GRASIM INDUSTRIES LIMITED v. INDUSTRIAL TRIBUNAL KOZHIKODE & OTHERS

WP(C) NO. 15899 OF 2014 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945** **WP(C) NO. 15899 OF 2014** ## **PETITIONER/S:** M/S.GRASIM INDUSTRIES LIMITED BIRALAKOOTAM, MAVOOR, KOZHIKODE - 673 661, REPRESENTED BY ITS GENERAL MANAGER (ADMINISTRATION), LT. COL. K.K. MANU (RETD) BY ADVS. SRI.E.K.NANDAKUMAR (SR.) SRI.P.BENNY THOMAS SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS ## **RESPONDENT/S:** 1 THE INDUSTRIAL TRIBUNAL KOZHIKODE -673 020. 2 THE SECRETARY LABOUR AND REHABILITATION (A)DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3 R.G. RADHAKRISHNAN 28/2787 A, KRISHNAKRIPA, NELLIKKODE, KOZHIKODE - 673 016. 4 M. GOPINATHAN 20/1086, ASHIRWAD, KALLAI POST, KOZHIKODE-3. WP(C) NO. 15899 OF 2014 2 - 5 M. ASHOKAN MADHURAKKANDY, VENGERI, CALICUT - 673 010.[DIED] - 6 APPUKKUTTAN P.V. POONDATHIL HOUSE, THIRUVANNUR NADA POST, CALICUT -29. [DIED] 7 O.K. ANANTHAVALLY W/O.LATE PARAMESWARAN, SREELAKSHMI, KELAMPATTA, KUTTIKADAVU, MAVOOR, KOZHIKODE - 673 661. 8 T.O. MATHAI THAKKOLKARAN HOUSE, PUTHENCHIRA EAST POST, IRINJALAKUDA - 680 682. 9 A.R. VISWANATHAN ANJALASSERY HOUSE, TIRUTHISSERY POST MEKKAD, ERNAKULAM - 683 589. 10 K.N. THOMAS KOVOOR HOUSE, NEAR PHED, M.P. ROAD, THIRUVALLA - 689111. - 11 K.P. RUGMINI W/O. LATE V.M. GANGADHARAN, VELATH PADIKKAL, ATHANIKKAL, WEST HILL P.O., KOZHIKODE - 673 005. 12 V.M. GANGADHARAN VELATH PADIKKAL, ATHANIKKAL, WEST HILL P.O., KOZHIKODE-673 005. 13 C.P. RAMABHADRAN C/O.R.G. RADHAKRISHNAN, 28/278A, KRISHNA KRIPA, NELLIKODE POST, CALICUT - 673 016. 14 P.N.CHITTARANJAN NANDANAM, SOORYA NAGAR, MUNDAKKAL, KOLLAM - 691 010. 15 R.C. JAIN 5 A/2, MADHU AMRAL APARTMENT,PANKAJ FLATS, WP(C) NO. 15899 OF 2014 3 CORPORATION OFFICE ROAD, KOZHIKODE - 673 032. 16 M.KRISHNANKUTTY ASARI PARAMBIL, MAVOOR PO., KOZHIKODE - 673 661. 17 PRIYAMVADA W/O.LATE M.ASOKAN, MADHURAKANDY, VENGARI, KOZHIKODE - 673 010. 18 R. PRASANNA W/O.P.V.APPUKUTTAN, POONADATHIL HOUSE, THIRUVANNUR NADA POST, CALICUT - 673 029. 19 VILANCIA JOSEPH W/O.LATE K.T.JOSEPH, 5/1910, "KEERTHANAM", SV COLONY ROAD, ERAHIPPALAM PO., KOZHIKODE - 673 006. BY ADVS. SRI.C.ANIL KUMAR ANIL KUMAR C SMT.A.K.PREETHA DEVIKA MOHAN(K/1257/2021) ## **OTHER PRESENT:** SRI RIYAL DEVASSY, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 15899 OF 2014 4 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C.) No. 15899 of 2014 -------------------------------------Dated this the 9[th] day of February, 2024** ## **JUDGMENT** The petitioner challenges Ext.P9 order of reference issued by the Government referring a dispute for adjudication to the 1[st] respondent. It is the case of the petitioner that the dispute stands settled by Ext.P1 settlement. On the basis of the settlement, Ext.P2 award was passed by the Industrial Tribunal, Kozhikode. Ext.P3 award was also passed by the Tribunal based on Ext.P1 settlement and all the issues attained finality is the submission. Subsequently, the respondent Nos. 3 to 15 filed original petition No. 32650 of 2001 before this Court which was disposed by Ext.P4 judgment. Thereafter, the WP(C) NO. 15899 OF 2014 5 respondent Nos. 3 to 15 raised an industrial dispute claiming benefits under Ext.P1 settlement which was referred to the Labour Court, Kozhikode as per Ext.P7 reference order. According to the petitioner, since these persons were not workmen under the Industrial Disputes Act and not eligible for the benefit of Ext.P1 settlement as they had attained the age of superannuation prior to the date of settlement, the reference order was not valid and the petitioner challenged the same in W.P.(C.) No. 23772 of 2011. This Court as per Ext.P8 common judgment disposed of the writ petition along with other writ petitions setting aside the reference order and with a direction to the 2[nd] respondent to form an opinion and take a decision whether an industrial dispute exists between the parties. Accordingly, a hearing was held and on enquiry, the petitioner was informed that the matter would be closed. Later on, the petitioner received Ext.P9 reference order is the submission. According to the petitioner, in the light of Ext.P1 settlement and also in the light of the fact that, respondent Nos. 3 to 15, the employees concerned are not workmen under the Industrial Disputes Act and they had WP(C) NO. 15899 OF 2014 6 attained the age of superannuation prior to the settlement, Ext.P9 reference order is bad in law and the issue referred cannot be adjudicated as no valid industrial dispute exist between the petitioner and respondent Nos. 3 to 15. Hence, this writ petition is filed. 2. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel appearing for the contesting respondents. 3. The short point raised by the petitioner is that Ext.P9 is an order passed without following the directions in Ext.P8 judgment. This Court perused Ext.P8 judgment. It will be better to extract the relevant portion of the Ext.P8 judgment. 8. “The tripartite settlement arrived at in the instant case was in the course of conciliation proceedings and therefore it carries a presumption that it is just and fair as has been found by the Industrial Tribunal itself. It becomes binding on all the parties to the dispute as well as other workmen in the establishment to which the dispute relates and an individual employee cannot seek to wriggle out of the same. Such a settlement which is a product of collective bargaining is entitled to due weight and consideration and more so when the same has been arrived at in the course of WP(C) NO. 15899 OF 2014 7 a conciliation proceeding. The settlement can only be ignored in exceptional circumstances viz., when it is demonstrably unjust or is the result of corruption on the part of those who were instrumental for the same. [See I.T.C.Limited Workers' Welfare Association v. Management of I.T.C.Ltd. and others (2002 (1) LLJ 848)] The contention that the settlement is discriminatory in as much as it excluded a section of workmen and staff members already stands repelled by the dismissal of O.P.Nos.31964/2000 and 25200/2001 as already stated. The only contention by the 14 staff members in the instant case is that they should also be extended the benefit of the tripartite settlement as regards closure compensation as was done to others in I.D.No.3/2001. I should note that the staff members who now seek reference have not raised any allegation of fraud or corruption on the part of those who were instrumental in the settlement. What then is the effect of the tripartite settlement entered into in terms of Section 18(3) of the Industrial Disputes Act, 1947 and the industrial awards passed on its basis ? Should not also the Government opine that the staff members are workmen before it choses to make a reference under Section 10 of the Industrial Disputes Act, 1947. [See Secretary, Indian Tea Association v. Ajith Kumar Barat and others (2000 (1) LLJ 809)] 9. It is not destructive of the rights of the Management who is the aggrieved party to show that what was referred by the Government for adjudication by the Industrial Tribunal is not an industrial dispute at all. It is the existence of the industrial dispute which would clothe the WP(C) NO. 15899 OF 2014 8 appropriate Government with the power to make the reference and the Industrial Tribunal to adjudicate it. The Supreme Court in National Engineering Industries Ltd v. State of Rajasthan and others [2000 (1) LLJ 247] held as follows:- "It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is allegation that there is no industrial dispute and none apprehended which could be subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal which could be examined by the High Court in its writ jurisdiction. It is the existence of the industrial dispute which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended appropriate government lacks power to make any reference” (emphasis supplied) This decision has been quoted with approval in **ANZ Grindlays Bank (Now known as Standard Chartered Grindlays Bank Ltd.) v. Union of India and others** [2006 (1) LLJ 271] 10. The orders referring the disputes for adjudication by Industrial Tribunal are not totally immune from judicial review as held in Ram Avatar Sharma and others v. State of Haryana [AIR 1985 SC 915]. A total non-application of mind by the Government of Kerala is well evident in the instant WP(C) NO. 15899 OF 2014 9 case in forming an opinion as to whether industrial disputes exist or is apprehended. The question whether industrial disputes subsist in the wake of a tripartite settlement based on which industrial adjudication culminated looms large. The Industrial Tribunal is a creature of the statute which gets jurisdiction on the basis of reference and it is doubtful as to whether it can effectively go into the validity of reference itself. More than a decade has elapsed since the date of closure of the undertaking and an industrial adjudication would be warranted at this distance of time only if an industrial dispute lingers on. Whether the closure of the establishment is bonafide and if so, whether industrial disputes of the nature could be raised are also pertinent aspects. I feel that the Government of Kerala should re-visit the materials and form an opinion afresh as to the necessity for reference of the industrial disputes in the case on hand 11. The impugned orders of the Government of Kerala (Ext.P5 in O.P.No.7215/2003, Ext.P4 in W.P.(C) No.31623/2003, Ext.P4 in W.P.(C) No.31670/2003 and Ext.P7 in W.P.(C) No.23772/2001) are quashed. The Government of Kerala is directed to reconsider the issue in terms of Section 10(1)(d) of the Industrial Disputes Act, 1947 and in the light of the observations above.” 4. Based on Ext.P8 judgment, Ext.P9 order is passed. This Court in Ext.P8 judgment found that there is total non WP(C) NO. 15899 OF 2014 10 application of mind by the Government in the instant case in forming an opinion as to whether the industrial dispute exists or is apprehended. This Court observed that the question whether the industrial disputes subsist in the wake of tripartite settlement based on which industrial adjudication culminated looms large. This Court further observed that the industrial tribunal is a creature of the statute which gets jurisdiction on the basis of reference and it is doubtful as to whether it can effectively go into the validity of reference itself. Subsequently, this Court also observed that more than a decade has elapsed since the date of closure of the undertaking and an industrial adjudication would be warranted at this distance of time only if an industrial dispute lingers on. According to this Court, whether the closure of the establishment is bonafide and if so, whether industrial disputes of the nature could be raised are also pertinent aspects. Hence, this Court observed that the Government of Kerala should re-visit the materials and form an opinion afresh as to the necessity for reference of the industrial disputes in the case on hand. WP(C) NO. 15899 OF 2014 11 5. Thereafter, Ext.P9 order is passed, in which there is no consideration of the points observed by this Court in Ext.P8 judgment. The Government simply observed that the industrial dispute between the petitioner and the other parties is referred for adjudication to the industrial Tribunal. I am of the considered opinion that Ext.P9 is in total violation of the directions in Ext.P8 judgment. There is no consideration of the issues directed to be considered by this Court in Ext.P8. In such circumstances, this Court is not in a position to endorse Ext.P9 reference order. Once again, the matter has to go back to the Government, in the light of the peculiar facts and circumstances of this case, because the Government has not considered the directions of this Court in Ext.P8 judgment in its spirit. Therefore, this Writ Petition is disposed of with the following directions : - 1) Ext.P9 is set aside. 2) The 2[nd] respondent is directed to reconsider the matter, in the light of the observation in Ext.P8 judgment as WP(C) NO. 15899 OF 2014 12 expeditiously as possible, at any rate, within four months from the date of receipt of a certified copy of this judgment. Sd/- **P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 15899 OF 2014 13 ## **APPENDIX OF WP(C) 15899/2014** PETITIONER EXHIBITS EXHIBIT-P1-TRUE COPY OF THE SETTLEMENT DATED 07/07/2001 ENTERED INTO BETWEEN THE PARTIES. EXHIBIT-P2-TRUE COPY OF THE AWARD OF THE INDUSTRIAL TRIBUNAL, KOZHIKODE IN I.D 50/2000 DATED 18/07/2001. EXHIBIT-P3-TRUE COPY OF THE AWARD IN I.D 50/2001 DATED 27/09/2001. EXHIBIT-P4-TRUE COPY OF THE JUDGMENT IN O.P32650/2001 DATED 09/01/2008. EXHIBIT-P5-TRUE COPY OF THE REPRESENTATION DATED 03/03/2008 FILED BY THE 3RD RESPONDENT AND 10 OTHER EMPLOYEES. EXHIBIT-P6-TRUE COPY OF THE STATEMENT DATED 06/05/2008 FILED BEFOE THE DISTRICT LABOUR OFFICER. EXHIBIT-P7-TRUE COPY OF THE ORDER OF RFERENCE DATED 06/07/2001 PASSED BY THE 2ND RESOPNDENT EXHIBIT-P8-TRUE COPY OF THE COMMON JUDGMENT OF THIS HONOURABLE COURT IN W.P(C) 6215/2003, 31623/2003, 31670/2003 AND 23772/2011 DATED 08/02/2013. EXHIBIT-P9-TRUE COPY OF THE REFERENCE ORDER DATED 22/03/2014 PASSED BY THE 2ND RESPONDENT.