COCHIN INTERNATIONAL EMPLOYEES ASSOCIATION V. COMMONWEALTH TRUST INDIA LTD.

WP(C)/13243/2013

AI Insights

The case involves P.S. Jayaprakash Kumar, a clerk who was transferred from the head office of Commonwealth Trust India Ltd. to a tile factory in Feroke, and subsequently terminated for not reporting to the new location. The petitioner challenged the Labour Court's award, which dismissed his claims. The main legal issues were the validity of the transfer and the termination during conciliation proceedings. The court examined the evidence, including the workman's income tax returns and correspondence with the management, and found that the transfer was not punitive but necessary due to the closure of the original workplace. The court also noted the workman's failure to comply with the transfer order as a reason for upholding the termination.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 690543 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 30-01-2023
• Assessment Year: misc
• Laws Referred To: Industrial Disputes Act, Industrial Employment (Standing Orders) Act, Kerala Shops and Commercial Establishments Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: V KRISHNA MENON; J SURYA; UMA GOPINATH; P VIJAYAMMA
• Assessee Lawyers: P RAMAKRISHNAN; C ANILKUMAR
• Keywords: Conciliation Proceedings; Industrial Dispute; Termination; Transfer
• Section: 25; 33

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 30TH DAY OF JANUARY 2023 / 10TH MAGHA, 1944 WP(C) NO. 13243 OF 2013 AGAINST THE AWARD IN ID 6/2010 OF LABOUR COURT, KOZHIKODE PETITIONERS: 1 COCHIN COMMERCIAL EMPLOYEES ASSOCIATION CCEA COMPLEX, AMARAVATHY, KOCHI, REPRESENTED BY ITS GENERAL SECRETARY. 2 P.S.JAYAPRAKASH KUMAR PADIPPURA HOUSE, 5/2936 A, PUTHIYARA P.O, THURUTHIYAD, KOZHIKODE - 673 004. BY ADVS. SRI.P.RAMAKRISHNAN SRI.C.ANIL KUMAR RESPONDENTS: 1 COMMONWEALTH TRUST INDIA LTD. MANANCHIRA, KOZHIKODE - 673 001, REPRESENTED BY ITS DIRECTOR IN CHARGE. 2 LABOUR COURT KOZHIKODE - 673 006. BY ADVS. SRI.V.KRISHNA MENON SMT.J.SURYA SMT.UMA GOPINATH SMT.P.VIJAYAMMA GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No.13243/2013 2 JUDGMENT Present Writ Petition is directed against the award dated 26.06.2012 rendered in I.D.No.6 of 2010 at the instance of petitioner No.2 alleged to have joined the 1st respondent management as clerk on 06.02.1978. Ever since the employment, 2nd petitioner was working in the Head Office of the 1st respondent for about 30 years. However, vide order dated 30.12.2008, was transferred from the Head office to the tile factory in Feroke with effect from 02.01.2009. On receipt of the aforementioned transfer order, 2nd petitioner raised an industrial dispute before the District Labour Officer. It is alleged that services of the 2nd petitioner were also terminated on the ground that he did not report for the duty which was in violation of the provisions of Section 33 of the Industrial Disputes Act. The Government referred the following dispute: The points referred for adjudication is as follows : “Whether the transfer of Sri.Jayaprakash Kumar, Head Clerk, Head Office, Common Wealth Trust India Limited, Calicut to Common Wealth Tile Factory, Feroke is valid ? Whether his termination of service during the pendency of conciliation proceedings is valid and if not, what relief he is entitled to get?” 2. In support of the aforementioned claim petition, the 2nd petitioner workman examined himself as WW1 and brought on WP(C) No.13243/2013 3 record the following documents. “Sl.No.Exts. Date Description 1 W1 2/2/78 Appointment order 2 W2 1/2/79 Confirmation order 3 W3 23/2/01 Order No.B4/14886/99 dtd.23/2/01 4 W4 8/1/09 O.P.No.24276/2001 of High Court, Kerala 5 W5 30/12/08 Transfer order No.HRD/III 6 W6 2/1/09 Copy of request to Director in charge Commonwealth Trust India Limited 7 W7 3/1/09 Copy of petition No.28/2009 to the District Labour Officer, Kozhikode 8 W8 8/1/09 Copy of letter of Asst. Manager EDP Department No.HRD/116 9 W9 12/1/09 Conciliation Notice No.IR(2)552/09 of District Labour Officer, Kozhikode 10 W10 19/1/10 Copy of letter of P.S.Jayaprakash Kumar addressed to the Director in charge of Commonwealth Trust (India) Limited 11 W11 9/2/09 Copy of letter of Assistant Manager EDP Department 12 W12 20/2/09 Copy of letter of P.S.Jayaprakash Kumar 13 W13 23/1/09, 2/3/09 } Copy of conciliation notices of the Series(8Nos) 6/5/09, 24/6/09 } District Labour Officer, Kozhikode 3/8/09, 26/8/09 } 24/11/09, 2/1/2010} 14 W14 23/7/09 Notice of the Director in charge 15 W15 29/7/09 Copy of the reply letter of P.S.Jayaprakash Kumar 16 W16 3/8/09 Notice of the Director in charge 17 W17 12/8/09 Copy of the letter of the union 18 W18 12/8/09 Copy of the letter of the union 19 W19 15/10/09 Conciliation Notice No.IR(2)522/09 of District Labour Officer, Kozhikode 20 W20 1/10/09 Copy of the letter of the management 21 W21 31/10/09 Copy of the letter of the union 22 W22 1/12/02 Copy of the letter of the union 23 W23 5/12/09 Copy of the letter of the workman 24 W24 23/12/08 Copy of the letter of the workman 25 W25 1/9/99 Copy of letter of Cochin Commercial Employees Association 26 W26 5/9/03 Copy of letter of Cochin Commercial Employees Association 27 W27 22/11/07 Copy of letter of Cochin Commercial Employees Association 28 W28 1/1/06 R.R. Leave position of staff 29 W29 15/7/09 Minutes of the meeting conducted by the Additional Labour Commissioner (IR) 30 W30 7/1/05 Copy of summons issued in ID 34/04 of the Industrial Tribunal, Kozhikode 31 W31 25/7/05 Copy of counter statement filed by the management (ID 34/04) WP(C) No.13243/2013 4 32 W32 - Notice of Secretary, Industrial Tribunal, Kozhikode in I.D.33/04 33 W33 4/11/04 Copy of the GO (Rt) 2898/04/LBR 34 W34 10/12/2000 Copy of GO(Rt) 2028/2010/LBR” The management examined a witness as MW1 and brought on record the following documents : “1 M1 30/12/08 Letter of the management No.HRD/111 2 M2 2/1/09 Copy of the letter of the workman 3 M3 8/1/09 Copy of the letter of Asst. Manager, EDP Dept.No.HRD 111 4 M4 9/2/09 Copy of the letter of Asst. Manager EDP Dept. No.HRD/131 5 M5 23/7/09 Copy of letter No.HRD/81 of the management 6 M6 3/8/09 Copy of letter No.HRD/87 of the management 7 X1 23/4/2011 Document filed by Manager LIC of India, Divisional Office, Kozhikode regarding Commission 8 X2 11/5/2011 Document filed by Income Tax Officer Ward I(I) Kozhikode – Income Tax return of P.S.Jayapraksh Kumar” 4. The Labour Court on the preponderance of the evidence dismissed the reference. 5. Learned counsel appearing on behalf of the petitioners submitted that the award of the Labour Court is per se not sustainable and is illegal for the reason that there is no adjudication with regard to the reference qua termination. The entire thrust was only on transfer. There was no clause in the appointment letter for transferring the petitioner No.2 even if is one of the office bearers of the respondent management. The Industrial Employment (Standing Orders) Act envisaging the transfer of the 2nd petitioner WP(C) No.13243/2013 5 workman was not accepted by this Court in some different legal proceedings. There is violation of provisions of Section 25 as well as Section 33 of the Industrial Disputes Act. It is not the case that petitioner No.2 started the job of the LIC agent only after the transfer order, but had been working before as evident from the income tax returns from 2007-2008, 2008-2009 and 2009-2010, Exhibits X1 and X2 brought on record by the management. 6. On the other hand, learned counsel appearing on behalf of the management submitted that the transfer from head office cannot be an act of punishment. There was no termination of the service whereas despite having submitted request to join vide W14 dated 23.07.2009 after almost seven months of the transfer order dated 30.12.2008, Petitioner No.2 did not respond, thus it was a case of voluntary relinquishment with effect from 01.01.2009. All throughout the workman was gainfully employed. 7. I have heard the counsel for the petitioner and appraised the paper book. 8. The Labour Court was directed to adjudicate two points i.e, transfer as well as termination of service during the pendency of conciliation proceedings. It was submitted that the provisions of the Industrial Employment (Standing Orders) Act would not be WP(C) No.13243/2013 6 applicable to the staff members working in the head office as the head office was within the purview of the Kerala Shops and Commercial Establishments Act. Even if there is no order of transfer mentioned in the appointment letter, there is no bar for the management to transfer. It is a conceded case on behalf of the workman that the weaving unit in which he was working had already closed down. The said fact has been noticed by the Labour Court in the award. The relevant portion reads as under : “Anyhow, the workman in his oral testimony as the WW1, admitted that the weaving factory under the management was already closed down.” 9. In the absence of work, the transfer of petitioner No.2 was justified. The person who is discharging the duties cannot come out with an excuse of transfer. It was not a contumacious act or an act of punishment but on account of the exigencies. No explanation has come forth on behalf of the petitioner in response to the letter dated 23.07.2009 W14 sent after seven months of the transfer order except W15 dated 29.07.2009 wherein the plea of transfer had already been agitated. The entire thrust of the management was only on the transfer. In the absence of joining management could not have been burdened to hold an ex parte enquiry post the termination order as suggested. Exhibits X1 and WP(C) No.13243/2013 7 X2 are the documents of the Life Insurance Corporation reflecting that petitioner No.2 had been working as LIC agent and had been getting a commission and the income tax returns for the year 2007-2008, 2008-2009 and 2009-2010 are the testimonies. Rather the contents of letter W15 conveyed that the workman was disinclined to comply with the direction in W14 directing him to join the place of posting. All these matters have conclusively been found to be against the workman. I do not find any illegality and perversity in the impugned award. No case is made out warranting interference to form a different opinion in view of the documents placed on record as well as the categoric findings of the Labour Court. Writ petition sans merit, accordingly dismissed. Sd/- AMIT RAWAL JUDGE csl WP(C) No.13243/2013 8 APPENDIX OF WP(C) 13243/2013 PETITIONERS' EXHIBITS EXHIBIT P1 TRUE COPY OF THE CLAIM STATEMENT FILED BY THE IST PETITIONER IN I.FD 6/2010 EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE IST RESPONDENT IN I.D 6/2010. EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE IST PETITIONER IN I.D.6/2010. EXHIBIT P4 TRUE COPY OF THE AWARD DAT4ED 26/06/2012 PASSED BY THE 2ND RESPONDENT IN I.D.NO. 6/2010. "