is not sustainable. WP(C) No. 24327 of 2014 on behalf of the

management is allowed; award is set aside whereas the

WP(C) No.14825 of 2014 on behalf of the workman is dismissed.

                                             S

sssssssssss                                         sSD/--

sab                                          SD/-
                                       AMIT RAWAL
                                            JUDGE
 WP(C) NO. 24327 OF 2014 and conctd. Case


                APPENDIX OF WP(C) 14825/2014

PETITIONER EXHIBITS

                   EXHIBIT P1. TRUE COPY OF THE ORDER DATED

29.12.2011 OF THE LABOR AND REHABILITATION DEPARTMENT STATE OF KERALA.

EXHIBIT P2. OFFICIAL COMMUNICATION OF PROMOTION DATED 22.09.99 RECEIVED FROM THE RESPONDENT.

EXHIBIT P3. TRUE COPY OF THE WRITTEN REPLY DATED 29.09.99 SEND BY THE PETITIONER TO EXHIBIT P2.

EXHIBIT P4. TRUE COPY OF THE LETTER DATED 11.10.1999 BY THE PETITIONER TO THE RESPONDENT.

EXHIBIT P5. TRUE COPY OF THE ORDER, DATED 08.10.99, TRANSFERRING THE PETITIONER AS JUNIOR OFFICER (ADMINISTRATION).

EXHIBIT P6. TRUE COPY OF THE REPLY DATED 15.10.1999 TO EXHIBIT P5 SEND BY THE PETITIONER.

EXHIBIT P7. TRUE COPY OF THE CERTIFICATE OF FITNESS DATED 06.11.1999, OBTAINED FROM THE DOCTOR.

EXHIBIT P8. TRUE COPY OF THE CLAIM PETITION FILED BY THE PETITIONER IN ID 10/2012.

EXHIBIT P9. TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER IN ID 10/2012 BEFORE THE LABOR COURT.

EXHIBIT P10. TRUE COPY OF THE AWARD DATED 15.01.2014, IN ID 10/2012 OF THE LABOR COURT AT ERNAKULAM.

WP(C) NO. 24327 OF 2014 and conctd. Case

APPENDIX OF WP(C) 24327/2014

PETITIONER EXHIBITS

P1 - TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE CONCILIATION OFFICER DT. 12.10.09.

P2 - TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE CONCILIATION OFFICER.

P3 - TRUE COPY OF THE CLAIM STATEMENT FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT LABOUR COURT IN ID 10/2012.

P4 - TRUE COPY OFTHE REPLY STATEMENT FILED BY THE PETITIONER IN ID 10/2012.

P5 - TRUE COPY OFTHE AWARD PASSED BY THE FIRST RESPONDENT LABOUR COURT IN ID 10/2012 DATED THIS THE 19TH DAY OF MAY 2014.