{"id":51032,"date":"2008-11-18T00:00:00","date_gmt":"2008-11-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-v-kunhikannan-vs-purushotham-goculdas-plywood-co-on-18-november-2008"},"modified":"2016-09-09T23:54:08","modified_gmt":"2016-09-09T18:24:08","slug":"m-v-kunhikannan-vs-purushotham-goculdas-plywood-co-on-18-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-v-kunhikannan-vs-purushotham-goculdas-plywood-co-on-18-november-2008","title":{"rendered":"M.V.Kunhikannan vs Purushotham Goculdas Plywood Co on 18 November, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
M.V.Kunhikannan vs Purushotham Goculdas Plywood Co on 18 November, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWA.No. 133 of 2006(D)\n\n\n1. M.V.KUNHIKANNAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. PURUSHOTHAM GOCULDAS PLYWOOD CO.,\n                       ...       Respondent\n\n2. THE LABOUR COURT,\n\n                For Petitioner  :SRI.P.M.PAREETH\n\n                For Respondent  :SRI.P.RAMAKRISHNAN\n\nThe Hon'ble the Chief Justice MR.H.L.DATTU\nThe Hon'ble MR. Justice A.K.BASHEER\n\n Dated :18\/11\/2008\n\n O R D E R\n                      H.L.Dattu,C.J. & A.K.Basheer,J.\n                      ------------------------------------------\n                              W.A.No.133 of 2006\n                      -------------------------------------------\n                     Dated, this the 18th November, 2008\n\n                                  JUDGMENT\n<\/pre>\n
H.L.Dattu,C.J.\n<\/p>\n
       The workman, calls in question the correctness of otherwise of the<\/p>\n
orders passed by the learned Single Judge in O.P.No.21529 of 1999, dated 30th<\/p>\n
September, 2005. By the impugned order, the learned Single Judge has set<\/p>\n
aside the orders passed by the Labour Court, Kannur in Claim Petition No.52<\/p>\n
of 1997, dated 22nd April, 1999.\n<\/p>\n
       (2) For the disposal of this Writ Appeal, a few facts requires to be<\/p>\n
noticed. They are as under.\n<\/p>\n
        (3) The workman was employed in the 1st respondent-organisation as a<\/p>\n
Clerk. He was denied employment. After failure of the conciliation<\/p>\n
proceedings, the workman had approached the State Government to make a<\/p>\n
reference of the dispute to the Labour Court, for adjudication and decision.<\/p>\n
Pursuant to the request so made, the State Government had referred the dispute<\/p>\n
to the Labour Court, Kannur.\n<\/p>\n
       (4)   After receipt of the point of dispute, the Labour Court had<\/p>\n
registered the same in I.D.No.116 of 1990.\n<\/p>\n
       (5) The Labour Court, after considering the claim and counter claim<\/p>\n
filed by the parties and the evidence on record, has come to the conclusion,<\/p>\n
that, there was denial of employment by the employer and, accordingly, has<\/p>\n
W.A.No.133 of 2006                      – 2 –<\/span><\/p>\n
directed the employer to reinstate the workman into service, but without<\/p>\n
back-wages. Aggrieved by the said award passed by the Labour Court, the<\/p>\n
employer and the workman were before this Court in O.P.No.3147 of 1992 and<\/p>\n
O.P.No.8082 of 1992 respectively.\n<\/p>\n
              (6) This Court, by its order dated 1st October, 1997, has rejected<\/p>\n
both the Original Petitions.\n<\/p>\n
              (7) After disposal of the Original Petitions, the workman had<\/p>\n
filed a Claim Petition before the Labour Court, Kannur under Section 33C(2)<\/p>\n
of the Industrial Disputes Act, 1947 (“Act” for short).<\/p>\n
              (8) In the claim petition filed, the workman had claimed the<\/p>\n
arrears of back-wages for the period from 1.3.1992 to 19.10.1997. The claim<\/p>\n
petition came to be served on the employer. The employer has filed his defence<\/p>\n
before the Labour Court. The primary defence that was raised before the<\/p>\n
Labour Court was, that, the workman was gainfully employed between<\/p>\n
1.3.1992 and 19.10.1997 and, therefore, he is not entitled for the arrears of<\/p>\n
back-wages. The Labour Court, after considering this aspect of the matter and<\/p>\n
also considering the date of denial of employment and the disposal of the<\/p>\n
Original Petition, has come to the conclusion, that, the workman is entitled for<\/p>\n
the arrears of back-wages for the period from 1.3.1992 to 19.10.1997 and,<\/p>\n
accordingly, has passed an order for payment of the arrears of back-wages for<\/p>\n
the aforesaid period with 12% interest till the date of payment.<\/p>\n
              (9) The employer, being aggrieved by the aforesaid order passed<\/p>\n
W.A.No.133 of 2006                     – 3 –<\/span><\/p>\n
by the Labour Court, Kannur in Claim Petition No.52 of 1997, was before this<\/p>\n
Court in O.P.No.21529 of 1999.\n<\/p>\n
             (10) The learned Single Judge has allowed the Original Petition<\/p>\n
and has set aside the orders passed by the Labour Court, Kannur. For allowing<\/p>\n
the Original Petition, the learned Single Judge, in his order, notices, that, the<\/p>\n
workman had not filed any petition under Section 17B of the Act. Secondly,<\/p>\n
there was no claim by the workman for reinstatement of the workman into<\/p>\n
service and lastly, that, the employer has closed his shutters some time in the<\/p>\n
year 2003. Accordingly, has set aside the orders passed by the Labour Court;<\/p>\n
but has observed, that, whatever amounts that have been paid to the workman<\/p>\n
during the pendency of the Original Petition, that would satisfy the claim of the<\/p>\n
workman. It is this order which is called in question by the workman in the<\/p>\n
present appeal.\n<\/p>\n
             (11) We have heard Sri.P.M.Pareeth, learned counsel, for the<\/p>\n
appellant and Sri.T.C.Krishna, learned counsel, for the 1st respondent.<\/p>\n
             (12)     Sri.P.M.Pareeth, learned counsel appearing for the<\/p>\n
appellant, would submit, that, merely because the workman had not filed any<\/p>\n
petition for Section 17B wages before this Court, it does not mean that the<\/p>\n
workman is not entitled for the arrears of back-wages for the period during<\/p>\n
which the workman was kept out of service. Secondly, the learned counsel<\/p>\n
would submit, that, since there was no interim order passed by this Court while<\/p>\n
entertaining the Original Petition, the workman was repeatedly making<\/p>\n
W.A.No.133 of 2006                      – 4 –<\/span><\/p>\n
representations before the employer to reinstate him in service and that request<\/p>\n
of the workman was not conceded by the employer only because of the<\/p>\n
pendency of the Original Petition. Further, the learned counsel would submit,<\/p>\n
that, at no point of time the workman was gainfully employed and his wife was<\/p>\n
working as an L.I.C. Agent and he was assisting her only, in her business.<\/p>\n
              (13) Per contra, Sri.T.C.Krishna, learned counsel appearing for<\/p>\n
the 1st respondent-employer, would submit, that, it was the specific case of the<\/p>\n
employer, both before the Labour Court and before this Court, that, the<\/p>\n
workman was gainfully employed and, therefore, not entitled for the<\/p>\n
back-wages for the period from 1.3.1992 to 19.10.1997.           Accepting this<\/p>\n
contention, according to the learned counsel, the learned Single Judge has<\/p>\n
refused to grant the reliefs sought for by the workman. Secondly, the learned<\/p>\n
counsel would submit, that, since the 1st respondent-employer has closed down<\/p>\n
his business, the workman is not entitled for the arrears of wages for the period<\/p>\n
between 1.3.1992 and 19.10.1997.\n<\/p>\n
               (14) In the writ petition filed by the employer, it is stated, that,<\/p>\n
the workman was an L.I.C.Agent and his Agency number was 2776. That only<\/p>\n
shows, that, the workman was gainfully employed during the period when he<\/p>\n
was out of service and, therefore, the Labour Court was not justified in<\/p>\n
granting the relief sought for by the workman in the Claim Petition filed under<\/p>\n
Section 33C(2) of the Act. It is further contended, that, since there was no<\/p>\n
interim orders passed by this Court, the workman was not prevented from<\/p>\n
W.A.No.133 of 2006                       – 5 –<\/span><\/p>\n
requesting the employer to reinstate him into service and since that was not<\/p>\n
done, the workman is not entitled to the relief that is granted by the Labour<\/p>\n
Court.\n<\/p>\n
              (15) The issue that requires to be considered by this Court is,<\/p>\n
whether the Labour Court was justified in allowing the Claim Petition filed by<\/p>\n
the workman in number 52 of 1997.\n<\/p>\n
              (16)   The admitted facts are, that, the workman was denied<\/p>\n
employment by the employer. Therefore, he had raised a dispute. The Labour<\/p>\n
Court has allowed the dispute and, thereafter, has directed the employer to<\/p>\n
reinstate the workman into service, without back-wages. Both the parties had<\/p>\n
filed Original Petitions before this Court, challenging the award. The Original<\/p>\n
Petitions were rejected by this Court. Merely because the workman did not file<\/p>\n
any application for 17B wages during the pendency of the Original Petition,<\/p>\n
that does not mean that the workman is not entitled to the arrears of<\/p>\n
back-wages during the period when he was kept out of service.<\/p>\n
              (17) The primary defence of the employer before the Labour<\/p>\n
Court was, that, the workman was gainfully employed as an L.I.C.Agent and,<\/p>\n
therefore, he is not entitled for any arrears of wages. This aspect of the matter<\/p>\n
is considered by the Labour Court and has answered the same as under:<\/p>\n
              “It is the further contention of the respondent that the<\/p>\n
       petitioner was gainfully employed during the relevant period.<\/p>\n
       According to RW1 that the petitioner was working as an LIC<\/p>\n
       Agent. But, there is no documents produced to prove the same.<\/p>\n
W.A.No.133 of 2006                       – 6 –<\/span><\/p>\n
       However, PW1 has admitted that his wife is an LIC agent and that<\/p>\n
       he had been helping her. That does not mean that the petitioner<\/p>\n
       was gainfully employed. It is true that he had been helping his<\/p>\n
       wife, being an LIC agent, ever since she became LIC Agent which<\/p>\n
       is inclusive of the period in question. So for that entire period the<\/p>\n
       management had not taken it as a ground to reduce his salary. So<\/p>\n
       there is no evidence to show that the petitioner was gainfully<\/p>\n
       employed during the relevant period”.<\/p><\/blockquote>\n
              (18) A perusal of the said paragraph would clearly indicate, that,<\/p>\n
it is not the workman who was employed as an L.I.C.Agent; but his wife was<\/p>\n
employed as L.I.C.Agent. This only shows, that, the workman was not<\/p>\n
employed gainfully during the period when he was kept out of service.<\/p>\n
Therefore, the contention canvassed by the employer before the Labour Court<\/p>\n
has been, rightly, rejected by the Labour Court. We do not take any exception<\/p>\n
to the finding of the Labour Court in this regard,for the simple reason, that, the<\/p>\n
said finding is based on the evidence that was adduced before the Labour Court<\/p>\n
and the said finding of the Labour Court by no stretch of imagination, can be<\/p>\n
said as a perverse finding.\n<\/p>\n
              (19) It is no doubt true, that, the 1st respondent herein has closed<\/p>\n
down his business some time in the year 2003. But, when the orders were<\/p>\n
passed by the Labour Court in I.D.No.116 of 1990 and also in the Claim<\/p>\n
Petition filed, in number 52 of 1997, disposed of on 22nd April, 1999, the<\/p>\n
employer was doing business and, therefore, the subsequent event, that, the<\/p>\n
employer has closed down the business, would not come to the aid of the<\/p>\n
W.A.No.133 of 2006                      – 7 –<\/span><\/p>\n
employer to deny the claim made by the workman, for the past period when it<\/p>\n
was in existence and actively doing its business. This aspect of the matter ought<\/p>\n
to have been kept in view by the learned Single Judge while allowing the<\/p>\n
Original Petition filed by the employer. Since that has not been done, we<\/p>\n
cannot sustain the orders passed by the learned Single Judge.<\/p>\n
             (20) Accordingly, we pass the following:-\n<\/p>\n
                                     Order<\/p>\n
      (i)    The Writ Appeal is allowed.\n<\/p>\n
      (ii)   The impugned order passed by the learned Single Judge, in<\/p>\n
O.P.No.21529 of 1999 dated 30.09.2005, is set aside.<\/p>\n
      (iii)  The order passed by the Labour Court, Kannur, in Claim Petition<\/p>\n
No.52 of 1997, dated 22.04.1999, is restored.\n<\/p>\n
      (iv) In view of the orders passed in the Writ Appeal, no orders need be<\/p>\n
passed in I.A.No.654 of 2008 and the same is, accordingly, closed.<\/p>\n
             Ordered accordingly.<\/p>\n
\n\n\n\n                                                      H.L.Dattu\n                                                    Chief Justice\n\n\n\n\n                                                    A.K.Basheer\nvku\/dk                                                 Judge\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court M.V.Kunhikannan vs Purushotham Goculdas Plywood Co on 18 November, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-51032","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nM.V.Kunhikannan vs Purushotham Goculdas Plywood Co on 18 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-v-kunhikannan-vs-purushotham-goculdas-plywood-co-on-18-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.V.Kunhikannan vs Purushotham Goculdas Plywood Co on 18 November, 2008 - 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