IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 7878 of 2004(K)
1. P. SREEKUMAR, S/O. LATE PADMANABHA
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. MANAGING DIRECTOR, KERALA STATE
3. THE LABOUR COURT, KOLLAM.
For Petitioner :SRI.R.S.KALKURA
For Respondent :SRI.M.A.MANHU, SC, SIDCO
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :21/11/2008
O R D E R
S.SIRI JAGAN, J.
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W.P(C).No.7878 of 2004
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Dated this the 21st day of November, 2008
J U D G M E N T
The petitioner along with 68 others were engaged as
provisional employees, during the years 1972 to 1974, by the 2nd
respondent, which is a company owned by the Kerala
Government. On appointment of PSC hands, the services of the
69 persons were terminated. The said 69 persons raised an
industrial dispute challenging that termination from service.
Ext.P1 award was passed directing the 2nd respondent to reinstate
the workmen without backwages. Some of the PSC hands
approached this Court challenging Ext.P1 award. In the
proceedings, ultimately in W.A.No.242/1982 by Ext.P3 judgment
a Division Bench of this Court without setting aside the award,
directed that in regard to the right of 69 workmen to continue in
office or in regard to seniority or in regard to the question of
future promotions, whenever there is a competition between the
69 workmen on the one hand and respondents 1 to 6 in that writ
appeal, who are regularly recruited by the Public Service
Commission on the other, the rights of respondents 1 to 6 have
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to prevail over the rights of the 69 workmen. After that some of
the provisional employees of the 2nd respondent filed a writ
petition before the Supreme Court, which was dismissed on
24.11.1983 rejecting their claim upholding the validity of the
appointments made through PSC with a direction to the PSC to
permit these provisional employees to appear in the next
recruitment process. Still thereafter, some of the 69 employees
through Union filed O.P.No. 6959/1987 before this Court seeking
implementation of the award. The petitioner was also represented
by the Union in the said proceedings. Ultimately the Union in
their representation dated 15.10.1987 informed the Government
that only 12 out of the 69 employees are to be reinstated as the
others had already secured employments in other various
establishments or went abroad. The petitioner was one among
the 12 persons. The Union also informed the 2nd respondent that
the Union is agreeable to settle the dispute amicably in a
conciliatory manner and the Union gave an undertaking before
this Court that only 12 employees need be taken by the SIDCO,
that too, without backwages. The petitioner also filed an
undertaking to that effect. Pursuant thereto, the Government
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issued Ext.P7 offering the 12 persons reinstatement in service as
fresh recruits. Pursuant thereto, the writ petition was withdrawn.
Appointment order was issued to the petitioner. The same could
not be served on him since the appointment order was returned
with the postal endorsement that he is out of India. Therefore,
the appointment order was cancelled and that fact was published
in newspapers. Long thereafter, the petitioner filed
C.P.No.123/1990 before the Labour Court, Kollam, seeking
wages for the period from 1.10.1981 to 31.1.1987. That claim
petition was dismissed by Ext.P10. The petitioner is challenging
Ext.P10 in this writ petition.
2. According to the petitioner, the petitioner had agreed
to settle the matter by filing Ext.P6 undertaking, in which he
agreed only for reinstatement without any claim for backwages or
arrears of salary, but what has been offered to him, by Ext.P7, is
a reinstatement as a fresh recruit, which was not acceptable to
him. That being so, any proceedings based on Ext.P7, not in
accordance with Ext.P6 undertaking submitted by him, is not
binding on him. The petitioner, therefore, submits that his claim
under the award revives and he is, therefore, entitled to claim
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wages for the period subsequent to the date of coming into force
of Ext.P1 award.
3. I have considered the rival contentions in detail.
4. I am of opinion that it is too late in the day for the
petitioner to contend so. Admittedly his Union had filed a writ
petition for enforcement of the award which was withdrawn on
the basis of an amicable settlement arrived at between the
parties. It is true that in Ext.P6 undertaking the petitioner did
not agree for a reinstatement as a fresh recruit. But the fact
remains that on the basis of Ext.P7, the Union representing the
petitioner had withdrawn the writ petition filed for enforcement of
Ext.P1 award. It is also not disputed before me that pursuant to
Ext.P7, appointment orders were issued, which the petitioner did
not accept as he was abroad. If the petitioner did not agree with
Ext.P7, then he should have requested his Union to prosecute the
writ petition, which was actually withdrawn by the Union
accepting Ext.P7 offer. That being so, the petitioner is bound by
the decision of his Union and he cannot now take a different
stand apart from the stand of the Union, because he was
represented by the Union in the writ petition. Having withdrawn
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the writ petition filed for enforcement of Ext.P1 award, he cannot
now turn round and say that Ext.P1 revives and therefore, he is
entitled to claim wages in accordance with that award. Further
nothing prevented the petitioner from accepting the employment
and seeking the relief claimed by raising another dispute.
Obviously the petitioner had also obtained employment abroad
and he was not interested in the employment with the 2nd
respondent. Hence on equity also the petitioner is not entitled to
the discretionary remedy under Article 226 of the Constitution of
India. Therefore, I am not inclined to countenance the claim of
the petitioner and accordingly, the writ petition is dismissed.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
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