IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 802 of 2010()
1. KERALA SMALL INDUSTRIES DEVELOPMENT
... Petitioner
Vs
1. DISTRICT LABOUR OFFICER,
... Respondent
2. N.M.THAMPI, S/O.MATHAI, NALIYATH
For Petitioner :SRI.JOSEPH KODIANTHARA (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :26/05/2010
O R D E R
A.K. BASHEER & P.Q. BARKATH ALI, JJ.
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W.A.802 & 806 of 2010
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Dated: MAY 26, 2010
JUDGMENT
Basheer, J.
These two appeals unravel yet another instance of callous
apathy that an employee had to face at the hands of a Government
owned company. It appears that the appellant/company now wants
to redeem its prestige and show the employee that it means business.
But at whose cost? Definitely it cannot be at the cost of the employee.
2. Shorn of unnecessary details, the relevant facts which led to
this prolonged litigation may be briefly noticed.
Respondent No.2 who joined the service of the company as
Welder Gr.III way back in 1979 faced disciplinary proceedings on the
charge that he had abstained from duty without permission. His
services were terminated. Ultimately he was ordered to be reinstated
in service with backwages. But it is on record that the punishment
imposed on the employee was confined to barring of one increment
with cumulative effect from the date of imposition of punishment. Be
that as it may, the employee came back in service and superannuated
on May 31, 2001. It is conceded by the appellant that the employee
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was entitled to backwages and other service benefits from March 7,
1983 to October 10, 1990 in the scale of pay applicable to him with
consequential grade promotions. It is also not in dispute that he was
entitled to the difference in backwages from October 1990 till the date
of his superannuation, apart from gratuity for the entire length of his
service viz. 22 years.
3. According to the appellant, the employee was given
promotion as Gr.II Welder with effect from September 27, 1986 and to
the cadre of Gr.I with effect from September 27, 1996. But the
grievance of the employee was that even after reinstatement he was
not paid salary in the grades applicable to him.
4. Therefore in the year 2005, the employee filed an application
under sec.33C(2) of the Industrial Disputes Act (for short, the Act)
before the Labour Court for computation of the monetary benefits
which were due to him. A copy of the said application is available on
record as Ext.P4. In this application the employee cited the case of
one of his erstwhile colleagues viz. Sri Gopalakrishnan who retired as
Gr.I Welder and contended that he also was eligible to get the same
scale of pay and other service benefits as were paid to Sri
Gopalakrishnan. It was on that basis that the employee contended
that he was entitled to get a total sum of Rs.2,74,000/- towards
difference in wages apart from balance gratuity for 22 years. The
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claim was allowed in toto by the Labour Court by its order dated
September 28, 2005 as is revealed from a copy of the order which is
available on record as Ext.P5 and the appellant/employer was directed
to pay the amount with 9% interest thereon from the date of order
till the date of realisation.
5. The present round of litigation started in the above
background. The employee filed Writ Petition (C) No.33549/2009
complaining that the order of the Labour Court was being willfully
disobeyed by the appellant. He therefore prayed for issue of a writ of
mandamus or such other appropriate writ or direction to the
Government and the Revenue Authorities to recover the entire
amounts due under the order passed by the Labour Court and deposit
the same before the Labour Court for disbursement to him.
6. Close on the heels of this writ petition the appellant filed Writ
Petition (C) No.36731/2009 seeking to quash Ext.P5 order passed by
the Labour Court, contending inter alia that the said order was ex-
facie illegal, vitiated and without jurisdiction. Various other
contentions were raised by the appellant in support of its plea that the
former employee was not entitled to the amounts claimed in his
application under sec.33C(2) of the Act. But the main plank of the
attack raised against Ext.P5 order was that the appellant was
prevented from contesting the case before the Labour Court since its
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counsel happened to be suffering from some cardiac ailment and
therefore he could not effectively project the case of the appellant
before the Labour Court.
7. The two writ petitions were disposed of by a learned Single
Judge holding that the claim made by the employee was wholly
justifiable and that the contention now raised by the appellant that it
was prevented from contesting the case because of the ailment of its
counsel cannot be countenanced at this belated stage.
8. Sri Joseph Kodianthara, learned Sr. Counsel who appears for
the appellant, submits that even on the face of the failure of the
appellant to contest the case before the Labour Court, it ought to have
been ensured by the Court concerned that the order that it passed did
not suffer from any legal infirmity. It is contended by the learned Sr.
Counsel that the claim made by the former employee of the appellant
could not have been entertained under sec.33C(2)of the Act for the
simple reason that the claim called for adjudication of an issue which
the Labour Court could not have entertained under sec.33C(2)of the
Act. In this context learned Sr. Counsel invites our attention to a
decision of Their Lordships of the Supreme Court in D.Krishnan and
another v. Special Officer, Vellore Co-operative Sugar Mill and another
(2008) 7 SCC 22. He also draws our attention to yet another decision
of a learned Single Judge of this Court in Divisional Personnel Officer,
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Southern Railway v. Kamalam and others (1988 (2) KLT 835).
9. It is trite that the power and jurisdiction exercisable by the
Labour Court under sec.33C(2)of the Act is well delineated and
defined. As has been indicated by us earlier, the employee in his
application had claimed certain benefits with a request to treat him on
par with the case of a former colleague of his (Sri Gopalakrishnan) who
retired from service as Gr.I Welder. The case of the employee
appeared to be that by virtue of the order of reinstatement, he was
entitled to get all service benefits including grade promotions which fell
due from time to time. The contention of the employee was that he
was entitled to have been promoted as Welder Gr.I before his
superannuation and thus all service benefits that were paid to Sri
Gopalakrishnan ought to have been paid to him also.
10. It is pointed out by Sri Gopakumar, learned counsel for the
employee, that the only prayer in the claim petition was that the
benefits payable to him be computed in terms of the order of
reinstatement passed in his favour and he did not ask for anything
more. Learned counsel invites our attention to Ext.P3 judgment of
this Court in which it was made explicit that the employee should be
given all service benefits treating him as though he had been in
continuous service from the date of expulsion till the date of
reinstatement, except the bar of one increment with cumulative effect.
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We do not propose to deal with this issue at this stage in view of the
order that we propose to pass.
11. We are quite aware of the predicament and heartburn of
the employee who is before us. As has been noticed already, he
superannuated about nine years back. He had to remain out of
service for quite a number of years before he was reinstated in
service. It is true that he had been paid sec.17B wages. But learned
counsel submits that the scar that is left behind by the treatment
meted out to him by his former employer still remains unhealed.
The impugned order passed by the Labour Court reveals that the
appellant was set ex parte and that the claim made by the former
employee was allowed in its entirety only because the application was
not contested by the appellant. This flaw in the impugned order has to
be corrected. But any opportunity that is to be given to the appellant
will entail the necessary consequences. We are satisfied that the
appellant can be given an opportunity to salvage the situation to the
extent possible, without causing any further heartburn to the
employee concerned.
12. Thus, having regard to the entire facts and circumstances,
particularly the fact that Ext.P5 order had been passed by the Labour
Court without a proper adjudication of the issue, persuades us to
direct the Labour Court to decide the question of jurisdictional
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competence to pass orders on Ext.P4 application filed by the employee
under sec.33C(2)of the Act. We have kept in view the decision of the
Apex Court in Krishnan’s case (supra) also.
13. Therefore Ext.P5 order is set aside on the following terms:
a) The appellant shall pay a sum of Rs.25,000/- as cost to
respondent No.2 within one week from today. The cost
shall be paid by way of a demand draft drawn in favour of
respondent No.2 and the same shall be handed over to Sri
Gopakumar, learned counsel who appears for him.
b) The appellant shall deposit 75% of the amount awarded
in Ext.P5 order before the Labour Court within six weeks
from today.
The Labour Court shall dispose of Ext.P4 application strictly on its
merit and in accordance with law, as expeditiously as possible, at any
rate, within two months from the date of receipt of a copy of this
judgment. Needless to mention, the Labour Court shall afford
sufficient opportunity, not only to the appellant, but to respondent
No.2 also, to adduce further evidence in support of their contentions.
A.K. BASHEER, JUDGE
P.Q. BARKATH ALI, JUDGE
W.A.802 & 806 of 2010
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mt/-