Travancore Cochin Chemicals Limited v. M. Ibrahim and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MR. JUSTICE A.M.BABU WEDNESDAY, THE 22ND DAY OF FEBRUARY 2017/3RD PHALGUNA, 1938 WA.No. 799 of 2013 () IN WP(C).20384/2008 ------------------------------------------AGAINST THE JUDGMENT IN WP(C) 20384/2008 of HIGH COURT OF KERALA DATED 13-02-2013 ## APPELLANT/2ND RESPONDENT: ------------------------------------------------TRAVANCORE COCHIN CHEMICALS LIMITED UDYOGAMANDAL, KOCHI-683 501 REPRESENTED BY ITS MANAGING DIRECTOR. BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI ## RESPONDENTS/PETITIONERS & 1ST RESPONDENT: ---------------------------------------------------------------------------- 1. M. IBRAHIM, BADGE NO.75 HEAD CRAFTSMAN, MUTHIRAKKALA SHELTER, UDYOGAMANDALAM, ELOOR(N), PIN-683 501. 2. E.J.JOHN, BADGE NO.981, HEAD CRAFTSMAN, ELAMATHAYIL HOUSE, KUTTIKKATUKARA P.O, UDYOGAMANDAL - 683 501. 3. P.G.GEORGE, BADGE NO.1019, CHARGE MAN, PALLIPPADAN HOUSE, ASARI PARAMBU ROAD, EDAPPALLY, KOCHI-24. 4. MOHAMMED ALI.A, BADGE NO.1038, CHARGE MAN, AMBALATH HOUSE, HOUSE NO.48/884 A, KARUKAPPILLI LANE, ELAMAKKARA P.O, KOCHI-26. 5. EAPEN MATHEW, BADGE NO.1027, CHARGE MAN, NALAMVELIL HOUSE, MUPPATHADOM POST, ALUVA - 683 110. 6. IBRAHIMKUTTY, BADGE NO.835, SHIFT IN CHARGE, ELAVAKKATTU HOUSE, CHERANALLOOR P.O - 683 544. 7. T.P.NANDAGOPAN, BADGE NO.920 HEAD CRAFTSMAN, THACHETHU HOUSE, CHERIAPPILLY, KAITHARAM P.O, NORTH PARUR - 683 513. WA.No. 799 of 2013 () IN WP(C).20384/2008 -:2:- 8. K.L.PRABHAKARAN, BADGE NO.1046 - HEAD CRAFTSMAN, RAJI NIVAS, EDAPPALLY NORTH - 682 024. 9. C.D.GEORGE, BADGE NO.818 P, SECTION INSPECTOR, CHEMPARATHIYIL HOUSE, ARPOOKKARA, KOTTAYAM - 686 008. 10. K.GOPALAKRISHNAN NAIR, BADGE NO.851 P, ASI, THAYIL HOUSE, ANAGILIPARA, MAVELIKKARA - 3. 11. K.K.SAHADEVAN, BADGE NO.1075, SHIFT IN CHARGE, KANDACHANTHARA, PALLOM.P.O, KOTTAYAM - 686 601. 12. E.S.UNNIKRISHNAN, BADGE NO.545 A, SENIOR ASSISTANT, EDAVANA HOUSE, CHERAI.P.O - 683 514. 13. T.J.PAPPACHAN, BADGE NO.923, HEAD CRAFTSMAN, THANNIKOT HOUSE, KOONAMMAVU.P.O - 683 518. 14. FRANCIS CHEMET, BADGE NO.819, HEAD CRAFTSMAN, CHALAKAL HOUSE, NELSON MANDELA ROAD, PATHALAM - 683 504. 15. V.I.ISWSAC, BADGE NO.933, SHIFT IN CHARGE, VATTATHIL CHIRAYIL HOUSE, SOUTH MARADI.P.O - 686 673. 16. G.LALITHAMBIKA, BADGE NO.552 A, P.A.LALITHA NIVAS, NETHAJI ROAD, POWER HOUSE JUNCTION, ALUVA - 683 101. 17. K.V.GEORGE, BADGE NO.1094, SHIFT IN CHARGE, KANIYODIKKAL HOUSE, CHUNANGAMVELI, ERUMATHALA.P.O, ALUVA - 683 112. 18. P.M.FRANCIS, BADGE NO.548 A, PANACKAL HOUSE, NETHAJI ROAD, ALUVA-683 101. 19. V.A.JOSEPH, BADGE NO.961, SHIFT IN CHARGE, UZHUNNUMKATTIL HOUSE, MANJUMMAL P.O. 20. C.K.GOUTHAMAN, BADGE NO.1062, LEADSMAN, KALIYAMPARAMBIL, AYYAPPANKAVU, KOCHI-18. 21. ABBAS.M.A, BADGE NO.930, HEAD CRAFTSMAN, POOMCHALIL HOUSE, BTS ROAD, EDAPPALLY, KOCHI-24. 22. T.V.RAVEENDRAN, BADGE NO.523 A, PA TO GM, THOOMBAYIL HOUSE, PARAPPURAM P.O, PIN-683 593. 23. P.K.MOHANAN, BADGE NO.954, SHIFT IN CHARGE, PALLAVI HOUSE, VAZHAPPILLY, MUNDOOR P.O, MUVATTUPUZHA - 686 661. 24. P.RAMACHANDRAN, BADGE NO.1134, B/S HEAD CRAFTSMAN, AMRITHA, KANNOTH TEMPLE ROAD, MUPPATHADAM P.O, ALUVA - 683 544. 25. M.K.ABDULKALAM AZAD, BADGE NO.573 A, WEIGH BRIDGE OPERATOR, MULAYAMPILLIL HOUSE, MALIPPURAM P.O - 682 511. WA.No. 799 of 2013 () IN WP(C).20384/2008 -:2:- 26. ISHATHU BEEVI, BADGE NO.2378, SWEEPER, KOCHUVEETTIL HOUSE, ELOOR EAST, UDYOGAMANDAL - 683 501. 27. K.MURALEEDHARAN, BADGE NO.977, HEAD CRAFTSMAN, MURALEE VIHAR, THANGALOOR POST, NEAR MEDICAL COLLEGE, MULANKUNNATHUKAVU, THRISSUR - 680 001. - 28. JOSEPH VARGHESE, BADGE NO.956, HEAD CRAFTSMAN, 'SANJOS', NEAR MILMA, EDAPPLLY.P.O, KOCHI-24. (DIED) 29. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REPRESENTED BY THE SECRETARY TO GOVERNMENT INDUSTRIES (H) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. - ADDL.RESPONDENTS 30 & 31 IMPLEADED R30 : SANTHA JOSEPH, AGED 62 YEARS, W/O. LATE JOSEPH VARGHEESE, SANJOES, NEAR MILMA, P.O. EDAPPALLY, KOCHI - 682 024. - R31 : VIJESH JOSEPH, S/O.LATE JOSEPH VARGHEESE, SANJOES, NEAR MILMA, P.O.EDAPPALLY, KOCHI - 682 024 - *ADDL.RESPONDENTS 30 & 31 IMLEADED AS PER ORDER DATED 4.6.15 IN I.A.NO.23/15 R1-R28, ADDL R30 & ADDLR.31 BY ADV. SRI.P.RAMAKRISHNAN R29 BY GOVERNMENT PLEADER SRI.K.B.UDAYAKUMAR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **K.SURENDRA MOHAN & A.M.BABU, JJ. --------------------------------------------W.A.No.799 of 2013 ---------------------------------------------Dated this the 22[nd] day of February, 2017** ## **J U D G M E N T** ## Surendra Mohan, J. This appeal is filed against the judgment dated 13.02.2013 of the learned Single Judge allowing W.P.(C).No.20384 of 2008. The appellant is the second respondent in the writ petition. Respondents 1 to 28 are the writ petitioners. The 28[th] respondent died during the pendency of the Writ Appeal and his legal representatives have been brought on the party array as respondents 30 and 31. The 29[th] respondent is the State of Kerala. 2. Respondent Nos.1 to 28 are retired employees of the appellant, a Government of Kerala undertaking. As per a Long Term Settlement entered into between the Trade Unions and the appellant, the salary of the employees was enhanced. Ext.P3 is a copy of the Settlement. As per Clause 3, the wages were enhanced w.e.f. 01.04.2004. But, the arrears for the period from 01.04.2004 to 31.03.2006 was agreed to be paid in instalments considering the financial condition of the Company, within the period of validity of the Long Term Settlement that is, before 31.03.2010. The benefit of the wage hike was extended to persons who had retired from 01.04.2004 on pro-rata basis up to the date of retirement. However, it is specifically provided that the gratuity and other W.A.No.799 of 2013 2 retirement monetary benefits already settled and paid between 01.04.2004 and 31.03.2006 would not be reviewed. Respondents 1 to 28 are all persons who have retired during the period from 01.04.2004 to 31.03.2006. They filed the writ petition contending that they were not parties to Ext.P3 Settlement and their interests were not properly represented at the time of Settlement. According to the them, payment of gratuity was a statutory liability that could not be denied, as done by Clause 3 of Ext.P3. Since they had been paid enhanced wages/salary, their last drawn salary became higher and therefore, they claim that they were entitled to be paid enhanced gratuity calculated on the basis of the enhancement in salary that was effected. 3. The appellant contested the claim of the writ petitioners contending that, it was not open to them to accept the beneficial part of Ext.P3 and then challenge the onerous portion thereof. What has been agreed to as per Ext.P3 is a package and therefore, the terms thereof cannot be considered in bits and pieces. Viewed as a whole, it is contended that there was no denial of gratuity for the reason that, the employees had already been paid gratuity after their retirement calculated on the basis of the last drawn pay at that time. It was, therefore, contended that the writ petition was only to be dismissed. 4. The learned Single Judge considered the respective W.A.No.799 of 2013 3 contentions, took note of the decisions on the point and found that, the interests of the writ petitioners were not represented at the time of execution of Ext.P3 Settlement. The learned Single Judge also took notice of the fact that, similarly placed persons had approached the statutory authorities under the Payment of Gratuity Act and had obtained orders directing payment of gratuity. Therefore, the writ petition has been allowed directing payment of gratuity computed on the basis of the enhancement in salary effected on the basis of Ext.P3 Settlement. The appellant challenges the said judgment. 5. According to the learned Senior Counsel Sri.E.K.Nandakumar, who appears for the appellant, Ext.P3 Settlement entered into under Section 12(3) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for short) stands on a different footing, in contrast to other similar agreements. As distinct from other agreements that bind only the parties thereto, a settlement arrived at under Section 12(3) of the Act is with the representatives of the majority Trade Unions. Such settlement binds all the workmen. It is settled law that, no minority Trade Union or splinter groups of workmen have a right to assail such a settlement contending that, they were not represented. In view of the above legal position, it is contended that the learned Single Judge erred in granting the reliefs sought for. If the workers were not satisfied with the settlement in Ext.P3, their remedy was to W.A.No.799 of 2013 4 raise a fresh dispute under the Act. In view of the above, it is contended that the learned Single Judge went wrong in directing that the workers would be entitled to enhanced gratuity on the basis of the increase in wages provided for by Ext.P3. 6. Adv.Sri.P.Ramakrishnan, who represents the workmen, on the other hand points out that, since the appellant had extended the benefits of enhancement in salary to the workers, it was only appropriate that their gratuity was also computed afresh, on the basis of the enhancement that was granted. It is pointed out that, in the case of similarly placed workers who had approached the controlling authority under the Gratuity Act directly, orders had been issued sanctioning payment of gratuity at enhanced rates. According to the learned counsel, the appellant Company has, accepting the said orders, made payment of such enhanced gratuity also. The learned Government Pleader appears for the 29[th] respondent. 7. Heard. It is true that, going by the dicta of the Apex Court in _**National Engineering Industries Ltd. v. State of Rajasthan and Others [(2000) 1 SCC 371]**_ and _**I.T.C.Ltd. Workers' Welfare Association v. Management of I.T.C.Ltd. And Others [2002-I-LLJ 848]**_ , the Long Term Settlement, Ext.P3, cannot be assailed on the ground that the writ petitioners/workmen were not represented therein. We notice that the settlement is dated W.A.No.799 of 2013 5 09.12.2006 on which date, respondents 1 to 28 were not in service, having already retired. In spite of the above, we notice that in Ext.P3, they have been held entitled to the benefits of the wage enhancement sanctioned by the Settlement. Of course, there is a rider that, gratuity claims already settled, on the basis of the wages actually drawn by them prior to the enhancement, would not be reopened. We do not find anything unjust in the said clause. We also do not find any merit in the contention that, the workers were not represented at the time of drawing up Ext.P3 Settlement. 8. However, the fact remains that, many other similarly placed employees as respondents 1 to 28 had approached the controlling authority under the Payment of Gratuity Act and had obtained orders directing payment of enhanced gratuity calculated on the basis of the wage enhancement sanctioned by Ext.P3. It is not in dispute that, such orders have become final, the appellant Company not having challenged the same in appeal. In view of the above, the appellant Company is estopped from contending that respondents 1 to 28 being admittedly persons who are similarly placed, should not be granted the very same benefit. The learned Senior Counsel has placed reliance on the decision in _**Chandigarh Administration & Another v. Jagjit Singh & Another etc. [JT 1995 (1) S.C.445 = AIR 1995 SC 705]**_ . It has been held by the Apex Court in paragraph 8 of the said judgment that, the fact that other statutory W.A.No.799 of 2013 6 authorities have passed orders granting reliefs similar to the one that has been claimed by the writ petitioner in proceedings under Article 226 cannot be a ground for the grant of such relief. What is necessary to be examined is whether the orders on which reliance is placed, are legal or not. Just because an illegal order has been passed by an authority, the same should not be made a reason for compelling a repetition of the illegality by the Court. The Apex Court has cautioned that, the duty of this Court under Article 226 is to correct mistakes and not to sanction or condone an illegality. However, we notice that the Apex Court has hastened to add in paragraph 8 that in the case of orders passed by the authorities in exercise of their quasi-judicial power, whether the said dictum would apply, has not been examined. It cannot be disputed that the controlling authority under the Payment of Gratuity Act, is an authority exercising quasi judicial power. In the said proceedings, the Company as well as the workmen had got an opportunity to adduce evidence, to place and prove their respective contentions. The Company did not choose to challenge the order of the Controlling Authority and therefore, the order has become final. 9. We further notice that, respondents 1 to 28 are persons who have retired during the period 01.04.2004 to 31.03.2006. No claims from persons belonging to their category are likely to be subsisting, at this length of time. However, considering the fact that W.A.No.799 of 2013 7 the appellant Company is again in a state of financial stringency at present, we are inclined to interfere with the judgment of the learned Single Judge to the limited extent of clarifying that the interest ordered to be paid shall be calculated only from the date of this judgment. This Writ Appeal is, accordingly, disposed of with the above modification. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **A.M.BABU JUDGE** AV /True Copy/ P.A to Judge