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2022 DIGILAW 954 (KER)

KSRTC-Swift Limited v. Industrial Tribunal

2022-11-08

AMIT RAWAL

body2022
JUDGMENT : This order of mine shall dispose of two writ petitions; W.P.(C ) No.25878 of 2022 by the KSRTC – SWIFT LTD. and W.P.(C) No.26484 of 2022 by KSRTC challenging the order allowing the application of the Union in an Industrial Dispute No.3 of 2020. 2. Kerala State Road Transport Workers Federation through its President filed a petition under Section 10 of the Industrial Disputes Act on the ground that it was a registered trade union which consisted of conductors, drivers, mechanical, ministerial and other employees and Kerala State Road Transport Corporation on September 2019 had 5526 schedules, 33146 employees and 5662 buses. As per the statutory and other Rules and Regulations KSRTC was not able to get the service of the permanent employees for 365 days. Due to the special nature of work in the Corporation the working hours of an employee ie., driver and conductor was eight hours which included 7 hours of steering duty. It had 3941 conductors, 1565 drivers, 2122 Mechanical Workers and 600 ministerial workers. In the year 2012, respondent Corporation had entered into an agreement with the Trade Union agreeing to regularize the empanelled workers with 8 years of experience. But it was not acceded to, representation was submitted. The aforementioned claim was objected to by the KSRTC by taking the aid of the judgment of the Hon'ble Supreme Court in State of Karnataka v. Umadevi ( 2006 (4) SCC 1 ). It was contended that the settlement was only to the effect that the Government would be moved for regularization of services of the empanelled contractors and nothing more. But such clauses in the settlement could not have been given the effect as the provisions of the settlement were against the explicit provisions of KS&SSRs. The services of the applicants were terminated with service route as it was not retrenchment in view of the provisions of Section 2(oo) of the Industrial Disputes Act. Since the Industrial Dispute of 2020 is pending, an application was submitted by the Trade Union for impleadment of the KSRTC – SWIFT Ltd., on the ground that it is a Company incorporated as per the incorporation certificate dated 09.11.2021. Since the Industrial Dispute of 2020 is pending, an application was submitted by the Trade Union for impleadment of the KSRTC – SWIFT Ltd., on the ground that it is a Company incorporated as per the incorporation certificate dated 09.11.2021. The object of the company is to act as a special purpose vehicle to obtain diesel, CNG/LNG buses and electrical buses after obtaining loan from the Kerala Infrastructure Investment Fund Board (KIIFB) and also to act as an operator to carry out the long distance services of KSRTC in a most efficient mode on agreement basis. The understanding between the KSRTC – SWIFT Ltd and KSRTC, was that the vehicle of the Company will be taken by the Corporation on a wet lease basis. On formation of the petitioner Company, the Union submitted an application for impleadment of the petitioner, KSRTC SWIFT Ltd as a party on the ground that their claim may not rendered infructuous owing to the formation of the new company and therefore they are proper and necessary party. It is contended that the said application has been erroneously allowed by the labour court without noticing the reference order as it pertained to retrenchment of the emapanelled workers in the KSRTC by its management to be justifiable or not, for, it is not the case that the KSRTC has become defunct. KSRTC had engaged the drivers and conductors from the employment exchange and advised candidates from PSC rank list and from open market in the past, much less, temporarily as per the provisions of KS and SSRs. The labour court abdicated in not considering the fact that no relief was claimed against the petitioner KSRTC -SWIFT COMPANY Ltd. 3. On the other hand, counsel for the claimants before the labour court i.e., the Union supported the order on the ground that it will avoid multifarious of litigations as no serious prejudice would be caused to the newly impleaded party, therefore, could not have been impleaded in the manner and mode. The employees of the KSRTC SWIFT Ltd. were appointed on a daily wages after selection conducted from the open market. 4. The employees of the KSRTC SWIFT Ltd. were appointed on a daily wages after selection conducted from the open market. 4. I have heard the learned counsel for the parties, appraised the paper and of the view that the order under challenge is not sustainable for the reason that the question to be considered by the Industrial Tribunal while considering the application for impleadment was whether the person to be impleaded is a necessary or proper party, or without that person the dispute referred cannot be answered. I will lay reliance upon the judgment of the Supreme Court in Globe Ground India Employees Union vs. Lufthansa German Airlines and Ors ( 2019 (15) SCC 273 ) wherein it has been held that whenever an application for impleadment of the 3rd party, who is not a party to the reference under the Industrial Dispute Act, is filed, what is to be considered is “whether such party which is sought to be impleaded is either a 'necessary' or 'proper' party to decide the lis” depends upon the facts of each case. The allegation raised in the present case is that it would affect the adjudication of the lis which is against the reference order. 5. The labour court has failed to notice the aforementioned facts. For the reason aforementioned, I am of the view that the Petitioner, KSRTC is neither a 'necessary' nor a 'proper' party as it has a different aim and object ie., to employ employees in different manner than the employees already on the panel of the KSRTC. The impugned order is wholly illegal and perverse. Accordingly, set aside. Writ petitions are allowed.