IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 WP(C).No. 28758 of 2005(W) --------------------------------------- PETITIONER: ------------------- V.P.SHAJI, VELUTHARA, KUTTAMANGALAM P.O., ALAPPUZHA. BY ADVS. MR.A.JAYASANKAR, MR.MANU GOVIND. RESPONDENTS: ------------------------ 1. LABOUR COURT, KOLLAM. 2. KERALA STATE TRANSPORT EMPLOYEES SAHAKARANA SANGHOM NO.4206, ALAPPUZHA, REPRESENTED BY ITS SECRETARY. R1 BY GOVT. PLEADER MR. DILEEP MOHAN, R2 MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE, ADV. MR.S.SUJIN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.28758/2005-W: APPENDIX PETITIONERS' EXHIBIT: EXT.P.1: COPY OF THE AWARD DTD. 19/04/2005 BY THE R.1. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. --------------------------- W.P.(C) No. 28758 OF 2005 -------------------------- Dated this the 28th day of January, 2010 J U D G M E N T The workman involved in I.D. No.43 of 1996 before the Labour Court, Kollam, is challenging Ext.P1 award passed in that I.D. The issue raised for adjudication is as follows: “Whether termination of employment of Sri.V.P.Shaji, Attender cum Salesman with effect from 1.2.95 is justifiable? If not the reliefs which he is entitled to”. 2. The facts that the petitioner's was an employee of the management and his employment was terminated were not disputed by the management. The only contention raised by the management was that the petitioner was appointed as an Attender- cum-Salesman by the management society in the Maveli Store conducted by the society as authorised by the Kerala Civil Supplies Corporation. Since the Civil Supplies Corporation stopped supply of goods to the Maveli Store, the society was forced to close the Maveli Store. Consequently the employees of the Maveli Store had to be retrenched. On that ground the management justified the retrenchment of the workman. After considering the rival contentions, the Labour Court came to the finding that the Maveli W.P.(C) No. 28758/05 2 Store was being conducted by the society completely as a separate establishment having no functional integrality with other business of the society and therefore once the Maveli Store is closed, the petitioner is liable to be retrenched from service. The petitioner raised another contention that another worker junior to the petitioner namely, Sri. Joseph Varghese was retained in service. That was answered by the Labour Court holding that the appointment of the petitioner was made permanent only on 1.1.1986, whereas Sri. Joseph Varghese was appointed under the dying-in-harness scheme on 22.2.1985. It was also held that the category of the two persons are different. In view of the said findings, the Labour Court came to the conclusion that the termination of service of the petitioner is justifiable and the petitioner is not entitled to any relief in the ID. That award is under challenge before me. 3. The petitioner contends that the findings of the Labour Court are perverse. According to him, the Maveli Store was not a separate establishment having no functional integrality with other business of the society, as held by the Labour Court. He further submits that if that contention was correct then all the workers of the W.P.(C) No. 28758/05 3 Maveli Store ought to have been retrenched from service and not the petitioner alone. Admittedly, Sri. Joseph Varghese who was also appointed in the Maveli Store itself, after the appointment of the petitioner, should also have to be retrenched, which had not been done and he continues to be retained in service of the society. That being so, according to the petitioner, the conclusion on the two issues raised by the by the Labour Court himself is clearly contradictory and are liable to be set aside. 4. In answer to the said contention, the management would contend that since Sri. John Varghese was appointed under the dying-in-harness scheme, in the place of his deceased brother who was an employee of the society, and on the Maveli Store having been closed his claim for appointment in the society under the dying- in-harness scheme continues and therefore the society was bound to retain Sri. John Varghese in service notwithstanding the closure of the Maveli Store. 5. I have heard the rival contentions in detail. As is clear from the award two issues raised were as follows: “(1) Whether the worker Sri. V.P.Shaji was an employee of the Co-operative Society or was only an W.P.(C) No. 28758/05 4 employee of the Maveli Store? (2) Whether the retrenchment of the worker is legal and justifiable?” 6. On the first issue, the Labour Court came to the conclusion that the Maveli Store was being maintained by the Society as a separate establishment unconnected with and having no functional integrality with other business of the society. But the Labour Court went on to consider whether the petitioner was senior to Sri. John Varghese and came to the conclusion that since the petitioner was made permanent only on 1.1.1986 and Sri. John Varghese was appointed under the dying-in-harness scheme on 22.2.1985, the petitioner is not senior to Sri. John Varghese. I am of the opinion that the findings under the two issues are mutually contradictory. If the Maveli Store is a separate establishment, there is no question of considering inter se seniority between the two employees of the Maveli Store itself. If the Maveli Store, as a whole, is closed down, then all the employees of the Maveli Store are liable to be retrenched from service. There is no question of anybody junior or senior being retained in service. Further, the Industrial Disputes Act does not differentiate between temporary and W.P.(C) No. 28758/05 5 permanent workers. As per the Industrial Disputes Act, when persons are sought to be retrenched from service, seniority lists have to be prepared for each category separately and juniormost in each category has to be retrenched from service. Here it is not retrenchment on reduction of posts, but closure of the establishment as a whole, in which case all the employees have to be necessarily retrenched, for which it is not necessary to consider seniority. Therefore, the conclusion arrived at by the Labour Court appears to be contradictory and perverse. 7. In view of the fact that for deciding the issue finally the matter has to be decided on the basis of evidence on record, I should normally set aside Ext.P1 award and remand the mater to the Labour Court for fresh consideration. But I think that it is not in the interest of both sides to direct them to undergo the travails of a further prolonged adjudication of the dispute. The dispute started in the year 1996 and we are in 2010. The management society is started to be running in heavy loss. Therefore, I suggested that the parties to come to an amicable settlement. Earlier, this Court had referred the matter to the Lok Adalat in view of the readiness expressed by both W.P.(C) No. 28758/05 6 sides to explore the possibility of a settlement. Before the Lok Adalt both parties were agreeable for settling the dispute by paying and accepting a lump sum amount. But they could not agree on the amount payable. That is why the Lok Adalat again referred the matter back to this Court. Now both parties are agreeable to settle the matter by paying and accepting a lump sum amount. Still they are not able to agree on an amount. Ultimately parties agreed that they will leave it to the court to fix the amount payable. Taking into account of the facts and circumstances of the case, I feel that justice would be met if the second respondent pays an amount of Rs.60,000/- to the petitioner in full and final settlement of all his claims against the second respondent in respect of his service with the second respondent. Accordingly, Ext.P1 award is modified and the second respondent is directed to pay to the petitioner the sum of Rs.60,000/- within one month from today in full and final settlement of all the claims of the petitioner against the second respondent in respect of his service with the second respondent. If the amount is not paid within one month, the same would carry interest at the rate of 9% per W.P.(C) No. 28758/05 7 annum from 1.2.1995, which is the date of termination of the employment of the petitioner. The writ petition is disposed of as above. S.SIRI JAGAN, JUDGE vps