Vishnu Das G. v. State of Kerala and others (appellant substituted as M.V. Radhakrishnan)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 7[TH] DAY OF MARCH 2022 / 16TH PHALGUNA, 1943** **WA NO. 297 OF 2022** **AGAINST THE JUDGMENT IN WP(C).NO.5043/2022 OF THE HIGH** ## **COURT OF KERALA** ## **APPELLANT/PETITIONER:** ****VISHNU DAS G.,** **AGED 59 YEARS, S/O. GOPALAN, GENERAL SECRETARY, MALABAR CEMENTS EMPLOYEES ASSOCIATION (INTUC) WALAYAR, PALAKKAD 678 624.** **** NAME OF APPELLANT SUBSTITUTED.** **BY ADVS.M/S.K.T.THOMAS, MATHEW B. KURIAN & NIKHIL BERNY** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LABOUR AND SKILLS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 MALABAR CEMENTS LIMITED WALAYAR, PALAKKAD 678 624, REPRESENTED BY ITS MANAGING DIRECTOR.** - **3 T.R.RAJESH FOREMAN (INSTRUMENTATION), M/S. MALABAR CEMENTS LIMITED, WALAYAR, PALAKKAD, PIN 678 624.** - **4 MANOJ V. FOREMAN (INSTRUMENTATION) M/S. MALABAR CEMENTS LIMITED, WALAYAR, PALAKKAD, PIN 678 624.** - **5 K K JSEPH. FOREMAN (INSTRUMENTATION), M/S. MALABAR CEMENTS LIMITED, WALAYAR, PALAKKAD, PIN 678 624.** W.A. No. 297 of 2022 ..2.. - **6 T.S. SATHEESHKUMAR FOREMAN(INSTRUMENTATION), M/S. MALABAR CEMENTS LIMITED, WALAYAR, PALAKKAD, PIN 678 624.** - **7 ANANDARAJ.P. FOREMAN (INSTRUMENTATION), M/S. MALABAR CEMENTS LIMITED, WALAYAR, PALAKKAD, PIN 678 624.** - **8 GENERAL SECRETARY MCL EMPLOYEES UNION (CITU), C/O. MALABAR CEMENTS LIMITED, WALAYAR, PALAKKAD, PIN-678 624.** - **9 GENERAL SECRETARY MCL WORKERS UNION (AITUC) C/O. MALABAR CEMENTS LIMITED, WALAYAR, PALAKKAD, PIN- 678 624 .** *** NAME OF APPELLANT IS SUBSTITUTED AS M.V.RADHAKRISHNAN INSTEAD OF VISHNU DAS G. AS PER ORDER DATED 7/3/2022 IN I.A.NO.2/2022 IN W.A.NO. 297/2022.** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **07.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. No. 297 of 2022 ..3.. ## ALEXANDER THOMAS & VIJU ABRAHAM, JJ. --------------------------------------------------------------------------------W.A. No. 297 of 2022 _(arising out of the impugned judgment dated 24.2.2022 in WP(C).No.5043/2022)_ ---------------------------------------------------------------------------------Dated this the 7[th] day of March, 2022 ## J U D G M E N T ## ALEXANDER THOMAS, J. The judgment dated 24.2.2022 rendered by the learned Single Judge, dismissing the instant WP(C).No.5043/2022 is under challenge in this intra court appeal filed under Sec.5(i) of the Kerala High Court, 1958. The appellant in the W.A. is the petitioner in the WP(C) and the respondents in the W.A. are the respondents in the WP(C). 2. Heard Sri.K.T.Thomas, learned counsel appearing for the writ appellant/writ petitioner, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for R-1 in the W.A. (State of Kerala), Smt.Latha Anand, learned Standing Counsel for the Malabar Cements Limited appearing for R-2, Sri.P.V.Anoop, learned counsel appearing for respondents 3 to 7 & Sri.K.Jayarajan, learned counsel appearing for R-8. In the nature of the order proposed to be passed in this writ W.A. No. 297 of 2022 ..4.. appeal, notice to contesting respondent No.9 will stand dispensed with. 3. The prayers in the instant WP(C).No.5043/2022 filed by the appellant are as follows: - “ - _i. To issue appripriate writ, order or direction declaring that the petitioner union is entitled to participate and contest in the proceedings in I.D. No.33/2021 on the files of Labour Court, Kozhikode._ - _ii. To issue a writ of mandamus or other appropriate writ, or order directing the 1[st] respondent to incorporate the name of the petitioner union in Ext-P8 reference order by virtue of an addendum notification or by appropriate amendment to the reference order._ - _iii. To issue a writ of mandamus or other appropriate writ, or order directing the Labour Court, Kozhikode to permit the petitioner union to participate and contest in the proceedings in I.D.No.33/2021 on the files of Labour Court, Kozhikode._ - _iv. To grant such other reliefs as this Hon'ble Court may deem fit to grant in the facts and circumstances of the case.”_ 4. The grievance of the writ appellant/writ petitioner is that the application for impleadment filed by him in the present Industrial Dispute I.D.No.33/2021 is not being entertained for consideration by the Labour Court, Kozhikode. 5. The learned Single Judge held that no papers have been made available for the perusal of the Court to ascertain as to whether the Labour Court is not entertaining above application for impleadment W.A. No. 297 of 2022 ..5.. as stated by the petitioner in the WP(C), etc and hence, dismissed the WP(C) due to lack of material particulars. 6. When the above Writ Appeal had come up for consideration on 2.3.2022 before us, it was then submitted by Sri.P.V.Anoop, learned counsel appearing for R-3 to R-7 that it is reliably learnt that an advocate had appeared on behalf of the appellant herein to represent him in the abovesaid impleadment application filed before the Labour Court, and later filed a Not Press Memo in the abovesaid impleadment application, and that is the reason why the Labour Court has refused abovesaid plea of the appellant and has accepted the Not Press Memo filed by the Advocate for the petitioner before said Court, etc. Sri.K.T.Thomas, learned counsel appearing for the appellant had then sought time to get instructions from his party. 7. Today, when the matter has been taken up for consideration, Sri.K.T.Thomas, learned counsel appearing for the appellant would invite our attention to the contents of the affidavit dated 5.3.2022 filed by his party (produced along with I.A. No. 1/2022 in this W.A.). Para Nos. 3 & 4 of abovesaid affidavit filed by the appellant read as follows: W.A. No. 297 of 2022 ..6.. _“3. In this regard, it is emphatically submitted that petitioner union or its office bearers (past or present) had neither instructed nor authorised its lawyer Sri.Haneefa P.M., Advocate to withdraw the application for impleadment in I.D.No.33 of 2021 of the Labour Court, Kozhikode. Petitioner came to know about the above fact only on 02.03.2022 when the writ appeal came up for admission before this Hon'ble Court._ _4. Immediately, petitioner contacted its advocate at Kozhikode and was informed that the endorsement “Not Pressed” in the application was made by Smt.Shaniba A.P., who is a junior Advocate on insistence by the Presiding Officer of the Labour Court, Kozhikode and the same was done without taking instructions from the senior lawyer or the party. Smt.Shaniba A.P., Advocate is not having vakalath for petitioner union in I.D. No.33/2021 of Labour Court, Kozhikode. At any rate, the endorsement made by Smt.Shaniba A.P., Advocate is invalid, without authority and hence cannot be acted upon. Petitioner has therefore instructed its lawyer at Kozhikode to file requisite application to reacll the order based on the “Not Pressed” endorsement and the same is filed. Orders are not yet passed by the Labour Court.”_ 8. From the averments in the abovesaid affidavit, it appears that the appellant herein had entrusted the vakalath to one Sri.P.M.Haneefa, Advocate, in the above Industrial Dispute case and now it is revealed that the appellant had contacted said advocate in Kozhikode and it was informed that the endorsement in the application for Not Press was made by Smt.A.P.Shaniba, a junior advocate attached to his chambers, at the insistence of the Presiding Officer at the Labour Court, and that the said junior advocate has signed the said Not Press Memo without getting any instructions from Sri.P.M.Haneefa, learned advocate who has got vakalath for the appellant, etc. W.A. No. 297 of 2022 ..7.. 9. Sri.K.T.Thomas, learned counsel appearing for the appellant has also placed reliance on the judgment of this Court in the case in _**Manuel Sons Financial Enterprises (P) Ltd. (M/s.) v. Ramakrishnan & Anr. [2015 (3) KHC 141 = 2015 (2) KLT 984]**_ to contend for the position that an advocate who is not holding vakalath has no authority to concede to the claims against his party. 10. Further, we note that the Division Bench of this Court in the _**Kerala State Co-operative Employees Front v. Chandramathi Amma [1996 (1) KLT 540 (DB)]**_ , has held that the provisions contained in Clause (b) of Sec.18(3) of the Industrial Disputes Act, 1947, which envisages that all other parties summoned to appear in the proceedings as parties to the dispute necessarily implies that some persons other than the original parties to the dispute can be summoned by the Labour Court in order that the award may become enforceable and binding on those parties. The scope for impleadment of additional parties in industrial disputes before the Labour Court/Industrial Tribunal, etc has been dealt with in detail by the Division Bench of this Court in the afore cited decision in _**Chandramathi Amma's**_ case supra _**[1996 (1) KLT 540 (DB)]**_ . W.A. No. 297 of 2022 ..8.. Subsequent decision of the Division Bench of this Court rendered as per the judgment dated 9.3.2021 in W.A.No.46/2021 in the case _**Lisie Hospital v. Labour Court [2021 (3) KLT Online 1170]**_ has also considered these aspects in para 40 of said judgment, which reads as follows: _“40. The abovecited decisions of the Apex Court would show in clear terms that it is not necessary that the Trade Union that is espousing the cause of workmen for raising industrial dispute should be necessarily a registered Trade Union as understood in the Trade Unions Act, 1926, etc. Hence, the Labour Court and the learned Single Judge have not committed any illegality or unreasonableness in taking the views they have rendered as per the impugned orders. Moreover it is also to be noted that, in the instant case eventhough the admitted case of the Management is that the same is one of dismissal of individual workman concerned, and hence it is certainly covered by the provisions contained in Sec.2A of the ID Act. The Division Bench of this Court in the case in_ _**Kerala State Co-operative Employees Front v. Chandramathi Amma [1996 (1) KLT 540 (DB)]** , has held that the provisions contained in Clause (b) of Section 18(3) of the ID Act which envisages all other parties summoned to appear in the proceedings as parties to the dispute necessarily implies that some persons other than the original parties to the dispute can be summoned in order that the award may become enforceable and binding on those parties. The scope of impleadment of additional parties in industrial disputes has been dealt with in detail by the Division Bench of this Court in the aforecited decision. The individual workmen themselves sought for impleadment as additional parties/additional workmen in the above industrial dispute by filing application for impleadment which has been allowed by the Labour Court as per the impugned Ext.P-1 order. The Labour Court as per the impugned Ext.P-1 order as well as the learned Single Judge as per the impugned judgment in the above WP(C) have categorically held that the said impleadment of contesting respondent workmen is legally correct and justified inasmuch as the case actually is one of the dismissal of these individual workmen. Hence, there cannot be any two views that the said workmen are necessary and proper parties to the proceedings in the above industrial dispute_ W.A. No. 297 of 2022 ..9.. _on the file of the Labour Court concerned. We are of the firm view that the Labour Court while rendered the impugned order at Ext.P-1 and the learned Single Judge while rendering the impugned judgment have not committed any illegality or impropriety in holding that the impleadment of affected contesting respondent workmen is in order, and would come in the scope and ambit of Sec.18 of the ID Act. Apart from Sec.18 of the ID Act, it can also be seen from Sec.10(8) of the ID Act that no proceedings pending before a Labour Court, Tribunal or National Tribunal in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a workman, and such Labour Court, Tribunal or National Tribunal shall complete such proceedings and submit its award to the appropriate Government. The said provision is a pointer that in cases of death of one of the affected workman, the legal representative concerned will be at liberty to seek for impleadment as an additional party by resort to the provision contained in Sec.18 of said Act. Therefore, the impleadment of the affected additional contesting respondent as additional workman in the industrial dispute ordered by the Labour Court as per the impugned Ext.P-1 order cannot be faulted at all. ”_ 11. The abovesaid aspect would require factual determination by the Labour Court. The law on the subject regarding scope for impleadment in Industrial Dispute matters pending before the Labour Court has been dealt with by the Division Bench in afore cited decisions. Accordingly, the abovesaid decision of the Labour Court accepting the Not press Memo will stand quashed and Ext.P-9 impleadment application will stand remitted to the Labour Court for consideration and decision afresh. To avoid any further controversy, Sri.P.M.Haneefa, who is having vakalath for the appellant, will enter appearance for the said party and may also file a memo that he never W.A. No. 297 of 2022 ..10.. authorized his junior Smt.A.P.Shaniba, to submit and sign abovesaid Not Press Memo, etc. If that aspect is determined, then the Labour Court is obliged to consider Ext.P-9 application on merits and in the light of the dictum laid down by the Division Bench of this Court in the aforementioned decisions. Necessary action in that regard may be duly completed by the Labour Court without much delay. Until the said process is over, the evidence in the case shall not be closed by the Labour Court. 12. These aspects have not been duly taken note of, in the rendering of the impugned judgment in the above WP(C) and hence, the impugned judgment dismissing WP(C).No.5043/2022 will stand set aside. With these observations and directions, the above Writ Appeal will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE Sd/- VIJU ABRAHAM, JUDGE MMG W.A. No. 297 of 2022 ..11.. ## **APPENDIX OF W.A.NO.297/2022** ## **PETITIONER'S EXHIBIT:** **ANNEXURE-1 TRUE COPY OF THE I.A.NO.383 OF 2021 IN I.D.NO.33 OF 2021 OF LABOUR COURT, KOZHIKODE ALONGWITH ENDORSEMENT.**