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2004 DIGILAW 175 (KER)

The Kochi Refineries Ltd. v. G. Omanakuttan

2004-04-07

K.K.DENESAN, N.K.SODHI

body2004
Judgment :- N.K. Sodhi, C.J. Kochi Refineries Limited (for short the Company) is a Government Company incorporated under the provisions of the Companies Act. It entered into a settlement with its workman represented by Kochi Refineries Employees Association and Kochi Refineries Workers Association. The settlement was arrived at under Section 12(3) of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’) during the course of conciliation proceedings before the Regional Labour Commissioner (Industrial), Kochi. By this settlement, the Company agreed to introduce a self-leasing scheme for the regular and confirmed employees of the Company as per the details mentioned in the settlement. The object of the scheme was to extend self-lease accommodation to certain workmen in recognition of their good work and conduct and to lay down various criteria and conditions for taking/retaking the self-lease accommodation to certain workmen. Clause 2 of the settlement deals with eligibility of an employee to claim the benefits under the scheme. It reads as under: “2. Eligibility for taking/re-taking: (a) A confirmed workman who owns a house/flat in his/her name or in the name of the spouse solely or jointly and should be residing in the same; and (b) His/her annual appraisal rating for the immediately previous two years should not have been ‘averaged’ or ‘unsatisfactory’ i.e., the two lowest ratings in the five-point rating scale”. The dispute herein is only in regard to clause (a). 2. The respondent is a permanent employee of the Company and hails from a place called Chenneerkkara in District Pathanamthitta which is at a distance of nearly 115 kilometers from his place of work. He is working in the general shift and reports for duty at 8.15 a.m. every day. The Employees Association of which the respondent is a member made a complaint to the Company alleging that it had denied benefits of the settlement to some of its members who, according to the Company, were not eligible for the same. The request made by the Employees Association was not acceded to and it raised a dispute with the Regional Labour Commissioner. Conciliation proceedings were held and a failure report was submitted to the Government of India which was the appropriate Government under the Act. The appropriate Government declined to refer the dispute for adjudication for the following reasons. The request made by the Employees Association was not acceded to and it raised a dispute with the Regional Labour Commissioner. Conciliation proceedings were held and a failure report was submitted to the Government of India which was the appropriate Government under the Act. The appropriate Government declined to refer the dispute for adjudication for the following reasons. “It is reported that all eligible cases were considered by the Management for extending self-accommodation as per the terms of settlement. With regard to the two employees, they were not eligible for the facility as their performance rate was below average and in the case of remaining workers, they were residing at far off places from the Refinery”. It was thereafter that the respondent made a claim before the Company for granting him the benefit of self-lease accommodation as per the scheme contained in the settlement. He claimed that he was eligible in terms of clause 2 of the settlement and was entitled to the benefit there under. The claim was rejected by the Company and a communication dated January 25, 2001 was sent to him which reads as under: “This has reference to your letter dated 15-01-2001 claiming of self-lease as per the Memorandum of Settlement dated 15-02-1999. As you are aware to be eligible for the benefit of the scheme, your case should come within the purview of clause 2 of the settlement which requires that you must be owning a house/flat in your or your spouse’s name and should be residing in the same. Even if you satisfy the requirement of performance rating as per clause 2(b) of the settlement dated 15-02-1999, if you do not actually reside in your house, you will not be eligible for the benefit. Even in your representation you have not stated that you are actually residing in your house at pathanamthitta and are coming to work from there. Therefore, you are not eligible for the benefit of the scheme. Regarding the instances you have pointed out. We may inform you that the matter is being examined and if any ineligible employee is enjoining the benefit, the same will be reviewed and appropriate action will be taken against them”. Therefore, you are not eligible for the benefit of the scheme. Regarding the instances you have pointed out. We may inform you that the matter is being examined and if any ineligible employee is enjoining the benefit, the same will be reviewed and appropriate action will be taken against them”. Since the respondent had pointed out certain cases in which, according to him, ineligible persons were enjoying the benefit of settlement, the Company issued a notice calling for fresh declaration from the workmen for availing of the benefit under the settlement. It was at that stage that the respondent filed O.P.No. 5092 of 2001 in this Court which was disposed of by a learned Single on July 5, 2002. The relevant part of the order reads as under: “Therefore, I dispose of the Original Petition making it clear that it will be open to the petitioner to pursue the benefit in Exhibit P1 settlement in case he has a case that as of now he is residing at Chenneerkkara and he is commuting for duty daily from Chenneerkkara. If the petitioner makes such an application, the company will conduct appropriate enquiry in the matter and if it is satisfied that the petitioner is a commuter daily from Chenneerkkara the benefit of clause 2 of Exhibit P1 will be extended to him.” After the disposal of the aforesaid petition, the respondent again applied to the Company claiming the benefit under the settlement and asserted that he was residing at Chenneerkkara and was commuting for duty daily. The Company got the matter enquired into from its Deputy Manager (Security) who, after an enquiry, reported that the respondent was staying at lodges in Tripunithura. The Senior Manager (Security) also conducted an enquiry and found that the respondent was residing in the lodges at Tripunithura and that it was impossible for him to commute daily from his house at Chennerakkara to his work place which was at a distance of about 115 Kilometers. The Company asserts that even on an earlier occasion, it had got the matter investigated from the Commissioner of Police, Kochi city who also reported that the respondent was residing in a lodge in Tripunithura and not at Chennerkkara as alleged by him. The Company asserts that even on an earlier occasion, it had got the matter investigated from the Commissioner of Police, Kochi city who also reported that the respondent was residing in a lodge in Tripunithura and not at Chennerkkara as alleged by him. In view of the aforesaid enquiries, the Company rejected the claim of the respondent and sent a communication to him dated December 10, 2002 the relevant part to which reads as under: “In pursuance to the above, enquiries have been conducted by the company and it is revealed that your alleged place of residence is at Chennerkkara, which is 121 Kilometers away from Company. It is also revealed that your residence is not located near a National Highway or is it close to any prominent railway or bus station. It is therefore reported that it is impossible for an employee to commute daily from such a far away and inaccessible place and report for duty at 8.15 a.m. on all working days.” It was against this communication that the respondent filed O.P.No. 2327 of 2003 in this Court out of which the present appeal has arisen. 3. The matter was considered by the learned Single Judge and both sides had stuck to their respective stands. The respondent claimed that he was residing at Chennerkkara and was commuting daily to his work place. The Company, on the other hand, stated that it was not so and that he was residing in some lodges in Tripunithura and was not entitled to the benefit under the settlement. The learned Single Judge observed that conflicting evidence in the form of affidavits had been produced by both sides as to whether the respondent was residing in a lodge at Tripunithura or actually commuting from Chenneerkkara. He accepted the version of the respondent and relied on a document produced by the Company wherein in one of the enquiries conducted, it had been pointed out that occasionally the respondent was coming from his house at Pathanamithitta by bus either at Chengannur or Thiruvalla from where he would board the train to Ernakulam. Relying on this enquiry, the learned Single judge allowed the writ petition, set aside the order of the Company declining the claim of the respondent and directed the Company to make the payment. It is against this order that the present writ appeal has been filed. 4. Relying on this enquiry, the learned Single judge allowed the writ petition, set aside the order of the Company declining the claim of the respondent and directed the Company to make the payment. It is against this order that the present writ appeal has been filed. 4. We have heard the learned counsel for the parties and are of the view that there is a serious dispute between them as to whether the respondent is residing at his place in Pathanamthitta or whether he stays in lodges in Tripunithura. Both the sides have stuck to their stands as has been their cases from the beginning. When such seriously disputed questions arise in a writ petition, we are of the view that they cannot appropriately be decided in summary proceedings under Article 226 of the Constitution. As already observed, the Company has got the matter enquired on a few occasions and has come to the conclusion that the respondent was not residing at Chenneerkkara in District Pathanamthitta. The respondent, on the other hand, alleges that he was residing at Chenneerkkara and has produced some railway passes in support of his plea. In view of this dispute between the parties, the learned Single Judge should not have examined the matter and recorded a finding. He should have left the parties to pursue their remedies elsewhere where such disputed questions could be settled on the basis of evidence to be led by them. We, therefore, allow the appeal and set aside the order of the learned Single Judge leaving it open to the respondent to pursue his remedies available to him under the law. In the circumstances, there is no order as to costs.