K.N. Gopalakrishnan v. A. Chandran & Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2014-03-04
Court Decision / Holding: Writ petition dismissed; Exhibit P6 order to be complied with; No costs.
Final Disposition: Writ petition dismissed; Exhibit P6 to be complied with; No costs.

Parties to the Case

Appellants / Petitioners

K.N. Gopalakrishnan

Respondents

A. Chandran
The Labour Court, Kollam
The Secretary, Labour Department, Secretariat, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• P. Sathisan

Counsels for Respondents

• B.S. Swathi Kumar
• Anitha Ravindran
• S. Meera
• M.G. Aishwarya
• James Mathew Kadavan

Case Synopsis & Summary

This petition challenges an awards dispute arising from the termination of a pharmacist employed by Travancore Rubber & Tea Company Ltd. The Labour Court Kollam, by Exhibit P1, held that the termination of the 1st respondent was not during the probation period, and that, owing to a 11-year continuance after a one-year probation stipulated in the plantation associations’ memorandum of settlement, the termination required a proper domestic enquiry and could not be sustained. Consequently, the Labour Court reinstated the employee and awarded 50% back wages. The management later sought to set aside the Labour Court order under Section 33-C(2) of the Industrial Disputes Act (Exhibit P2) and invoked allegations of fraud, arguing that the employee procured the award by producing fraudulent certificates to prove pharmacist qualification. They cited Naidu v. Jagannath to support the proposition that a judgment obtained by fraud is a nullity, but the High Court held that that decision is not applicable to the facts here. The petitioner contends the 33-C(2) order and other proceedings require correction due to fraud. The High Court ultimately dismissed the writ petition, holding Exhibit P6 in order and binding, with no costs. It noted that if the employee’s qualifications are later challenged, a separate action could be pursued.

Provisions of Law Cited

Section 33-C(2) of the Industrial Disputes Act, 1947Industrial Disputes Act, 1947

Legal Doctrines & Maxims

Judgment or decree obtained by fraud on the Court is a nullity and non-est in the eyes of law

Submissions & Arguments

Contentions of Appellants / Petitioners

The management contends that the 1st respondent procured appointment by producing fraudulent certificates showing pharmacist qualification. It argues that the Labour Court ignored this fraud in arriving at Exhibit P1, and that the award under Section 33-C(2) (Exhibit P2) was similarly tainted. The management relies on the principle that fraud vitiates proceedings and cites Naidu v. Jagannath to suggest that a judgment obtained by fraud is a nullity, seeking to set aside the 33-C(2) order and the award. It emphasizes that the issue of the employee’s qualification was not actually considered by the Labour Court, and hence the matter requires re-examination or nullification of the award.

Contentions of Respondents

The respondent-workman and respondents argue that the termination was not during probation, and the Memorandum of Settlement bound probation to one year, but the employee continued for more than 11 years, requiring a domestic enquiry. They contend the 33-C(2) order correctly incorporated back-wages adjustments and was properly computed by the Labour Court. They deny fraud in obtaining the award and rely on the court's assessment that there was no proof of fraud sufficient to nullify the proceedings; consequently, the writ petition should be dismissed and Exhibit P6 upheld.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Naidu v. Jagannath	[1995 KHC 182]	Mentioned Only	Cited for the general principle that fraud on the court renders judgments null and void, but the court held it not applicable on the facts of this case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **TUESDAY, THE 4TH DAY OF MARCH 2014/13TH PHALGUNA, 1935** ## **OP(LC).No. 548 of 2011 (O)** **--------------------------CP NO. 4/2010 OF LABOUR COURT, KOLLAM DATED 29-06-2010 ...** **PETITIONER(S):** **-------------------------** **K.N.GOPALAKRISHNAN, SR.MANAGER, TRAVANCORE RUBBER & TEA COMPANY LTD., AMBAANAD ESTATE, KALTHURITHY P.O., KOLLAM DISTRICT - PIN 691 309.** **BY ADV. SRI.P.SATHISAN** **RESPONDENT(S): ----------------------------** **1. A.CHANDRAN, TEMPORARY CONTRACT EMPLOYEE HOSPITAL ESTABLISHMENT, AMBAANAD ESTATE, M/S.TRAVANCORE RUBBER & TEA COMPANY LTD., KALTHURITTY P.O., KOLLAM DISTRICT, PIN 691 309.** ## **2. THE LABOUR COURT, KOLLAM.** **3. THE SECRETARY, LABOUR DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **R1 BY ADVS. SRI.B.S.SWATHI KUMAR SMT.ANITHA RAVINDRAN SMT.S.MEERA SMT.M.G.AISHWARYA R2 & R3 BY SR. GOVERNMENT PLEADER SRI.JAMES MATHEW KADAVAN** **THIS OP (LABOUR COURT) HAVING BEEN FINALLY HEARD ON 04-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **OP(LC)NO.548/2011 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1: COPY OF THE AWARDOF THE LABOUR COURT, KOLLAM IN ID NO.87/98 DTD. 28/02/2004.** - **EXHIBIT P2: COPY OF THE ORDER OF LABOUR COURT IN CP NO.4/2010 DTD. 29/06/2010.** - **EXHIBIT P3: COPY OF THE STUDENTS REGISTRATION CERTIFICATE PRODUCED BY THE 1ST RESPONDENT.** **EXHIBIT P3(a): COPY OF THE TRANSLATION OF P3.** - **EXHIBIT P3(b): COPY OF THE CERTIFICATE ISSUED BY MEDICAL ASSISTANT DTD. 1/02/1983.** - **EXHIBIT P3(c): COPY OF THE CERTIFICATE ISSUED BY NUGEGODA NURSING HOME DTD. 28/09/82.** **EXHIBIT P4: COPY OF LETTER ISSUED BY PETITIONER TO THE RESPONDENT DTD. 4/11/2010.** - **EXHIBIT P5: COPY OF THE AFFIDAVIT FILED BY THE PETITIONER AS I.A.NO.187/2010 IN CP NO.4/2010.** - **EXHIBIT P6: COPY OF THE ORDER OF THE LABOUR COURT KOLLAM IN I.A.NO.187/2010 IN CP 4/2010.** - **EXHIBIT P 7: COPY OF THE RESOLUTION OF THE BOARD OF DIRECTORS AUTHORIZING TO REPRESENT THE COMPANY.** ## **RESPONDENT'S EXHIBITS:** ## **N I L** ## **/TRUE COPY/** **P.A.TO JUDGE** **Kss** K. VINOD CHANDRAN, J. ---------------------------------------- O.P.(LC).NO. 548 OF 2011 ---------------------------------------Dated this the 4[th] day of March, 2014 ## J U D G M E N T The petitioner is the Management, who suffered an award at the hands of the Labour Court, Exhibit P1, in a dispute raised by the workman who is the 1[st] respondent herein. Admittedly, the dispute was with respect to the termination of service of the 1[st] respondent. The 1[st] respondent had been appointed as Pharmacist under the Management in 1989 and was in continued uninterrupted service till his termination w.e.f. 23.03.1998. 2. The defence of the Management was that the workman was on probation, when he was terminated and during the period of probation, the same could be done unilaterally, by the Management as per terms of his appointment. However, the Labour Court found that the termination was not during the period of probation, since the probation was only for a period of one year, as per the terms of O.P.(LC).NO. 548 OF 2011 2 employment in the Management Company. The agreement executed by the Managements of the Plantations and the Representative Trade Unions, stipulated that continuance of an employee after one year period of probation, would be deemed conformation in that post. It was found that the Management is a member of the Association of Planters of Kerala, and the memorandum of settlement arrived at under the Industrial Disputes Act, is binding on the Management. Hence by the terms of that agreement, probation period, could not exceed one year. 3. On facts, it was found that the workman has been continued for more than 11 years in the Management and the termination could not have been effected without a proper domestic enquiry. The contention of the Management that the petitioner was terminated on the sole ground of his non-performance was negated. The termination hence was found to be unjustifiable and the workman was directed to be reinstated in service with 50% of back wages. The award was challenged by the Management in W.P.(C) No.21974 of 2004 which was dismissed by this Court by judgment dated 18.05.2004. 4. The workman then approached the Labour Court, Kollam under Section 33 C (2) of the Industrial Disputes Act claiming _inter alia_ back wages. It was also contended, that the workman was appointed O.P.(LC).NO. 548 OF 2011 3 as a probationer after the award of the Labour Court, and that the salary paid was only that of a probationer. The latter claim was on the ground that the Labour Court had specifically negated the contention of the Management that the workman had been continued on probation. Hence, the workman also claimed for the full salary payable to him on reinstatement, in the application under Section 33 C (2). That was allowed by Exhibit P2. 5. Subsequently, the Management contends that they have obtained certain documents which would show that the workman is not a qualified Pharmacist. Tthat definitely is a separate cause of action. However, the Management thought it fit to approach the Labour Court, to set aside the order passed under Section 33 C (2) for that reason. The Management claimed that the respondent had obtained the award of the Labour Court, by employing fraud on the Court and that fraud vitiates all proceedings. The learned counsel for the petitioner/Management strenuously urged, before this Court, that the award obtained by the workman is vitiated by fraud and hence, the same has to be deemed to be non est in the eyes of law. The learned counsel for the petitioner also places before me a decision of the Hon'ble Supreme Court in **Naidu v. Jagannath [1995 KHC 182]** wherein it has been declared that a judgment or decree obtained by O.P.(LC).NO. 548 OF 2011 4 playing fraud on the Court is a nullity and non-est in the eyes of law. 6. The specific contention raised by the petitioner/Management is that Exhibit P1 has been obtained by employing fraud and the fraudulent action alleged is the production of fraudulent certificates. The certificates substantiating the claim of the workman; being qualified to be appointed as a Pharmacist, was produced before the Management at the time of his appointment. That unfortunately was not an issue before the Labour Court at all, either at the point when Exhibit P1 award was passed or when Exhibit P2 was passed in an application under Section 33 C (2). 7. Exhibit P1 award was passed in a dispute, which dealt with only the termination of the workman, without a proper domestic enquiry. The defence on behalf of the Management, to support the termination, was that the petitioner was continued as a probationer for 11 years. Such contention, as noticed above, was negated by the Labour Court and the termination was set aside ordering reinstatement with 50% of back wages. The issue of the the petitioner’s qualification or his appointment as Pharmacist was not at all an issue under reference before the Labour Court. In considering the application under Section 33 C (2) also, the Labour Court was concerned only with the computation of the amounts awarded as per Exhibit P1. Again no O.P.(LC).NO. 548 OF 2011 5 fraud, could be said to have been employed by the workman, in the application under Section 33 C (2). Hence, the judgment of the Hon'ble Supreme Court, relied on by the learned counsel for the petitioner, is not applicable on the facts of this case. 8. Necessarily, after reinstatement, as a Pharmacist, if the petitioner is found to be not qualified as per the certificates, originally produced by him, then that would lead to a different cause of action, the liberty to proceed against would have to be definitely conceded to the Management. The present writ petition, however, is found to be devoid of merit and Exhibit P6 order is found to be perfectly in order. Exhibit P6 definitely has to be complied with. The writ petition is dismissed. No costs. ## Sd/K. VINOD CHANDRAN JUDGE // True Copy // P.A. To Judge DSV/05/03 # O.P.(LC).NO. 548 OF 2011 6