IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 WP(C).No. 21974 of 2004(N) -------------------------- ID.87/1998 of LABOUR COURT, KOLLAM .................... PETITIONER(S): ------------------ THE MANAGMENT OF AMBANAD ESTATE, AMBANAD ESTATE, AMBANAD POST, KALTHURUTHY, KOLLAM DISTRICT, REP. BY THE MANAGER (RUBBER). BY ADV. SRI.U.K.RAMAKRISHNAN (SR.) SRI.E.K.MADHAVAN SRI.P.V.LOHITHAKSHAN RESPONDENT(S): ------------------- 1. THE GENERAL SECRETARY, KERALA PLANTATION EMPLOYEES UNION, CITU, PUNALUR. 2. THE LABOUR COURT, KOLLAM. ADV. SRI.V.N.ACHUTHA KURUP (SR.) FOR R1 SRI.K.G.RENGANATH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.21974/04 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE APPOINTMENT ORDER DT 31.8.1996. EXT.P2: TRUE COPY OF THE SAID ORDER DT 19.9.1997. EXT.P3: TRUE COPY OF THE ORDER OF THE COMPANY DT 19.3.1998. EXT.P4: TRUE COPY OF AWARD DT 28.2.2004 PRONOUNCED BY THE 2ND RESPONDENT ON 19.4.2004. ANNEXURE A: TRUE COPY OF THE ORDER PASSED BY THE HON'BLE HIGH COURT OF KERALA ON 26.9.2006. ANNEXURE B: TRUE COPY OF THE APPOINTMENT ORDER DT 4.4.2007 ISSUED BY THE PETITIONER TO SRI.A.CHANDRAN. ANNEXURE C: TRUE COPY OF THE REPLY DT 13.4.2007 SENT BY SRI.A.CHANDRAN TO THE CHIEF EXECUTIVE OF M/S.TRAVANCORE RUBBER AND TEA CO. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. ============== W.P.(C) NO. 21974 OF 2004 (N) ==================== Dated this the 9th day of December, 2008 J U D G M E N T The challenge in this writ petition is against Ext.P4 award rendered by the Labour Court, Kollam in ID 87/98 between the petitioner Management and the union representing the workman. 2. The issue that was referred for adjudication was the dispute between the petitioner management and its workman represented by the respondent union, as to whether termination of service of Sri.A.Chandran, Pharmacist, Ambanad Estate, by the management is justifiable and if not, the reliefs for which he is entitled to. 3. Briefly noticed, the facts of the case are that from 10/3/1989, Sri.A.Chandran (hereinafter referred to as workman for short), was appointed in the estate of the management as a trainee. He continued as such and was thereafter appointed as a contract employee for three years w.e.f. 1/9/93. Subsequently by Ext.P1 order dated 31/8/96, the workman was appointed as a staff in the medical establishment of the management on probation for a period of one year from 1st September 1996, subject to the terms and conditions mentioned therein. Clauses 2, 3 and 4 of Ext.P1, being relevant, are extracted below for reference. WPC 21974/04 :2 : 2. At any time during your probationary period the Management shall be at liberty to terminate your services without assigning any reason or without compensation in lieu there of. 3. You shall be confirmed on satisfactory completion of the probationary period and the same shall be communicated to you in writing and until so communicated you shall continue to be on probation. 4. If the management is not satisfied with your performance during probation, your probation can be extended or your services can be terminated. 4. The workman accepted employment and continued as a probationer. By Ext.P2 order dated 19/9/97, the period of his probation was extended by six months, till 1/3/98. Subsequently, by Ext.P3 order dated 19/3/98, his services were terminated w.e.f. 23/3/98. Though no reasons are stated in this order, it would appear that the workman was treated as a probationer and it is on that basis his services were terminated. Following the termination of his service as above, the dispute was raised by the respondent Union and on failure of conciliation, failure report was sent to the appropriate Government leading to the reference of the dispute, under Section 10 (1) (C) of the Industrial Disputes Act to the Labour Court, Kollam. 5. The Labour Court registered dispute as ID 87/98 ad rendered WPC 21974/04 :3 : Ext.P4 award holding termination by Ext.P3(marked as W8) as illegal and unjustifiable and directed the management to reinstate the workman with 50% of the backwages and with continuity of service. The reasoning adopted by the Labour Court is the following; The present case relates to a person appointed in the general grade of the management company who comes under the purview of the Industrial Disputes Act. As I have already noted the relevant settlement provided the maximum period as one year in respect of probation. Even in Ext.M5 the probation was only for a period of one year from 1st September, 1996. But the said order was subject to the conditions enumerated therein. It is significant to note that as per Clause 3 of Ext.M5., it is stated that the workman shall be confirmed on satisfactory completion of the probation period and the same shall be communicated to him in writing and until so communicated he shall continue to be on probation. Clause 4 states that if the management is not satisfied with his performance during probation, his probation can be extended or his service can be terminated. A harmonious construction of Clauses 3 and 4 of Ext.M5 would indicate that if the employee has to be terminated as a probationer, it can be done only within the probation period itself and the provision relating to communication in writing beyond the probation period can only be for confirmation and not for termination. If the workman was to be terminated treating him as a probationer it should have been done within the probation period or on the date of expiry of the probation period. But the management is found to have issued Ext.W8 order only on 19/3/1998 stating that he was terminated with effect from 23.3.1998. The date 23.3.1998 was definitely a date after the expiry of the probation period. The maximum period of probation fixed as per settlement dt 15.12.1986 was only one year as seen from Ext.W12. The period of probation covered by Ext.M5 was never extended upto WPC 21974/04 :4 : 19.3.1998 or 23.3.1998 so as to terminate the workman as a probationer. In this context the complaint of the workman that the management had issued Ext.W8 as an act of victimisation also arises for consideration. It is challenging this award, the writ petition is filed. 6. The learned counsel for the petitioner contended that Ext.P1 order of appointment (M5) incorporating terms and conditions, in terms of which, there was no deemed confirmation of service of the workman. He also relied on the decision in High Court of M.P v. S.N.Jhavar (2001 (4) LLN 1248). According to the management, confirmation has to be communicated to the employee and until so communicated, the workman shall continue on probation. It was also contended that during the period of probation, either originally specified or extended, the management had the freedom to dispense with the service of the workman if they were not satisfied with his performance. It is stated that it was in view of the enabling provisions of Ext.P1 order of appointment, that by Ext.P3 order, the service of the workman was dispensed with. Therefore, according to him, the conclusion of the Labour Court regarding probation and confirmation is erroneous. 7. Yet another contention that was raised was that the Labour Court erred in placing reliance on the provisions contained in the WPC 21974/04 :5 : settlement dated 15/12/86, to conclude that maximum period of probation could only be for one year. According to the senior counsel, the settlement referred to above was an industry wide bilateral settlement entered into between managements represented by United Planters Association of South India, Association of Planters of Kerala etc., and the Unions, under Section 18(1) of the Industrial Disputes Act. It was contended that the workman having entered service much after the settlement dated 15/12/86 (W12) was not governed by the settlement and therefore, the Labour Court ought not have placed reliance on the said settlement. He also relied on the decisions in Tata Chemicals v. workman, Tata Chemicals (1978 Lab. I.C 637) and Jhagrakhan Collieries v. G.C.Agrawal (1975 Lab.I.C 137) which discusses the legal position of a settlement entered into under Section 18(1) of the Industrial Disputes Act. It was also argued that the respondent union was not a party to the settlement and therefore the benefit of the settlement cannot be claimed, it being only a bilateral one. 8. On behalf of the respondent union, it was contended that as rightly found by the Labour Court, the Management was a member of UPASI as also the Association of Planters of Kerala, signatories to the WPC 21974/04 :6 : settlement referred to above. It was contended that even though the settlement dated 15/12/86 was entered into prior to the workman entered into service of the management, subsequent settlements with identical provisions have been entered into between the employers representatives and the unions representing the workmen on 16/2/1990, 10/9/93 and 22/11/96. Counsel contended that W12 produced before the Labour Court was a book containing the aforesaid settlements and therefore even if the settlement dated 15/2/86 was not relevant to the dispute, still the other subsequent settlements referred to above contained provisions similar to what was contained in the settlement dated 15/12/86 and that therefore the contention raised about the binding nature of the settlement dated 15/12/86 is irrelevant. 9. True, the Labour Court has not made reference to any settlement other than the one dated 15/2/86, but however, it is seen that W12 produced before the Labour Court is a book published by the Plantation Employees Union, which contains the settlements regulating the condition of service of Plantation Staff in South India during the period 1948 to 1998 and the settlements referred to above were also available before the Labour Court. WPC 21974/04 :7 : 10. A reading of Ext.P4 award shows that the Labour Court has made reference only to the settlement dated 15/12/86. It is also factually correct that the workman entered service of the management only after the said settlement was signed. Ext.W12, produced by the union is a book titled “Private Sector Plantation Staff Settlement 1948-98 (South India)”. This book, as already noticed, contains among others, settlements dated 15/12/86, 16/2/90, 10/9/93 and 22/1/96. A reading of 15/12/86 settlement shows that this settlement contains a provision that the probationary period will not exceed one year. In the subsequent settlements of 16/2/90, 10/9/93 and 22/1/96, similar provisions are incorporated and the only difference is regarding the pay that is mentioned in the aforesaid provision in the settlement. Therefore, irrespective of the applicability or otherwise of the settlement dated 15/12/86, in so far as the subsequent settlements are also concerned, the period of probation remained unaltered and the maximum period of probation provided is one year. At this juncture, I should also notice that it was contended that Labour Court has made reference only to settlement dated 15/12/86 and that if any other settlement is relevant, the matter should be remanded for fresh adjudication. Considering the fact that in all settlements there are WPC 21974/04 :8 : identical provisions regarding probationary period and that except in the date of settlement, there is no other mistake committed by the Labour Court and also taking into account the fact that the relevant settlements are part of the record before the Labour Court, I am not inclined to agree to the said request for remanding the matter for fresh decision. 11. In so far as the contention raised by the counsel for the petitioner that the union is not a signatory to the settlement and that the settlement is not binding, is concerned, a reading of the award shows that the management did not raise such a plea before the Labour Court. On the other hand, what the management contended before the Labour Court was that it had not authorised UPASI or APK to enter a settlement on its behalf. This factual controversy was adjudicated by the Labour Court and was decided against the management. The management had no case before the Labour Court that the union was not a party and therefore the settlement is not binding or enforceable. In the absence of the management having raised the plea before the Labour Court, I am not prepared to permit the management to raise this contention for the first time in this writ petition. 12. Admittedly the workman entered service in 1989 as a trainee, WPC 21974/04 :9 : later, continued as a contract employee from 1993 and was appointed as probationer w.e.f. 1/9/96. Period of probation specified in Ext.P1 order of appointment is one year and the order of appointment does not contemplate a deemed confirmation and confirmation takes place only when it is communicated to the employee in writing. It was taking advantage of those provisions in Ext.P1, the probation period of the workman was extended till 1/3/98 by Ext.P2 order and he was ultimately terminated from service. 13. The service of the workman was terminated by Ext.P3(W8) dated 19/3/98 w.e.f. 23/3/98. Thus admittedly, the termination of the workman, was on a date which is much later to 1.3.1998, when even the extended period of probation also was over. Therefore, unless the management succeeds in establishing that there was no deemed confirmation on the expiry of either the period of probation as originally fixed or as extended by Ext.P2, the management will not be able to sustain the termination effected by Ext.P3 order. 14. It was in order to get over this situation that reliance was placed on Clauses 2, 3 and 4 of Ext.P1 order of termination. Admittedly, Clauses 3 and 4, gives liberty to the management to extend the period of WPC 21974/04 :10 : probation and confirmation of an employee in service takes place only when he is communicated the same in writing. There provisions have been incorporated in Ext.P1, inspite of the provision in the settlement which provides a maximum period of 1 year as the probation period. Certainly, the aforesaid clauses of Ext.P1 are in conflict with the provisions contained in the settlements and therefore, the issue that is to be resolved is as to how to reconcile these conflicting provisions. 15. Here Clauses 3 and 4 of Ext.P1 are obviously in conflict with the settlements referred to above, be it the one dated 15/12/86 or 16/2/90 or 16/10/93 or 22/1/96. In all these settlements, the maximum probationary period is fixed as one year. If there is a conflict between the settlement entered into under the provisions in the Industrial Disputes Act and the order of appointment, even if accepted by the workman in question, what has to prevail is the terms of the settlement. If that be so, the probation of the workman in question could not have exceeded one year. Necessarily, therefore, the termination of the workman effected by Ext.P3 is not only beyond the period of one year but also even the extended term, which expired on 1/3/98. If that be so, going by the provisions contained in the settlement in question, the termination of the WPC 21974/04 :11 : workman effected by Ext.P3 order w.e.f. 23/3/98, treating him as a probationer, cannot be sustained. 16. Learned counsel for the petitioner referred to the Apex Court judgment in High Court of M.P. v. Satya Narayan Jhavar{(2001) 7 SCC 161} and contended that there is no question of any deemed confirmation and that an order of confirmation is a positive act on the part of the employer. It was contended that in view of the provisions contained in the order of appointment, the workman cannot contend that at the expiry of the period of probation or due to his continuance beyond the term, he is deemed to be confirmed service. In my view, the question whether there is a deemed confirmation or not will depend upon the terms of the employment. In the case dealt with by the Apex Court, the Court was concerned with the provisions contained in Rule 24 of MP Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955. It was interpreting the said rule the Apex Court held that the rule stipulated that at the end of probation, an appointee could be confirmed subject to his fitness for confirmation and his having passed the departmental examination as may be prescribed. It was also held that in the said rule while a maximum period of probation has been indicated, yet WPC 21974/04 :12 : question of confirmation of such probationer is dependent upon his fitness for confirmation and passing of the departmental examination as prescribed. 17. Unlike the case dealt with by the Apex Court, in this case, as I have already held, the prescription of probation was governed by the terms of settlements referred to above and the parties have to be governed by the same. The settlement does not contain a provision similar to Rule 24 dealt with by the Apex Court. If that be so, the judgment does not advance the case of the petitioner in any manner. 18. At this stage, yet another plea that was raised by the learned counsel for the petitioner was that the workman having accepted the terms of Ext.P1 and continued in service on that basis cannot now contend that he is not bound by the terms of Ext.P1. I do not think this is a sound argument deserving acceptance. If the management incorporates a provision similar to what is contained in Ext.P1 in violation of the provisions contained in a binding settlement, which is a penal act under the provisions of the Industrial Dispute Act and if such a plea is accepted, that would mean that the management will have the liberty to flout the settlement and claim immunity from its consequences for the only reason WPC 21974/04 :13 : that the workman has accepted the same. 19. For the aforesaid reasons, the conclusion arrived at by the Labour Court in Ext.P4 award is unexceptionable. Writ petition therefore fails and is dismissed. ANTONY DOMINIC, JUDGE Rp