IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 WA.No. 1340 of 2011() --------------------- AGAINST THE JUDGEMENT IN WPC.27261/2007 Dated 25/03/2011 .................... APPELLANT/PETITIONER. ----------------------------------- GENERAL SECRETARY, METAL AND ENGINEERING WORKERS UNION (CITU), AZAD ROAD, KALOOR, KOCHI-17, NOW AT KALABHAVAN ROAD, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.P.RAMAKRISHNAN SRI.T.C.KRISHNA RESPONDENT(S): RESPONDENTS/RESPONDENTS. --------------------------------------- 1. LABOUR COURT, ERNAKULAM-682 031. (DELETED) 2. M/S.MARIKKAR INDUSTRIES, KALAMASSERY BRANCH, HO TC 15/1809,MADATHIL HOUSE, K.P.A.C. JUNCTION, PARIS ROAD, THIRUVANANTHAPURAM-695 001. (1ST RESPONDENT LABOUR COURT, ERNAKULAM, DELETED SUO MOTU AS PER ORDER DT.20.9.2011 IN CMA 801/2011) ADV.SRI.E.K.MADHAVAN FOR R2 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24/10/2011, ALONG WITH WA NO.1341 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR, Ag. C.J. & P.S.GOPINATHAN, J. .................................................................... Writ Appeal Nos.1340 & 1341 of 2011 .................................................................... Dated this the 24th day of October, 2011. JUDGMENT Ramachandran Nair, Ag. C.J. The connected Writ Appeals are filed against common judgment of the learned Single Judge declining to grant the relief prayed for by appellants i.e. reinstatement with back wages in the service of the respondent. We have heard counsel for the appellants and have gone through the judgment of the learned Single Judge and award of the Labour Court. 2. Members of the appellant-Unions were engaged as employees of the respondent. However, labour unrest lead to closure of the respondent's industrial unit. Thereafter there was a settlement by which all the employees who are members of the appellant agreed to leave the service of the respondent on receipt of certain financial benefits including gratuity, bonus, notice pay and also three months' salary separately. There is nothing to indicate in Ext.P1 settlement that the respondent was closing their unit and the payment was towards W.A. 1340 & 1341/11 2 closure compensation entitling members of the appellant for re- employment in terms of Section 25H of the Industrial Disputes Act. Nearly after six months of release of the appellants and closure, respondent again started the industrial unit. When the appellants claimed employment for the employees who got released under Ext.P1 settlement, respondent declined, which led to reference of the case to the Labour Court. Even though the only question referred was eligibility for reinstatement under Section 25H of the Industrial Disputes Act, the Labour Court went into the question as to whether closure of the unit by respondent was bonafide. After answering this question in favour of the appellants, the Labour Court ordered reinstatement, but without backwages. The closure of the respondent's unit was on 2.11.2000 and within six months they restarted with new set of employees. As of now, respondent is functioning with entirely new set of employees for the last 10 years. Before the learned Single Judge both the appellants as well as the respondent challenged the order, appellants for back wages and respondent opposing reinstatement. The learned Single Judge held that W.A. 1340 & 1341/11 3 the claim of the respondent and vacated the award of the Labour Court which led to the connected Writ Appeals filed by the appellants. 3. Before the learned Single Judge as well as before us the contention raised by the appellants is that closure was not bonafide and irrespective of the motive behind the closure, workers of the appellant are entitled to reinstatement under Section 25H of the Industrial Disputes Act by virtue of the lien available to them. Learned Single Judge turned down this contention by stating that Ext.P1 settlement does not talk about any closure of the unit and payment of closure compensation. On the other hand, it is an agreement whereunder the employees for whom appellant is in this court have unilaterally agreed to sever all connections with the respondent as the employer on receipt of cash compensation in different forms. So much so, Section 25H has no application is the finding of the learned Single Judge. The appellants' counsel submitted that statutory entitlement under Section 25H is not hit by Ext.P1 agreement and appellants being retrenched employees are entitled to reinstatement on priority basis when the unit starts functioning. We are unable to accept this contention because the W.A. 1340 & 1341/11 4 employees of the appellants' Union got released under agreement with the respondent without reserving any right to claim reemployment. There is nothing to indicate that the settlement under Ext.P1 was pursuant to closure within the meaning of the Industrial Disputes Act and so much so, to restart the unit with fresh set of employees was completely within the discretion of the respondent. Appellants cannot claim settlement under agreement and then reserve statutory rights independently. If employees of appellants' Union ever claimed reemployment, there can be no doubt that respondent would not have gone for settlement on payment of all the claims made by the workers whose performance, according to the respondent, led to the closure of the unit. We do not find any justification to deviate from the finding entered by the learned Single Judge that the Labour Court had no authority to go into the question whether closure was bonafide or not as it was not a question referred to it. The only question referred was appellants' entitlement for reinstatement of workers which the learned Single Judge rightly held against the appellants because Ext.P1 agreement is a comprehensive deal by which appellants' employees W.A. 1340 & 1341/11 5 severed their relationship with the respondent once for all on receiving compensation under various heads and notice pay for three months. In the circumstances, benefit under Section 25H cannot be claimed in conflict with Ext.P1 agreement entered into between the employees of the appellants and the respondent. It may also be noted that after 10 years of functioning of the respondent with fresh set of employees, it would be unrealistic and arbitrary to order release of those workers to be substituted by the members of the appellants-Union whose performance probably led to the first round of closure of the unit. We see no merit in the Writ Appeals and the same are dismissed. C.N.RAMACHANDRAN NAIR Acting Chief Justice P.S.GOPINATHAN Judge pms