High Court Kerala High Court

The Trivandrum Sarvodaya Sangh vs The Deputy Labour Commissioner on 26 June, 2008

Kerala High Court
The Trivandrum Sarvodaya Sangh vs The Deputy Labour Commissioner on 26 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 1327 of 2008()



1. THE TRIVANDRUM SARVODAYA SANGH
                      ...  Petitioner

                        Vs

1. THE DEPUTY LABOUR COMMISSIONER
                       ...       Respondent

                For Petitioner  :SRI.T.RAJASEKHARAN NAIR

                For Respondent  : No Appearance

The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER

 Dated :26/06/2008

 O R D E R
               H.L.DATTU, C.J. & A.K.BASHEER, J.
            ----------------------------------------------------------
                           W.A.No.1327 of 2008
              -------------------------------------------------------
                 Dated, this the 26th day of June, 2008

                                JUDGMENT

H.L.Dattu, C.J.

This writ appeal is directed against the orders passed by

the learned Single Judge in W.P.(C) No.15832 of 2008 dated 28th May,

2008. The learned Single Judge has declined to entertain the writ

petition.

2. The issue in this writ appeal lies in a very narrow

compass.

3. The petitioner in the writ petition filed under Article

226 of the Constitution, had called in question Ext.P5 order passed by the

Deputy Labour Commissioner and Secretary, State Advisory Contract

Labour Board, Thiruvananthapuram dated 22-11-2007. By the impugned

order, the Deputy Labour Commissioner had directed the petitioner to

pay a sum of Rs.23,535/- towards arrears of subsistence allowance

payable under the provisions of the Kerala Payment of Subsistence

Allowance Act, 1972 read with the Kerala Payment of Subsistence

Allowance Rules 1974.

W.A.No.1327/2008 -2-

4. Before the learned single Judge the one and the only

contention that was canvassed by the petitioner is that the 2nd respondent

is not a workman, that he is working in the petitioner organization in the

managerial capacity and therefore, the provisions of the Kerala Payment

of Subsistence Allowance Act, 1972 is not applicable to the 2nd

respondent The learned Single Judge after going through Ext.P4

objection filed by the petitioner organization, has come to the

conclusion that, before the competent authority the petitioner had not

raised any contention with regard to the capacity in which the 2nd

respondent was working in the petitioner organization. The learned

Single Judge has also noticed that, for the first time such a contention is

raised in the writ petition. The learned Single Judge is of further

opinion that such a contention cannot be raised for the first time in a

petition filed under Article 226 of the Constitution. That only means

that, if for any reason, the petitioner organization was of the opinion that

the 2nd respondent is not a workman and he is not eligible or entitled for

subsistence allowance under the provisions of the Kerala Payment of

Subsistence Allowance Act, 1972, that contention should have been

raised at the initial stage, namely, before the Deputy Labour

Commissioner who is supposed to decide the facts.

W.A.No.1327/2008 -3-

5. We have also carefully perused Ext.P4 objection filed

by the petitioner organization to the claim made by the 2nd respondent. In

the objection statement so filed, there is not even an indication that the

2nd respondent was working in the petitioner organization in the

managerial capacity, and therefore, he is not entitled for payment of

subsistence allowance under the provisions of Kerala Payment of

Subsistence Allowance Act, 1972. In view of the above, in our opinion,

the learned Single Judge is fully justified in rejecting the writ petition

and thereby confirming the order passed by the Deputy Labour

Commissioner dated 22-11-2007. We do not see any reason to interfere

with the orders passed by the learned Single Judge. Accordingly, the

writ appeal requires to be rejected and it is rejected.

Ordered accordingly.

(H.L.DATTU)
CHIEF JUSTICE

(A.K.BASHEER)
JUDGE

MS