IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 WP(C).No. 22111 of 2006(G) ------------------------------------- ID.17/1998 of LABOUR COURT, KANNUR ................................................. PETITIONER(S): ----------------------- THE MALABAR REGIONAL CO-OPERATIVE MILK PRODUCERS UNION, H.O.PERINGALAM, KOZHIKODE-673 571 REPRESENTED BY ITS MANAGING DIRECTOR. BY ADVS. SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENT(S): ------------------------- 1. THE SECRETARY, KERALA CO-OPERATIVE MILK MARKETING FEDERATION EMPLOYEES UNION (INTUC) KANNUR DIARY, PALLIKUNNU, KANNUR. 2. THE LABOUR COURT, KANNUR. R1 BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE, SC R2 BY G.P. SRI. NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/12/2011, THE COURT ON SAME DAY DELIVERED THE FOLLOWING: DCS WP(C).No. 22111 of 2006(G) APPENDIX PETITIONER'S EXHIBITS :- EXT. P1: COPY OF PROMOTION POLICY WITH THE ORDER OF THE MANAGING DIRECTOR DATED 18.06.1987 APPROVING THE IMPLEMENTATION OF THE ABOVE POLICY. EXT. P2: COPY OF MINUTES OF MEETING HELD ON 31.01.1990, 28.02.1990 AND 07.07.1990. EXT. P3: COPY OF LETTER OF SECRETARY, KERALA CO-OP. MILK MARKETING FEDERATION EMPLOYEES UNION DT. 01.08.1997 TO THE LABOUR OFFICER, KANNUR. EXT. P4: COPY OF REPRESENTATION SUBMITTED BY MR. P. KRISHNAN, TO THE MANAGING DIRECTOR, KCMMF, TRIVANDRUM EXT.P5: COPY OF ORDER OF THE MANAGING DIRECTOR, KCMMF, LTD, TRIVANDRUM DT. 11.04.1989 ISSUED TO MR. P. KRISHNAN EXT. P6: COPY OF REPRESENTATION DATED 08.08.1991 OF MR. P. KRISHNAN TO THE PETITIONER EXT. P7: COPY OF REPRESENTATION DATED 13.09.1991 SUBMITTED TO HON'BLE MINISTER FOR LABOUR, BY THE PRESIDENT, CHIRAKKAL MANDALAM COMMITTEE, INDIAN NATIONAL CONGRESS, KANNUR. EXT. P8: COPY OF ORDER DATED 25.03.1994 PROMOTING SMT. P.P. CHANDINI AS STENOGRAPHERGR. 1 EXT. P9: COPY OF NOTIFICATION DATED 20.07.1994 INVITING APPLICATION TO THE POST OF PA TO THE MANAGING DIRECTOR EXT. P10: COPY OF ORDER DT. 19.02.1995 ISSUED TO SMT. P.P. CHANDINI APPOINTING HER AS P.A. TO MANAGING DIRECTOR EXT. P11: COPY OF REFERENCE ORDER DATED 13.05.1998 ISSUED BY THE GOVT. FOR ADJUDICATION OF INDUSTRIAL DISPUTE BY THE 2ND RESPONDENT EXT.P12: COPY OF CLAIM STATEMENT DATED 12.10.1998 FILED BY THE UNION IN I.D. NO. 17/98 EXT. P13: COPY OF WRITTEN STATEMENT FILED BY THE MANAGEMENT IN ID 17/98 EXT. P14: COPY OF REJOINDER DATED 08.02.1999 FILED BY THE UNION EXT. P15: COPY OF JUDGMENT DT. 21.03.2002 IN OP NO. 19339/01 EXT.P16: COPY OF AWARD OF THE LABOUR COURT, KANNUR DATED 05.09.2005 IN ID NO. 17/98 RESPONDENT'S EXHIBITS:- NIL /TRUE COPY/ P.A. TO JUDGE DCS S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 22111 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 13th day of December, 2011. J U D G M E N T The management in I.D.No. 17/1998 before the Labour Court, Kannur is the petitioner herein. They are challenging Ext.P16 award passed by the Labour Court in that I.D. The issues referred for adjudication were: “(1) Whether the punishment given to Sri. P. Krishnan, Stenographer, MRCMPU Kannur Dairy is justifiable or not? (2) Whether Sri. P. Krishnan has been denied promotion due to him.” Initially, the Labour Court passed an award holding the workman not guilty of the charges levelled against him and finding that the management unjustifiably withheld the promotion to the respondent and the management was directed to promote the workman involved as Stenographer Grade I with effect from 4.5.1992. The petitioner challenged the same by filing O.P.No. 19339 of 2001. In that original petition, this court passed Ext.P15 judgment, which reads as follows: “Ext.P5 award passed by the Labour Court, Kannur is under challenge at the instance of the petitioner management. The issue leading to the award pertains to the complaint of the first respondent regarding an illegal punishment and denial of promotion. The first respondent was appointed as Stenographer Grade II. He joined duty on 4.5.1987. Later he was transferred to different offices. While so, he was issued show cause notice alleging misappropriation and irresponsible conduct. The enquiry officer who conducted the domestic enquiry found the workman not guilty of the charges levelled W.P(C) No. 22111 of 2006 -: 2 :- against him. However, the management on its own entered a different finding without notice to the workman and decided to impose a punishment of warning and reduced wages during the period of suspension. The Labour Court elaborately considered the matter and came to the conclusion that the Enquiry Officer has considered all the aspects in detail, the allegations against the workman and the evidence tendered by the management while coming to the conclusion that the workman is not guilty and the punishment was set aside. As already observed above, the finding was reversed without notice to the workman. Not only that the Labour Court has dealt with the matter on merits and has found that the workman is not guilty. There is no error, illegality or perversity in that regard. Thereafter, the Labour Court considered the grievance regarding denial of promotion and entered a finding that the management unjustifiably withheld promotion to the 1st respondent and hence issued a direction to promote the first respondent as Stenographer Grade I with effect from 4.5.1992. 2. It is the case of the petitioner that promotion to the post of Stenographer Grade I depends on availability of vacancy as on that date. There is also a case that promotion to the post of P.A to the Managing Director is on the basis of selection and the petitioner himself participated in the selection process, but could not succeed. It is the further case of the management that promotion to the post of Stenographer Grade I is on the basis of recommendation by the Departmental Promotion Committee. Apparently, the Departmental Promotion Committee did not take into consideration the case of the petitioner because of the disciplinary action taken against him. Now that the disciplinary action as such has been set aside by the Labour Court, this aspect will have to be looked into afresh. I do not think the Labour Court has been addressed on these aspects and at any rate the Labour Court has not adverted to those vital aspects. Therefore, while upholding the award to the extent it has upheld the domestic enquiry conducted in the case of the first respondent and setting aside the punishment imposed on the first respondent, I set aside Ext.P5 aware to the extent of interfering with the promotions and directions issued thereon. I remit the matter to the second respondent Labour Court to consider these aspects on the availability of vacancy of Stenographer Grade I on 4.5.1992, the suitability of the first respondent to that post and the consequence thereafter on further promotions. Appropriate orders shall be passed by the W.P(C) No. 22111 of 2006 -: 3 :- Labour Court within a period of four months from the date of receipt of a copy of judgment. The parties will appear before the Labour Court on 25.5.2002. The original petition is disposed of as above.” As is clear from the same, the findings of the Labour Court with regard to the punishment imposed on the petitioner was upheld by this Court, but the matter was remanded to the Labour Court for consideration of the other issue regarding promotion. After remand, the parties adduced fresh evidence on the issue regarding promotion of the workman and ultimately, Ext.P16 award was passed, wherein, after confirming the earlier finding with regard to the punishment imposed on the workman, the Labour Court considered the question of promotion and ultimately came to the conclusion that the denial of promotion to the workman is unjustified, that a vacancy of Stenographer Grade I was available on 4.5.1992 and that the management could not establish that the workman is not suitable for the said post. It was found that one Smt. P.P. Chandini, who was also impleaded in the I.D, was given promotion on 25.3.1994 without considering the claim of the workman and consequently, that promotion was set aside directing the management to decide the question of promotion afresh. That award is under challenge in this writ petition. 2. The contention of the petitioner is that the Labour Court misdirected himself in concluding that the promotion was not unit-wise and that the transfer of the workman from Kozhikode to Kannur was not on his request. According to the petitioner, as per the promotion policy of the W.P(C) No. 22111 of 2006 -: 4 :- management, the seniority and promotion are only unit- wise. The Malabar Regional Co-operative Milk Producers Union-the Management, has several units in Malabar. The management would contend that these units are distinct and separate and the seniority and promotion of employees in each unit being unit-wise, once a person is transferred from one unit to another unit on request, he would join the latter unit as the junior-most and consequently he will not be eligible for promotion over others in that unit based on his seniority in the erstwhile unit. According to management, the Labour Court failed to note this vital aspect of the promotion policy and consequently the award is perverse and is liable to be quashed. 3. The 1st respondent appears through counsel and argues in support of the award. He would support the findings of the Labour Court that the transfer of the workman from Kozhikode to Kannur was not on his request, but on administrative exigencies done by the management themselves and therefore such transfer cannot affect the seniority of the workman. Learned counsel also points out that the Labour Court had taken into consideration other transfers as well without affecting the seniority and therefore the contention of the management is totally incorrect. 4. I have considered the rival contentions in detail. 5. From the award, I find that the management witness had admitted in his evidence that there was a vacancy of Stenographer Grade I on 4.5.1992. The witness also admitted that the workman was qualified and suitable W.P(C) No. 22111 of 2006 -: 5 :- for promotion to the said vacancy as on that date. It is not disputed before me that Smt. P.P. Chandini, who was admittedly junior to the workmen involved, was promoted on 25.3.1994 in the vacancy which arose on 4.5.1992. The Labour Court found that as on 4.5.1992, Smt. P.P. Chandini did not possess the minimum 5 years' service as Stenographer Grade I have considered the rival contentions in detail., for promotion as Stenographer Grade I. The management waited till Smt. P.P. Chandini acquired the requisite qualification for promotion and thereafter promoted her on 25.3.1994. 6. The Labour Court has come to the conclusion that the promotion cannot be stated to be unit-wise as such, at least in respect of the workman. On the basis of the transfer order of the workman itself, the Labour Court came to the conclusion that insofar as there is no mention of any request for transfer by the workman in the transfer order, it cannot be accepted that the workman was transferred on his request. The Labour Court also came to the conclusion that if the workman can be transferred on exigencies of service from one unit to another, without safeguarding his seniority and right of promotion, then that would lead to arbitrariness and favouritism. I also fully agree with the conclusion of the Labour Court. If the management is free to make such transfers from one unit to another at their will, which would affect the seniority and chances of promotion, then that would be an effective tool in the hands of the management to deny rightful promotion of a workman. That exactly is what has been done in this case. W.P(C) No. 22111 of 2006 -: 6 :- The workman's transfer was not on his request. After transferring him in the exigencies of service, the management cannot now take the contention that since the seniority and promotion are unit-wise, the workman cannot claim promotion insofar as the vacancy is at Kozhikode and the workman was transferred to Kannur unit. In fact, I am satisfied that the Labour Court's conclusion that the action of the management smacks of mala fides and favouritism is in tune with the evidence discussed in the award. In fact, what the management canvasses in this writ petition is the correctness of the finding of facts in the award. It is settled law that finding of facts in an award under the Industrial Disputes Act cannot be interfered with by this Court under Article 226 of the Constitution of India, except when the findings are perverse. I find that Ext.P16 award is a well written award giving very cogent reasons for all findings thereof. I do not find any perversity whatsoever in any of the findings of fact therein. As such, there is no merit in the challenge against Ext.P16 award. Consequently, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/