IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 11376 of 2008(D)
1. NIJEESH P.S., POTHEZHATHU HOUSE
... Petitioner
2. NISHAD P.S., POTHEZHATHU HOUSE
3. VIJAYALAKSHMI T.V., POTHEZHATHU HOUSE
Vs
1. THE DEPUTY TAHSILDAR (RR)
... Respondent
2. DEPUTY LABOUR COMMISSIONER & APPELLATE
3. MATHEW, S/O.JOSEPH
For Petitioner :SRI.E.K.NANDAKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :08/01/2009
O R D E R
S.SIRI JAGAN, J.
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W.P.(C).No.11376 of 2008
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Dated this the 8th day of January, 2009
J U D G M E N T
The petitioners are legal heirs of the deceased employer in shop
appeal No.1/2001 before the 2nd respondent. Although notice was
served by the petitioner in the shop appeal, and an advocate had been
engaged, according to the petitioners, the Advocate did not properly
take steps to contest the matter effectively and as a result, the
employer had been proceeded with ex parte and the employer was
directed to pay an amount of Rs.92,300/- to the 3rd respondent as
compensation for alleged illegal termination from service. The
petitioner submits that there was no laches on the part of the
petitioner-employer in the shop appeal, who is no more. It is because
the Advocate did not inform the predecessors-in-interest of the
employer in time, they could not effectively contest the appeal.
According to the petitioners, there was no illegal termination from
service and if the employer had a proper opportunity to defend the
cade, he could have proved the same by adducing appropriate
evidence. The petitioners, therefore, seek the following reliefs:
“(i) call for the records leading to Ext.P1 order and to quash the
same by issue a writ of certiorari;
w.p.c.11376/08 2
(ii) issue a writ of mandamus or other appropriate writ order or
direction directing the 2nd respondent to consider the matter
afresh and pass orders in accordance with law after affording the
petitioners an opportunity of hearing;
(iii) issue a writ of mandamus or other appropriate writ order or
direction, directing the respondents 1 and 2 not to disburse any
amounts to the 3rd respondent.
(iv) grant a stay of operation of Ext.P1 order and P2 notice issued
pursuant thereto and to direct the respondents 1 and 2 not to
disburse any amounts to the 3rd respondent, pending disposal of
the Writ Petition.”
2. Although notice was taken out by special messenger to the
3rd respondent, the same was returned stating that he had sold the
house in the address in which notice was taken out years ago and his
present address is not known. In spite of the Village Officer making
necessary enquires as directed by this Court, the present address of
the 3rd respondent could not be ascertained. In the above
circumstances, the petitioner was permitted to take out notice by
substituted service and accordingly notice was published in the
newspapers as directed by this Court. In spite of the same, there is no
appearance on behalf of the 3rd respondent. Therefore, this writ
petition is being heard and disposed of.
3. After hearing the petitioner, I am satisfied that the
petitioners should be given another opportunity to contest the matter
on merit. Accordingly, Ext.P1 order is set aside and the 2nd respondent
is directed to re-adjudicate the shop appeal afresh after affording an
w.p.c.11376/08 3
opportunity to the petitioners to implead themselves as legal
representatives of the deceased employer and to contest the matter on
merits.
The writ petition is disposed of as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge