In the High Court of Kerala at Ernakulam WP(C).No.22839 of 2020 (D) & WP(C).No.25909 of 2020 (K)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942** ## **WP(C).No.22839 OF 2020(D)** ## **PETITIONERS:** **1 K.K.VIJAYAN, AGED 52 YEARS, S/O LATE K APPU NAIR, B-1 GEETANJALI APARTMENTS, STATUE JUNCTION, TRIPUNITHURA, POONITHURA VILLAGE, SHED CLERK, SENIOR ATM (E AND O), COCHIN PORT TRUST.** - **2 M X JOSEPH, AGED 53 YEARS, S/O XAVIER, MATTAMMAL HOUSE, NETTOOR P O, DEPUTY WHARF SUPERINTENDENT, SENIOR ATM (E AND O), COCHIN PORT TRUST.** **3 T S BHUVANESWARAN, AGED 55 YEARS, S/O LATE SREEDHARAN, QUARTERS NO. MIV/5, SEAGUL LANE, WILLINGTON ISLAND, 682003, DEPUTY WHARF SUPERINTENDENT, SENIOR ATM(E AND O), COCHIN PORT TRUST.** - **4 C.S. SYAMSUNDAR, AGED 55 YEARS, S/O LATE SUBRAN, CHAKYAMURI HOUSE, NEAR ASAN MEMORIAL PUBLIC LIBRARY, OCHANTHURUTHU P O, VYPPIN-682508, DEPUTY WHARF SUPERINTENDENT, SENIOR ATM (E AND O), COCHIN PORT TRUST.** **BY ADVS. SHRI.S.MANU KUM.VINILA CHANDRABOSE SMT.VINITHA V PAI** ## **RESPONDENTS:** - **1 THE COCHIN PORT TRUST, REP BY ITS SECRETARY, WILLINGTON ISLAND, KOCHI,-682009.** - **2 THE CHAIRMAN, COCHIN PORT TRUST, ADMINISTRATIVE OFFICE, WILLINGTON ISLAND, KOCHI,-682009.** - **3 TRAFFIC MANAGER, COCHIN PORT TRUST, WILLINGTON ISLAND, KOCHI,-682009.** WPC 22839&25909/20 2 **R1-3 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R1-3 BY ADV. SRI.K.JOHN MATHAI R1-3 BY ADV. SRI.JOSON MANAVALAN R1-3 BY ADV. SRI.KURYAN THOMAS R1-3 BY ADV. SRI.PAULOSE C. ABRAHAM R1-3 BY ADV. SRI.RAJA KANNAN SRI. P.VIJAYAKUMAR -ASGI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.12.2020, ALONG WITH WP(C).25909/2020(K), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 22839&25909/20 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942 WP(C).No.25909 OF 2020(K)** ## **PETITIONERS:** **1 THE COCHIN PORT STAFF ASSOCIATION WILLINGON ISLAND, KOCHI 682 0009, REPRESENTED BY ITS GENERAL SECRETARY, THOMAS SEBASTIAN, AGED 66, S/O. LATE T V JOSEPH. 2 COCHIN PORT EMPLOYEES ORGANIZATION, WILLINGDON, ISLAND, KOCHI 682 009. REPRESENTED BY ITS GENERAL SECRETARY CD NANDAKUMAR, AGED 66, S/O.P.K. RAGHAVAN NAIR.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.R.GITHESH SRI.AJAY BEN JOSE SRI.MANJUNATH MENON SRI.SACHIN JACOB AMBAT SHRI.HARIKRISHNAN S.** ## **RESPONDENTS:** |**1**|**THE COCHIN PORT TRUST, WILLINGDON ISLAND,**| |---|---| ||**KOCHI 682 009. REPRESENTED BY ITS CHAIRMAN.**| |**2**|**THE TRAFFIC MANAGER, THE COCHIN PORT TRUST,**| ||**WILLINGDON ISLAND,KOCHI 682 009.**| |**3**|**THE REGIONAL LABOUR COMMISSIONER,**| ||**ERNAKULAM, KENDRIYASHRAM SADAN, OLIMUGHAL,**| ||**KAKANAD, COCHIN 682 030.**| WPC 22839&25909/20 4 **R1-2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R1-2 BY ADV. SRI.K.JOHN MATHAI R1-2 BY ADV. SRI.JOSON MANAVALAN R1-2 BY ADV. SRI.KURYAN THOMAS R1-2 BY ADV. SRI.PAULOSE C. ABRAHAM R1-2 BY ADV. SRI.RAJA KANNAN R3 BY SRI.V.R.RAKESH, CGC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.12.2020, ALONG WITH WP(C).22839/2020(D), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 22839&25909/20 5 ## **JUDGMENT** Both these matters pertain to a notice issued by the Cochin Port Trust under the provisions of Section 19(2) of the Industrial Disputes Act (hereinafter referred to as 'the Act' for short), as per which, they have notified the employees that the payments being made to them under the Settlement dated 12.11.1997, will be withdrawn; and they assert that this, _ipso facto_ , does not enable them to stop the payment as per the said Settlement. 2. I have heard Sri.S.Sreekumar, learned Senior Counsel instructed by Sri.P.Martin Jose, learned counsel for the petitioners in WP(C)No.25909/2020; Sri.S.Manu, learned counsel for the petitioners in WP(C)No.22839/2020 and Sri.E.K.Nandakumar, learned Senior Counsel instructed by Sri.Gopikrishnan Nambiar, learned Standing WPC 22839&25909/20 6 Counsel for the Cochin Port Trust. I proceed to dispose of these matters at the admission stage with the consent of the learned counsel. 3. Even though there are various assertions and averments urged and made by the petitioners in these writ petitions – which are being heard together on account of the analogous circumstances presented and reliefs sought for – I deem it appropriate not to enter into its merits, in any manner whatsoever, since I am aware that proceedings are pending before the competent Regional Joint Labour Commissioner (RJLC) in terms of the aforementioned Act. 4. I say as afore because, admittedly, when the impugned notice was issued, various Unions of the Cochin Port Trust have approached the RJLC and proceedings are still pending before the said Authority. 5. Ineluctably, therefore, if am to speak WPC 22839&25909/20 7 on the merits of the controversy projected in these Writ Petitions, it will certainly have a definite bearing on such proceedings. I, therefore, deem it prudent and justified to be silent on these issues for the time being and to allow the RJLC to complete the proceedings in terms of law, within a time frame. 6. However, that said, one of the questions posed in these Writ Petitions is whether the mere issuance of a notice under Section 19(2) of the Act can automatically lead to the termination of the settlement; and on this issue, I am gratified that I do not have to travel much, except to read the celebrated judgment of the Hon'ble Supreme Court in L **ife Insurance Corporation of India and Ors v. D.J.Bahadur and Ors [AER 1980 SC 2181].** In the said judgment, Justice V.R.Krishna Iyer, in his inimitable style has declared the law in paragraphs 46 and 47 which WPC 22839&25909/20 8 ## reads as under: |as|under:| |---|---| |46.|It is inconceivable that any other| ||alternative subsists. For instance,| ||imagine a case where for 30 years an| ||award for settlement might have given| ||various benefits to employees and at| ||the end of 30 years a notice| ||terminating the settlement were given| ||by the employer. Does industrial law| ||absurdly condemn the parties to a| ||reversion to what prevailed between| ||them 30 years ago? If the employees| ||were given Rs.100 as salary in 1947| ||and, thereafter, by awards and| ||settlements the salary scale was| ||raised to Rs.1000 could it be the| ||Management might, by unilateral yet| ||disastrous action give notice under| ||Section 19(2) or (6) terminating the| ||settlement award, tell the workers| ||that they would be paid Rs.100 which| ||was the original contract of| ||settlement or by force of an award?| ||The horrendous consequences of such| ||an interpretation may best be left to| ||imagination. Moreover, if industrial| ||peace is the signature tune of| ||industrial law, industrial violence| ||would be the vicious shower of| ||consequences<br>if<br>parties<br>were| ||relegated either to an ancient and| ||obsolete contract or to a state of| ||lawless hiatus. No canon of| ||interpretation of statues can compel| ||the court to construe a statutory| ||provision in this manner. We have, no| ||doubt that the precedents on the| ||point, the principles of industrial| ||law, the constitutional sympathy of| ||Part IV and the sound rules of| ||statutory construction converge to| ||the same point that when a notice| ||intimating termination of an award of| ||settlement is issued the legal import| ||is merely that the stage is set for| WPC 22839&25909/20 9 fresh negotiations or industrial adjudication and until either effort ripens into a a fresh set of conditions of service the previous award or settlement does regulate the relations between the employer and the employees. The Court never holds justice as hostage with law as janitor! Law, if at all, liberates justice through the judicial process. Fundamental error can be avoided only by remembering fundamental values. 47. At this stage I may record my firm conclusion that for the reasons already given the settlement under the ID Act does not suffer death merely because of the notice issued under Section 19(2). All that is done is a notice 'intimating its intention to terminate the award'. The award even if it ceases to be operative qua award, continues qua contract. Therefore, if the ID Act regulates the jural relations between the LIC and its employees-an 'if' we will presently scan-then the rights under the settlements of 1974 remain until replaced by a later award or settlement. 7. This view of Justice V.R.Krishna Iyer found support from another member of the Bench and therefore, is the majority view. 8. Indubitably, the afore declaration of law is to the effect that the mere issuance of a notice under Section 19(2) of the Act would not kill the settlement and that the award WPC 22839&25909/20 10 will continue _qua_ contract, even if it does not operate _qua_ award. 9. I am, therefore, of the firm view that the Cochin Port Trust is not justified in denying the benefits under the Settlement, merely because a notice under Section 19(2) of the Act has been issued by them. 10. When I say this, I am fully cognizant that there are other issues raised by both sides, as to the period of the settlement and the term of its operation - juxtaposed on the provisions of Section 19(2) of the Act. But as I have said above, I do not intend to speak on it in any manner in this judgment, for the same reasons as I have recorded above. In the afore circumstances, I order these writ petitions to the limited extent of directing the Cochin Port Trust to continue to pay the amounts under the Settlement in question, until such time as they obtain WPC 22839&25909/20 11 |necessary<br>orders<br>from<br>the|competent|competent|competent| |---|---|---|---| |Authorities; with a concomitant direction to|||| |the RJLC to complete the process||pending|| |before it as expeditiously as is possible, but|||| |not later than two months from the|date of||| |receipt of a copy of this judgment||and I|| |direct the said authority to treat|||these| |directions as being peremptory in nature.|||| |Needless to say, the payments that|||is to| |be made by the Port Trust under the|terms of||| |this judgment will abide by the result of the|||| |final adjudication and if the same ends to the|||| |detriment of the employees, the Port|||Trust| |will be at liberty, subject to the provisions|||| |of law, to recover it, as they||may be|| |empowered under the competent statutes.|||| ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR ## **JUDGE** WPC 22839&25909/20 12 ## APPENDIX OF WP(C) 22839/2020 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 25.11.1983 IN WA NO.460 OF 1981. EXHIBIT P2 TRUE COPY OF THE SETTLEMENT DATED 12.11.1997. EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 14.08.2020 ISSUED BY THE MANAGEMENT. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 21.2.2012 OF THE MINISTRY OF SHIPPING. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 27.10.2020 FOR PAYMENT OF ARREARS TO CLASS I AND CLASS II EMPLOYEES WPC 22839&25909/20 13 ## APPENDIX OF WP(C) 25909/2020 PETITIONER'S/S EXHIBITS: - EXHIBIT P1 TRUE COPY OF MEMORANDUM OF SETTLEMENT DATED 12.11.1997 ENTERED BETWEEN 1ST RESPONDENT WITH VARIOUS ORGANIZATIONS. - EXHIBIT P2 TRUE COPY OF ORDER NO. A2/3503/97 DATED 15.11.1997 ISSUED BY THE 1ST RESPONDENT. - EXHIBIT P3 TRUE COPY OF NOTICE DATED 14.08.2020 ISSUED BY THE 1T RESPONDENT. - EXHIBIT P4 TRUE COPY OF REPLY ISSUED BY THE 1ST PETITIONER DATED 19.08.2020 TO THE 2ND RESPONDENT. - EXHIBIT P5 TRUE COPY OF STATEMENT OF FACTS SUBMITTED BY THE 1ST PETITIONER TO THE 3RD RESPONDENT DT. 24/8/2020. - EXHIBIT P6 TRUE COPY OF STATEMENT OF FACTS SUBMITTED BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT ON 30.09.2020. - EXHIBIT P7 TRUE COPY OF LETTER DATED 01.10.2020 ISSUED BY THE 1ST PETITIONER TO THE 3RD RESPONDENT. - EXHIBIT P8 TRUE COPY OF LETTER DATED 05.10.2020 ISSUED BY THE 2ND PETITIONER TO THE 3RD RESPONDENT. - EXHIBIT P9 TRUE COPY OF STATEMENT OF FACTS SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT ON 05.10.2020. - EXHIBIT P10 TRUE COPY OF MINUTES OF THE MEETING DATED 19.10.2020. - EXHIBIT P11 TRUE COPY OF LETTER DATED 16.11.2020 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. WPC 22839&25909/20 14 EXHIBIT P12 TRUE COPY OF LIST EMPLOYEES THOSE ARE GETTING 10% ALLOWANCE IN SALARY IN PURSUANCE OF EXHIBIT P1 AGREEMENT.