IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 WP(C).No. 25787 of 2004(T) -------------------------- PETITIONER: ---------------- CADBURY INDIA LTD., P.B.NO.7, KOTTAYAM 686 010, REPRESENTED BY ITS HEAD - COCO OPERATIONS. BY ADV. SRI.U.K.RAMAKRISHNAN (SR.) SRI.E.K.MADHAVAN SRI.P.V.LOHITHAKSHAN SMT.P.VIJAYAMMA SMT.UMA GOPINATH SRI.DEVIDAS.U.K SRI.SANDEEP.E. RESPONDENTS: ------------------ 1. K.B.PREM CHAND LAL, KIZHAKKEKUTTIPARAMBIL, IDAYAKUNNAM SOUTH CHITTOOR POST, KOCHI. 2. THE LABOUR COURT, ERNAKULAM. BY ADV. SRI.NELSON J.MANAYIL FOR R1 SMT.K.A.ROSEFLY FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25787 of 2004 EXT.P1: COPY OF THE AWAD DTD 21.1.2004 PASSED BY THE SECOND RESPONDENT IN I.D. NO.40 OF 1997. RESPONDENT'S EXHIBITS EXT.R1(a): ARGUMENT NOTES SUBMITTED BY COUNSEL FOR THE WORKMAN IN ID 40/97 BEFORE THE LABOUR COURT, ERNAKULAM. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.25787 OF 2004 ---------------------------------------- Dated this the 15th day of July, 2008 JUDGMENT The petitioner is the management in I.D.No.40 of 1997 before the Labour Court, Ernakulam. They are challenging Ext.P1 award passed by the Labour Court in that I.D. The issue referred for adjudication was: “Whether the denial of employment to Sri. K.B. Premchandlal, Lorry Cleaner, Cadbury's India Limited, Kottayam is justifiable? If not what relief the worker is entitled?” 2. The facts are not in dispute in this writ petition. The same are: The workman was working as a Cleaner in a lorry belonging to the petitioner management at its branch office at Kottayam from 4.11.1988. There were three lorries for the Company. On 29.9.1993, the workman accompanied the lorry to Dharmapuram along with Sri. P. Radhakrishnan, driver thereof. The lorry met with an accident in which the workman was seriously injured and W.P.(c)No.25787/04 2 hospitalised. He had undergone treatment for three years. The ESI Corporation accepted the injury as an employment injury and was paying wages, as per the provisions of the Employees' State Insurance Act, to the workman. On 16.2.1996, the Medical Officer of the Corporation issued a fitness certificate to the workman to the effect that the workman is fit to join duty on 19.2.1996. The workman presented himself before the management for duty with that certificate. But the workman was not permitted to join duty. Subsequently, by letter dated, 1.3.1996, the workman was retrenched from service with effect from 1.3.1996. A demand draft for Rs.8,122.50/- was enclosed with the letter, being notice pay and retrenchment compensation. The other procedure for retrenchment was also complied with. The reason for retrenchment was stated as sale of the vehicle, in which the workman was working and he was the junior-most among the Cleaners. The workman accepted the demand draft, but thereafter preferred a complaint before the District Labour Officer complaining of illegal termination. As a result of the same, the dispute came to be referred for adjudication to the Labour Court. The Labour Court after adjudication found W.P.(c)No.25787/04 3 that the retrenchment is valid and proper. But, on the ground that there is an irregularity in not admitting the workman to duty for the period between 19.2.1996 and 1.3.1996, the management was directed to pay compensation to the tune of Rs.15,000/-. The management was also directed to give the workman an alternate employment of Watcher/Peon, if a vacancy in that post arises before the superannuation age of the worker. This award is under challenge before me to the extent it directs payment of compensation and giving of alternate employment as Watcher/Peon to the workman. The workman has not challenged that part of the award, whereby the retrenchment was held as valid and proper. 3. The management would submit that after having found the retrenchment valid and proper, the Labour Court did not have the power to direct payment of compensation that too, to the tune of Rs.15,000/- for alleged irregularity of not permitting the workman to join duty from 19.2.1996 till valid retrenchment on 1.3.1996. The management would also point out that there is no provision anywhere in the Industrial Disputes Act, which obliges an employer to give alternate employment to a workman, who was retrenched legally. W.P.(c)No.25787/04 4 According to the management, all what the workman can hope for, is employment in the same post from which he was retrenched as and when the management decides to fill up that post again. 4. On the other hand, the workman would contend that when the Labour Court has found that there is irregularity in denial of employment even for a short period, it is perfectly competent for the Labour Court to order compensation. He would also support the direction to give alternate employment to the workman. 5. I have considered the rival contentions in detail. Assuming that there is some irregularity in refusing to permit the workman to join duty on 19.2.1996 till 1.3.1996, at the most what the Labour Court could have directed, is to pay wages for that period, once retrenchment with effect from 1.3.1996 is found to be legal and proper. Therefore, the direction to pay compensation of Rs.15,000/- is clearly perverse and unsustainable. So also, in labour jurisprudence, there is no law, which requires a management to give alternate employment to a workman, who has been validly retrenched from service. Of course, the Labour Court can certainly direct W.P.(c)No.25787/04 5 preferential re-employment as and when the management decides to recruit workmen to the same post again. In this case, the workman has no case that in the Kottayam unit of the management, any lorry Cleaner has been recruited after the retrenchment of the workman. That being so, the direction to give alternate employment to the workman is also perverse and unsustainable. Accordingly, that part of the award whereby the Labour Court directs payment of Rs.15,000/- as compensation to the workman and directs the management to give alternate employment to the workman are set aside. The other findings would stand. However, taking a lenient view I direct the petitioner to pay an ex-gratia amount of Rs.5,000/- (Rupees five thousand only) to the workman, which shall include wages for the period he was kept out of service. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.25787/04 6