IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 802 of 2010()

1. KERALA SMALL INDUSTRIES DEVELOPMENT

... Petitioner

Vs

1. DISTRICT LABOUR OFFICER,

... Respondent

2. N.M.THAMPI, S/O.MATHAI, NALIYATH

For Petitioner :SRI.JOSEPH KODIANTHARA (SR.) For Respondent : No Appearance

The Hon'ble MR. Justice A.K.BASHEER

The Hon'ble MR. Justice P.Q.BARKATH ALI

Dated :26/05/2010

O R D E R

A.K. BASHEER & P.Q. BARKATH ALI, JJ.

------------------------------------------------------ W.A.802 & 806 of 2010

------------------------------------------------------ Dated: MAY 26, 2010

JUDGMENT

Basheer, J.

These two appeals unravel yet another instance of callous apathy that an employee had to face at the hands of a Government owned company. It appears that the appellant/company now wants to redeem its prestige and show the employee that it means business. But at whose cost? Definitely it cannot be at the cost of the employee.

2. Shorn of unnecessary details, the relevant facts which led to this prolonged litigation may be briefly noticed. Respondent No.2 who joined the service of the company as Welder Gr.III way back in 1979 faced disciplinary proceedings on the charge that he had abstained from duty without permission. His services were terminated. Ultimately he was ordered to be reinstated in service with backwages. But it is on record that the punishment imposed on the employee was confined to barring of one increment with cumulative effect from the date of imposition of punishment. Be that as it may, the employee came back in service and superannuated on May 31, 2001. It is conceded by the appellant that the employee  W.A.802 & 806 of 2010

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was entitled to backwages and other service benefits from March 7, 1983 to October 10, 1990 in the scale of pay applicable to him with consequential grade promotions. It is also not in dispute that he was entitled to the difference in backwages from October 1990 till the date of his superannuation, apart from gratuity for the entire length of his service viz. 22 years.

3. According to the appellant, the employee was given promotion as Gr.II Welder with effect from September 27, 1986 and to the cadre of Gr.I with effect from September 27, 1996. But the grievance of the employee was that even after reinstatement he was not paid salary in the grades applicable to him.

4. Therefore in the year 2005, the employee filed an application under sec.33C(2) of the Industrial Disputes Act (for short, the Act) before the Labour Court for computation of the monetary benefits which were due to him. A copy of the said application is available on record as Ext.P4. In this application the employee cited the case of one of his erstwhile colleagues viz. Sri Gopalakrishnan who retired as Gr.I Welder and contended that he also was eligible to get the same scale of pay and other service benefits as were paid to Sri Gopalakrishnan. It was on that basis that the employee contended that he was entitled to get a total sum of Rs.2,74,000/- towards difference in wages apart from balance gratuity for 22 years. The  W.A.802 & 806 of 2010

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claim was allowed in toto by the Labour Court by its order dated September 28, 2005 as is revealed from a copy of the order which is available on record as Ext.P5 and the appellant/employer was directed to pay the amount with 9% interest thereon from the date of order till the date of realisation.

5. The present round of litigation started in the above background. The employee filed Writ Petition (C) No.33549/2009 complaining that the order of the Labour Court was being willfully disobeyed by the appellant. He therefore prayed for issue of a writ of mandamus or such other appropriate writ or direction to the Government and the Revenue Authorities to recover the entire amounts due under the order passed by the Labour Court and deposit the same before the Labour Court for disbursement to him.

6. Close on the heels of this writ petition the appellant filed Writ Petition (C) No.36731/2009 seeking to quash Ext.P5 order passed by the Labour Court, contending inter alia that the said order was ex- facie illegal, vitiated and without jurisdiction. Various other contentions were raised by the appellant in support of its plea that the former employee was not entitled to the amounts claimed in his application under sec.33C(2) of the Act. But the main plank of the attack raised against Ext.P5 order was that the appellant was prevented from contesting the case before the Labour Court since its  W.A.802 & 806 of 2010

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counsel happened to be suffering from some cardiac ailment and therefore he could not effectively project the case of the appellant before the Labour Court.

7. The two writ petitions were disposed of by a learned Single Judge holding that the claim made by the employee was wholly justifiable and that the contention now raised by the appellant that it was prevented from contesting the case because of the ailment of its counsel cannot be countenanced at this belated stage.

8. Sri Joseph Kodianthara, learned Sr. Counsel who appears for the appellant, submits that even on the face of the failure of the appellant to contest the case before the Labour Court, it ought to have been ensured by the Court concerned that the order that it passed did not suffer from any legal infirmity. It is contended by the learned Sr. Counsel that the claim made by the former employee of the appellant could not have been entertained under sec.33C(2)of the Act for the simple reason that the claim called for adjudication of an issue which the Labour Court could not have entertained under sec.33C(2)of the Act. In this context learned Sr. Counsel invites our attention to a decision of Their Lordships of the Supreme Court in D.Krishnan and another v. Special Officer, Vellore Co-operative Sugar Mill and another (2008) 7 SCC 22. He also draws our attention to yet another decision of a learned Single Judge of this Court in Divisional Personnel Officer,  W.A.802 & 806 of 2010

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Southern Railway v. Kamalam and others (1988 (2) KLT 835).

9. It is trite that the power and jurisdiction exercisable by the Labour Court under sec.33C(2)of the Act is well delineated and defined. As has been indicated by us earlier, the employee in his application had claimed certain benefits with a request to treat him on par with the case of a former colleague of his (Sri Gopalakrishnan) who retired from service as Gr.I Welder. The case of the employee appeared to be that by virtue of the order of reinstatement, he was entitled to get all service benefits including grade promotions which fell due from time to time. The contention of the employee was that he was entitled to have been promoted as Welder Gr.I before his superannuation and thus all service benefits that were paid to Sri Gopalakrishnan ought to have been paid to him also.

10. It is pointed out by Sri Gopakumar, learned counsel for the employee, that the only prayer in the claim petition was that the benefits payable to him be computed in terms of the order of reinstatement passed in his favour and he did not ask for anything more. Learned counsel invites our attention to Ext.P3 judgment of this Court in which it was made explicit that the employee should be given all service benefits treating him as though he had been in continuous service from the date of expulsion till the date of reinstatement, except the bar of one increment with cumulative effect.  W.A.802 & 806 of 2010

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We do not propose to deal with this issue at this stage in view of the order that we propose to pass.

11. We are quite aware of the predicament and heartburn of the employee who is before us. As has been noticed already, he superannuated about nine years back. He had to remain out of service for quite a number of years before he was reinstated in service. It is true that he had been paid sec.17B wages. But learned counsel submits that the scar that is left behind by the treatment meted out to him by his former employer still remains unhealed. The impugned order passed by the Labour Court reveals that the appellant was set ex parte and that the claim made by the former employee was allowed in its entirety only because the application was not contested by the appellant. This flaw in the impugned order has to be corrected. But any opportunity that is to be given to the appellant will entail the necessary consequences. We are satisfied that the appellant can be given an opportunity to salvage the situation to the extent possible, without causing any further heartburn to the employee concerned.

12. Thus, having regard to the entire facts and circumstances, particularly the fact that Ext.P5 order had been passed by the Labour Court without a proper adjudication of the issue, persuades us to direct the Labour Court to decide the question of jurisdictional  W.A.802 & 806 of 2010

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competence to pass orders on Ext.P4 application filed by the employee under sec.33C(2)of the Act. We have kept in view the decision of the Apex Court in Krishnan's case (supra) also.

13. Therefore Ext.P5 order is set aside on the following terms: a) The appellant shall pay a sum of Rs.25,000/- as cost to respondent No.2 within one week from today. The cost shall be paid by way of a demand draft drawn in favour of respondent No.2 and the same shall be handed over to Sri Gopakumar, learned counsel who appears for him. b) The appellant shall deposit 75% of the amount awarded in Ext.P5 order before the Labour Court within six weeks from today.

The Labour Court shall dispose of Ext.P4 application strictly on its merit and in accordance with law, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Needless to mention, the Labour Court shall afford sufficient opportunity, not only to the appellant, but to respondent No.2 also, to adduce further evidence in support of their contentions. A.K. BASHEER, JUDGE

P.Q. BARKATH ALI, JUDGE

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mt/-