Shiv Mohan v. Cochin International Airport Limited (CIAL) & Ors.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 22[ND] DAY OF SEPTEMBER 2021 / 31ST BHADRA, 1943** ## **WA NO.552 OF 2020** **AGAINST THE JUDGMENT DATED 23.01.2020 IN WP(C) 1139/2020 OF HIGH** ## **COURT OF KERALA** ## **APPELLANT/PETITIONER:** **SHIV MOHAN, S/O.SIVARAMAN NAIR, VETTATHU SREEANJANEYAM, POOKAITHA NAGAR, MEKKAD P.O., NEDUMBASSERY, ERNAKULAM.** **BY ADVS. SRI.C.B.SREEKUMAR SRI.K.SUNISH** ## **RESPONDENTS/RESPONDENTS:** - **1 COCHIN INTERNATIONAL AIRPORT LIMITED(CIAL), NEDUMBASSERY, ERNAKULAM - 683 111, REPRESENTED BY ITS MANAGING DIRECTOR.** **2 THE MANAGING DIRECTOR, COCHIN INTERNATIONAL AIRPORT LIMITED (CIAL), NEDUMBASSERY, ERNAKULAM - 683 111.** **3 SUB COMMITTEE/APPELLATE AUTHORITY, COCHIN INTERNATIONAL AIRPORT LIMITED (CIAL), NEDUMBASSERY, ERNAKULAM - 683 111 REPRESENTED BY ITS CHAIRMAN.** **BY ADVS. SRI.BENNY.P.THOMAS, SC (B/O) SRI.D.PREM KAMATH** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.09.2021, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A No.552 of 2020 2 # **ALEXANDER THOMAS & A.BADHARUDEEN, JJ.** # **========================================= W.A No.552 of 2020** [ _arising out of the judgment dated 23.01.2020 in W.P(C) No.1139/2020_ ] **=========================================** Dated this the 22[nd] day of September, 2021 ## **JUDGMENT** ## **Alexander Thomas, J.** The appellant herein had earlier filed the instant Writ Petition (Civil), W.P(C) No.1139/2020, with the following prayers [see page No.85 of the paper book of the W.A] : - _“i) Issue a writ of certiorari or any other writ, order or direction calling for the records leading to Ext.P21 order and set aside the same;_ - _ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding and compelling the 2[nd] respondent to reinstate the petitioner on the post he was holding as on the date of Ext.P1 will all consequential benefits treating the period from the date of Ext.P1 till the date of reinstatement has period spend on duty;_ - _iii) such other appropriate writ order or direction as this Honourable Court may deem fit and proper to meet the ends of justice;”_ 2. The learned Single Judge, after hearing both sides, has passed the impugned judgment dated 23.01.2020 dismissing W.P(C) W.A No.552 of 2020 3 No.1139/2020, on the ground that the writ under Article 226 of the Constitution of India may not be available to interfere with the order of dismissal passed by the respondent-Cochin International Airport Ltd. (CIAL) and has given liberty to the writ petitioner to move the appropriate court. It is aggrieved by the dismissal of the above W.P(C), as per the impugned judgment that the writ petitioner has approached this Court by filing the instant intra-court appeal under Sec.5(i) of the Kerala High Court Act. 3. Heard Sri.C.B.Sreekumar, learned counsel appearing for the appellant in the W.A / petitioner in the W.P(C) and Sri.Benny P.Thomas, learned Standing Counsel for the CIAL appearing for the respondents in the W.A / respondents in the W.P(C). 4. During the course of the hearing, we suggested to both sides that, as to whether they are willing to seek mediatory efforts, taking into consideration of the fact that the writ petitioner had served the respondent-Organization, for quite sometime, etc. Both sides had readily agreed to the said submission of this Court and accordingly, based on the consent of both sides, the parties herein were referred to the Mediation Centre attached to this Court, for resolving the disputes W.A No.552 of 2020 4 through the mediatory process. 5. Now, the Mediation Centre attached to this Court has given report dated 20.09.2021, stating that the mediatory process has been successful in this case and that the appellant and the respondents have also jointly filed the Memorandum of Agreement under Sec.89 of the Code of Civil Procedure read with Rules 24 & 25 of the Kerala Civil Procedure (Mediation) Rules, 2008 on 20.09.2021, whereby the main disputes between them have been mutually settled through the said mediatory process. Now, the learned Advocates appearing for both sides submit that this Court may record the terms and conditions of the said mediation agreement dated 20.09.2021 and dispose of the matter. Accordingly, the mediation agreement dated 20.09.2021 signed by the appellant and the respondents, are extracted as hereunder : “ _Both parties have agreed to settle their disputes on the following terms and conditions:_ _1. Appellant Mr.Shiv Mohan and 1[st] Respondent Managing Director of the 1[st] respondent represented by General Manager H.R of 1[st] respondent Mr.Jayarajan V, have agreed that respondent will release the salary revision benefit and consequential arrears of Rs.11,10,355/- (Rupees Eleven lakh ten thousand three hundred fifty five only) to the Appellant, without prejudice to the contention of the Respondent that Respondent is not a State, as defined under Article 12._ W.A No.552 of 2020 5 _2. The settlement is arrived at based on the discussions held out of the Court and is without prejudice to the contentions of the respondents that the Writ Petition is not maintainable against CIAL, in view of the judgement delivered by this Court in Writ Petition Nos.6949/2013, 6950/2013, 12328/2013 etc._ _3. Both parties agreed that the contribution towards Employees Provident Fund both employer and employee would be deducted from the arrear payment due to the appellant and will be remitted to EPF Account of the Appellant Shiva Mohan and all necessary arrangements would be made from the respondent's side (Employer) to enable PF/Pension Settlement._ _4. The respondent has agreed to release the amount of Rs.11,10,355/- (Rupees Eleven lakh ten thounsand (sic) three hundred fifty five only) as one time payment towards the full and final settlement of all claims, what soever, raised by the Appellant Shiva Mohan against 1[st] respondent CIAL regarding the employment or non-employment with the management._ _5. The parties accept that the dismissal of the Appellant Sri.Shiv Mohan is not disturbed or interfered with and the above payment is made towards the arrears of salary difference which arose as a result of Salary Revision affected prior to the dismissal of the Appellant Shri.Shiv Mohan._ _6. The 1[st] respondent agreed that the above that settled amount due to Sri.Shiva Mohan will be released within 20 days from the date of receipt of the, Judgment of the Hon'ble High Court of Kerala after recording this settlement agreement._ _7. The Appellant Shiva Mohan further reteirate (sic) and agreed that above terms and conditions of this settlement will be towards the full and final settlement of all claims and benefits, what soever, amount the Management of 1[st] respondent CIAL, further agrees that he would not raise any claims for any benefit, statutory or other wise before any Forum, Court of Law or before any Authority against 1[st] respondent in further connection with employment or termination of service.”_ 6. Hence, with the consent of both sides, it is also ordered W.A No.552 of 2020 6 that the terms and conditions of the said mediation agreement, will form part of this judgment. Parties will strictly adhere to the terms and conditions of the mediatory agreement. 7. Further, it is not necessary for us in the facts of this case, to decide the issue, as to whether the writ under Article 226 of the Constitution of India will or will not lie as against the respondents-CIAL under any circumstances. The present case deals with the order of dismissal issued by the respondent-employer to the appellant-employee. The respondent-employer is a public limited company. After hearing both sides, we are of the view that the ultimate conclusion of the learned Single Judge that, writ remedy is not available in the facts and circumstances of the case, for interfering with an order of dismissal passed by the respondent-employer, appears to be correct and tenable in view of the dictum laid down by the Apex Court in decisions as in _**K.K.Saksena** v._ _**International Commission on Irrigation & Drainage and Ors.**_ [(2015) 4 SCC 670] _,_ para 52 thereof. It is relevant to extract para.52 of the judgment of the Apex Court in _**K.K.Saksena's case**_ supra [(2015) 4 SCC 670 p.696], which reads as follows: W.A No.552 of 2020 7 _“_ _**52** . It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely:_ _(i) when the employee is a public servant working under the Union of India or State;_ _(ii) when such an employee is employed by an authority/body which is a State within the meaning of Article 12 of the Constitution of India; and_ _(ii)(sic) when such an employee is “workmen” within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act._ _In the first two cases, the employment ceases to have private law character and “status” to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the Labour Court/Industrial Tribunal to grant reinstatement in case termination is found to be illegal.”_ There cannot be any dispute that in the instant case the respondent employer company will not come within any of the three contingencies envisaged by the Apex Court in para.52 of _**K.K.Saksena's case**_ supra. The case will not also come under clause (iii) of para.52 of _**K.K.Saksena's case**_ supra, for the simple reason that the appellant/writ petitioner will not satisfy the definition of ' _Workmen_ ', as envisaged in the Industrial Disputes Act, 1947. Moreover, the present case is not covered by scenario of statutory rules covering the field as in Kerala Co-operative Societies Rules framed under the Kerala Co-operative Societies Act, 1969 or the Kerala Education Rules framed W.A No.552 of 2020 8 under the Kerala Education Act, etc., wherein, statutory and mandatory provisions have been made for stipulating the procedure for imposing major penalty like dismissal, removal, compulsory retirement, etc., which can be done only after conduct of a detailed enquiry, as envisaged in those rules. So, if there is any breach of such statutory rules, the impugned order of termination from service could be interdicted for violating the statutory mandatory procedure and certainly, statutory appellate/revisional remedy will be available and thereafter, public law remedies would also be available. Such is not the case in the instant case, as the writ petitioner has no case that the field is covered by any statutory rules in the case of the employer-employee relationship in the respondent-CIAL. Therefore, any such additional contingency also will not arise in this case. Hence, we are only confining to the issue, as to whether writ under Article 226 of the Constitution of India would lie as against the dismissal order passed by the respondent-CIAL, inasmuch as it would amount to enforcement of a contract of personal service, etc. In view of the abovesaid legal position laid down in decisions of the Apex Court as in _**K.K.Saksena's case**_ supra, writ remedy may not be available in such cases, especially in service litigation, more particularly, W.A No.552 of 2020 9 in relation to enforcement of contract of personal service. The learned Single Judge has held that the respondent-CIAL will not satisfy the ” “ definition of “State or instrumentality of the State” as understood in Article 12 of the Constitution of India. There could be cases, where the respondent body may not fulfill the narrow definition of “State” as per Article 12 of the Constitution, which is more relevant for enforcement of fundamental rights conferred as per Part III of the Constitution of India. But still such a body may fulfill the broader definition of “ _body or person_ ” within the meaning of Article 226 of the Constitution [see _**Board of Control for Cricket in India (BCCI)**_ v. _**Cricket Association of Bihar**_ {(2015) 3 SCC 251}, _**Board of Control for Cricket**_ v. _**Cricket Association of Bihar & Ors.**_ {(2016) 8 SCC 535}, _**Pradeep Kumar Biswas**_ v. _**Indian Institute of Chemical Biology**_ {(2002) 5 SCC 111}, etc.]. However, even if the broader test of “ _body or person_ ” as per Article 226 is satisfied, still public law remedy as per Article 226 may not be invokable in all types of causes of action. Writ remedy as per Article 226 may be invokable in service litigative proceedings, especially for enforcement of personal contract, only if the legal principles and parameters laid down in cases as in _**K.K.Saksena's case**_ supra W.A No.552 of 2020 10 [(2015) 4 SCC 670 para 52] are satisfied. So the invocation of public law remedy in case of such a body will also be dependent upon the nature and subject matter of the cause of action. In the light of the above aspects, the ultimate conclusion of the learned Single Judge as per the impugned judgment in this case that writ remedy is not available to interfere with the impugned order of dismissal of the appellant issued by the respondent-CIAL and that it is for the writ petitioner to approach the competent civil court for appropriate reliefs, is not open for any interference. The impugned judgment of the learned Single Judge in this case stands accordingly clarified. With these observations and directions, the above Writ Appeal will stand finally disposed of. ## **Sd/-** ## **ALEXANDER THOMAS, JUDGE** ## **Sd/-** ## **A.BADHARUDEEN, JUDGE** vgd W.A No.552 of 2020 11 ## **APPENDIX OF WA 552/2020** ## **PETITIONER'S ANNEXURE** **ANNEXURE A** **COPY OF THE JUDGMENT IN W.P.(C) NO.7214/2014 DATED 10/1/2020.**