G. GOPALKRISHNA PILLAI (Proprietor, Divya Export Enterprises) v. K. Mohanan Pichinattu KizhaKkettil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN FRIDAY, THE 20TH DAY OF JULY 2012/29TH ASHADHA 1934 RP.No. 908 of 2011 ( ) IN WPC/11284/2011 ----------------------------------------AGAINST THE ORDER IN I.A.NO.8778 OF 2011 DATED 9.11.2011IN WPC.11284/2011 REVIEW PETITIONER(S)/PETITIONER/RESPONDENT IN THE IA/PETITION: ------------------------------------------------------------- G. GOPALKRISHNA PILLAI PROPRIETOR, DIVYA EXPORT ENTERPRISES, BHARANIKAVU SASTHAMKOTTA, KOLLAM. BY ADV. SRI.GEORGE JACOB (JOSE) RESPONDENT(S)/PETITIONER IN THE IA/2ND RESPONDENT IN T: ------------------------------------------------------- K. MOHANAN PICHINATTU KIZHAKKETHIL, ERUVA EAST, PATHIYOOR KARA KAYAMKULAM, NOW RESIDING AT, KURUMBOLIL VADAKKETHIL PALINJARIPPURAM, MATTAPPALLY, NOORANADU P.O. MAVELIKKARA. BY ADV.SMT.A.K.PREETHA THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 20-072012, ALONG WITH COC. 379/2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RP.No. 908 of 2011 ( ) IN WPC/11284/2011 ## APPENDIX PETITIONER(S) EXHIBITS ANNEXURE A : TRUE COPIES OF THE RELEVANT EXTRACT OF THE WAGES REGISTER DEPICTING THE LAST DRAWN WAGES OF THE RESPONDENT DURING THE MONTH OF FEBRUARY, 2005. ANNEXURE B : TRUE COPY OF THE RELEVANT PAGE OF THE MUSTER ROLL FOR THE MONTH OF FEBRUARY, 2005. RESPONDENTS' EXHIBITS :NIL ## **P.N.RAVINDRAN, J.** ## **-------------------------------------R.P. No.908 of 2011 --------------------------------------Dated this the 20[th] day of July, 2012** ## **O R D E R** This is an application filed by the respondent in I.A.No.8778 of 2011 seeking a review of the order passed on that application on 9.11.2011. 2. I.A.No.8778 of 2011 is an application filed by the workman (second respondent in the writ petition) under section 17(B) of the Industrial Disputes Act, 1947, herein after referred to as “the Act” for short, for an order directing the writ petitioner to pay to him arrears of last drawn wages at the rate of Rs.3,068/- per mensem from the date on which the writ petition was filed and to continue to pay the same till the disposal of the writ petition. He had averred in the affidavit filed in support of I.A.No.8778 of 2011 that at the time of termination of service he was drawing wages at the rate of Rs.118/- per day and calculated on that basis he is entitled to receive last drawn wages at the rate of Rs.3068/- per mensem. He had also alleged that ever since he was terminated from service, he is unemployed. 3. The review petitioner filed a counter affidavit contending inter alia that the work in cashew factories is seasonal in nature and therefore wages can be claimed only for 20 days per mensem. He had R.P. No.908 of 2011 -2- also stated that the workman is gainfully employed as a construction worker and that presently he is engaged in the construction of a residential house belonging to Sri.Farook. The workman filed a reply affidavit denying that averment. After considering the rival contentions, this Court allowed I.A.No.8778 of 2011 by order passed on 9.11.2011 and directed the writ petitioner to pay to the workman concerned, last drawn wages at the rate of Rs.3,068/- per mensem from 6.4.2011 onwards and to continue to pay the same pending disposal of the writ petition. This Court also directed that arrears for the period from 6.4.2011 till 30.11.2011 shall be paid on or before 10.12.2011 and payment for the succeeding months commencing from December, 2011 shall be made on or before the 10[th] of every succeeding English calendar month. 4. The writ petitioner has in the instant review petition sought a review of the aforesaid order mainly on the ground that the last drawn wages of the workman, when his service was terminated in February 2005, was Rs.1070.28 after the permissible deductions and therefore he is entitled to payment of last drawn wages only at the aforesaid rate. Reliance is placed on Annexure-A wages register and Annexure-B Muster Roll in support of the said contention. It is also contended that after the order under section 17 (B) of the Act was passed, a letter R.P. No.908 of 2011 -3- dated 6.12.2011 was sent to the workman calling upon him to rejoin duty within 7 days, subject to the outcome of the writ petition. 5. I heard Sri.George Jacob, learned counsel appearing for the review petitioner and Smt. A.K.Preetha, learned counsel appearing for the respondent. Sri.George Jacob, the learned counsel appearing for the review petitioner contended that as the workman had drawn a total sum of Rs.1070.28, after permissible deductions, as wages in the month of February 2005 he cannot claim payment of any amount in excess of the said sum, in an application under section 17(B) of the Act. Relying on the decision on the Apex Court in **Dena Bank** v. **Kiritikumar T.Patel** (1998 LAB.I.C.578), the learned counsel contended that the expression “full wages last drawn” can not be interpreted to mean full wages which the workman would have drawn had he continued in service and therefore, as the workman had drawn only Rs.1070.28 as wages in February 2005, he is not entitled to claim anything in excess of the said amount in the absence of any evidence to prove his assertion that his last drawn wages was Rs.118/- per day corresponding to Rs.3,060/- per mensem. Per contra, the learned counsel appearing for the respondent workman contended that the expression “full wages last drawn” cannot be given a narrow meaning as contended by the employer and the entitlement of the workman to R.P. No.908 of 2011 -4- receive full wages last drawn by him cannot be restricted to Rs.1070.28 per mensem which was the wages drawn by him in February 2005. The learned counsel contended that for variety of reasons the workman may not have attended duty for 26 days in February 2005 and therefore, the wages drawn in February 2005 cannot be the yard stick to be adopted in determining the wages for March 2005 when he was denied employment. The learned counsel contended that even going by Annexure-A wages register the workman was entitled to receive Rs.90/- per day as wages, and therefore the stand taken by the review petitioner that the last drawn wages was Rs.1078.28 per mensem cannot be sustained. 6. I have considered the submissions made at the Bar by the learned counsel on either side. From a reading of the review petition, it is evident that the employer does not dispute the entitlement of the workman to claim the last drawn wages under section 17(B) of the Act. The finding of this Court that the workman is not gainfully employed is not under challenge in this review petition. Annexure-A wages register produced by the review petitioner discloses that the workman was being paid Rs.90/- per day during the week that commenced on 7.2.2005 and ended with 13.2.2005. The workman was dismissed from service by order passed on 13.1.2006 on the R.P. No.908 of 2011 -5- allegation that he was unauthorizedly absent from 26.3.2005 onwards. By the award which is under challenge in the writ petition, the Labour Court, Kollam set aside the order of termination from service and directed reinstatement of the workman with continuity in service, with 50% of back wages from 11.4.2005. The review petition proceeds on the basis that as the workman concerned was paid only Rs.1070.28 as wages after permissible deductions during the month of February 2005, he can claim only the said amount as last drawn wages under section 17(B) of the Act. In my opinion, the said contention is without any merit. The review petitioner has no case that as per the notification issued by the State Government under the Minimum Wages Act, 1948, a workman like the respondent in the review petition was not entitled to receive at the relevant time Rs.118/- per day as wages inclusive of allowances. In such circumstances, I find no reason to review the order passed by this Court on 9.11.2011 in I.A.No.8778 of 2011 directing the employer to pay the last drawn wages at the rate of Rs.118/- per day corresponding to Rs.3,060/- per mensem from 6.4.2011 onwards. That apart, it is also not in dispute that the workman has since rejoined duty on 14.12.2011 subject to the out come of the writ petition and is being paid wages at the current rates from that date. I accordingly hod that no grounds have been made R.P. No.908 of 2011 -6- out to review the order passed by this court on 9.11.2011 in I.A.No.8778 of 2011 in W.P.(C) No. 11284 of 2011. The review petition fails and is dismissed. No costs. SD/- **P.N.RAVINDRAN, JUDGE.** Rkc // true copy// PA to Judge