Cochin Refineries Employees Association v Union of India and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`MONDAY, THE 14[TH] DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944`** ## **`WP(C) NO. 34429 OF 2022`** ## **`PETITIONER:`** ``` COCHIN REFINERIES EMPLOYEES ASSOCIATION, REG.NO.120/67, AMBALAMUGAL, KOCHI-682302, REPRESENTED BY ITS GENERAL SECRETARY MR.PRAVEEN KUMAR P. ``` ``` BY ADVS. C.S.AJITH PRAKASH T.K.DEVARAJAN M.B.SOORI BABU M. NIDHIN RAJ VETTIKKADAN HAARIS MOOSA ANCY THANKACHAN GOURI KAILASH ``` ## **`RESPONDENTS:`** ``` 1UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF LABOUR AND EMPLOYMENT, GOVERNMENT OF INDIA, SHRAM SHAKTI BHAWAN, RAFI MARG, NEW DELHI-110001. ``` - `2 MINISTRY OF PETROLEUM AND NATURAL GAS GOVERNMENT OF INDIA, A WING, SHASTRI BHAWAN, DR. RAJENDRA PRASAD ROAD, NEW DELHI, 110001.` - `3 THE DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL), CONCILIATION OFFEER UNDER ID ACT 1949 OFFICE OF THE DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL) OLMUGAL, RAKKANAD, ERNAKULAM 680 030.` - `4 THE CHAIRMAN & MANAGING DIRECTOR, BHARAT PETROLEUM CORPORATION LTD, BHARAT BHAVAN, BALLARD ESTATE, MUMBAI -1.` - `5 BHARAT PETROLEUM CORPORATION LIMITED, KOCHI REFINERY, AMBALAMUGAL - 682 302 REPRESENTED BY ITS EXECUTIVE DIRECTOR.` - `6 THE CHIEF GENERAL MANAGER (H.L)IC BPCL, KOCHI REFINERY, AMBALAMUGAL - 682 302.` ``` WP(C) NO. 34429 OF 2022 -2- ``` ``` BY ADVS. SHRI.B.RAMACHANDRAN, CGC P.BENNY THOMAS D.PREM KAMATH TOM THOMAS (KAKKUZHIYIL) ABEL TOM BENNY KURIAN OOMMEN THERAKATH JAIKRISHNAN.M.PISHARODI K.S.MUHAMMED SHEFIN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 34429 OF 2022 -3- ``` ## **`JUDGMENT`** Petitioner is Cochin Refineries Employees Association registered with the Indian Trade Unions Act (Act XVI of 1926) bearing Registration No.120 of 1967 and has approached this Court for claiming the following reliefs: “i. to issue a writ of mandamus or any other appropriate writ, direction or order directing the respondent Management to grant the monitory benefit with arrears, from August 2018, after revisiting the wages of the members of the Union by 95% DA merger and 12% fitment benefit to the existing salary, pending final adjudication of ID 47/202 pending before the Central Government Industrial TribunalCum-Labour Court. ii. to declare that the members of the petitioner Union are entitled to receive the benefits claimed in Exhibit P15 interim relief application pending disposal of the final adjudication of ID 47/2021 pending before the Central Government Industrial Tribunal – Cum-Labour Court. iii. to issue such other writ or order or direction ``` WP(C) NO. 34429 OF 2022 -4- ``` as this Hon’ble Court may be deem fit and proper in the fact and circumstances of the case or as may be prayed from time to time.” 2. Concededly for non-acceptance of the settlement arrived at, the employer approached the Government for reference of dispute. Government vide reference dated 16.08.2021 Ext.P11 referred, the following dispute, to the Labour Court: “Whether the action of the management of M/s BPCL-Kochi Refinery in offering the fitment benefits and DA Merger at the rate of 12% and 95% as against 15% and 100% respectively as demanded by the Cochin Refineries Employees Association and also as granted by the other oil sector CPSU’s in the country is fair and justifiable? Whether the action of the M/s BPCL-Kochi Refinery in insisting the union to sign the memorandum of agreement with condition attached as under Sub Clause of Clause I which undermines the role and existence of the union is fair and justifiable? If not, as to what relief they are entitled to?” 3. Concededly I.D.No.47 of 2021 is pending before the Central Government Industrial Dispute ``` WP(C) NO. 34429 OF 2022 -5- ``` Tribunal-cum- Labour Court. Learned counsel appearing on behalf of the petitioner submitted that an interim application Ext.P15 claiming the interim relief for directing the management to disburse the aggrieved amount towards the DA merger at the rate of 95% and 12% fitment benefits on monthly wages with arrears with effect from 01.08.2018 to the workers of the Bharat Petroleum Corporation Ltd, Cochin Refinery dated 23.04.2022 was awaited. Since the Tribunal with effect from December, 2021 is without Presiding Officer, has approached this Court for relief. In support of the contention, has relied upon various judgments **Annam Steels (P)Ltd (M/s.)and Others v. M/s. Canara Bank Ltd. And Antoher (2022(1)KHC 536)** and **Surendran Nair v. Bharat Petroleum Corporation Ltd (2019 (2) KLT SN 16)** to contend that when placed in a situation like this, the parties affected can always approach this court under Article 226 of the Constitution of India. 4. Learned counsel for the respondents submitte that even the application for interim relief is not ``` WP(C) NO. 34429 OF 2022 -6- ``` maintainable as it amounted to granting of the main relief. It is settled law that when the interim relief sought is germane to the final relief, the Court should be circumspect in granting such reliefs. If the aforementioned relief is granted by this Court or even by the Central Tribunal, it tantamount to allowing the main case without adjudication. 5. I have heard learned counsel for the parties and appraised the paper book. 6. There is no dispute to the ratio decidendi culled out in the judgment referred to above, where, in a case of an emergency like suspension, removal, termination etc., High Court under Article 226 of the Constitution of India can be approached to the rescue of such litigants who had been rendered remediless in the absence of Tribunal without the Presiding Officer. But keeping in view the facts and circumstances of the case, particularly the reliefs sought in the interim application, viz., the reliefs in the present writ petition, I am afraid that such reliefs cannot be granted as the matter is ``` WP(C) NO. 34429 OF 2022 -7- ``` pending adjudication before the Labour Court in the I.D. aforementioned. It would be the prerogative of the Tribunal to decide whether the said interim relief which has already been couched in the main relief, can be granted or not. Writ petition is devoid of the merits, accordingly dismissed. At this stage learned counsel for the petitioner requests that direction be issued to the Central Government for taking steps for appointment of the Presiding Officer. I am afraid that the said request also cannot be looked into in the absence of the prayer though Union of India has been represented through Secretary, Ministry of Labour and Petroleum and Natural Gas. Petitioner is at liberty to claim the relief in the appropriate proceedings. Sd/- ``` AMIT RAWAL JUDGE ``` ``` vv ``` ``` WP(C) NO. 34429 OF 2022 -8- ``` ## **`APPENDIX OF WP(C) 34429/2022`** ## **`PETITIONER EXHIBITS`** - `Exhibit P1 A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER UNION.` - `Exhibit P2 A TRUE COPY OF THE COMMON CHARTER OF DEMANDS SUBMITTED BY THE TRADE UNIONS IN BPCL, KOCHI REFINERY TO THE EXECUTIVE DIRECTOR (HR) BPCL KOCHI REFINERY, DATED 13.08.2019.` - `Exhibit P3 A TRUE COPY OF THE INDUSTRIAL DISPUTE RAISED BY THE PETITIONER UNION BEFORE THE 3RD RESPONDENT DATED 21.06.2019.` - `Exhibit P4 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER. UNION TO THE 3RD RESPONDENT DATED 17.07.2020.` - `Exhibit P5 A TRUE COPY OF THE REPLY SUBMITTED BY THE CHIEF GENERAL MANAGER (HR) DATED 07.08.2020 TO THE PETITIONER.` - `Exhibit P6 A TRUE COPY OF THE DRAFT MEMORANDUM OF AGREEMENT (MOA) ON WAGES AND OTHER MATTERS, KOCHI REFINERY DATED 19.05.2020.` - `Exhibit P7 A TRUE COPY OF THE LETTER DATED 01.09.2020, SUBMITTED BY THE PETITIONER TO THE CONCILIATION OFFICER.` - `Exhibit P8 A TRUE COPY OF THE NOTICE DATED 01.09.2020, ISSUED BY THE GENERAL SECRETARY OF THE UNION.` - `Exhibit P9 A TRUE COPY OF THE RELEVANT PAGES OF THE DRAFT MEMORANDUM OF SETTLEMENT OFFERED BY THE MANAGEMENT IN RESPONSE OF LTS ISSUE.` ``` WP(C) NO. 34429 OF 2022 -9- ``` - `Exhibit P10 A TRUE COPY OF THE FAILURE OF CONCILIATION REPORT (FOC) DATED 02.07.2021 ISSUED BY THE 3RD RESPONDENT TO THE SECRETARY LABOUR AND EMPLOYMENT, GOVERNMENT OF INDIA.` - `Exhibit P11 A TRUE COPY OF THE ORDER NO: F.NO. -L 30011/14/2021- IR(M) DATED 16.08.2021 ISSUED BY THE UNDER SECRETARY, MINISTRY OF LABOUR.` - `Exhibit P12 A TRUE COPY OF THE JUDGMENT IN W.P(C) NO. 1136/2020 DATED PRONOUNCED ON 17.07.2021.` - `Exhibit P13 A TRUE COPY OF THE JUDGMENT IN WP(C) NO.16629/21 DATED 05.10.2021.` - `Exhibit P14 A TRUE COPY OF THE CLAIM STATEMENT FILED BY THE PETITIONER UNION DATED 16/12/2021 BEFORE THE CGIT-CUM-LABOUR COURT.` - `Exhibit P15 A TRUE COPY OF THE APPLICATION FOR INTERIM RELIEF FILED BY THE PETITIONER UNION DATED 23/04/2022 BEFORE THE HON'BLE CGIT-CUM-LABOUR COURT.` - `Exhibit P16 A TRUE COPY OF THE APPLICATION FOR INTERIM AWARD/INTERIM RELIEF FILED BY THE UNION DATED 28/10/2021 BEFORE THE CGIT-CUM-LABOUR COURT - I, MUMBAI.` - `Exhibit P17 A TRUE COPY OF THE ORDER DATED 22/07/2022 IN REFERENCE NO. CGIT 1/13 OF 2021 PASSED BY THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1 MUMBAI.` - `Exhibit P18 A TRUE COPY OF THE REFERENCE ORDER F.NO.130011/9/2021-IR (M) DATED 29/07/2024, REFERRING THE DISPUTE BY THE MINISTRY OF LABOUR TO THE CGITCUMLABOUR COURT NO.1, MUMBAI.` ``` WP(C) NO. 34429 OF 2022 -10- ``` |`Exhibit P19`|`A TRUE COPY OF THE APPLICATION FOR`| |---|---| ||`EARLY HEARING IA FILED BY THE`| ||`PETITIONER DATED 26/07/2022 BEFORE THE`| ||`CGIT-CUM-LABOUR COURT.`| |`Exhibit P20`|`A TRUE COPY OF THE MEMORANDUM OF`| ||`SETTLEMENT BETWEEN INDIAN OIL`| ||`CORPORATION DATED AND THEIR WORKMEN`| ||`DATED 03/10/2019 PRODUCED AS DOCUMENT`| ||`NO. 3 IN ID 47 OF 2021 PENDING BEFORE`| ||`THE CGIT-CUMLABOUR COURT.`| |`Exhibit P21`|`A TRUE COPY OF THE LONG TERM`| ||`SETTLEMENT UNDER SECTION 12(3) OF`| ||`INDUSTRIAL DISPUTE ACT, 1947 BETWEEN`| ||`MUMBAI REFINERY UNDER HINDUSTAN`| ||`PETROLEUM (HP) AND ITS EMPLOYEES DATED`| ||`15/02/2021 IS PRODUCED AS DOCUMENT`| ||`NO.4 IN ID 47 OF 2021 PENDING BEFORE`| ||`THE CGIT-CUM-LABOUR COURT.`| |`Exhibit P22`|`A TRUE COPY OF THE MEMORANDUM OF`| ||`SETTLEMENT BETWEEN MANAGEMENT OF GALL.`| ||`(INDIA), LIMITED, NEW DELHI AND GALL'S`| ||`EMPLOYEES ASSOCIATION (GEA) DATED`| ||`19/06/2020 IS PRODUCED AS DOCUMENT`| ||`NO.5 IN ID 47 OF 2021 PENDING BEFORE`| ||`THE CGIT-CUM-LABOUR COURT.`| |`Exhibit P23`|`A TRUE COPY OF THE OFFICE MEMORANDUM`| ||`DATED 03/08/2017 ISSUED BY THE`| ||`DEPARTMENT OF PUBLIC ENTERPRISES,`| ||`MINISTRY OF HEAVY INDUSTRIES AND`| ||`PUBLIC ENTERPRISES, GOVERNMENT OF`| ||`INDIA IN SUBJECT TO THE PAY REVISION`| ||`OF BOARD LEVEL EXECUTIVES AND NON-`| ||`UNIONISED SUPERVISORS OF CPSE IS`| ||`PRODUCED AS DOCUMENT NO.6 IN ID 47 OF`| ||`2021 PENDING BEFORE THE CGIT-CUM-`| ||`LABOUR COURT.`| |`Exhibit P24`|`A TRUE COPY OF THE CIRCULAR DATED`| ||`30/10/2017 WITH RESPECT TO SALARY`| ||`REVISION OF THE MANAGEMENT STAFF OF`| ||`BPCL ISSUED BY GENERAL MANAGER (COMP &`| ``` WP(C) NO. 34429 OF 2022 -11- ``` ||`BEN) IS PRODUCED AS DOCUMENT NO.7 IN`| |---|---| ||`ID 47 OF 2021 PENDING BEFORE THE CGIT-`| ||`CUM-LABOUR COURT.`| |`Exhibit P25`|`A TRUE COPY OF THE OFFICE MEMORANDUM`| ||`DATED 24/11/2017 ISSUED BY THE`| ||`DEPARTMENT OF PUBLIC ENTERPRISES,`| ||`MINISTRY OF HEAVY INDUSTRIES AND`| ||`PUBLIC ENTERPRISES, GOVERNMENT OF`| ||`INDIA IN SUBJECT TO THE WAGE POLICY`| ||`FOR THE 8TH ROUND OF WAGE NEGOTIATIONS`| ||`FOR WORKMEN IN CPSE IS PRODUCED AS`| ||`DOCUMENT NO. 8 IN ID 47 OF 2021`| ||`PENDING BEFORE THE CGIT-CUM-LABOUR`| ||`COURT.`| |`Exhibit P26`|`A TRUE COPY OF THE OFFICE MEMORANDUM`| ||`DATED 26/11/2008 ISSUED BY THE`| ||`DEPARTMENT OF PUBLIC ENTERPRISES,`| ||`MINISTRY OF HEAVY INDUSTRIES AND`| ||`PUBLIC ENTERPRISES, GOVERNMENT OF`| ||`INDIA IN SUBJECT TO THE BOARD LEVEL`| ||`AND BELOW BOARD LEVEL EXECUTIVES AND`| ||`NON-UNIONISED SUPERVISORS IN CENTRAL`| ||`PUBLIC SECTOR ENTERPRISES IN CPSE IS`| ||`PRODUCED AS DOCUMENT NO. 9 IN ID 47 OF`| ||`2021 PENDING BEFORE THE CGIT-CUMLABOUR`| ||`COURT.`| |`Exhibit P27`|`A TRUE COPY OF THE WRITTEN OBJECTION`| ||`FIELD BY THE RESPONDENT MANAGEMENT`| ||`BEFORE THE CGIT - CUM LABOUR COURT,`| ||`ERNAKULAM IN THE I.A. IN ID NO.`| ||`47/2021 CLAIMING INTERIM RELIEF DATED`| ||`09.08.2022 ALONG WITH ITS ANNEXURE`| ||`MARKED AS M1.`| |`Exhibit P28`|`A TRUE COPY OF THE WRITTEN STATEMENT`| ||`DATED 09-08-2022 FILED BY THE BPCL`| ||`MANAGEMENT BEFORE THE CGIT- CUM LABOUR`| ||`COURT, ERNAKULAM IN I.D 47/2021 WITH`| ||`ITS ANNEXURES.`| |`Exhibit P29`|`A TRUE COPY OF THE PETITION FOR`| ||`ADJOURNMENT DATED 17.08.2022 FILED BY`| ``` WP(C) NO. 34429 OF 2022 -12- ``` ``` THE COUNSEL FOR THE APPLICANT IN I.D 47/2021 ALONG WITH COPY OF THE WRIT PETITION FILED IN HIGH COURT JUDICATURE AT MUMBAI. ``` ``` Exhibit P30 ``` ``` A TRUE COPY OF THE LETTER ISSUED BY THE COMPANY SECRETARY TO THE NATIONAL STOCK EXCHANGE OF INDIA DATED 26.05.2021 ALONG WITH ITS ANNEXURES. ```