IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 WP(C).No. 37268 of 2008(J) -------------------------------------- PETITIONERS: --------------------- 1. JAYACHANDRAN.K.G, AGED 42 YEARS, S/O. GOPINATHAN NAIR, B. NO. 12958, TECHNICIAN (MECHANICAL), MECHANICALN.P. FACT-CD, AMBALAMEDU.P.O, PIN - 682 303, KOLLETH HOUSE, VILANGU.P.O, KIZHAKKAMBALAM, ERNAKULAM DISTRICT. PIN - 682 203. 2. M.C. SUNNY, AGED 46 YEARS, S/O. M.C. KURIAKOSE, B. NO. 1505, TECHNICIAN (MECHANICAL), FACT COCHIN DIVISION, WILLINGTON ISLAND, KOCHI, RESIDING AT QUARTER NO. 407/06, FACT - COCHIN DIVISION, AMBALAMEDU - 682 303. 3. SUNIL KUMAR.M.P, AGED 41 YEARS, S/O. N. PRABHAKARAN, B. NO. 13816, TECHNICIAN (S/U) Q-10, W. ISLAND, RESIDING AT NANDANAM, POOTHOTTA.P.O, PUTHENKAVU, ERNAKULAM. 4. BABURAJ.M, AGED 39 YEARS, S/O. MADAVAN.P, BADGE NO.13815, TECHNICIAN (MECHANICAL), Q-10, FACT, W. ISLAND. RESIDING AT SANKARAN, KUNNEL HOUSE, PUTHIYAKAVU, TRIPUNITHURA. 5. VISWANATHAN.N, AGED 38 YEARS, S/O. LATE P. NARAYANAN NAIR, TECHNICIAN, FACT, COCHIN DIVISION, AMBALAMEDU. BY ADV. MR.V.PHILIP MATHEW. W.P.(C). NO.37268/2008-J: RESPONDENTS: ------------------------ 1. FACT, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, UDYOGAMANDAL, ERNAKULAM. 2. DEPUTY GENERAL MANAGER (HR), FACT LTD., UDYOGAMANDAL, ERNAKULAM. 3. LABOUR OFFICER, KAKKANAD, ERNAKULAM. 4. MURALEEDHARA GOPAN, TECHNICIAN (MECHANICAL), SULPHURIC ACID PLANT, FACT - CD, AMBALAMEDU - 682 303. 5. RAPHEL MICHAEL, TECHNICIAN (MECHANICAL), NP PLANT, FACT - CD, AMBALAMEDU - 682 303. 6. K.V. JAMES, TECHNICIAN (MECHANICAL), PHOSPHORIC ACID PLANT, FACT - CD, AMBALAMEDU - 682 303. 7. K.V. RAMESH, TECHNICIAN (MECHANICAL), INTAKE WELL PUMP HOUSE, FACT - CD, AMBALAMEDU - 682 303. 8. FRANCIS.K.A, TECHNICIAN (MECHANICAL), HEAVY EQUIPMENT (WS), AMBALAMEDU - 682 303. 9. A.V. JOSEPH, TECHNICIAN (MECHANICAL), INTAKE WELL PUMP HOUSE, FACT - CD, AMBALAMEDU-682 303. W.P.(C). NO.37268/2008-J: 10. KARUPPAIAH.K, TECHNICIAN (MECHANICAL), WORK SHOP, FACT CD, AMBALAMEDU - 682 303. R1 & R2 BY ADVS. MR.E.K.NANDAKUMAR, MR.A.K.JAYASANKAR NAMBIAR, MR.K.JOHN MATHAI, MR.P.BENNY THOMAS, MR.ANIL D. NAIR, MR.V.J.ANAND, R4 TO R6 BY ADVS. MR.K.BALACHANDRAN (MANGALATH), MR.RAJESH NAIR, MR.BIJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.37268/2008-J: ORDER ON I.A. NO. 4581/09 IN W.P.(C).NO.37268/2008-J DISMISSED 27/05/2009. SD/- P.N.RAVINDRAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RELEVANT PAGES OF THE TERMS OF SETTLEMENT FOR RESOLVING PARITY ISSUE/EQUALIZATION OF LEVELS. EXT.P.2: COPY OF THE AGREEMENT DTD. 30/11/2001 BETWEEN TRADE UNIONS AND MANAGEMENT OF THE FACT, COCHIN DIVISION. EXT.P.3: COPY OF THE LETTER DTD. 15/09/2001 ISSUED BY TECHNICIANS TO TRDE UNION LEADERS. EXT.P.4: COPY OF THE REPRESENTATION SUBMITTED BY PETITIONERS BEFORE THE R.2. DTD. 06/03/2002. EXT.P.5: COPY OF THE REPRESENTATION SUBMITTED BY PETITIONES BEFORE THE CHAIRMAN AND M.D. OF THE R.1. DTD. 25/07/08. EXT.P.6: COPY OF THE REPRESENTATION SUBMITTED BY PETITIONERS BEFORE THE R.3. DTD. 31/10/08. EXT.P.7: COPY OF THE REPRESENTATION SUBMITTED BY PETITIONERS BEFORE THE CHAIRMAN AND M.D. OF THE FACT DTD. 11/11/08. EXT.P.8: COPY OF THE ORDER DTD. 20/03/2009 NO.CMD-CO-H.3-096. RESPONDENTS' EXHIBIT: EXT.R1.A: COPY OF THE MEMORANDUM OF SETTLEMENT DTD. 17/12/2001 IN FORM `H' DULY CERTIFIED BY THE REGIONAL JOINT LABOUR COMMISSIONER UNDER SECTION 12 (3) OF THE INDUSTRIAL DISPUTES ACT. //TRUE COPY// P.S. TO JUDGE. Prv. P.N.RAVINDRAN, J. ------------------------------------- W.P.(C)No.37268 of 2008 -------------------------------------- Dated 27th May, 2009 JUDGMENT The petitioners who are presently working as Technicians (Mechanical) in the Cochin Division of FACT, have filed this writ petition aggrieved by the promotion of respondents 4 to 10 to the category of Senior Technicians. 2. The pleadings disclose that respondents 4 to 10 were promoted to the category of Senior Technicians applying the stipulations in paragraph 5.3 of Ext.R1(a) settlement that was entered into on 17.12.2001. As per the promotion policy evidenced by Ext.P1, Technicians like the petitioners can claim promotion to the category of Senior Technicians only on completion of 12 years service in the category of Technician. The petitioners had not completed the said period of 12 years when respondents 4 to 10 were promoted to the category of Senior Technicians. The official respondents contend relying on paragraph 5.3 of Ext.R1(a) settlement that it was because the petitioners were not eligible for promotion as Senior Technicians that Head Craftsmen who were initially promoted as Technicians (Supernumerary) and were later confirmed as Technicians were promoted to the category of Senior Technicians. The official WP(C).No.37268/2008 2 respondents also contend that in the light of the binding stipulations in Ext.R1(a), the petitioners cannot challenge the promotion of respondents 4 to 10 as Senior Technicians. Relying on the decisions of the Apex Court in Rajasthan State Road Transport Corporation and another v. Bal Mukund Bairwa ((2009) 4 SCC 299) and Tata Engineering and Locomotive Company Limited v. Workmen ((1981) 4 SCC 627) the learned counsel for the official respondents contends that determination of the fairness or the unfairness of the terms of a settlement cannot be decided in a writ petition and that when the dispute involves a settlement arrived at under the Industrial Disputes Act, the remedy of the person aggrieved thereby is to move the Industrial Tribunal constituted under the Industrial Disputes Act. 3. From the materials placed on record it is seen that respondents 4 to 10 were promoted to the category of Senior Technicians applying paragraph 5.3 of Ext.R1(a) settlement. If the petitioners are aggrieved by the stipulations in Ext.R1(a), their remedy lies elsewhere and not in this writ petition. I therefore hold that if the petitioners are aggrieved by Ext.R1(a) settlement, their remedy is to move the Industrial Tribunal constituted under the Industrial Disputes Act. The writ petition fails and is accordingly dismissed without prejudice to the right of the petitioners to challenge the validity of WP(C).No.37268/2008 3 Ext.R1(a) settlement and also the promotion given to respondents 4 to 10 in proceedings under the Industrial Disputes Act. The contentions of both sides on the merits are kept open. P.N.RAVINDRAN Judge TKS