W.P.(C) No. 19101 of 2014

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE SHAJI P.CHALY`** ``` FRIDAY, THE 13[TH] DAY OF JANUARY 2023 / 23RD POUSHA, 1944 ``` ## **`WP(C) NO. 19101 OF 2014`** ## **`PETITIONERS:`** ``` 1THE MANAGING DIRECTOR, KERALA TOURISM DEVELOPMENT CORPORATION LIMITED, MUSCOT SQUARE, THIRUVANANTHAPURAM. ``` ``` 2THE MANAGER HOTEL MALABAR MANSION, S.M. STREET, K.T.D.C KOZHIKODE. ``` ``` BY ADV SRI.THOMAS MATHEW NELLIMOOTTIL ``` ## **`RESPONDENTS:`** ``` 1DEVARAJAN NADUKANDI HOUSE, P.O.VENGERI, CALICUT -10 ``` ``` 2DEPUTY LABOUR COMMISSIONER AND THE APPELLATE AUTHORITY UNDER THE KERALA SHOPS AND COMMERCIAL ESTABLISHMENT ACT,1960, KOZHIKODE - 673 001. ``` ``` BY ADVS. SRI.P.A.HARISH SRI.V.V.SURENDRAN R2 - SRI.JOBY JOSEPH,SENIOR GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C)No.19101 of 2014** **2** ## **JUDGMENT** Dated this the 13[th ] day of January, 2023 This writ petition is filed by the Managing Director of the Kerala Tourism Development Corporation Limited and the Manager of Hotel Malabar Mansion, which is a unit of the Kerala Tourism Development Corporation Ltd., challenging Exhibit P1 order passed by the Appellate Authority under the Kerala Shops and Commercial Establishments Act and Rules (Deputy Labour Commissioner, Kozhikode) in S.A.No.3 of 2011 (S.A.No.6 of 1996); whereby the petitioners are directed to pay an amount of Rs.15,000/- with simple interest to the 1[st] respondent workman from 22.07.1996 till the date of payment, in lieu of reinstatement. It is thus challenging the legality and the correctness of Exhibit P1 order, the writ petition is filed. 2. The case has a checkered history from the year 1996. The 1[st] respondent/workman filed S.A.No.6 of 1996 before the authority, alleging that his employment was illegally **3** ## **W.P.(C)No.19101 of 2014** terminated with effect from 22.07.1996. The petitioners contested the case contending that petitioners cannot be treated as an establishment under the Kerala Shops and Commercial Establishments Act, 1960 and that the appeal is not maintainable before the 2[nd] respondent. It was also contended that the 1[st] respondent is not entitled to file the appeal as he does not have the six months pre-requisite qualifying service for filing the appeal before the 2[nd] respondent. However, the 2[nd] respondent Appellate Authority has passed Exhibit P4 order dated 21.11.2003 holding that the 1[st] respondent was employed for more than one year and, accordingly, directed the petitioners to reinstate him with continuity of service and with back-wages or to pay an amount of Rs.5000/- towards compensation in lieu of reinstatement. 3. Aggrieved by Exhibit P3 order dated 21.11.2003, petitioners filed W.P.(C)No.8195 of 2004 before this court and the same was disposed of as per Exhibit P5 judgment dated 02.04.2007, directing the Appellate Authority to decide first as to whether the Kerala Tourism Development Corporation **4** ## **W.P.(C)No.19101 of 2014** would come within the purview of the Shops and Commercial Establishments Act, 1960 and further that, if only the answer is in the affirmative, the second issue regarding the length of service of the 1[st] respondent should be considered. Therefore, it can be seen that the remand existed was an open remand. Thereafter, S.A.No.6 of 1996 was renumbered as S.A.No.3 of 2011. 4. The Appellate Authority, after taking evidence of both parties, has arrived at the conclusion that the Kerala Tourism Development Corporation Ltd. would come under the purview of the Act 1960 and further that the workman has worked for more than six months and there was denial of employment to him. It was thereupon that the compensation of Rs.15,000/with simple interest was ordered in lieu of reinstatement as provided under section 18(4) of the Act 1960. 5. The paramount contention advanced by the petitioners in this writ petition is that the Kerala Tourism Development Corporation Ltd. is completely under the control of the State Government and, therefore, the provisions of the **5** ## **W.P.(C)No.19101 of 2014** Act 1960 would not be applicable to the petitioners. It is further submitted that the 1[st] respondent is a Government undertaking and it will come within the purview of the expression ‘under the State Government’ as specified under clause (c) of sub-section (1) of section 3 of the Act 1960 in view of the deep and pervasive control of the State Government over the Kerala Tourism Development Corporation Ltd. It is also submitted that the Appellate Authority has wrongly relied on the decision in the case of **Director, Tourism Department v. Industrial Tribunal** [2005 (1) KLT 320], wherein it was held that the Tourism Department is an industry. It is further submitted that the Kerala Tourism Development Corporation Ltd. is functioning in terms of the Memorandum of Association and Articles of Association constituted for the purpose and the provisions of the Memorandum of Association and Articles of Association would show that the State Government is vested with the absolute powers in the matter of appointment of Director and in the administration and management of the Kerala Tourism Development Corporation Ltd. It is also **6** ## **W.P.(C)No.19101 of 2014** submitted that the documents produced by the workman should not have been accepted by the Appellate Authority in order to arrive at a finding that the workman worked in the establishment for a period more than six months since the vouchers did not contain any signature. Other contentions are also raised with respect to the incorrect appreciation of evidence tendered by the parties before the Appellate Authority. 6. I have heard learned counsel Sri.Thomas Mathew Nellimmoottil for the petitioners and learned counsel Sri. P.A. Harish for the workman/1[st] respondent and perused the pleadings and the material on record. 7. The sole question to be considered is whether any manner of interference is required to the order passed by the Appellate Authority - the 2[nd] respondent. The first question to be considered is whether the Kerala Tourism Development Corporation would come within the purview of the Act 1960. The Act 1960 is constituted to consolidate and amend the law relating to the regulation of conditions of work and **7** ## **W.P.(C)No.19101 of 2014** employment in the shops and commercial establishments in the State of Kerala, which has application all over the State. ‘Commercial establishment’ is defined under section 2(4) of the Act 1960 to mean a commercial or industrial or trading or banking or insurance establishment, an establishment or administrative service in which the persons employed are mainly engaged in office work, hotel, restaurant, boarding or eating house, cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes such other establishment as the Government may, by notification in the Gazette, declare to be a commercial establishment for the purposes of this Act, but does not include a factory to which all or any of the provisions of the Factories Act, 1948 (Central Act 63 of 1948) apply. 8. The basic contention put forth by the petitioners is that being a company fully owned by the Government of Kerala, as per section 3 of the Act 1960, the Kerala Tourism Development Corporation Ltd. is exempted from the purview **8** ## **W.P.(C)No.19101 of 2014** of the Act 1960. Section 3(1) dealing with exemptions specifies that nothing in this Act shall apply to - - (a) xxxxx - (b) xxxxx (c) establishments under the Central or any State Government, local authorities, the Reserve Bank of India and cantonment authorities. 9. Relying upon the said provision, it is contended that since the Memorandum of Association and Articles of Association, which is produced before me at the time of hearing, would show that the State Government is having pervasive control over the Kerala Tourism Development Corporation Ltd, it would come under the exempted category. 10. In my considered opinion, the Kerala Tourism Development Corporation Ltd. is a company incorporated under the Companies Act, 1956 in the year 1965. Therefore, being a company registered under the Companies Act, 1956 merely because the State Government is the owner of the company will not mean that it is an establishment under the **9** ## **W.P.(C)No.19101 of 2014** State Government to claim the exemption under section 3 of the Act 1960. This I say because the activities of the Kerala Tourism Development Corporation Ltd. is controlled and regulated by the Memorandum of Association and Articles of Association and merely because the Government appoints the Managing Director and others, that would not give a meaning that it is a company under the Government of Kerala. Moreover, this question was considered by a Division Bench of this court in **Director, Tourism Department v. Industrial Tribunal** (supra) and held that the Tourism Department is an industry and it is not discharging any sovereign functions. 11. In my considered opinion, going by the definition of commercial establishment discussed above, it is clear that the Kerala Tourism Development Corporation Ltd. carrying on activities of hotel, restaurant, boarding or eating house, cafe or any other refreshment house, would clearly come under the provisions of the Act 1960. The sole exemption contained under section 2(4) of the Act 1960 is from the provisions of the Factories Act, 1948. Which thus means any establishment **10** ## **W.P.(C)No.19101 of 2014** carrying on commercial activities is liable to be guided by the provisions of the Act 1960 except the exemption granted under section 3 of the Act 1960 and an establishment under the Factories Act 1948 excluded from the definition of commercial establishment discussed above. Therefore, I find no reason to interfere with the finding rendered by the Appellate Authority under the Act 1960 that the Kerala Tourism Development Corporation Ltd. is a commercial establishment coming under the purview of the Act 1960. 12. Insofar as the issue with respect to the illegal termination of the workman is concerned, the authority has arrived at the finding taking into account the evidence tendered by the rival parties, both oral and documentary. Petitioners have not produced any evidence before this court to interfere with the findings rendered by the Appellate Authority or to arrive at a different conclusion than the one arrived at by the fact finding body. There is no perversity or illegality in the factual findings rendered by the authority. So also, I find that the litigation by and between the petitioners **11** ## **W.P.(C)No.19101 of 2014** and the 1[st] respondent started in the year 1996 and now 26 years have elapsed and a quietus has to be given to the issue; especially because for a paltry sum of five thousand rupees as per Exhibit P3 earlier order, the Kerala Tourism Development Corporation Ltd. has litigated all these years contending that it would not come under the purview of the Act 1960. 13. Even though the learned counsel for the petitioners submitted that the Appellate Authority had no power to increase the amount of Rs.5,000/- granted as compensation as per Exhibit P3 earlier order to Rs.15,000/-, I am of the considered opinion that it was done by the Appellate Authority taking into account the lapse of time and other adverse and consequential circumstances that would have affected the workman during the years. 14. Even though the learned counsel for the petitioners has relied upon the judgment of the Apex Court in **Ajay Hasia etc v. Khalid Mujib Sehravardi and Others etc** [AIR 1981 SC 487]; wherein the question considered was whether a society registered under the Societies Registration Act is an **12** ## **W.P.(C)No.19101 of 2014** ‘authority’ falling within the definition of ‘State’ under Article 12 of the Constitution of India. In my considered view, the said legal proposition has nothing to do with the issues involved in the present writ petition. In sum and substance, the petitioners have not made out any case of arbitrariness or illegality justifiable to be interfered in a proceeding under Article 226 of the Constitution of India. Needless to say, the writ petition fails. Accordingly, it is dismissed. Sd/- **Shaji P. Chaly Judge** ## **vpv** **13** ## **W.P.(C)No.19101 of 2014** ## **`APPENDIX`** ## **`PETITIONERS’ EXHIBITS`** ``` EXT.P1TRUE COPY OF THE ORDER DATED 27.11.2013 IN SA 03/2011 PASSED BY THE 2ND RESPONDENT. EXT.P2TRUE COPY OF SA NO.06/1996 FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT. EXT.P3TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONERS. EXT.P4TRUE COPY OF THE ORDER DATED 21.11.2003 PASSED BY THE 2ND RESPONDENT IN SA NO.06/1996. ``` ``` EXT.P5TRUE COPY OF THE JUDGMENT DATED 02.04.2007 IN WPC 8195 OF 2004. ``` //true copy// P.A. to Judge