Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE25H DAY OF FEBRUARY20146TH PHALGUNA, 1935 W.P.(C).No.21022 of 2008 (C) ---------------------------------------------- PETITIONER(S):- ------------------------ SUNNY THOMAS, AGED45YEARS, S/O.K.P.THOMAS, RESIDING AT KARUVAKUNNEL, HOUSE, KEZHUVAMKULAM P.O., PALA- 686 584, KOTTAYAM DISTRICT. BY ADVS.SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SRI.THOMAS P.MAKIL SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.SOBHAN GEORGE. RESPONDENT(S):- ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA, LABOUR & REHABILITATION (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. THE INSPECTOR OF NEWSPAPER ESTABLISHMENTS, OFFICE OF THE LABOUR COMMISSIONER, THIRUVANANTHAPURAM.
3. MANGALAM PUBLICATIONS INDIA PVT.LTD., REPRESENTED BY ITS MANAGING DIRECTOR, S.H.MOUNT P.O., KOTTAYAM - 686 006.
4. THE PRESIDING OFFICER, LABOUR COURT, ERNAKULAM, KOCHI- 682 031. R1, R2 & R4 BY SENIOR GOVT. PLEADER SRI.JAMES MATHEW KADAVAN. R3 BY ADVS. SRI.E.K.MADHAVAN SRI.V.KRISHNA MENON SMT.P.VIJAYAMMA SMT.UMA GOPINATH SRI.U.K.DEVIDAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON2502-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- W.P.(C).NO.21022/2008 APPENDIX PETITIONER'S EXHIBITS:- -------------------------------------- EXT.P1 TRUE COPY OF APPOINTMENT LETTER NO.MD/GEN/301 DATED311.1989 ISSUED TO PETITIONER BY3D RESPONDENT. EXT.P2 TRUE COPY OF LETTER DATED74.2001 SENT BY PETITIONER TO THE3D RESPONDENT. EXT.P3 TRUE COPY OF REPRESENTATION DATED256.2001 SUBMITTED BY PETITIONER TO3D RESPONDENT. EXT.P4 TRUE COPY OF NOTICE NO.I(1)15290/2001 DATED111.2001 ISSUED BY2D RESPONDENT. EXT.P5 TRUE COPY OF JUDGMENT
DATED72.2002 OF THIS COURT IN O.P.38124 OF2001 EXT.P6 TRUE COPY OF G.O.(Rt).NO.1416/2002/LBR DATED16.2002 ISSUED BY1T RESPONDENT. EXT.P7 TRUE COPY OF REPRESENTATION DATED311.2006 SUBMITTED BY PETITIONER TO1T RESPONDENT. EXT.P8 TRUE COPY OF REMINDER REPRESENTATION DATED205.2006 SUBMITTED BY PETITIONER TO1T RESPONDENT. EXT.P9 TRUE COPY OF REMINDER REPRESENTATION DATED152.2007 SUBMITTED BY PETITIONER TO1T RESPONDENT. EXT.P10 TRUE COPY OF JUDGMENT
DATED91.2008 OF THIS COURT IN W.P.(C).NO.19273 OF2007 EXT.P11 TRUE COPY OF G.O.(Rt.)NO.733/2008/LBR DATED273.2008 ISSUED BY1T RESPONDENT. RESPONDENT'S EXHIBITS:- ---------------------------------------- NIL. vku/- ( true copy ) K. Vinod Chandran, J ------------------------------------ W.P.(C).No.21022 of 2008 ------------------------------------- Dated this the 25th day of February, 2014 JUDGMENT
The petitioner, admittedly, was a workman of the 3rd respondent-management, who was so appointed as Telephone/PBX Operator as per Exhibit P1. The management then, after about 12 years, transferred the workman to the advertisement department, vide memo dated 05.05.2001. The workman hence submitted a representation to the Managing Director of the 3rd respondent, requesting that he be retained as Telephone Operator itself. Obviously the management did not concede to his request. Hence, a dispute was raised with respect to the denial of employment in the post of Telephone Operator, as is evident from Exhibit P3 dated 25.06.2001.
2. In fact, on a reading of Exhibit P3 it is evident that nowhere has the petitioner stated that he has been denied employment as such. The representation of the petitioner indicates that he had been, many a time prevented from entering into the premises, but, however, such action was withdrawn by the management. The prayer of the petitioner in Exhibit P3 is also to find WP(C).No.21022 of 2008-C - 2 - solution to the dispute raised by the petitioner to facilitate continuance in the permanent post to which he was appointed. The Government took up the matter as per Exhibit P4. But since nothing materialised for a long period, the petitioner was before this Court and by Exhibit P5, this Court directed expeditious consideration of the application for reference of the dispute.
3. The dispute was referred as per Exhibit P6 and the issue referred was as follows: "Whether the action of the management of Mangalam Daily in transferring Sri.Sunny Thomas, EPBX/Telephone Operator to an entirely different post in the advertisement wing of the same establishment is denial of employment. If so what is the consequential remedy the workman is entitled to".
4. Subsequently, the petitioner has filed a representation dated 31.01.2006, Exhibit P7, wherein the petitioner contended that he had raised a dispute against denial of employment and though the specific issue of "denial of employment" was referred, what was referred as per Exhibit P6 was the transfer of the workman to the advertisement department. Hence, the petitioner sought for amending WP(C).No.21022 of 2008-C - 3 - the issue under reference to re-frame the issue by way of amendment as "one of denial of employment". Exhibit P7 is dated 31.01.2006.
5. Contrary to the allegation raised in the earlier application, in Exhibit P7, it was contended that on 19.05.2001 the security in charge prevented entry into the premises of the management. But again contended in paragraph 3 that the workman was denied "eligible work in the permanent post of EPBX department" and that the same would amount to denial of employment. The workman is said to have made various representations before the Government for considering the application for amendment. Subsequently, he approached this Court and this Court, by Exhibit P10 judgment, directed that the application for amendment be considered expeditiously and also directed the Labour Court to postpone the trial of the Industrial Dispute. It is pursuant to the direction of this Court that Exhibit P11 order was passed, which is assailed in the present proceedings.
6. What is relevant, is the intervening facts, which are disclosed in Exhibit P11, which happened while the matter was pending before the Labour Court, Ernakulam. Specific reference is WP(C).No.21022 of 2008-C - 4 - made to paragraph 4, wherein it is stated so: "Sri.Sunny Thomas, S/o.K.P.Thomas, Karuvakunnel House, Amalagiri Post, Kottayam (Petitioner) was appointed as EPBX/Telephone Operator of Mangalam Publications (P) Ltd., Kottayam from 6.2.1989. Later he was transferred to the advertisement section. This transfer was questioned by raising an industrial dispute. This dispute was referred by Government for adjudication by Labour Court, Ernakulam. While the dispute was pending adjudication, the petitioner was removed from service for not joining duty as per the transfer order. According to the management this order of dismissal was passed after holding an enquiry by an independent enquiry officer and giving sufficient opportunity to the petitioner to defend the case. Since the industrial dispute was pending trial and disposal, the petitioner was dismissed from service on 6.2.2004 after seeking and obtaining permission of the Labour Court, Ernakulam. concealing this fact the petitioner filed an application dated 31.1.2006 before Government requesting to change the reference as one of denial of employment". It is very relevant that these facts have not been disclosed by the petitioner in Exhibit P7. This Court has called for the Judges Papers WP(C).No.21022 of 2008-C - 5 - relating to W.P.(C).No.19273 of 2007, which concluded in Exhibit P10. In the said writ petition, it was contended that after the reference was made to the Labour Court regarding the transfer from the post to which he was appointed; "in the meanwhile the petitioner was denied employment and subsequently ordered an enquiry with regard to the non-joining of duty" (sic). Then the petitioner contended in the above writ petition that, hence the earlier issue referred has to be amended. It is pertinent that the petitioner did not place the entire facts before this Court at the earlier instance. What assumes significance is that though Exhibit P11 has been produced by the petitioner himself, he does not, in the writ petition, at all, dispute the statement of facts extracted above in Exhibit P11. Hence, the same has to be presumed to be true.
7. What comes out from the extracted paragraph above is that while the matter was pending before the Labour Court, Ernakulam with reference to a dispute raised by the workman regarding his "denial of employment in the post of Telephone Operator", a domestic enquiry was initiated against him and an independent enquiry officer was appointed. Having found the workman guilty of the offences WP(C).No.21022 of 2008-C - 6 - alleged, he was dismissed from service on 06.02.2004. It is also disclosed that the management had specifically sought for the permission of the Labour Court, since a dispute was pending thereon and the Labour Court had allowed the same.
8. In the teeth of the said facts, the discussion with respect to whether an amendment could be made under the Industrial Disputes Act, 1947 (for brevity "ID Act"), may not really arise in the case. The specific case of the petitioner-workman was, that, since the matter was pending before the Labour Court, the management could not have altered the conditions of service and if the same is done, it could be referred as an additional issue to be considered by the Labour Court, under Section 33A.
9. The learned counsel for the petitioner relies on sub-section (4) of Section 10 of the ID Act to contend that in fact even a subsequent dispute could also be referred for consideration along with the original reference. Sub-section (4) only confines the power of the Labour Court, Tribunal or National Tribunal to go into the specific issues referred in an order of reference or in any subsequent order of reference. That does not confer any right on a workman to seek for an WP(C).No.21022 of 2008-C - 7 - amendment of an issue, already referred for adjudication.
10. Looking at the facts in the present case, the dispute referred originally was a dispute with respect to the transfer to another post and whether that would result in denial of employment. Subsequently, it has come out on record, that the employee was proceeded against, in a duly initiated proceedings and dismissed from service while the matter was pending before the Labour Court; with the permission of the Labour Court. Definitely, the petitioner-workman could have raised a further dispute on the termination, which issue could have also, been referred to the Labour Court. If such termination was in any manner connected with the earlier reference or even otherwise; the issue referred earlier and that referred subsequently could also have been considered by the Labour Court. That is the effect and purport of sub-section (4) of Section 10.
11. As was noticed above, the petitioner deliberately did not disclose either in the application filed for amendment, Exhibit P7, or in the writ petition that there was an enquiry proceeded with against the petitioner, when the dispute was pending before the Labour Court and that he was dismissed from service pursuant to such enquiry. WP(C).No.21022 of 2008-C - 8 - Exhibit P11, in fact, specifically notices that the management had approached the Labour Court and obtained its permission before dismissing the workman. In such circumstances, Section 33A is not at all applicable.
12. What the petitioner attempts to do, is to bring in a subsequent event, to be considered in the reference already made, to the Labour Court. At the risk of repetition, it has to be noticed that earlier the issue raised by the petitioner was only with respect to his "denial of employment in the post of Telephone Operator". When the reference on that dispute was pending before the Labour Court, he was proceeded against in a properly instituted enquiry and dismissed from service; that too with the permission of the Labour Court. As is noticed in Exhibit P11, it is concealing this fact that the petitioner-workman has filed an application for amendment, by which the petitioner attempted to style the earlier reference as a reference on the question of denial of employment as such, thus attempting to prosecute his dismissal from service; without disclosing the intervening circumstances and by relating it back to the dispute raised on the admitted transfer. What the petitioner-workman attempted to do WP(C).No.21022 of 2008-C - 9 - in the present case is a clear abuse of process of law, by not disclosing the essential facts. The attempt of the petitioner was to initiate an adjudication on his termination, effected subsequently, as a dispute on which the original reference was made. It was to this end that an application for amendment was made, which attempt was foiled by the Government; rightly in Exhibit P11. For the reasons aforesaid, the writ petition is dismissed. This Court, in normal circumstances, would have imposed heavy costs on the petitioner; but in the context of the petitioner being no more in employment now, this Court restrains itself from imposing any costs. Parties to suffer their costs. Sd/- K. Vinod Chandran, Judge vku/- ( true copy )