C. Pocker (deceased) and others v. Labour Court, Kannur & others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945 ``` ## **`WP(C) NO. 39181 OF 2015`** ## **`AGAINST THE ORDER/JUDGMENT CP 79/2012 OF LABOUR COURT, KANNUR`** ## **`PETITIONERS:`** ``` 1C. POCKER (DECEASED) 14/9,JESSIE ESTATE, PILAKKAVU PO, MANANTHAVADI, WAYANAD, NOW RESIDING AT CHEMBODAN HOUSE, MADRASSA QUARTERS, PO CHERUR, MALAPPURAM DISTRICT ``` ``` ADDL.P2NAFEESA, W/O. LATE POCKER, AGED 60 YEARS ``` ``` RESIDING AT CHEMBODAN HOUSE, MADRASSA QUARTERS, P.O.CHERUR, MALAPPURAM DISTRICT,PIN-676 304. ``` ``` ADDL.P3NAJEEB C, S/O. LATE POCKER, AGED 41 YEARS RESIDING AT CHEMBODAN HOUSE, MADRASSA QUARTERS, P.O.CHERUR, MALAPPURAM DISTRICT, PIN-676 304. ``` ``` ADDL.P4MUJEEB C, S/O. LATE POCKER, AGED 39 YEARS RESIDING AT CHEMBODAN HOUSE, MADRASSA QUARTERS, P.O.CHERUR, MALAPPURAM DISTRICT,PIN-676 304. ``` ``` ADDL.P5KOWLATH, D/O. LATE POCKER, AGED 37 YEARS RESIDING AT CHEMBODAN HOUSE, MADRASSA QUARTERS, P.O.CHERUR, MALAPPURAM DISTRICT,PIN-676 304. ``` ## `ADDL.P6 NAJMATH` ``` D/O. LATE POCKER, AGED 35 YEARS ``` ``` RESIDING AT CHEMBODAN HOUSE, MADRASSA QUARTERS, P.O.CHERUR, MALAPPURAM DISTRICT, PIN-676 304. ``` ``` LEGAL HEIRS OF THE SOLE PETITIONER IS IMPLEADED AS ADDITIONAL PETITIONERS P2 TO P6 AS PER ORDER DT.14/10/19 IN I.A.NO.2/2019 IN WP© ``` ``` BY ADVS. SRI.P.RAMAKRISHNAN ``` ``` WP(C) NO. 39181 OF 2015 ``` ``` 2 ``` ``` SRI.C.ANIL KUMAR SMT.ASHA K.SHENOY SRI.T.C.KRISHNA SMT.PREETHI RAMAKRISHNAN SRI.PRATAP ABRAHAM VARGHESE ``` ## **`RESPONDENTS:`** ``` 1LABOUR COURT, KANNUR PIN 670 001 ``` ``` 2N.K KHALID DIRECTOR, M.S, PARISONS ESTATES AND INDUSTRIES PRIVATE LIMITED,JESSIE ESTATE, MANANTHAVADI, WAYANAD 670 645 ``` ``` BY ADVS. SRI.C.P.MOHAMMED NIAS Srinath Girish P P.JERIL BABU(K/806/2009) PRASUDHA.S(MS/1274/2021) ``` ``` SR GP SRI JUSTIN JACOB ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 39181 OF 2015 ``` ``` 3 ``` ## **JUDGMENT** 1. The question involved in the present petition is when there is an order in favour of the petitioner vide award dated 17.12.2004 in I.D.No.10/1990 on account of non-payment of continuity of service and reinstatement, whether there is limitation to seek claim under provisions of Section 33(C)(2) of the Industrial Dispute Act or not, or, whether by lapse of time the claim had become stale. 2. In order to answer the question aforementioned, the facts in brief are as under: Sri.C.Pocker-Petitioner was an employee of erstwhile management namely Jessie Estate, Sri.Bhagavathy Tea Estate. While discharging the duty of workman his services were terminated on 16.11.1987 on account of having indulged into theft. Legal heirs of the petitioner have been impleaded as the petitioner during the pendency of the writ petition had died. I.D.10/1990 was filed before the Labour Court. Labour Court on the basis of the evidence and pleadings vide award dated ``` WP(C) NO. 39181 OF 2015 ``` ``` 4 ``` 17.12.2004 allowed the claim by ordering reinstatement and continuity of service with no back-wages. On 12.05.2005 through registered letter request was made to the employer – Jessie Estate for implementation of the award, but of no avail. 3. In the meantime, on 24.12.2004 Jessie Estate handed over the title to M/s.parisons Estates and Industries Pvt. Ltd., successor-in-interest with all liabilities. Since the subsequent management did not comply with the directions in the award of the Labour Court dated 17.12.2004, instituted a petition under Section 33(C)(2) dated 14.12.2012. The said petition vide impugned award dated 10.04.2015 Ext.P3 has been dismissed by holding it to be a stale claim. 4. Mr.Prathap Abraham Varghese, learned counsel appearing on behalf of the petitioner submitted that there is no provision in Article 137 of Limitation Act prescribing the period of three years as said provisions would apply only to Courts and not to the Industrial Tribunal. Judgment in AIR 1964 SC 743 was based on different facts ``` WP(C) NO. 39181 OF 2015 ``` ``` 5 ``` whereas following judgments ie., [1969 KHC 504 SC] titled as **Nityanand M.Joshi and Another** v. **The Life Insurance Corporation of India and Others** and [2010 KHC 400] titled as **South Indian Bank Limited** v. **Labour Court, Ernakulam and Others** are applicable to this case. Division Bench of this Court in **South Indian Bank Limited (supra)** noticing all the aforementioned provisions rejected the objection of the management qua limitation and held the claim within the period of limitation. Respondent – management had stepped into the shoes of erstwhile owner by adorning all the liabilities which cannot be permitted to be percolated by taking the objection of limitation. Besides the question of limitation there was no such plausible defence to belie the claim. 5. On the other hand, learned counsel appearing on behalf of the management submitted that if the claim is made after a gross delay it can be always termed to be stale as per the ratio decidendi culled out in **K.V.Joseph** v. **Peirce Leslie India, Ltd., And Others** [1991 SCC ONLINE KER 110] and in ``` WP(C) NO. 39181 OF 2015 ``` ``` 6 ``` **Union of India (UOI)** v. **Narayana M. and Others** [2002 (104(1)) BOMLR 848] wherein it has been held that application made after 18 years without any evidence was held to be not maintainable being barred by limitation or stale. 6. I have heard the learned counsel for the parties and appraised the paper book. 7. It would be appropriate to extract the relevant portion of the award of the Labour Court: X. I have carefully considered the rival contentions and the evidence on record. This case wherein the claim made by a workman under S.33C(2) of the Act is resisted by ne present management of an estate on various grounds. First contention raised by the second respondent who is the present management is that there is no employer-employee relationship between themselves and the petitioner. In my view, such a contention is devoid of merit on the simple reason that the petitioner who had litigation with the predecessor-ininterest of the second respondent has succeeded in obtaining an award in his favour for reinstatement with continuity of service in I.D. 10/90. Another contention raised by the contesting respondent is that they are not the successor-in-interest of the first respondent ``` WP(C) NO. 39181 OF 2015 ``` ``` 7 ``` management under whom petitioner was working as an employee. Learned counsel appearing for the second respondent has canvassed a contention in this behalf that the present management has purchased the property not from the first respondent but from M/s. Assam Brook Ltd, and hence they cannot be treated as the successor-ininterest of the first respondent. This contention is also liable to be discarded in view of the admission made by the second respondent that in W.A.1229 of 2001(C) filed by the Manager, Jessie Estate, Sri Bhagavathi Tea Estates Ltd. name of Assam Brooke Ltd. is shown in the cause title itself. XI. Now the question germane for consideration is whether the award in I.D. 10/90 is executable against the second respondent. Main contention raised by the second respondent is that they were not informed about the award by the petitioner and that the claim being made after the elapse of about 8 years has become a stale claim. According to the contesting respondent they have not received the alleged notice dated 12.5.2005 issued by the petitioner and that the failure of the petitioner to produce the postal acknowledgement card probabilise the case of the second respondent that the alleged notice may have returned unserved. It is further contended that though the petitioner was aware of the fact that M/s Assam Brook Ltd. has taken over the management of the estate notice seen issued to the name of Manager, Jessy ``` WP(C) NO. 39181 OF 2015 ``` ``` 8 ``` Estate which would go to show that there is suppression of material facts by the petitioner. In my view, there is no merit in the contention of the second respondent that no proper notice was issued by the petitioner regarding the award It is true that the alleged notice or a postal article was sent to the original management after the passing of the award through registered post. But from the facts and circumstances it can only be inferred that it reached the second respondent who purchased the estate prior to the issuance of the notice. The fact that notice issued to the original management from this Court in this case also reached the second respondent negative the contention of the second respondent that no proper notice by the petitioner after the passing of the award in I.D. 10/90. XII. According to the petitioner, in spite of receiving the notice dated 12.5.2005, present management failed to comply the award and hence he is entitled to get the benefits computed as per the award. On the other hand, it is contended on behalf of the second respondent that there is unreasonable delay in making the claim which will render it a stale claim incapable of execution. Hence the crucial question for determination is whether the claim made by the petitioner is a stale one. It is true that no period of limitation is prescribed for an application under Sec. 33C(2) of the Act. While upholding the legal position in this behalf in AIR 1964 SC 743 referred above, apex court observed that industrial ``` WP(C) NO. 39181 OF 2015 ``` ``` 9 ``` adjudications should not encourage unduly belated claims. In O.P.No. 7570/1987, High Court of Kerala vide judgment dated 29.11.1990 held thus: " **the petitioner claims rellef relating to the period 1973-74. The claim petition is filed in 1984. It is well- established principle of industrial law that Industrial Courts and Tribunals do not entertain stale claims. According to the Supreme Court decisions the maximum period for entertaining a stale claim is four years. This claim which is made after 10 years is hopelessly barred, as it is a state claim** ". 8. The stand of the respondent before the Labour Court was that the management had purchased the property in view of the fact that the entire labour issues between employees and erstwhile management had already been settled and there was no dispute pending, existing or persisting and denied to have received the notice of 2005 as it was addressed to the erstwhile management. Labour Court while holding the claim of the petitioner to be stale relied upon the judgment of the Supreme Court rendered in 1964. However, in the subsequent judgment in **Nityanand M.Joshi (** supra) while noticing the provisions of ``` WP(C) NO. 39181 OF 2015 ``` ``` 10 ``` Section 33(C)(2) and Rule 62(2) of the Industrial Dispute (Centre) Rules, 1957, it was held that the claim of the money or benefit capable of being computed in terms of money can be applied to the Labour Court in Form K.3 for the determination of the amount do not envisage any period. No doubt party cannot be permitted to perpetuate illegality in not approaching the court within a reasonable period. The reasonable period in the judgment cited by respondent has been limited to four years. The fact remains the petitioner now since deceased being represented by LRS had made request to the erstwhile owner on 12.05.2005. It cannot be faulted with as the erstwhile management for the reason best known may or may not have passed on the pre-existing liability to the present management ie., award dated 17.12.2004 rendered in I.D.No.10/1990. Only on acquiring the knowledge that the subsequent management had taken over, jurisdiction of the Tribunal was sought under Section 33(C)(2). Even the plain and simple language of Section 33(C)(2) do not restrict the claim to be preferred within a ``` WP(C) NO. 39181 OF 2015 ``` ``` 11 ``` ## specified time. ## 9. It would be appropriate to extract the relevant portion ## of the judgment rendered in **Nityanand M.Joshi** supra. 6. It is plain from the wording of sub-section (1) and subsection (2) of S.33C that the former sub-section deals with cases where money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter VA, while the latter subsection deals with cases where a workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money. In the present case applications were filed 'by the employees against the respondent for computing in terms of money the benefit of holidays and for recovering the amount. This case falls squarely within sub-s. (2) of S.33C. There is no award or settlement under which the benefit of holidays had already been computed. 7. It is true that sub-s. (2) of S.33C does not indicate the mode in which the question as to the amount of money due or as to the amount at which the benefit should be computed, may be decided. But the sub-section had left it to the rule-making authority to make a suitable provision. This is indicated by the expression "subject -to any rules that may 'be made under this Act" in sub-section (2) of S.33C. Rules have been made and R. 62(2) of the Industrial Disputes (Central) Rules, 1957, provides: "Where any workman or a group of workmen is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money the workmen or ``` WP(C) NO. 39181 OF 2015 ``` ``` 12 ``` the group of workmen, as the case may be, may apply to the specified Labour Court in Form K-3 for the determination of the amount due or, as the case may be, the amount at which such benefit should be computed. According to this rule an application in Form K-3 can clearly be made.” 10. The judgment relied upon by the respondent in **K.V.Joseph** (supra) was pertaining to a case where it was not based upon any order or award of the Labour Court but was for receipt of the amount as permissible under the rules. Noticing those provisions, it was held that such claims would definitely be stale as it would lead to a financial anarchy and chaos in the industrial field. Present case is not of such nature as there had already been a determination but the erstwhile management for the reason best known did not honour the same. 11. For the forgoing reason, I am of the view the award dismissing the claim of the petitioner is not sustainable, accordingly set aside. Petition under Section 33(C)(2) is allowed. Respondent management is directed to comply with the award dated 17.12.2004 rendered in I.D.No.10/1990 within a ``` WP(C) NO. 39181 OF 2015 ``` ``` 13 ``` period of two months from the date receipt of copy of the judgment and also disburse the consequential benefits, if any, due to the LRS of the deceased employee. Writ petition stands allowed. **Sd/AMIT RAWAL JUDGE** nak ``` WP(C) NO. 39181 OF 2015 ``` ``` 14 ``` ## **`APPENDIX OF WP(C) 39181/2015`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1 ``` ``` TRUE COPY OF CLAIM PETITION NO.79 OF 2012 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT LABOUR COURT ``` ``` EXHIBIT P2 ``` ``` TRUE COPY OF COUNTER-STATEMENT DATED 7/3/2013 FILED BY THE 2ND RESPONDENT IN C.P NO 79/2012 ``` ``` EXHIBIT P3 ``` ``` TRUE COPY OF ORDER DATED 10/4/2015 IN C.P NO 79/12 PASSED BY THE 1ST RESPONDENT LABOUR COURT ```