RAVINDRAN PILLAI and VASUDEVAN. R v STATE OF KERALA and KERALA KERAKARSHAKA SAHARANA FEDERATION LTD. and EMPLOYEES' PROVIDENT FUND ORGANISATION

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 9TH DAY OF APRIL 2014/19TH CHAITHRA, 1936 ## **W.P.(C).No.29170 of 2013 (U)** --------------------------------------------------- PETITIONER(S):- ------------------------ 1. RAVINDRAN PILLAI, AGED 53 YEARS, S/O. VASUDEVAN PILLAI, AMPADIYIL, ADINADU NORTH P.O., KULASEKHAPURAM P.O., KARUNGAGAPPILLY, PIN - 690 542. 2. VASUDEVAN. R, AGED 56 YEARS, RAJESH BAHVAN, K.S.PURAM, PUNNAKULAM P.O. KARUNAGAPPILLY, KOLLAM, PIN - 691 001. BY ADVS.SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SRI.V.S.SHIRAZ BAVA. RESPONDENT(S):- --------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECREATARY, DEPARTMENT OF CO-OPERATION, THIRUVANANTHAPURAM, PIN - 695 001. 2. KERALA KERAKARSHAKA SAHARANA FEDERATION LTD., NO.4370, KERAFED OIL COMPLEX, K.S.PURAM, PUTHIYAKAVU, KARUNAGAPPALLY, KOLLAM, PIN 690 518, REPRESENTED BY ITS MANAGING DIRECTOR 3. EMPLOYEES PROVIDENT FUND ORGANISATION, OLD MUNCIPAL BUILDING, CHINNAKADA, KOLLAM - 691 001, REPRESENTED BY ASSISTANT PROVIDENT FUND COMMISSIONER R1 BY GOVERNMENT PLEADER SRI.JOSEPH GEORGE. R2 BY STANDING COUNSEL SRI.GEORGE POONTHOTTAM. R3 BY STANDING COUNSEL SRI.PIRAPPANCODE V.S.SUDHIR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- WP(C).No.29170 of 2013 (U) --------------------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS:- --------------------------------------- EXHIBIT P1 : TRUE COPY OF THE COMMUNICATION DATED 07.11.2013 ISSUED BY THE 2ND RESPONDENT. - EXHIBIT P2 : TRUE COPY OF THE RELEVANT PAGE OF THE AADHAR CARD NO.2007/34828/13051 DATED 08.06.2013 OF THE 1ST PETITIONER. - EXHIBIT P3 : TRUE COPY OF THE NOTARIZED AFFIDAVIT OF THE 1ST PETITIONER DATED 12.04.2006. - EXHIBIT P4 : TRUE COPY OF THE EMPLOYEES STATE INSURANCE CORPORATION CARD OF THE 2ND PETITIONER. - EXHIBIT P4(a) : TRUE COPY OF THE VOTERS ELECTORAL CARD OF THE 2ND PETITIONER. - EXHIBIT P5 : TRUE COPY OF THE REPRESENTATION DATED 11.11.2013 SUBMITTED BY THE 2ND PETITIONER. - EXHIBIT P6 : TRUE COPY OF THE MEMORANDUM OF SETTLEMENT DATED 21.11.2013 IN A MEETING CONVENED BY THE DISTRICT LABOUR OFFICER, KOLLAM BETWEEN THAT MANAGEMENT AND THE REPRESENTATIVES OF THE TRADE UNION. RESPONDENT(S)' EXHIBITS:- ------------------------------------------ EXHIBIT R2(a) TRUE COPY OF THE MEMORANDUM OF SETTLEMENT DATED 21.11.2013. vku/- (true copy) ## K. Vinod Chandran, J ------------------------------------W.P.(C).No.29170 of 2013-U -------------------------------------Dated this the 09th day of April, 2014 ## **JUDGMENT** The petitioners are head load workers, who claims to have been continued under the 2nd respondent for a number of years and now terminated on the strength of an alleged agreement arrived at, on conciliation. The genesis of the dispute is in Exhibit P1, wherein five head load workers, employed in the 2nd respondent, were directed to produce either a school certificate, attested copy of the school admission register or a certificate issued by the Local Self Government Institution to prove their date of birth. Exhibit P1 was issued on the ground that the said proof of date of birth was required for enrolment under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for brevity “EPF Act”) and that the 3rd respondent-Organization had insisted for production of either of the above-mentioned certificates. - 2 - WP(C).No.29170 of 2013 2. The petitioners, who were two among the aforesaid five head load workers notified by Exhibit P1, contended that they do not have any of the above certificates. However, the 1st petitioner produced Exhibit P2 issued by the Unique Identification Authority of India, Government of India, which shows his date of birth as 10.04.1960. He also deposed to an affidavit, asserting his date of birth as disclosed in Exhibit P2. With respect to the 2nd petitioner, the Identity Card issued by the Employees' State Insurance Corporation as also the Electoral Identity Card issued by the Election Commission of India, produced herein as Exhibit P4 and P4(a), were produced. Exhibit P4 indicated the date of birth of the 2nd petitioner as 03.03.1957, in consonance with which the age of the 2nd petitioner as on 2006 was disclosed to be 49 years in Exhibit P4(a). 3. The 2nd respondent being unsatisfied with the same, allegedly entered into an agreement with the representative Unions, evidenced at Exhibit P6, by which the non-production of the school records was found to be deeming, the five employees notified by Exhibit P1, as having crossed the age of 60 years. They were also agreed to be granted a compensation of Rs.55,000/- (Rupees fifty five thousand only) each. The petitioners contend that the representative Unions could not have entered into an agreement with the - 3 - WP(C).No.29170 of 2013 management, the terms of which effectively terminates the services of the petitioners. 4. The 2nd respondent has filed a counter affidavit, in which the reasons stated in Exhibit P1 have been reiterated. On a reading of the counter affidavit, it is clear that the insistence of the 2nd respondent to produce proof of date of birth was for enrolment of the employees under the EPF Act and the decision proceeded only on the strength of the alleged insistence made by the 3rd respondent-Organization for proof, by the aforesaid certificates. The counter affidavit specifically noticed that, it is constrained by these directions of the 3rd respondent that the 2nd respondent issued Exhibit P1, which effectively led to a dispute and the agreement entered into on the basis of a conciliation under Section 18 of the Industrial Disputes Act, 1947. The conciliation proceedings and the eventual agreement reached by the representative Unions with the management having binding nature; it is contended, that the petitioners cannot raise a contention against the same. 5. While the learned counsel for the petitioner relies on the decision in _**Ameteep Machine Tools vs. Labour Court, Haryana**_ **[1980 (2) LLJ 453],** the learned counsel for the 2nd respondent relies on _**Barauni Refinery Pragatisheel Shramik Parishad v. Indian Oil**_ - 4 - WP(C).No.29170 of 2013 ## _**Corpn. Ltd.**_ **[(1991) 1 SCC 4].** ## 6. _**Barauni Refinery Pragatisheel Shramik Parishad**_ ( _supra_ ) unequivocally declared the binding nature of a settlement arrived at in the course of a conciliation proceedings. Therein, two Companies were amalgamated into one and after amalgamation, two Divisions, being the Marketing Division and the Refinery Division, had separate age of superannuation. The employees of the Refinery Division, _inter alia_ , raised a dispute for enhancement of the age of superannuation, which, after conciliation, was settled by an agreement entered into by the management and the representative Unions. The settlement arrived at did not change the age of superannuation in any manner and specifically contained a stipulation that the Unions shall not, during the currency of the said settlement, raise any demand having financial implication on the management. The Hon'ble Supreme Court found that the settlement arrived at after deliberation having not altered the age of superannuation, the settlement could be only read as one which did not accede to the demand of enhancement of retirement age and upheld the binding nature of the settlement. 7. _**Ameteep Machine Tools**_ ( _supra_ ) was a case in which some employees, who instigated a strike during the currency of a - 5 - WP(C).No.29170 of 2013 settlement, were terminated after holding a domestic enquiry. The terminated employees were, later, under a settlement, regarded as “retrenched” from service. One of the employees, who was not a party to the settlement, chose to challenge his termination independently. The Hon'ble Supreme Court found that the said workman was perfectly entitled to do so, especially since the Memorandum of Settlement said to have been arrived at by the management was with the individual workmen. Admittedly the respondent before the Hon'ble Supreme Court was not a party to the settlement. The settlement was said to be entered into by the management and the individual workmen and the one who kept away from such proceedings, was held to be entitled to challenge his termination independently. 8. The decision canvassed by the learned counsel for the petitioner may not strictly apply herein, since Exhibit P6 is seen to have been entered into by the representative Unions and the Management. Whether the representative Unions and the management could enter into a settlement terminating five employees, that too for not producing proof of date of birth as demanded in Exhibit P1 notice, is a moot question. Even going by the counter affidavit of the 2nd respondent, it was in the year 2005, on the basis of a conciliation settlement arrived at with part-time loading - 6 - WP(C).No.29170 of 2013 and unloading workers, before the District Labour Officer; 53 loading and unloading workers were decided to be retained as “attached loading workers”, in the Karunagappally plant of the 2nd respondent. As was noticed above, the insistence for production of proof of date of birth was on the ground that the 3rd respondent required such proof. 9. The 3rd respondent has also filed a counter affidavit in the above writ petition, which, however, does not speak of any such insistence and asserts the contrary. It is clear that both the petitioners herein were already enrolled under the EPF Act and were also given account numbers, respectively as KR/12263/383 and KR/12263/386. The respondent-Organization categorically submits in the counter affidavit that the personal details of the employees as furnished by the employees and attested by the employer is totally acceptable to the Organization. The allegation that the respondent-Organization insisted for proof of date of birth is denied and it is specifically stated that the same is not required for enrolment under the scheme. It is also stated that proof of date of birth is insisted only in cases where a member of the Fund claims a different date of birth from that available in the records of the Organization; that too when computing the benefits under the Employees' Pension Scheme, 1995. In such circumstance, the very basis of Exhibit P1 notice vanishes. - 7 - WP(C).No.29170 of 2013 10. In the case of the petitioners, admittedly they have produced documents indicating their date of birth. In the context of the petitioners' contention that they are illiterate and that neither were they enrolled in any school nor their birth registered with the Local Self Government Institutions, it is only just and proper that their declared date of birth be taken into account for the purpose of deciding their date of superannuation. 11. It is also to be noticed that the evidence now produced by the petitioners were not obtained after Exhibit P1 notice. Exhibit P2, Aadhar Card of the 1st petitioner, was issued on 08.06.2013 and the affidavit, Exhibit P3, was deposed to by the 1st petitioner as early as on 12.04.2006, long before the notice was issued and presumably for the purpose of enrolment of the 1st petitioner under the EPF Act. Exhibit P4, produced by the 2nd petitioner, is an Identity Card issued by a Corporation constituted under another welfare legislation. Exhibit P4(a) issued by the Election Commission of India was in the year 2006. The petitioners cannot be said to have made a declaration only to get over the requirement in Exhibit P1. The declarations were made long before and were accepted by the management. The management cannot now turn around and ask for proof of date of birth. - 8 - WP(C).No.29170 of 2013 12. In any event, such proof, specifying the manner in which or the documents which have to be produced; is proclaimed to be on the insistence of the 3rd respondent-Organization. The 3rd respondent-Organization has now come forward to categorically state that no such insistence has been made by the Organization. In such circumstances, Exhibit P6 settlement cannot be put against the petitioners to terminate them from their services. The 2nd respondent is directed to immediately take back the petitioners to service deeming their date of birth as 10.04.1960 and 03.03.1957, respectively. Writ petition is allowed, leaving the parties to suffer their respective costs. Sd/K.Vinod Chandran Judge. vku/- ( true copy )