IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1327 of 2008()
1. THE TRIVANDRUM SARVODAYA SANGH
... Petitioner
Vs
1. THE DEPUTY LABOUR COMMISSIONER
... Respondent
For Petitioner :SRI.T.RAJASEKHARAN NAIR
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :26/06/2008
O R D E R
H.L.DATTU, C.J. & A.K.BASHEER, J.
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W.A.No.1327 of 2008
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Dated, this the 26th day of June, 2008
JUDGMENT
H.L.Dattu, C.J.
This writ appeal is directed against the orders passed by
the learned Single Judge in W.P.(C) No.15832 of 2008 dated 28th May,
2008. The learned Single Judge has declined to entertain the writ
petition.
2. The issue in this writ appeal lies in a very narrow
compass.
3. The petitioner in the writ petition filed under Article
226 of the Constitution, had called in question Ext.P5 order passed by the
Deputy Labour Commissioner and Secretary, State Advisory Contract
Labour Board, Thiruvananthapuram dated 22-11-2007. By the impugned
order, the Deputy Labour Commissioner had directed the petitioner to
pay a sum of Rs.23,535/- towards arrears of subsistence allowance
payable under the provisions of the Kerala Payment of Subsistence
Allowance Act, 1972 read with the Kerala Payment of Subsistence
Allowance Rules 1974.
W.A.No.1327/2008 -2-
4. Before the learned single Judge the one and the only
contention that was canvassed by the petitioner is that the 2nd respondent
is not a workman, that he is working in the petitioner organization in the
managerial capacity and therefore, the provisions of the Kerala Payment
of Subsistence Allowance Act, 1972 is not applicable to the 2nd
respondent The learned Single Judge after going through Ext.P4
objection filed by the petitioner organization, has come to the
conclusion that, before the competent authority the petitioner had not
raised any contention with regard to the capacity in which the 2nd
respondent was working in the petitioner organization. The learned
Single Judge has also noticed that, for the first time such a contention is
raised in the writ petition. The learned Single Judge is of further
opinion that such a contention cannot be raised for the first time in a
petition filed under Article 226 of the Constitution. That only means
that, if for any reason, the petitioner organization was of the opinion that
the 2nd respondent is not a workman and he is not eligible or entitled for
subsistence allowance under the provisions of the Kerala Payment of
Subsistence Allowance Act, 1972, that contention should have been
raised at the initial stage, namely, before the Deputy Labour
Commissioner who is supposed to decide the facts.
W.A.No.1327/2008 -3-
5. We have also carefully perused Ext.P4 objection filed
by the petitioner organization to the claim made by the 2nd respondent. In
the objection statement so filed, there is not even an indication that the
2nd respondent was working in the petitioner organization in the
managerial capacity, and therefore, he is not entitled for payment of
subsistence allowance under the provisions of Kerala Payment of
Subsistence Allowance Act, 1972. In view of the above, in our opinion,
the learned Single Judge is fully justified in rejecting the writ petition
and thereby confirming the order passed by the Deputy Labour
Commissioner dated 22-11-2007. We do not see any reason to interfere
with the orders passed by the learned Single Judge. Accordingly, the
writ appeal requires to be rejected and it is rejected.
Ordered accordingly.
(H.L.DATTU)
CHIEF JUSTICE
(A.K.BASHEER)
JUDGE
MS