IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 WP(C).No. 29351 of 2008(T) -------------------------- PETITIONER(S): --------------- CANNANORE DISTRICT SHOP ESTABLISHMENT & GENERAL WORKERS, UNION (INTUC) NETHAJI ROAD, KANNUR, REPRESENTED BY ITS GENERAL SECRETARY SRI. M.DAMODARAN. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENT(S): --------------- 1. THE KERALA STATE BEVERAGE CORPORATION LTD, SASTHAMANGALAM, THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LTD, SASTHA KRIPA OFFICE COMPLEX,SASTHAMANGALAM, THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING DIRECTOR. ADV. SRI.P.J.ELVIN PETER,SC,BEVERAGES CORPN. FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- W.P.(C).29351/2008 -------------------- Dated this the 21st day of October, 2008 JUDGMENT Petitioner, a Trade Union, represents the women workers employed in the Kannur Depot of the Kerala State Beverages Corporation. It is the claim of the petitioner that the women workers have been engaged since the Corporation started functioning in the year 1984. They are mostly employed to affix labels on the bottles and place them in cases. It seems that the said women workers were originally engaged by the Corporation itself. Though the tenure of service and the nature of engagement as such is not a subject matter in dispute in this writ petition, the case of the petitioner is that the workers have been engaged by the Corporation According to the Corporation, at least from 1992, the workers have been engaged by a contractor, who has been awarded the work of affixing labels on the bottles and placing them in cases to be despatched from the wholesale godown of the Corporation. W.P.(C).29351/2008 2 2. But it is conceded that the workmen or the Unit representing them had raised a claim of permanency in so far as these workers are concerned. Management disputed the same. Conciliation proceedings were initiated and it seems that, on a report of the District Labour Officer, Government had ultimately referred the following dispute to the Industrial Tribunal, Kozhikode. “Whether the 23 Labelling Workers of Kerala State Beverages Corporation (Kannur Depot) are eligible for permanency in the present category” 3. I.D.No.6/2005 is pending adjudication before the Industrial Tribunal, Kozhikode. 4. This writ petition has been filed in the wake of Ext.P4 tender notification issued by the Corporation inviting tenders from interested persons for the work of sticking adhesive holographic security labels on caps of W.P.(C).29351/2008 3 liquor bottles on contract basis. It will have to be taken that the women workmen represented by the petitioner-Unit, have been engaged inter alia in the said task, though it is a matter in dispute as to whether they have been engaged by the Corporation directly or through a contractor. One of the aspects which therefore, might arise for consideration in the industrial dispute as to the nature of engagement of such workers. But I find from the dispute which has been referred to the Industrial Tribunal by the Government that the aspect which will have to be adjudicated by the Industrial Tribunal is whether the 23 women workers engaged in the task of affixing labels in the wholesale godown of the Corporation are entitled to permanency. This therefore, contemplates a continuance of service/engagement at least till the Industrial Tribunal considers the issue and passes an order. In these circumstances, disengagement of the women workers represented by the petitioner, in my view, would result in the infraction of Section 33 of the Industrial Disputes Act, 1947, which reads as follows:- W.P.(C).29351/2008 4 Conditions of service, etc, to remain unchanged under certain circumstances during pendency of proceedings - (1). During the pendecy of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall - (a). in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or (b). for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. W.P.(C).29351/2008 5 5. In the circumstances, I think it is only appropriate that the engagement of the women workers in the Kannur Unit may be continued pending adjudication of the industrial dispute referred to the Kozhikode Industrial Tribunal as per Ext.P1 order of reference. 6. But learned Standing Counsel for the KSBC submits that it is open to the employer to seek permission of the Industrial Tribunal to take appropriate action in relation to the workmen whose service conditions are the subject matter of the industrial dispute pending adjudication. This submission is correct. In the circumstances, it is open to the KSBC to move the Industrial Tribunal for permission to disengage the services of any person whose claim is covered by Ext.P1 order of reference and who is sought to be represented by the petitioner herein in I.D.6/2005 pending before the Industrial Tribunal, Kozhikode. But, Corporation shall not disturb the engagement or service of the 23 persons, whose claim has been referred for W.P.(C).29351/2008 6 adjudication as per Ext.P1. 7. In the result, writ petition is disposed of with the following directions:- (i). The services of 23 women workers who have been engaged and who are being engaged for the job of affixing labels on the liquor bottles of the Beverages Corporation in its Kannur Unit shall not be disturbed or altered pending a decision on I.D.6/2005 pending before the Industrial Tribunal, Kozhikode. This direction is subject to the direction being issued hereunder. (ii). It is open to the KSBC to move an application before the Industrial Tribunal for permission to either disengage the services of 23 labelling workers, or otherwise alter the nature of the engagement. If the application is filed in this behalf under Section 33(a) of the Act, Tribunal shall positively pass orders on the same within three months from the date on which the application is filed. W.P.(C).29351/2008 7 (iii). It is made clear that I have not considered the contentions of the KSBC that the 23 women Labeling workers have been engaged by a contractor and not by the Corporation directly. This is an aspect which will have to be adjudicated upon by the Industrial Tribunal, Kozhikode, in I.D.6/2005, provided the same has been raised for consideration by the KSBC. (iv). The aforementioned directions have been issued only as a matter of maintaining the status as regards the engagement of 23 labelling workers comprehended by Ext.P1 reference order. It need not be treated as an expressin of opinion of this Court on the merits of the contentions raised by either side. It is open to the KSBC to proceed to award the contract to a suitable person pursuant to Ext.P3, without violating the directions issued herein above. V.GIRI, Judge mrcs