Kerala High Court

J.Meena vs The Travancore Cements Ltd on 17 January, 2025

                                                   2025:KER:3665
              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

        THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON

   FRIDAY, THE 17TH DAY OF JANUARY 2025 / 27TH POUSHA, 1946

                      WP(C) NO. 29758 OF 2019

PETITIONER:

          J.MEENA,
          AGED 47 YEARS,
          WIFE OF J MANI, OFFICE ASSISTANT,
          PROJECT SECTION, THE TRAVANCORE CEMENTS LTD,
          NATTAKOM,KOTTAYAM-686013, RESIDING AT JAIRAM NIVAS,
          KAIRALI NAGAR, MARIYAPPALLY, NATTAKOM, KOTTAYAM-
          686013.

          BY ADVS.
          SRI.B.ASHOK SHENOY
          SMT.C.G.PREETHA
          SRI.P.S.GIREESH
          SRI.RIYAL DEVASSY
          SRI.DR.ABHILASH O.U.




RESPONDENTS:

    1     THE TRAVANCORE CEMENTS LTD.,
          REPRESENTED BY ITS MANAGING DIRECTOR,
          NATTAKOM, KOTTAYAM-686013.

    2     THE MANAGING DIRECTOR,
          THE TRAVANCORE CEMENTS LTD,
          NATTAKOM,KOTTAYAM-686013.



OTHER PRESENT:

          BY ADV. SRI.MILLU DANDAPANI


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.29758 of 2019                    2                   2025:KER:3665


                                   JUDGMENT

The petitioner was appointed as a Data Entry Operator with

the 1st respondent Government Company w.e.f. 11.08.1995. Even

before the declaration of probation, the petitioner was suspended

and later dismissed from service in the year 1997.

2. It may straight away to be noticed that the

appointment of the petitioner was only on a temporary basis. The

petitioner raised an industrial dispute as against the termination as

above. By Ext.P1 award, the Labour Court Ernakulam, decided the

issue in favour of the petitioner by directing the petitioner to be

reinstated with 'continuity of service'.

3. In Ext.P1, the fact that the petitioner was

interdicted from claiming bonus, leave wages etc., alone is also to be

noticed.

4. The petitioner was reinstated in service on the afore

basis, as seen from Ext.P2 dated 19.04.2005, subject to the outcome

of a writ petition - W.P.(C)No.32226 of 2005 filed by the management

against Ext.P1. The petitioner and the management, in the

meantime, came to a settlement as seen recorded in Ext.P3 dated

20.05.2006. The terms of such settlement, to the extent relevant to

the context herein reads as under:

W.P.(C)No.29758 of 2019 3 2025:KER:3665

"1) The Management agrees to take necessary steps to withdraw the aforesaid Writ Petition [C] No.32226/05 filed against the Award passed by the Labour Court, Ernakulam in I.D.No.54 of 1998 and regularize the employees in service in accordance with the said Award."

On the basis of the afore understanding, the writ petition filed was

withdrawn by the management on 12.06.2006, as seen from Ext.P4

judgment.

5. Later, the petitioner took up a contention that he

was entitled for benefits like increment, annual increments etc. An

appropriate representation was also filed before the management.

This Court by Ext.P7 judgment, directed the afore grievance to be

considered by the management. On that basis, Ext.P8 has been

issued, dated 22.10.2019, by the Chairman and Managing Director of

the 1st respondent Company refusing to extend the benefits to the

petitioner, essentially relying on the Clause No.2 (b) of the standing

orders and such other applicable provisions thereunder.

6. It is challenging the findings contained in Ext.P8

that the captioned writ petition is filed by the petitioner herein.

7. I have heard Sri. B. Ashok Shenoy, the learned

counsel for the petitioner and Sri. Millu Dandapani, the learned

counsel for the respondents herein.

W.P.(C)No.29758 of 2019 4 2025:KER:3665

8. The petitioner, as noticed earlier was reinstated

after dismissal pursuant to Ext.P1 award. True, there was a litigation

filed by the management against Ext.P1. However, pursuant to the

Memorandum of Settlement at Ext.P3, the writ petition was

withdrawn .

9. It is on the basis of the terms and conditions of the

said Memorandum of Settlement that the petitioner is reinstated in

service. Therefore, the claim of the petitioner is to be considered

with reference to the terms of the afore settlement. This Court

notices that, as per Clause No.1 of Ext.P3, the management have

agreed to reinstate the petitioner and regularize the petitioner in

service of the Company 'in accordance with the award'. Therefore,

the findings contained in Ext.P9 dated 15.12.2006, implementing the

directions contained in Ext.P3 is to be considered. In Ext.P9, it is true

that the 1st respondent Company noticed that, as on the date of

Ext.P1 the petitioner was a temporary employee having not

completed the mandatory period of probation of two years. It was

further found in Ext.P9 that the petitioner requires to complete a

further period of service of around nine months for getting a

successful declaration of probation. On the basis of the afore, Ext.P9

thereafter goes to find that the petitioner's claim for increments etc.,

would arise only after successful completion of the probation as

noticed in Ext.P9.

W.P.(C)No.29758 of 2019 5 2025:KER:3665

10. However, this Court notices that in Ext.P8, a

reference is also made to the grievance pointed out by the petitioner

to the Board of Directors. The Board of Directors, has considered the

grievance pointed out by the petitioner and it is seen that a decision

was also arrived at in the 406th meeting of the Board to sanction

'notional increments' for the period the petitioner was not in service.

It is this decision of the 406th board that was forwarded to the

Government for appropriate decision. A reading of the 3 rd paragraph

of the 4th page of Ext.P8, show that the said decision forwarded to the

Government was returned by the Government to the company,

informing the company that it is for the company to take a decision

on such claims, on the basis of the decision taken by the Board.

11. In light of the afore finding, i am of the opinion that

the ultimate finding rendered by the Chairman and Managing

Director in Ext.P8 cannot be said to be the correct preposition. I

notice that as recorded in Ext.P8, the Board in its 406 th meeting has

taken a decision, in favour of the petitioner. When such a decision is

taken, it was for the 1st respondent company to have taken a decision

on that basis. However, the consideration in Ext.P8 is not on that

basis.

12. In such circumstances, I am of the opinion that the

petitioner's claim requires a revisit at the hands of the 1 st respondent

Company.

W.P.(C)No.29758 of 2019 6 2025:KER:3665

13. Therefore, Ext.P8 issued by the 2nd respondent

would stand set aside. The petitioner is directed to file an

appropriate representation providing the necessary facts and figures

and also relying on the decision of the Board of Directors, as noticed

in Ext.P8 before the 2nd respondent herein, within a period of four

weeks from today.

If such a representation is being filed by the petitioner, the

2nd respondent to hear the petitioner and take a decision in tune of

the afore decision of the 406 th meeting of the Board of Directors, as

expeditiously as possible, at any rate, within a period of four weeks

thereafter.

Sd/-

HARISANKAR V. MENON JUDGE ANA W.P.(C)No.29758 of 2019 7 2025:KER:3665

APPENDIX OF WP(C) 29758/2019

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF AWARD DATED 19.10.2004 PASSED BY LABOUR COURT, ERNAKULAM IN I.D.NO.54 OF 1998.

EXHIBIT P2 TRUE COPY OF LETTER NO.0266 DATED 19.4.2005 ISSUED BY 1ST RESPONDENT TO PETITIONER.

EXHIBIT P3 TRUE COPY OF MEMORANDUM OF SETTLEMENT DATED 20.5.2006 ENTERED BETWEEN PETITIONER WITH HER UNION, KOTTAYAM CEMENTS EMPLOYEES UNION(INTUC)AND RESPONDENTS.

EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 12.6.2006 PASSED BY THIS HON'BLE COURT IN W.P(C)NO.32226 OF 2005.

EXHIBIT P5 TRUE COPY OF LETTER NO.23420/D2/09/ID DATED 15.4.2009 ISSUED BY ADDITIONAL SECRETARY TO GOVERNMENT TO ALL CHIEF EXECUTIVE OFFICERS AND MANAGING DIRECTORS OF THE PUBLIC SECTOR UNDERTAKINGS UNDER INDUSTRIES DEPARTMENT OF GOVERNMENT OF KERALA.

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 7.6.2019 SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 18.9.2019 PASSED BY THIS HON'BLE COURT IN W.P(C)NO.24522 OF 2019.

EXHIBIT P8 TRUE COPY OF THE ORDER NO.1811 DATED 22.10.2019 PASSED BY 2ND RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE LETTER NO.3180 DATED 15.12.2006 ISSUED BY RESPONDENTS TO PETITIONER.