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    W.P. (C) No. 1476 of 2004 (A)

    Decided On, 05 October 2016

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K. SURENDRA MOHAN & THE HONOURABLE MR. JUSTICE K. ABRAHAM MATHEW

    For the Petitioner: U.K. Ramakrishnan, Sr. Advocate, Amrita Jayaram, U.K. Devidas, V. Krishna Menon, E.K. Madhavan, E. Sandeep, Uma Gopinath, Advocates. For the Respondents: B. Ashok Shenoy, H.B. Shenoy, Advocates.



Judgment Text

K. Surendra Mohan, J.

1. This writ petition has come up before us upon a reference made by the learned Single Judge, who heard the matter initially. As per order dated 28.6.2016 the case has been referred to the Division Bench for the reason that another learned single judge of this court, by judgment dated 5.10.2009 in WP(C) No. 27809 of 2003, has set aside an identical award passed by the Industrial Tribunal, at the instance of the very same petitioner before us. The matter arises under the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for short).

2. The petitioner, the management, challenges Ext P5 award of the Industrial Tribunal, Alappuzha in I.D.No.44 of 2000. As per the award the Industrial Tribunal has held that denial of employment to the first respondent workman was unjustified. Consequently, it has been declared that the termination of the 1st respondent-workman was in violation of Section 25-F of the Act. Therefore, it is also declared that, the workman shall be deemed to be in service till he is validly terminated. The petitioner is aggrieved by the award.

3. The short facts necessary for our purpose are the following:

The first respondent was working as a part-time Teleprinter Operator of the petitioner from March, 1983 onwards, on a consolidated monthly salary. The monthly salary was initially Rs. 500/- per month, but had been enhanced to Rs. 680/- per month. While so, on 30.11.1996 a contract was entered into between the employee and the management specifying that the period of his employment would be only up to 31.3.1998. An enhanced salary of Rs. 1,000/- per month is stipulated by the agreement which is evidenced by Ext P3 in this writ petition. Thereafter, the employee was given an extension of service on an enhanced salary of Rs. 1,500/-. Such extension was granted on 21.4.1998, with effect from 1.4.1998. The period of extension stipulated was one year. He was terminated from service on 1.4.1999. Thereupon, an industrial dispute was raised and the same was referred for adjudication by the Government to the Industrial Tribunal.

4. In his Claim Statement before the Industrial Tribunal the first respondent contended that he was a permanent employee under the management for 16 years, commencing from 21.4.1983. Though he was designated as a part time Teleprinter Operator, his work was spread over 7 to 9 hours a day. Apart from the duties of a Teleprinter Operator, he had to attend to various other duties also such as printing of photographs, news, assisting the correspondent in all assignments, coverage of news in emergency etc. He was being paid only a salary of Rs. 500/- initially, which was subsequently raised to Rs. 689.50 per month. It was at that time that he was offered an appointment as a Teleprinter Operator without any stipulation regarding the hours of duty. He was offered a consolidated pay of Rs. 1,000/- per month. Since the enhancement in salary was an urgent need of the employee, he had agreed to the terms of the contract and had signed the same on 30.11.1996. It is also the case of the workman that when he had come to the office on 1.4.1999 to work, he was denied employment, relying on the terms of the agreement. It was contended that the action of the management in denying him employment without any reason was arbitrary and unsustainable.

5. The claim of the workman was contested by the employer contending that the workman had been initially engaged as a part time Teleprinter Operator on a consolidated monthly pay. While working as such, the parties had executed Ext P3 agreement by which, the nature of employment was changed. The tenure of employment was also limited to 31.3.1998. The workman had agreed to the terms of the contract accepting the enhancement in salary offered to him. Since the workman had agreed to the terms of Ext P3, his termination on the expiry thereof does not amount to retrenchment. Therefore, it was contended that the workman was not entitled to any relief.

6. The Industrial Tribunal considered the respective contentions of the parties, in the light of the evidence and passed Ext P5 award. The evidence in the case consists of the oral testimonies of the management witness, MW1 and that of the first respondent, who was examined as WW1. No documents were marked on the side of the management. The workman produced and marked Exts W1 to W10 documents. The Industrial Tribunal accepted the contention of the workman that the agreement had been executed by him out of his necessity to ensure his continued employment and that there was no sanctity for the terms of the said contract for the reason that the terms were unilaterally imposed upon the workman, who had no choice but to agree to them. The workman had been in service from 1983 onwards and the terms of the contract which was marked as W4 by the Industrial Tribunal were unconscionable in nature. Since the workman had not been terminated in accordance with the provisions of Section 25F of the Act, it has been declared that he would be deemed to have continued in service.

7. According to Advocate E.K. Madhavan, who appears for the management, the award of the tribunal is unsustainable for various reasons. In the first place, it is pointed out that the Industrial Tribunal has travelled beyond the scope of the reference that was made to it. Our attention is drawn to the terms of reference extracted in Ext P5 award to contend that, the issue referred was "denial of employment" of the first respondent. Therefore, the only question that arose for consideration before the tribunal was whether the denial of employment was justified or not. The tribunal has travelled beyond the scope of the reference and has considered the validity of the terms of W4 agreement. It has been found that the terms of the agreement were unconscionable in nature. According to the counsel, the tribunal lacked jurisdiction to enter such findings. It is further contended that, the reason stated by the tribunal to find that the terms of the agreement were unconscionable was the dictum laid down by the apex court in the decision inCentral Inland Water Transport Corporation v. Tarun Kanti Sengupta and another (1986 (11) LLJ 171). The counsel places reliance on a later decision of the apex court inBinny Ltd. and another v. V. Sadasivan and others((2005)6 SCC 657)particularly paragraph 26 thereof, to contend that the dictum in the former case applies only to public establishments and not to private organisations like the petitioner herein. Apart from the above, according to the counsel in similar set of circumstances in the case of another employee, a Single Bench of this court has interfered with an award passed by Industrial Tribunal and has set aside the same finding an identical agreement to be absolutely valid and sustainable. It is also contended that, the difference in facts found by the learned Single Judge who referred this case to the Division Bench is not of any significance. For the above reasons, the counsel seeks interference with Ext P5 award.

8. Advocate Sri. B. Ashok Shenoy, who appears for the first respondent contends that the workman had been admittedly working as a part time Teleprinter Operator from January, 1983 onwards. He had been working continuously and without any contract. He was paid only a very small salary and therefore, he was at all times in need of funds. According to the counsel, he was a permanent employee though part time and at the same time, he was doing all the duties assigned to him apart from working as a Teleprinter Operator. It was in the above state of affairs that he was offered a hike in salary. As a condition for the hike in salary the management wanted him to execute the agreement, evidenced herein by Ext P3 and marked by the Industrial Tribunal as W4. Since the workman was in need of better salary he had agreed to sign the agreement. He had worked as a Teleprinter Operator, upto 1.4.1999 and was terminated on the said date. It is contended that the agreement was totally unfair to the workman. The workman had signed the same for the reason that he had no choice but to agree. Therefore, the terms thereof were unconscionable and incapable of enforcement. With respect to the question as to the jurisdiction of the Industrial Tribunal the counsel answers that the issue that was referred was denial of employment. The defence of the management was that, the workman had been terminated in accordance with the terms of the contract of employment that governed the service. Therefore, his termination was not retrenchment that came within the scope of Clause (bb) of Section 2(oo) of the Act. In view of the above contention, the workman had filed a replication disputing the agreement and contending that the same was vitiated by coercion. It was in the background of the above pleadings and the contentions put forward that, the Industrial Tribunal had gone into the question. According to the counsel, the factual scenario in WP(C) No. 27809 of 2003 that has been disposed of by a learned Single Judge of this court was totally different. Therefore, the said decision has no application to the facts of the present case. The counsel has also drawn our attention to the decision inState of Rajasthan and others v. Rameshwar Lal Gahlot (AIR 1996 SC 1001). According to the counsel, as per Ext P5 award, what has been declared is that the workman would be deemed to have continued in service until he is validly terminated. In view of the above, the right of termination of the management has been left untouched.

9. Heard.

10. The basic facts are not in dispute. The workman had been working under the petitioner from January 1983 as a part time Teleprinter Operator. According to the learned counsel for the petitioner, teleprinters have become obsolete with the advent of computers. The petitioner has also implemented computerisation. Consequently, the services of the 1st respondent have become unnecessary. Accepting the said situation, the management and the workman had entered into an agreement Ext P3 stipulating a fixed tenure for his employment. An enhanced salary was also stipulated. It is pointed out that the terms of the agreement were not entirely against the workman as alleged but that the hike in salary was to the benefit of the workman. However, the fact remains that the first respondent had been working under the petitioner from January 1983 onwards. As on the date of the agreement, 30.11.1996 he had about 13 years of service to his credit. According to him, he had been appointed permanently though as a part time employee. However, there is no evidence available before us to justify a conclusion either way. The fact remains that, the workman was continuing in service without any limitation regarding the term of his employment, when Ext P3 agreement was entered into. It is true that as per the said contract, an enhanced salary has been provided. However, the crucial term of the agreement is that, his employment was limited to a period of two years, upto 31.3.1998. On the expiry of the term, he was not terminated. Instead, in April 1998 the period was extended by another one year. The salary was also enhanced to Rs. 1,500/-. The said act admittedly was a unilateral one. It was thereafter, that the workman was denied employment with effect from 1.4.1999. In view of the above factual situation, the contention that the facts in WP(C) No. 27809 of 2003 that has been disposed of by a Single Judge of this court by judgment dated 5.10.2009 and those of this case are identical, cannot be sustained. We find a difference in the facts. Therefore, we hold that, the judgment in WP(C) No. 27809 of 2003 does not and cannot cover the issues that arise for consideration in this case.

11. According to the counsel for the petitioner, the Industrial Tribunal has travelled beyond the terms of reference. We notice that what was referred to the Industrial Tribunal was whether the denial of employment to the first respondent was justified or not. The case of the management is that, the denial of employment of the workman was justified in view of the fact that Ext P3 agreement limited the term of his engagement to 31.3.1998. In response to the said contention the workman has filed a replication attacking the contract Ext P3 on the ground that it was executed under coercion and that it contained unconscionable terms. In the nature of the above pleadings, the validity of the terms of the agreement was an issue that arose for determination before the Industrial Tribunal. It was also necessary to enter a finding on the said issue for answering the reference in this case. Therefore, we find no merit in the contention that the Industrial Tribunal had travelled beyond the scope of the reference made to it.

12. The other contention that arises for consideration is whether the finding of the Industrial Tribunal that there was no valid termination of the workman is sustainable or not. As already noticed by us above, the workman had been working for the petitioner, without any limitation regarding the term of his employment. It is true that, he was working as a part time employee. He had been working so, for more than 13 years, w

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hen the agreement was executed. If he were to be retrenched in terms of the provisions of the Act he would certainly have been entitled to claim compensation calculated on the length of his service. The effect of the agreement Ext P3 that was executed is that he has been denied the benefit of the service that he had put in. Apart from the above, we notice that the workman was being paid only a paltry salary. Therefore, his case that he had agreed to the terms of agreement because of the fact that there would be an enhancement in his salary to Rs. 1,000/-, cannot be brushed aside as immaterial. It may be true that the services of a Teleprinter Operator has become unnecessary in the changed scenario of the establishment with the implementation of computerisation. In such an event his services ought to have been terminated by the management after giving him the service benefits for which he was legitimately entitled. In the present case his termination from 1.4.1999 was without giving him any benefits. We find no justification for the said course of action. 13. We find that, the Industrial Tribunal has approached the issue in the proper perspective. The respective contentions of the parties have been considered in the light of the evidence on record. Having given our anxious consideration to the contentions put forward before us we do not find any grounds to interfere with Ext P5 award. For the above reasons, this Writ Petition is dismissed.
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