IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15456 of 2004(M)
1. G.P.N. CASHEW HEAD OFFICE,
... Petitioner
Vs
1. THE GENERAL SECRETARY,
... Respondent
2. LABOUR COURT, KOLLAM.
For Petitioner :.
For Respondent :SRI.S.SUDHEESHKAR
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :16/07/2008
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)No.15456 OF 2004
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Dated this the 16th day of July, 2008
JUDGMENT
The management in I.D.No.30 of 1994 before the Labour
Court, Kollam is the petitioner herein. They are challenging
Ext.P1 award passed by the Labour Court in that I.D. The issue
referred for adjudication was :
“Denial of employment to Sri. K. Samban, Clerk with
effect from 8.1.1993.”
The Labour Court found that the workman was originally working
as a Clerk, who was demoted as a Watchman and was directed to
report for duty as Watchman. The workman refused saying that
he cannot be demoted. Thereafter, he was directed to report for
duty at Kollam office without mentioning as to whether as Clerk
or Watchman. The workman gave reply stating that he is
prepared to join duty as Clerk provided he is paid backwages for
the period from December 1992 to 11.1.1993, bonus for the year
1992 to 1993 and contribution of the management towards ESI
and Provident Fund for the said period. The management took
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this as a refusal to accept the posting order and abandonment
of his service. Accordingly his services were dispensed with.
The dispute regarding demotion was conciliated by the
conciliation officer. It was pending such conciliation that the
other events took place. Failure report was sent to the
Government and the Government referred the above issue for
adjudication to the Labour Court. The Labour Court after
adjudicating, came to the conclusion that the demotion itself
was unsustainable. But when he was offered posting at
Kollam, he should have accepted the same and then agitated
for backwages etc. Taking into account the fact that the
establishment is finally closed, the award was passed in the
following terms:
“1. Ext. W2 memo dated 8.1.1993 is declared
as illegal and invalid.
2. Ext.M1 order of removal of the workman
from the rolls of the management is set aside.
3. The workman is entitled to full backwages
and attendant benefits for the period from 8.1.1993
till 30.11.1993.
4. The workman will be entitled to 50% of
backwages for the period from 1.12.1993 till this date
ie, 31.10.2003 and he will also be entitled to continuity
of service.
5. The management is directed to treat the
workman as retired from service with effect from this
date ie. 31.10.2003 and the workman will be paid all hisW.P.(c)No.15456/08 3
service benefits adopting his service as from 3.10.1991
till 31.10.2003 and he will also be given full backwages
for the period from 8.1.1993 till 30.11.1993 accepting
his salary as Rs.850/- per month and also 50% of the
backwages for the remaining period from 1.12.1993 till
31.10.2003. It is clarified that the 50% backwages is
to be computed on the basis of the lawful wages of a
clerk of a cashew company or Rs.850/- P.M. which ever
is higher”.
2. One of the contentions raised by the petitioner is
that the validity of demotion of the workman was not an issue
referred for adjudication and therefore the Labour Court
travelled beyond the scope of the reference order. It is further
submitted that when subsequently the management itself
withdrew its earlier order of demotion and directed the
workman to join duty at Kollam, he, having not joined duty,
must be deemed to have abandoned his employment. On
these grounds the learned counsel for the management would
contend that the award is unsustainable.
3. On the other hand, the learned counsel for the
workman would contend that the issue referred was denial of
employment which only has been adjudicated by the Labour
Court. The decision on the validity of the demotion order was
only incidental and entered into for supporting the finding
W.P.(c)No.15456/08 4
regarding denial of employment. As such according to him,
the Labour Court has not travelled beyond the scope of the
reference. He would specifically state that when the
subsequent communication did not specifically mention that he
was being posted as Clerk at Kollam, the very intention of the
management was to make grounds for dispensing his services.
He points out that otherwise when he issued a letter saying
that he is prepared to accept the posting order as Clerk subject
to these conditions mentioned by him, the management ought
to have issued a communication to him in this respect, which
has not been done. Instead straightaway his services were
dispensed with. The workman would therefore, argue for
sustaining the award.
4. I have considered the rival contentions in detail.
One thing is certain that the issue referred for adjudication was
denial of employment and the workman was not employed
after 30.11.1993. The Labour Court found that Ext.M1 order
of removal of the workman from the rolls of the management
was invalid. I do not find anything perverse in such finding.
Admittedly, the workman had issued a reply to the effect that
he is willing to work as Clerk subject to certain conditions. No
reply to the same had been issued by the management,
W.P.(c)No.15456/08 5
instead M1 order of removal was issued. Those situations
would not warrant a conclusion that the workman had actually
abandoned employment. Therefore, the finding of the Labour
Court that the workman was denied employment cannot be
said to be perverse by any stretch of imagination. As such, in
respect of the findings in Ext.P1 award, I do not find any
infirmity whatsoever.
Going by the operative portion of the award quoted
above, in addition to the retirement benefits, the workman
would be entitled roughly to an amount of Rs.60,000/-. In the
peculiar circumstances of the case, I am of opinion that the
workman should accept an amount of Rs.50,000/- as monetary
benefits arising out the award. Ordered accordingly. This
amount shall be paid within one month from today, failing
which the workman would be entitled to 12% interest on the
amount from the date of award. Needless to say, it would be
open to the workman to seek appropriate remedies for
recovery of retirement benefits such as gratuity.
The writ petition is disposed of as above.
S. SIRI JAGAN, JUDGE
Acd
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