Kerala High Court
K.S.Hariharan vs The Labour Court on 28 July, 2025
Author: K.Babu
Bench: K. Babu
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W.P (C) No.14688 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 28TH DAY OF JULY 2025 / 6TH SRAVANA, 1947
WP(C) NO. 14688 OF 2019
AGAINST THE ORDER/JUDGMENT DATED IN ID NO.61 OF 2015 OF
LABOUR COURT, KOLLAM
PETITIONER:
K.S.HARIHARAN,
AGED 55 YEARS,
S/O. (LATE) SREEDHARAN NAIR,
MALAYATTIL HOUSE,
THENHIPPALAM PO,
MALAPPURAM DISTRICT,
PIN-673 636.
BY ADVS.
SHRI.A.JAYASANKAR
SRI.MANU GOVIND
SMT.NIMMY JOHNSON
SHRI.S.SABARINADH
AYESHA MARIA JOHN
RESPONDENTS:
1 THE LABOUR COURT
KOLLAM-691 013.
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W.P (C) No.14688 of 2019
2
2 DESHABHIMANI DAILY
REPRESENTED BY ITS GENERAL MANAGER,
DESHABHIMANI ROAD,
THAMBANUR,
THIRUVANANTHAPURAM-695 001.
BY ADVS.
SRI.G.BIJU
SHRI.S.JAYAPRAKASH (MADAVOOR)
SMT.C.S.SHEEJA (SR.GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 28.07.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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W.P (C) No.14688 of 2019
3
'C.R'
K.BABU, J.
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W.P (C) No.14688 of 2019
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Dated this the 28th day of July, 2025
JUDGMENT
The challenge in this Writ Petition is to the award dated
09.08.2018 passed by the Labour Court, Kollam in Industrial Dispute
No.61 of 2015. The workman is the petitioner.
The facts
2. Respondent No.2 is a newspaper establishment as defined
in Section 2(d) of the Working Journalists and Other Newspaper
Employees (Conditions of Service) and Miscellaneous Provisions
Act, 1955 (for short 'the Act'). The petitioner is a working Journalist
as defined in Section 2(f) of the Act. As per Section 3 of the Act, the
provisions of the Industrial Disputes Act, 1947 are applicable to the
working Journalists also. The petitioner joined the service of
respondent No.2, the Deshabhimani Daily, in 1990 as Sub
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Editor/Reporter. He was promoted as Senior Sub Editor and Chief
Sub Editor.
2.1. As per order dated 17.03.2007, the petitioner was placed
under suspension. The order of suspension contains certain
allegations as to anti-party activities. The petitioner denied the
allegations and assured the management that he would maintain
more harmonious relation with the party. Therefore, the suspension
was revoked by order dated 10.10.2007.
2.2. The petitioner was again suspended by order dated
12.01.2008, pending enquiry. A charge sheet was issued on
12.05.2008. The petitioner submitted explanation to the charges on
03.06.2008, denying the allegations in the charge. On 30.10.2008,
the Deshabhimani Daily published a news item stating that the
petitioner was dismissed from the service of respondent No.2.
3. The petitioner challenged his dismissal from service by
filing Industrial Dispute No.61 of 2015 before the Labour Court,
Kollam. The relevant pleadings set up by the petitioner are as
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follows:
3.1. The allegations in the charge memo dated 12.05.2008
were vague. He had submitted an explanation on 03.06.2008
expressing his willingness to prove innocence. Nothing was heard
thereafter for months together and on 30.10.2008, the
Deshabhimani Daily published a news item stating his dismissal
from service. He did not get any intimation from the management
as to the dismissal. No amount was paid towards subsistence
allowance during his period of suspension.
3.2. When the petitioner came across the news item
regarding his dismissal in the Deshabhimani Daily on 30.10.2008, he
sent a registered letter on 01.12.2008 to the General Manager
enquiring whether the news was true or not and requesting a copy
of the dismissal order. No reply was given by the General Manager.
The petitioner, therefore, presumed that the news item was
incorrect. He went on sending registered letters to the General
Manager seeking payment of subsistence allowance and reminding
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that disciplinary enquiry was yet to commence. But, the General
Manager did not care to send any reply.
3.3. On 25.05.2011, another letter was sent to the General
Manager seeking subsistence allowance. There was no response
to that letter also. In such circumstances, on 09.12.2014, the
petitioner submitted a complaint before the Labour Commissioner,
Thiruvananthapuram alleging denial of employment. The Inspector
of Newspaper Establishments initiated conciliation proceedings and
issued notice to the Management.
3.4. The General Manager by his letter dated 02.02.2015
admitted that the management had dismissed the petitioner from
their service. The General Manager also produced copies of the
enquiry notice, enquiry report, dismissal order, postal certificate,
press release, etc. The petitioner was also served with the copies
of documents during the conciliation proceedings. It was at that
time he could realise that the management had passed an order of
dismissal against him on 29.10.2008. The petitioner was not served
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with the notice of enquiry. The findings of the Enquiry Officer are
based on surmises and conjectures. It is vitiated by mala fides. The
enquiry report was also not served on the petitioner. No second
show cause notice was issued to him. The documents relied on by
the management are frivolous. Since the conciliation proceedings
were protracted, the petitioner was constrained to approach the
Labour Court by initiating Industrial Dispute, invoking Section
2-A(2) of the Industrial Disputes Act.
4. The management resisted the application raising the
following contentions:
4.1. The management dismissed the petitioner on 29.10.2008
based on specific charges and finding of guilty by the Enquiry
Officer thereon. The dismissal order was communicated through
post on 30.10.2008. The petitioner was placed under suspension for
the second time with effect from 12.01.2008 due to anti-
establishment activities. Statutory notices were served on the
petitioner during the proceedings. The petitioner did not give a
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proper reply. The allegation that the petitioner was unaware of the
order of dismissal is not true. The conciliation proceedings were
initiated six years after his dismissal, which is only a tactful step
adopted to initiate dispute under Section 2-A(2) of the Industrial
Disputes Act. The claim of the petitioner is barred by limitation.
5. Based on the rival contentions, the Labour Court framed a
preliminary issue as to whether the petition is maintainable in view
of Section 2-A(3) of the Industrial Disputes Act. The Court insisted
for evidence to decide the question whether the dispute is barred
by limitation or not.
6. The evidence consists of oral testimony of WW1 & Exts.W1
to W6 on the side of the workman and oral testimony of MW1 &
Exts.M1 to M4 on the side of Management.
The findings of the Labour Court.
(i) The management has produced a copy of the
letter dated 29.10.2008 and receipt under
certification of post to prove the issuance of
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dismissal order to the petitioner.
(ii) The petitioner got the dismissal order from
the Deshabhimani Daily dated 30.10.2008.
7. I have heard Sri.A. Jayasankar, the learned counsel
appearing for the petitioner, Sri. G.Biju, the learned counsel
appearing for respondent No.2 and the learned Government
Pleader.
8. The application referred to in sub-section (2) of Section 2-
A of the Industrial Disputes Act before the Labour Court shall be
made before the expiry of three years from the date of discharge,
dismissal, retrenchment or otherwise termination of service.
Undoubtedly, the starting point of limitation would be the date of
communication of the order of dismissal, discharge, retrenchment
etc., to the workman. The time taken for getting the copy of the
order is bound to exclude while reckoning the period of limitation.
Such a requirement is there, because, the affected party has to
produce copy of the order that he intends to challenge before the
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competent authority and more so, he is entitled to know the
grounds under which he was dismissed, discharged or terminated
from service.
9. The learned counsel for the petitioner submitted that what
was published in the Deshabhimani Daily on 30.10.2008 was only a
news item stating briefly that the petitioner was dismissed (Ext.P11).
The learned counsel submitted that the dismissal order was not
published in the Deshabhimani Daily. The learned counsel further
submitted that the finding of the Tribunal that the petitioner got the
dismissal order from the Deshabhimani Daily is totally perverse
and baseless. The learned counsel further submitted that when the
petitioner came across Ext.P11 Press release published in the
Deshabhimani Daily, he waited for receiving the dismissal order,
and thereafter, on 01.12.2008 he sent a communication to the
General Manager requiring copy of the order of dismissal. The
learned counsel also submitted that Ext.P10 endorsement regarding
the certificate of posting dated 30.10.2008 has no credibility, as it
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cannot be treated as a document reflecting that the common
course of business was followed as provided in Sections 16 and 114
of the Indian Evidence Act. The learned counsel relied on L.M.S.
Ummu Saleema v. B.B. Gujaral [(1981) 3 SCC 317] and State of
Maharashtra v. Rashid B. Mulani [(2006) 1 SCC 407] to contend that
sending a communication and a certificate of posting may be of
very little assistance to draw a presumption against the petitioner.
The learned counsel would further submit that in any case, there is
a rebuttal of the presumption if at all drawn in view of the evidence
tendered by the petitioner.
10. The learned counsel for respondent No.2 submitted that
the management could establish that the dismissal order was
communicated to the petitioner by sending it through the postal
department on 30.10.2008. The learned counsel submitted that
Exts.M2 and M3 (Exts.P9 and P10 respectively in the Writ Petition)
were produced before the Labour Court to prove the issuance of
dismissal order to the petitioner. The learned counsel further
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submitted that the publication of the news item in the
Deshabhimani Daily on 30.10.2008 was a sufficient communication
of the order of dismissal. The learned counsel further submitted
that the attempt of the petitioner by initiating conciliation was part
of a tactic to invoke the provisions of Section 2-A(3) of the
Industrial Disputes Act.
11. The Labour Court recorded the finding that the petitioner
got the dismissal order from the Deshabhimani Daily dated
30.10.2008, which is the foundation of the conclusion that the
application is not maintainable in view of Section 2-A(3) of the
Industrial Disputes Act. The learned Judge found that as the
petitioner got knowledge regarding the order of dismissal from the
Deshabhimani Daily dated 30.10.2008, the period of limitation starts
from that date. It is important to note that the witness (MW1)
examined from the side of the management has no direct
knowledge regarding the assertions in the counter.
12. The news item published on 30.10.2008 in the
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Deshabhimani Daily is marked as Exhibit P11, which reads thus:
"K. S. Hariharan, the Chief Sub Editor of
Deshabhimani's Thiruvananthapuram unit, has been
dismissed from the Deshabhimani. The action was
taken after it was found that, while serving as the
State Secretary of Adhinivesa Prathirodha Samithy,
he engaged in conspiracy against the newspaper
and its management, and took a public stance
against them."
13. Admittedly, the dismissal order was not published in the
Deshabhimani Daily. I have held above that limitation as provided
in Section 2-A(3) of the Industrial Disputes Act starts from the date
on which the order of dismissal is served on the workman. The
news item published in a newspaper is not sufficient compliance of
service of the order of dismissal. The finding of the Tribunal to the
contrary is erroneous and perverse. The Labour Court also
recorded a finding that the management has produced Exhibit M2
and Exhibit M3 (Exts.P9 and P10 respectively in the Writ Petition) to
prove the issuance of dismissal order to the petitioner.
14. The management relied on Ext.P10, a document stated to
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have been issued by the postal authorities with the endorsement
'under certificate of posting' showing the address of the petitioner.
The petitioner has challenged even the correctness of the address
shown in Exhibit P10.
15. The learned counsel for respondent No.2-Management
submitted that a presumption is to be drawn that the order of
dismissal was issued to the petitioner by post on 30.10.2008. The
learned counsel for the petitioner challenged the admissibility of
Ext.P10.
16. Presumptions of fact are inferences which the mind
naturally and logically draws from given facts, irrespective of their
legal effect. Not only are they always rebuttable, but the trier of
fact may refuse to make the usual or natural inference
notwithstanding that there is no rebutting evidence {Vide: Phipson
on Evidence, Thirteenth Edition, Page Nos.4 and 5, Paragraph Nos.1-
09}.
17. The presumption as provided in Section 16 or Section 114 of
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the Evidence Act is not mandatory. Neither Section 16 nor Section
114 of the Evidence Act compels the Court to draw a presumption. If
it is proved that a letter was properly addressed, pre-paid and
posted by registered post, service shall, under Section 27 of the
General Clauses Act, be deemed to be duly effected.
18. The certificate of posting may also lead to a presumption
that a letter addressed to a person was posted on the date
endorsed thereon and in due course reached the addressee.
Drawing of this presumption is with the aid of Section 114 of the
Evidence Act, which is not mandatory. The presumption may or
may not be drawn. On the facts and circumstances of a case, the
Court may refuse to draw the presumption. On the other hand, the
presumption may be drawn initially, but on a consideration of the
evidence the Court may hold the presumption rebutted and may
arrive at the conclusion that no letter was received by the
addressee or that no letter was ever dispatched as claimed.
19. The Honourable Apex Court had occasion to consider the
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reliability of the endorsement relating to certificate of posting. In
State of Maharashtra v. Rashid B. Mulani [(2006) 1 SCC 407], the
Apex Court observed thus:
"17. A certificate of posting obtained by a sender is not
comparable to a receipt for sending a communication by
registered post. When a letter is sent by registered post, a
receipt with serial number is issued and a record is maintained
by the post office. But when a mere certificate of posting is
sought, no record is maintained by the post office either about
the receipt of the letter or the certificate issued. The ease with
which such certificates can be procured by affixing antedated
seal with the connivance of any employee of the post office is a
matter of concern. The Department of Posts may have to evolve
some procedure whereby a record in regard to the issuance of
certificates is regularly maintained showing a serial number,
date, sender's name and addressee's name to avoid misuse. In
the absence of such a record, a certificate of posting may be of
very little assistance, where the dispatch of such
communications is disputed or denied as in this case. Be that as
it may."
20. In L.M.S. Ummu Saleema v. B.B. Gujaral [(1981) 3 SCC 317],
the Apex Court observed thus:
"6.......The certificate of posting might lead to a presumption
that a letter addressed to the Assistant Collector of Customs
was posted on August 14, 1980 and in due course reached the
addressee. But, that is only a permissible and not an
inevitable presumption. Neither Section 16 nor Section 114 of
the Evidence Act compels the court to draw a presumption.
The presumption may or may not be drawn. On the facts and
circumstances of a case, the court may refuse to draw the
presumption. On the other hand the presumption may be
drawn initially but on a consideration of the evidence the
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court may hold the presumption rebutted and may arrive at
the conclusion that no letter was received by the addressee
or that no letter was ever despatched as claimed. After all,
there have been cases in the past, though rare, where postal
certificates and even postal seals have been manufactured. In
the circumstances of the present case, circumstances to
which we have already referred, we are satisfied that no such
letter of retraction was posted as claimed by the detenu."
21. It is the case of the petitioner that after coming across the
news item published in the Deshabhimani daily on 30.10.2008,
regarding his dismissal, he waited for some time, awaiting the
order of dismissal. He waited till 01.12.2008. Exhibit P3 shows that
the petitioner sent a letter to the General Manager on 01.12.2008
communicating that he had not received the order of dismissal and
requesting to send a copy of the same. There was no response
from the management. The management could have responded to
Ext.P3 communication that they had sent the dismissal order on
30.10.2008. In the absence of any response to Ext.P3
communication dated 01.12.2008 requiring the order of dismissal,
the contention of the petitioner gets credibility. He has given
evidence that he had not received the copy of the order of dismissal
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till 02.02.2015, the date on which the management produced it
before the Conciliation Officer. His statement on oath that no copy
of the order was delivered to him is sufficient to rebut the
presumption under Section 114 of the Evidence Act, if at all drawn.
22. I find no reason to doubt the veracity of the denial made
by the petitioner. Therefore, respondent No.2-Management cannot
succeed on the basis of the presumption under Section 114 of the
Evidence Act based on Ext.P10. This Court comes to the necessary
inference that the petitioner was not served with the order of
dismissal till the matter was taken up before the Conciliation
Officer in 2015.
23. Therefore, the application filed by the petitioner is within
time and it is maintainable. In the result,
(a) The Writ Petition is allowed.
(b) The order dated 09.08.2018 in Industrial Dispute
No.61 of 2015 (Ext.P15) passed by the Labour Court,
Kollam stands set aside.
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(c) The Industrial Dispute No.61 of 2015 stands restored
to file.
(d) The matter is remitted back to the Labour Court for
consideration afresh.
It is made clear that I have not considered the merits of any of
the contentions other than the question of limitation.
Sd/-
K.BABU,
JUDGE
KAS
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APPENDIX OF WP(C) 14688/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE CHARGE SHEET DATED
12.5.2008 ISSUED BY THE MANAGEMENT TO
THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE EXPLANATION DATED
3.6.2008 MADE BY THE PETITIONER ALONG
WITH ITS ENGLISH TRANSLATION.
EXHIBIT P3 TRUE COPY OF THE LETTER DATED 1.12.2008
SENT BY PETITIONER TO THE GENERAL
MANAGER ALONG WITH ITS ENGLISH
TRANSLATION.
EXHIBIT P4 TRUE COPY OF LETTER DATED 2.8.2010 SENT
BY PETITIONER TO GENERAL MANAGER
SEEKING PAYMENT OF SUBSISTENCE
ALLOWANCE AND REMINDING THAT THE
DISCIPLINARY ENQUIRY ALONG WITH ITS
ENGLISH TRANSLATION.
EXHIBIT P5 TRUE COPY OF LETTER DATED 25.5.2011
SENT BY PETITIONER ALONG WITH ITS
ENGLISH TRANSLATION.
EXHIBIT P6 TRUE COPY OF THE LETTER DATED 2.2.2015
FROM THE 2ND RESPONDENT TO THE LABOUR
COMMISSIONER ALONG WITH ITS ENGLISH
TRANSLATION.
EXHIBIT P7 COPY OF THE ENQUIRY NOTICE DATED
1.9.2008 AS PRODUCED BY THE 2ND
RESPONDENT BEFORE THE CONCILIATION
OFFICER ALONG WITH ITS ENGLISH
TRANSLATION.
EXHIBIT P8 COPY OF THE ENQUIRY REPORT DATED
10.10.2008 ALONG WITH ITS ENGLISH
TRANSLATION.
EXHIBIT P9 TRUE COPY OF DISMISSAL ORDER DATED
29.10.2008 ALONG WITH ITS ENGLISH
TRANSLATION.
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EXHIBIT P10 TRUE COPY OF THE POSTING CERTIFICATE
FOR THE DISMISSAL ORDER.
EXHIBIT P11 COPY OF THE PRESS RELEASE DATED
30.10.2008 ISSUED BY THE GENERAL
MANAGER ALONG WITH ITS ENGLISH
TRANSLATION.
EXHIBIT P12 TRUE COPY OF THE INDUSTRIAL DISPUTE
NO.61/2015 DATED 22.5.2015 FILED BY THE
PETITIONER BEFORE THE IST RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE WRITTEN STATEMENT
DATED 6.2.2016 FILED BY THE MANAGEMETN
IN ID NO.61/2015.
EXHIBIT P14 TRUE COPY OF THE REJOINDER DATED
9.3.2016 IN ID NO.61/2015.
EXHIBIT P15 TRUE COPY OF THE AWARD DATED 13.9.2018
ID NO.61/2015 OF THE LABOUR COURT,
KOLLAM.
