Vaartha News Network Pvt. Ltd vs The Presiding Officer
2021 Latest Caselaw 15928 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR. JUSTICE A.M.BADAR
        MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
                       WP(C) NO. 15386 OF 2021
PETITIONERS:

    1       VAARTHA NEWS NETWORK PVT. LTD
            3RD FLOOR, KTDFC BUILDING (KSRTC BUS STAND), ANGAMALY-
            ERNAKULAM DISTRICT PIN 683 572, REP. BY ITS DIRECTOR

    2       THE CHAIRMAN
            M/S.VAARTHA NEWS NETWORK PVT. LTD., 3RD FLOOR, KTDFC
            BUILDING (KSRTC BUS STAND), ANGAMALY-ERNAKULAM DISTRICT
            PIN 683 572

            BY ADVS.
            K.A.HAZAN
            V.J.JAMES
            M.M.FATHIMA JALEENA
            K.P.WILSON
            ARUN PAUL (KAPRASSERY)



RESPONDENTS:

    1       THE PRESIDING OFFICER
            LABOUR COURT, ERNAKULAM DISTRICT, KOCHI 682 031

    2       SRI. PRADEEP C.
            AGED 38 YEARS, S/O.K. CHANDARASEKHARAN NAIR,
            KUNNUMPURATH HOUSE, EAST GATE, VAIKOM, KOTTAYAM
            DISTRICT PIN 686 104

    3       THE STATE OF KERALA
            REP. BY THE SECRETARY TO GOVERNMENT, LABOUR AND SKILLS
            DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001


OTHER PRESENT:

            SMT.SABEENA.P.ISMAIL ,GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 15386 OF 2021
                                    2

                              JUDGMENT

Heard the learned counsel for the petitioner extensively. He took

me through the statement of claim, written statement, evidence of the

workmen, evidence of the management as well as the impugned award.

2. The learned counsel for the petitioner argued that the

petitioner management took over the establishment on 01.01.2014 and

as per Memorandum of Understanding entered into between the

erstwhile management and the petitioner, the erstwhile management

had taken liability of payment of all dues of the employees engaged by it

till the date of taking over of the management by the petitioner, on

01.01.2014. It is further argued that the petitioner was never appointed

as regular workman/employee by the petitioner. He was a casual

workman and as such, provisions of Section 25(F) and (G) of the

Industrial Disputes Act were not applicable to the 2 nd respondent

workman. The learned counsel for the petitioner vehemently argued that

after taking over the management, the petitioner had issued fresh

appointment order. The 2nd respondent was never issued with any

appointment order and as a casual employee, he can be terminated at

any time and there was no necessity for following any provisions of law

while terminating the services of respondent no.2 workman. Accordingly WP(C) NO. 15386 OF 2021

with effect from 11.06.2016, services of the 2 nd respondent came to be

terminated. However, according to the learned counsel for the petitioner,

the learned Labour Court committed error in law by holding that while

terminating services of the 2nd respondent, provisions of Section 25(F) of

the ID Act were required to be followed.

3. I have considered the submissions so advanced. The

petitioner had approached this Court in writ jurisdiction. It is well settled

that supervisory jurisdiction of this Court is only to the extent of keeping

the subordinate Court/Tribunal within the limits of their authority. This

Court is required to see that such Courts and Tribunals obeys the law

and acts within the bounds of their authority. This Court can neither

review nor re-appreciate / re-weight the evidence upon which

determination of the Tribunal or the Court below is based. This Court

cannot correct error of fact and cannot substitute its own decision in

place of the judgment of the Tribunal. Unless there is any grave

miscarriage of justice, or flagrant violation of law, this Court in such

matter, cannot exercise jurisdiction to interfere with the findings of the

Tribunal.

4. In the case in hand, the 2nd respondent had raised industrial

dispute claiming him to be the employee of the petitioner establishment. WP(C) NO. 15386 OF 2021

The 2nd respondent claimed that he had joined the services with the

petitioner establishment on 17.03.2008. However, according to the 2 nd

respondent, his services were terminated with effect from 11/06/2016

without following any process of law and in breach of provisions of

Section 25(F) and 25(G) of the ID Act. This, according to the 2 nd

respondent was done with vengeance as the petitioner was not paying

wages in terms of Manisana Wage Board Award.

5. The petitioner herein / employer filed a written statement and

opposed the claim by contending that the 2nd respondent was serving as

a Chief Sub Editor. Ultimately, it was decided to terminate him on

11/06/2016, as there was no need to engage him as his contribution to

the Company was nil. It is stated in the written statement that

termination was by giving one month salary in lieu of notice according to

the terms and conditions of the appointment order.

6. The 2nd respondent adduced evidence on affidavit (Ext.P8),

whereas the petitioner herein adduced evidence on rebuttal by tendering

evidence on affidavit of the General Manager of the establishment

(Ext.P10), exactly in tune with pleadings.

7. It is in evidence of the petitioner that he was engaged by the

establishment in the year 2008 and was continued after taking over of WP(C) NO. 15386 OF 2021

the business establishment by the present petitioner on 01.01.2014. The

2nd respondent deposed that he has raised claim against the petitioner

management by raising Industrial Dispute bearing No.16/2017 on the

basis of Wage Board Award and thereafter, from closing hours of

11/06/2016, his services came to be terminated and new hands were

engaged. The 2nd respondent relied on documentary evidence also in the

form of salary slip.

8. In rebuttal, it is deposed by the witness for the petitioner that

the management decided to terminate services of the workmen in the

year 2016 by one month notice as per the terms and conditions of the

appointment order. It is further deposed by the witness for the

management that the action was not vindictive.

9. It is thus seen that evidence of the 2 nd respondent goes to

show that he was in continuous employment of the business

establishment right from the year 2008 till termination of his services

with effect from 11.06.2016.

10. Section 25F of the ID Act reads thus:

"25F. Conditions precedent to retrenchment of workmen - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

 WP(C) NO. 15386 OF 2021


            a.    the workman has been given one month's

notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;

b. the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and

c. notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette]"

11. Bare perusal of the provisions of Section 25(F) of the ID Act

makes it clear that this provision of welfare legislation is applicable to all

type of workmen including casual, daily rated, semi-permanent and

permanent employees. What is required to be established is that such a

workman has completed 240 days of continuous service in twelve

months prior to his termination. In the case in hand, evidence of the

petitioner, viz a viz the documentary evidence in the nature of salary slip

goes to show that the 2nd respondent was in continuous service of the

petitioner. The learned Labour Court has rightly recorded a finding of

fact on the basis of oral as well as documentary evidence, that the 2 nd

respondent was a regular workman. It has not even whispered by the

witness for the petitioner management that the 2nd respondent was not

in continuous service of the establishment or that he had not completed WP(C) NO. 15386 OF 2021

240 days of continuous service in twelve months preceding his

termination. It needs to be noted that record of number of days during

which the 2nd respondent had served the petitioner establishment is

always with the management and that evidence was never produced

before the Labour Court during the course of trial by the petitioner

management. Hence, no perversity or error of law can be found in the

finding of the learned Labour Court on the aspect of rendering of

continuous service by the 2nd respondent and on own admission of the

petitioner, the petitioner had not followed provisions of Section 25(F) of

the ID Act by offering retrenchment compensation to the petitioner at

the time of his retrenchment. There is no iota of evidence to show that

at the time of retrenchment of the 2 nd respondent, the petitioner had

published seniority list of employees working in the establishment.

12. The learned Labour Court has come to the conclusion that

retrenchment of the petitioner without payment of retrenchment

compensation is illegal and no fault can be found in this finding and that

too in the writ jurisdiction of this Court. This conclusion is based on

evidence available on record of the Labour Court.

13. It cannot be said that the learned Labour Court has mis-

directed itself either on facts or in law or that the impugned judgment WP(C) NO. 15386 OF 2021

cannot be sustained.

14. The evidence of the workmen makes it clear that after

termination, he was rendered jobless. This aspect is clear from

paragraph 12 of deposition of the workman. In paragraph 13 of his

deposition, the workman claimed back wages. There is no contra

evidence adduced by the petitioner management to show that after his

termination, the workman was gainfully employed and as such he is not

entitled for back wages.

15. The learned counsel for the petitioner drew my attention to

the appointment order issued by the petitioner appointing the 2 nd

respondent in his establishment. By placing reliance on the term

regarding termination of service in the said appointment order, it is

urged that termination of services of the 2nd respondent cannot amount

to retrenchment and therefore, on the ground that the petitioner had not

followed provisions of Section 25F of the Industrial Disputes Act, the

termination ought not to have been set aside by the impugned award.

16. It is apposite to reproduce the clause regarding termination of

service found in the appointment order of the 2nd respondent, Ext.P2.

TERMINATION OF SERVICE

"After confirmation, your service can be terminated by giving one WP(C) NO. 15386 OF 2021

month's notice by either side. The Company however has the right to give immediate notice before terminating your services if you are guilty of (i) dishonesty (ii) serious or persistent misconduct,

(iii) without reasonable cause, neglect or refuse to attend to your duties, or (iv) material breach of any of the terms of this Letter of Appointments."

17. It is not the case of the petitioner before the Labour Court

that services of the 2nd respondent were not confirmed in pursuant to the

appointment order of the year 2014. On the contrary, the appointment

order at Ext.P2 shows that the 2 nd respondent was put on probation for a

period of six months. It is further mentioned in the said appointment

order that the probation of the 2nd respondent is also liable to be

extended at the discretion of the management. The written statement

filed by the petitioner management before the Labour Court nowhere

shows that the probation period of the petitioner was continued and at

the time of termination of service of the 2 nd respondent, he was on

probation. All what is stated by the petitioner management in its written

statement is that the management was not in a position to accommodate

so many employees whose contribution to the petitioner company was

nil and therefore service of the 2 nd respondent came to be terminated by

giving one month salary in lieu of notice in accordance with the terms

and conditions contained in the appointment letter. Thus the petitioner is

contending that the termination of the 2nd respondent is not WP(C) NO. 15386 OF 2021

retrenchment and therefore, there is no necessity of following the

provisions of Section 25F of the Industrial Disputes Act.

18. The term retrenchment is defined by Section 2(oo) of the

Industrial Disputes Act. It reads thus:

Section 2(oo) -"retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include

-(a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or [(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or (c) termination of service of a workman on the ground of continued ill-health].

Perusal of these provisions makes it clear that termination of

service of the workmen as per stipulation contained in the contract of

employment does not amount to retrenchment. What is sought to be

demonstrated is the appointment order, prescribes that the services of

the petitioner can be terminated by giving one month's notice by the

either side and therefore, by this stipulation there is no necessity to

follow the provisions of Section 25F of the Industrial Disputes Act.

19. Section 25(F) of the Industrial Disputes Act, 1947 provides for WP(C) NO. 15386 OF 2021

payment of retrenchment compensation with one month notice or wages

in lieu of that notice. The workman is entitled for retrenchment

compensation at the time of termination of his services and such

retrenchment compensation is required to be equivalent to fifteen days

average pay for every completed year of continuous service or any part

thereof in excess of six months. The object behind this provision is to

ensure that such terminated workmen survives for some period during

which he can find alternate employment. Statutory obligation as

envisaged by Section 25F of the Industrial Disputes Act cannot be

disowned by any private contract entered into by the employer and the

workman. The condition that after confirmation, the services can be

terminated by giving one month notice by either side cannot be

construed to mean that in such eventuality, provisions of Welfare Statute

ie, Section 25F of the Industrial Disputes Act shall have no application

for termination effected by the petitioner management. The petitioner

management was duty bound to pay retrenchment compensation to the

2nd respondent along with one month's notice as contemplated in the

appointment order. The letter of appointment no where states that the

petitioner shall not be entitled for any retrenchment compensation at the

time of his retrenchment, leaving apart, that condition could not have

been enforced even otherwise by the petitioner. It is not the case of the WP(C) NO. 15386 OF 2021

petitioner management that the termination is for the reason that the 2nd

respondent workman is guilty of dishonesty, misconduct or neglect or

refusal to attend duty so also for material breach of any terms of letter

of appointment.

20. The learned counsel for the petitioner placed reliance on

judgment of the Hon'ble Delhi High Court in LPA No.1114/2005 in the

matter of Management of Apparel Export Export Promotion

Council Vs. Surya Prakash [178 (2011) DLT 624] decided on

07/01/2011. The facts of the said case are totally different. In that

matter, the respondent workman was employed by the petitioner for the

period from 12.09.1989 to 18.06.1990. Out of that period, he was on

daily wages up to 07/05/1990 and thereafter on 08/05/1990, he was

issued an appointment letter. That appointment letter was containing a

clause that services of the respondent therein shall be on a probation for

a period of one year and the management shall have discretion to

continue that period. Thereafter, immediately the services of the

respondent therein came to be terminated from 18.06.1990. On these

factual premises, the Hon'ble Delhi High Court has held that Section 25F

of the ID Act is not applicable as termination of services of the workman

therein does not amount to retrenchment. The appointment letter in that

case was having a condition that services of the probationer can be WP(C) NO. 15386 OF 2021

terminated by giving 24 hours notice during the period of probation. The

workman therein was terminated during the probation period. Such is

not the case in hand. It is not the stand of the petitioner management

that the respondent workman was on probation.

21. In the result, I see no fault in finding of facts recorded by the

learned Labour Court, so also in respect of the reliefs granted viz, re-

instatement with full back wages and continuity in service along with

other attendant benefits. There is no scope for interfering with the

impugned award of the Labour Court.

The petition as such fails and the same is dismissed.

Sd/-

A.M.BADAR JUDGE Nsd WP(C) NO. 15386 OF 2021

APPENDIX OF WP(C) 15386/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING DATED 30.12.2013 BETWEEN THE 1ST PETITIONER AND M/S.VAARTHA REALTY MEDIA PVT. LTD.

Exhibit P2 TRUE COPY OF THE APPOINTMENT LETTER DATED 1.1.2014 ISSUED TO THE 2ND RESPONDENT

Exhibit P3 TRUE COPY OF THE TERMINATION LETTER DATED 11.6.2016 SENT BY E-MAIL ON 11.06.2016 SENT TO THE 2ND RESPONDENT

Exhibit P4 TRUE COPY OF THE PETITION DATED 14.6.2016 FILED BEFORE THE DISTRICT LABOUR OFFICER, ERNAKULAM BY THE 2ND RESPONDENT

Exhibit P5 TRUE COPY OF THE APPLICATION DATED 8.3.2018 FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.

Exhibit P6 TRUE COPY OF THE STATEMENT DATED 28.5.2018 FILED BY THE 1ST PETITIONER MANAGEMENT

Exhibit P7 TRUE COPY OF THE REPLICATION DATED 30.7.2018 FILED BY THE 2ND RESPONDENT

Exhibit P8 TRUE COPY OF THE PROOF AFFIDAVIT DATED 7.8.2019 FILED BY THE 2ND RESPONDENT BEFORE THE LABOUR COURT

Exhibit P9 TRUE COPY OF THE JUDGMENT OF THE DIVISION BENCH OF DELHI HIGH COURT IN LPA 1114/2005 -

MANAGEMENT OF APPAREL EXPORT PROMOTION COUNCIL VS. SURYA PRAKASH (178(2011) DLT 624)

Exhibit P10 TRUE COPY OF THE PROOF AFFIDAVIT DATED 16.12.2019 FILED ON BEHALF OF THE 1ST PETITIONER BEFORE THE LABOUR COURT ERNAKULAM

Exhibit P11 TRUE COPY OF THE SENIORITY LIST IN THE EDITORIAL DEPARTMENT DURING THE MONTH OF JUNE WP(C) NO. 15386 OF 2021

Exhibit P12 TRUE COPY OF THE SENIORITY LIST OF EMPLOYEES IN THE EDITORIAL DEPARTMENT DURING THE MONTH OF JANUARY 2020

Exhibit P13 TRUE COPY OF THE AWARD DATED 10.2.2021 IN I.A.15/2018 PASSED BY 1ST RESPONDENT, THE LABOUR COURT ERNAKULAM.

Exhibit P14 TRUE COPY OF THE LETTER DATED 5.7.2021 ISSUED BY THE 1ST PETITIONER COMPANY TO THE 2ND RESPONDENT

Exhibit P15 TRUE COPY OF THE LETTER DATED 12.7.2021 ISSUED BY THE 1ST PETITIONER COMPANY TO THE 2ND RESPONDENT

//true copy//

PA to Judge