Shwas Homes Private Limited v. Presiding Officer Labour Court, Ernakulam and Smitha Francis alias Smitha Ajay

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **TUESDAY, THE 2[ND] DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943** **WP(C) NO. 23887 OF 2021** ## **PETITIONER:** **SHWAS HOMES PRIVATE LIMITED, REGISTERED OFFICE, GROUND FLOOR, SHWAS MYSTIC HEIGHTS 1, KANIYAMPUZHA ROAD, EROOR P.O, KOCHI - 682036, REPRESENTED BY ITS DIRECTOR, SREENI PARAMESWARAN, AGED 46 YEARS, SON OF M.G. PARAMESWARAN NAIR. BY ADVS. SRI.B.ASHOK SHENOY SRI.P.S.GIREESH SRI.ARJUN R. NAIK** ## **RESPONDENTS:** **1 THE PRESIDING OFFICER LABOUR COURT, ERNAKULAM, KOCHI - 682034. 2 SMITHA FRANCIS ALIAS SMITHA AJAY, VILLA NO.6, MYSTIC BELLS, KANIYAMPUZHA ROAD, EROOR P.O, VYTTILA, KOCHI - 682036.** **BY ADV.SABEENA P.ISMAIL, GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **-:2:-** W.P.(C) No.23887/21 ## **BECHU KURIAN THOMAS, J. ----------------------------------------W.P.(C) No.23887 of 2021 ----------------------------------------** Dated this the 2[nd] day of November, 2021 ## **JUDGMENT** Two preliminary orders passed by the Labour Court, Ernakulam, in an industrial dispute, are the subject matter of challenge in this writ petition. 2. Petitioner is a private limited company engaged in the business of construction and sale of apartments. The second respondent was employed as Senior Manager-Customer Care with the petitioner. After conducting an enquiry, second respondent was dismissed from service. She initiated an Industrial Dispute as I.A. No.14 of 2017 before the Labour Court, Ernakulam. During the course of the proceedings, petitioner filed two applications and invited two orders from the Labour Court, which are impugned in this writ petition. 3. By the first preliminary order of the Labour Court, produced as Ext.P20, the second respondent, who was admittedly employed **-:3:-** W.P.(C) No.23887/21 as a Senior Manager of the Customer Care department, was held to be a workman and found the dispute to be maintainable. By the second preliminary order, which is produced as Ext.P21, the Labour Court found that, the enquiry conducted into the allegations of misconduct against the second respondent were made without a charge sheet but based only on a show-cause notice issued by the petitioner. On the aforesaid basis, by the impugned two orders, the Labour Court found that the enquiry was not conducted in compliance with the principles of natural justice and that the enquiry report was liable to be set aside. The orders are challenged alleging that they are vitiated by errors apparent on the face of the record and are perverse. 4. At this juncture itself, it is necessary to observe that the jurisdiction to interfere with preliminary orders of the Labour Court is very limited. Every preliminary order cannot be the subject of a judicial review under Article 226 of the Constitution of India. A person aggrieved by a preliminary order of the Labour Court has the remedy of raising the issue, even while challenging the final award. Thus, no prejudice of any nature will be caused to a person aggrieved by the preliminary order. Of course, this Court had W.P.(C) No.23887/21 **-:4:-** observed in **St.Thomas Missions Hospital v. State of Kerala** (2007 (2) KLT 415) that there should not be any hard and fast rules regarding the challenge of preliminary orders in industrial disputes. It was also observed therein that even though the Supreme Court had held that parties should not be allowed to challenge preliminary orders, the said proposition of law was not for universal application, without any exception in all cases. The challenge of preliminary orders under Article 226 of the Constitution must thus be only an exception. 5. However, of late the contrary is happening. Challenging preliminary orders is turning out to be a routine exercise. There is a growing tendency amongst the management to invite preliminary orders and then resort to challenging such orders and stall the proceedings before the Labour Court or the Industrial Tribunals, for years. The practice mentioned above, was in fact, deprecated by the Supreme Court in **D.P.Maheshwari v. Delhi Administration and Others** [(1983) 4 SCC 293], wherein it was observed that : “ _It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High_ W.P.(C) No.23887/21 ## **-:5:-** _Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. ……...There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise, industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a tribunal so that a preliminary issue may be decided by them.………... Tribunals and courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. …………. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues.”_ 6. The above referred observations have significance and this Court must be cautious in its approach while considering the challenge against preliminary orders of Labour Courts or Industrial Tribunal. The decision in **Kerala Chemicals and Proteins Ltd. now known as Nitta Gellatin India Ltd., Thrissur v. Labour Court, Ernakulam and Another** (2014 (4) KHC 107) is also relevant in this **-:6:-** W.P.(C) No.23887/21 context. 7. Coming to the circumstances arising in the instant case, the Labour Court concluded that the employee is a workman by the first preliminary order. Though the learned counsel for the petitioner invited my attention to the reasons for the Labour Court to come to the conclusion to treat the employee as a workman, I find that the Labour Court had considered the oral evidence, the nature of duties performed by the employee as well as various decisions of the Supreme Court and thereafter concluded that the employee did not have any power or duty to handle administrative affairs of the company. The court also concluded that there was no evidence to prove that the employee was vested with the power to grant leave or to initiate disciplinary action against the subordinates. On a perusal of the exhibits produced, I do not find any perversity in the conclusion arrived at by the Labour Court in the first preliminary order. 8. As far as the second preliminary order is concerned, the Labour Court analysed the various circumstances that arose in the case and the procedure adopted by the enquiry officer, who was examined as MW2. After such a process, it was concluded by the W.P.(C) No.23887/21 ## **-:7:-** Labour Court that there was an absence of charge memo, that the enquiry officer disallowed the application filed by the employee to get details of the complaints filed against her, refused to direct the management to produce witnesses cited by the employee, failed to consider the explanation submitted by the employee on 15.10.2011, wrongfully marked exhibits and arbitrarily closed the evidence without providing an opportunity to the employee. It was concluded on facts by the Labour Court that sufficient opportunity was not granted to the employee to defend her case. The Labour Court came to the conclusion that the enquiry report is liable to be set aside as a cumulative effect of all the aforesaid factors. 9. The absence of a memo of charge served upon the employee was only one of the factors that weighed with the Labour Court to set aside the enquiry report. In such a view of the matter, the contention of Adv.Ashok B.Shenoy, learned counsel for the petitioner, that the decision in **St.Thomas Missions Hospital v. State of Kerala** (2007 (2) KLT 415) has no application and the preliminary orders passed in Ext.P20 and Ext.P21 are not susceptible to challenge in exercise of the powers under Article 226 of the Constitution of India. W.P.(C) No.23887/21 **-:8:-** In view of the above deliberations, I find no merit in this writ petition and the same is dismissed. Sd/- **BECHU KURIAN THOMAS JUDGE** vps ## W.P.(C) No.23887/21 ## **-:9:-** ## **APPENDIX OF WP(C) 23887/2021** ## **PETITIONER'S/S' EXHIBITS** - **EXHIBIT P1** **TRUE COPY OF APPOINTMENT LETTER DATED 7.1.2010 ISSUED BY PETITIONER TO 2ND RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF LETTER DATED 7.4.2009 ISSUED BY PETITIONER TO 2ND RESPONDENT.** - **EXHIBIT P3** - **TRUE COPY OF LETTER DATED 4.5.2011 ISSUED BY PETITIONER TO 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF OFFICE CIRCULAR NO.SH/CIR/21/09-10 DATED 6.4.2010 ISSUED BY PETITIONER.** - **EXHIBIT P5 TRUE COPY OF RESIGNATION LETTER DATED 28.10.2010 SUBMITTED BY MARIAMMA THOMAS TO PETITIONER.** - **EXHIBIT P6 TRUE COPY OF RELIEVING ORDER DATED 1.11.2010 ISSUED BY PETITIONER TO MARIAMMA THOMAS.** - **EXHIBIT P7 TRUE COPY OF SERVICE CERTIFICATE DATED 1.11.2010 ISSUED BY 2ND RESPONDENT TO MARIAMMA THOMAS,** - **EXHIBIT P8 TRUE COPY OF RESIGNATION LETTER DATED 20.04.2011 SUBMITTED BY RESHMA KRISHNADAS TO PETITIONER.** - **EXHIBIT P9 TRUE COPY OF RESIGNATION LETTER DATED 23.04.2011 SUBMITTED BY REMYA K.R. TO PETITIONER.** - **EXHIBIT P10 TRUE COPY OF RESIGNATION LETTER DATED 27.04.2011 SUBMITTED BY JOPHINCE JOSEPH TO PETITIONER.** - **EXHIBIT P11 TRUE COPY OF MEMO ISSUED BY PETITIONER TO 2ND RESPONDENT, DATED 7.10.2009 WHICH IS ACTUALLY 7.10.2010.** - **EXHIBIT P12 TRUE COPY OF EXPLANATION DATED 15.10.2011 SUBMITTED BY 2ND RESPONDENT TO PETITIONER.** - **EXHIBIT P13 TRUE COPY OF EMAIL DATED 16.12.2011 SENT BY 2ND RESPONDENT TO PETITIONER** ## W.P.(C) No.23887/21 ## **-:10:-** **WITH TRAILING EMAIL DATED 14.12.2011 OF PETITIONER TO 2ND RESPONDENT.** - **EXHIBIT P14** - **EXHIBIT P15** - **TRUE COPY OF ENQUIRY REPORT DATED 28.03.2015 PASSED BY ENQUIRY OFFICER,** - **TRUE COPY OF ORDER DATED 12.05.2015 ISSUED BY PETITIONER TO 2ND RESPONDENT.** - **EXHIBIT P16 TRUE COPY OF APPLICATION DATED 7.3.2017 FILED BY 2ND RESPONDENT BEFORE 1ST RESPONDENT AS ID NO.14 OF 2017.** - **EXHIBIT P17 TRUE COPY OF WRITTEN STATEMENT DATED 28.06.2017 FILED BY PETITIONER BEFORE 1ST RESPONDENT IN ID NO. 14 OF 2017.** - **EXHIBIT P18 TRUE COPY OF REPLY STATEMENT DATED 23.10.2017 FILED BY 2ND RESPONDENT BEFORE 1ST RESPONDENT IN ID NO.14 OF 2017.** - **EXHIBIT P19 TRUE COPY OF PROOF AFFIDAVIT OF 2ND RESPONDENT DATED 22.10.2018 FILED IN LIUE OF HER EXAMINATION IN CHIEF ALONGWITH HER TESTIMONY IN CROSS EXAMINATION BEFORE 1ST RESPONDENT WITH ITS READABLE COPY.** - **EXHIBIT P20 TRUE COPY OF PRELIMINARY ORDER DATED 12.03.2019 IN ID 14 OF 2017 PASSED BY 1ST RESPONDENT.** - **EXHIBIT P21 TRUE COPY OF PRELIMINARY ORDER DATED 23.02.2021 IN ID 14 OF 2017 PASSED BY 1ST RESPONDENT.**