IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 133 of 2006(D)
1. M.V.KUNHIKANNAN,
... Petitioner
Vs
1. PURUSHOTHAM GOCULDAS PLYWOOD CO.,
... Respondent
2. THE LABOUR COURT,
For Petitioner :SRI.P.M.PAREETH
For Respondent :SRI.P.RAMAKRISHNAN
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :18/11/2008
O R D E R
H.L.Dattu,C.J. & A.K.Basheer,J.
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W.A.No.133 of 2006
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Dated, this the 18th November, 2008
JUDGMENT
H.L.Dattu,C.J.
The workman, calls in question the correctness of otherwise of the
orders passed by the learned Single Judge in O.P.No.21529 of 1999, dated 30th
September, 2005. By the impugned order, the learned Single Judge has set
aside the orders passed by the Labour Court, Kannur in Claim Petition No.52
of 1997, dated 22nd April, 1999.
(2) For the disposal of this Writ Appeal, a few facts requires to be
noticed. They are as under.
(3) The workman was employed in the 1st respondent-organisation as a
Clerk. He was denied employment. After failure of the conciliation
proceedings, the workman had approached the State Government to make a
reference of the dispute to the Labour Court, for adjudication and decision.
Pursuant to the request so made, the State Government had referred the dispute
to the Labour Court, Kannur.
(4) After receipt of the point of dispute, the Labour Court had
registered the same in I.D.No.116 of 1990.
(5) The Labour Court, after considering the claim and counter claim
filed by the parties and the evidence on record, has come to the conclusion,
that, there was denial of employment by the employer and, accordingly, has
W.A.No.133 of 2006 – 2 –
directed the employer to reinstate the workman into service, but without
back-wages. Aggrieved by the said award passed by the Labour Court, the
employer and the workman were before this Court in O.P.No.3147 of 1992 and
O.P.No.8082 of 1992 respectively.
(6) This Court, by its order dated 1st October, 1997, has rejected
both the Original Petitions.
(7) After disposal of the Original Petitions, the workman had
filed a Claim Petition before the Labour Court, Kannur under Section 33C(2)
of the Industrial Disputes Act, 1947 (“Act” for short).
(8) In the claim petition filed, the workman had claimed the
arrears of back-wages for the period from 1.3.1992 to 19.10.1997. The claim
petition came to be served on the employer. The employer has filed his defence
before the Labour Court. The primary defence that was raised before the
Labour Court was, that, the workman was gainfully employed between
1.3.1992 and 19.10.1997 and, therefore, he is not entitled for the arrears of
back-wages. The Labour Court, after considering this aspect of the matter and
also considering the date of denial of employment and the disposal of the
Original Petition, has come to the conclusion, that, the workman is entitled for
the arrears of back-wages for the period from 1.3.1992 to 19.10.1997 and,
accordingly, has passed an order for payment of the arrears of back-wages for
the aforesaid period with 12% interest till the date of payment.
(9) The employer, being aggrieved by the aforesaid order passed
W.A.No.133 of 2006 – 3 –
by the Labour Court, Kannur in Claim Petition No.52 of 1997, was before this
Court in O.P.No.21529 of 1999.
(10) The learned Single Judge has allowed the Original Petition
and has set aside the orders passed by the Labour Court, Kannur. For allowing
the Original Petition, the learned Single Judge, in his order, notices, that, the
workman had not filed any petition under Section 17B of the Act. Secondly,
there was no claim by the workman for reinstatement of the workman into
service and lastly, that, the employer has closed his shutters some time in the
year 2003. Accordingly, has set aside the orders passed by the Labour Court;
but has observed, that, whatever amounts that have been paid to the workman
during the pendency of the Original Petition, that would satisfy the claim of the
workman. It is this order which is called in question by the workman in the
present appeal.
(11) We have heard Sri.P.M.Pareeth, learned counsel, for the
appellant and Sri.T.C.Krishna, learned counsel, for the 1st respondent.
(12) Sri.P.M.Pareeth, learned counsel appearing for the
appellant, would submit, that, merely because the workman had not filed any
petition for Section 17B wages before this Court, it does not mean that the
workman is not entitled for the arrears of back-wages for the period during
which the workman was kept out of service. Secondly, the learned counsel
would submit, that, since there was no interim order passed by this Court while
entertaining the Original Petition, the workman was repeatedly making
W.A.No.133 of 2006 – 4 –
representations before the employer to reinstate him in service and that request
of the workman was not conceded by the employer only because of the
pendency of the Original Petition. Further, the learned counsel would submit,
that, at no point of time the workman was gainfully employed and his wife was
working as an L.I.C. Agent and he was assisting her only, in her business.
(13) Per contra, Sri.T.C.Krishna, learned counsel appearing for
the 1st respondent-employer, would submit, that, it was the specific case of the
employer, both before the Labour Court and before this Court, that, the
workman was gainfully employed and, therefore, not entitled for the
back-wages for the period from 1.3.1992 to 19.10.1997. Accepting this
contention, according to the learned counsel, the learned Single Judge has
refused to grant the reliefs sought for by the workman. Secondly, the learned
counsel would submit, that, since the 1st respondent-employer has closed down
his business, the workman is not entitled for the arrears of wages for the period
between 1.3.1992 and 19.10.1997.
(14) In the writ petition filed by the employer, it is stated, that,
the workman was an L.I.C.Agent and his Agency number was 2776. That only
shows, that, the workman was gainfully employed during the period when he
was out of service and, therefore, the Labour Court was not justified in
granting the relief sought for by the workman in the Claim Petition filed under
Section 33C(2) of the Act. It is further contended, that, since there was no
interim orders passed by this Court, the workman was not prevented from
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requesting the employer to reinstate him into service and since that was not
done, the workman is not entitled to the relief that is granted by the Labour
Court.
(15) The issue that requires to be considered by this Court is,
whether the Labour Court was justified in allowing the Claim Petition filed by
the workman in number 52 of 1997.
(16) The admitted facts are, that, the workman was denied
employment by the employer. Therefore, he had raised a dispute. The Labour
Court has allowed the dispute and, thereafter, has directed the employer to
reinstate the workman into service, without back-wages. Both the parties had
filed Original Petitions before this Court, challenging the award. The Original
Petitions were rejected by this Court. Merely because the workman did not file
any application for 17B wages during the pendency of the Original Petition,
that does not mean that the workman is not entitled to the arrears of
back-wages during the period when he was kept out of service.
(17) The primary defence of the employer before the Labour
Court was, that, the workman was gainfully employed as an L.I.C.Agent and,
therefore, he is not entitled for any arrears of wages. This aspect of the matter
is considered by the Labour Court and has answered the same as under:
“It is the further contention of the respondent that the
petitioner was gainfully employed during the relevant period.
According to RW1 that the petitioner was working as an LIC
Agent. But, there is no documents produced to prove the same.
W.A.No.133 of 2006 – 6 –
However, PW1 has admitted that his wife is an LIC agent and that
he had been helping her. That does not mean that the petitioner
was gainfully employed. It is true that he had been helping his
wife, being an LIC agent, ever since she became LIC Agent which
is inclusive of the period in question. So for that entire period the
management had not taken it as a ground to reduce his salary. So
there is no evidence to show that the petitioner was gainfully
employed during the relevant period”.
(18) A perusal of the said paragraph would clearly indicate, that,
it is not the workman who was employed as an L.I.C.Agent; but his wife was
employed as L.I.C.Agent. This only shows, that, the workman was not
employed gainfully during the period when he was kept out of service.
Therefore, the contention canvassed by the employer before the Labour Court
has been, rightly, rejected by the Labour Court. We do not take any exception
to the finding of the Labour Court in this regard,for the simple reason, that, the
said finding is based on the evidence that was adduced before the Labour Court
and the said finding of the Labour Court by no stretch of imagination, can be
said as a perverse finding.
(19) It is no doubt true, that, the 1st respondent herein has closed
down his business some time in the year 2003. But, when the orders were
passed by the Labour Court in I.D.No.116 of 1990 and also in the Claim
Petition filed, in number 52 of 1997, disposed of on 22nd April, 1999, the
employer was doing business and, therefore, the subsequent event, that, the
employer has closed down the business, would not come to the aid of the
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employer to deny the claim made by the workman, for the past period when it
was in existence and actively doing its business. This aspect of the matter ought
to have been kept in view by the learned Single Judge while allowing the
Original Petition filed by the employer. Since that has not been done, we
cannot sustain the orders passed by the learned Single Judge.
(20) Accordingly, we pass the following:-
Order
(i) The Writ Appeal is allowed.
(ii) The impugned order passed by the learned Single Judge, in
O.P.No.21529 of 1999 dated 30.09.2005, is set aside.
(iii) The order passed by the Labour Court, Kannur, in Claim Petition
No.52 of 1997, dated 22.04.1999, is restored.
(iv) In view of the orders passed in the Writ Appeal, no orders need be
passed in I.A.No.654 of 2008 and the same is, accordingly, closed.
Ordered accordingly.
H.L.Dattu
Chief Justice
A.K.Basheer
vku/dk Judge