A. L. Domini v. Industrial Tribunal, Palakkad and Manager, Bata Shoe Store (Bata India Ltd.)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **WEDNESDAY, THE 8TH DAY OF JANUARY 2014/18TH POUSHA, 1935** ## **WP(C).No. 3883 of 2004 (K)** **--------------------------ID.NO. 47/2000 OF INDUSTRIAL TRIBUNAL, PALAKKAD** **-----------------------------** ## **PETITIONER :** **--------------------------** **A.L.DOMINI, AKKANATH HOUSE, MARIA SADAN, PARALAM P.O., VENGINISSERY, THRISSUR.** **BY ADVS.SRI.P.RAMAKRISHNAN SRI.A.JAYASANKAR** ## **RESPONDENT(S):** **----------------------------** ## **1. INDUSTRIAL TRIBUNAL, PALAKKAD.** **2. MANAGER, BATA SHOE STORE, (BATA INDIA LTD.) SWARAJ ROUND, THRISSUR-680 001.** **R1 BY GOVERNMENT PLEADER SRI.R.RANJITH R2 BY ADVS. SRI.E.K.NANDAKUMAR SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-11-2013, THE COURT ON 08-01-2014 DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.3883/2004** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE TERMINATION ORDER ISSUED BY THE 2ND RESPONDENT DATED 11/04/1989** - **P2 COPY OF THE RETRENCHMENT NOTICE RECEIVED BY THE PETITIONER ON 17/04/1989** - **P3 COPY OF THE RETRENCHMENT NOTICE DATED 4/12/1993 ISSUED BY THE 2ND RESPONDENT.** - **P4 COPY OF THE RETRENCHMENT NOTICE WITH COVERING LETTER DATED 20/08/1999 ISSUED BY THE 2ND RESPONDENT.** - **P5 COPY OF THE FORM P NOTICE DATED 26/08/1999 ISSUED BY THE 2ND RESPONDENT** - **P6 COPY OF THE AWARD DATED 24/06/2002 PASSED BY THE 1ST RESPONDENT IN ID.NO.47/2000** ## **RESPONDENT'S EXHIBITS:** ## **NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **A.V.RAMAKRISHNA PILLAI, J.** = = = = = = = = = = = = = = = = = W.P(C) No.3883 of 2004 = = = = = = = = = = = = = = = = = = Dated this the 8[th] day of January, 2014 ## **JUDGMENT** Under challenge in this writ petition is Ext.P6 award passed by the Industrial Tribunal insofar it denies reinstatement of the petitioner in service with full back wages in the 2[nd] respondent establishment. 2. The petitioner was employed as a salesman in the 2[nd] respondent establishment since July, 1985. By Ext.P1 order dated 11.4.1989, his service was discontinued by the Shop Manager. Subsequently, a retrenchment notice was sent with a demand draft dated 13.4.1989. 3. The Shop Employees' Association raised an industrial dispute and the same was referred for adjudication to the Industrial Tribunal. By award dated 20.1.1993, it was found that the termination was void and the 2[nd] respondent was directed to reinstate the petitioner in service with all consequential benefits. Again, the 2[nd] respondent without reinstating the petitioner, issued Ext.P3 termination order. However, the petitioner refused to accept any compensation. Thereafter, the matter was taken before this WP(C).3883/04 ## **-:2:-** Court in O.P No.511 of 1994 by the 2[nd] respondent and this Court confirmed the award. But, in a writ appeal filed against the same, the case was remanded back to the Industrial Tribunal for fresh consideration. The Industrial Tribunal, after hearing both sides, passed an award on 31.10.1997 finding that the termination was illegal and unsustainable and the petitioner was deemed to be in service till validly retrenched. The said order was not challenged. The petitioner was reinstated. However, there were certain disputes regarding the back wages, and for that, a claim was preferred to the Labour Court, which was closed because of the pendency of the writ petition. Again Ext.P4 termination order and Ext.P5 Form P notice were sent, which were again came up before the Industrial Tribunal as ID No.47/2000, in which Ext.P6 impugned award was passed. 4. In Ext.P6, the learned Tribunal found that the reasons stated for retrenchment was not valid or justifiable and the management has violated the provisions of Section 25G of the Industrial Disputes Act r/w. Rule 77 of the Kerala Industrial Disputes Rules. However, the learned Tribunal was of the view that Section 25G was only directory, and without giving any relief under Section 25G, it was found that the petitioner is entitled to the benefit under Section 25H. **-:3:-** WP(C).3883/04 5. According to the petitioner, Section 25G is mandatory and, therefore, the petitioner should have been reinstated in service with full back wages. 6. I have heard the learned counsel for the petitioner and the learned counsel for the 2[nd] respondent establishment. 7. The learned counsel for the petitioner would submit that Section 25H of the Industrial Disputes Act, which prescribes the procedure for retrenchment that in the absence of any agreement between the employer and the workman in this behalf, the employer should ordinarily retrench the workman, who was the last person to be employed in that category, unless for reasons to be recorded, is mandatory in nature. 8. The learned counsel for the 2[nd] respondent, per contra, would submit that the petitioner was a casual employee engaged in the shop and he was retrenched under Section 25F of the Industrial Disputes Act. The argument advanced was that being a temporary employee, Section 25G has no application. It was also argued that being a temporary hand, there was no seniority list pertaining to him. 9. In support of the argument, the learned counsel for the petitioner invited my attention to the decision of Apex Court in WP(C).3883/04 ## **-:4:-** **Swadeshmitran Ltd.** v. **Their Workmen** [1960 1 L.L.J 504]. In that case, the Apex Court traced the history behind the introduction of Section 25G and observed that by the introduction of Section 25G, a statutory obligation is imposed on the employer to follow the Rule and if he wants to depart from it, has to record the reasons for the said departure. It was pointed out by the learned counsel for the petitioner that the employer has not recorded any specific reason for departing from the proceeding. My attention was also invited by the learned counsel to the decision of this Court in **Prabhakaran** v. **General Manager, K.S.R.T.C** [1981 KLT 164] and also to the decision of the Apex Court in **Samishta Dube** v. **City Board, Etawah & another** [(1999) 3 SCC 14], which practically uphold the same view. 10. It is an admitted fact that the petitioner was working in the establishment, since 1985 onwards. Previously, there was a retrenchment and reinstatement and thereafter, he continued on duty. Hence, evidently, the petitioner has worked for more than 240 days. The Industrial Disputes Act makes no distinction between a temporary employee and a permanent employee for the application of Section 25G. Therefore, this Court is of the definite view that the argument advanced by the learned counsel for the WP(C).3883/04 **-:5:-** petitioner that Section 25G is mandatory, has to be upheld. 11. The learned counsel for the respondent establishment inviting my attention to the decision of the Apex Court in **Ahmedabad Municipal Corporation** v. **Virendra Kumar Jayantibhai Patel** [(1997) 6 Supreme Court Cases 650] would argue that the High Court while exercising jurisdiction under Article 226, cannot convert itself into a court of appeal and assess the sufficiency or adequacy of the evidence in support of the finding of fact reached by the competent courts or the tribunals. However, this does not debar the High Court from its power to enquire whether there is any evidence in support of a finding recorded by the inferior court or tribunal. It was further argued by the learned counsel for the respondent relying on the decision of the Apex Court in **OM Oil and Oil Seeds Exchange, Ltd., Delhi** v. **Their Workmen** (1966 II L.L.J 325) that the principle of first come and last go is not immutable and there can be a departure therefrom for valid reasons. Of course, there can be departure, but the same can only be for reasons to be recorded. Here, no reasons were recorded. In the result, the writ petition is allowed. Ext.P6 is modified holding that the retrenchment of the petitioner is illegal, unjustifiable and violative of Sections 25F and 25G of the Industrial WP(C).3883/04 ## **-:6:-** Disputes Act. The petitioner is entitled to be reinstated in service with full back wages and all consequential benefits. This direction shall be given effect to by the 2[nd] respondent within a period one month from today. Sd/- **A.V.RAMAKRISHNA PILLAI JUDGE** krj /True Copy/ P.A to Judge