India Coffee Board Workers Co-operative Society Ltd. No.4227, Thrissur v. State of Kerala & others (WP(C) No.22447/2012; CO(C) No.98/2019)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944 CON.CASE(C) NO. 98 OF 2019 ORDER DATED 29.10.2018 IN WP(C) 22447/2012 OF HIGH COURT OF** ## **KERALA** ## **PETITIONER/2ND RESPONDENT:** K.K.RAJESH, AGED 38 YEARS S/O KUMARAN, KADALIKKATTIL HOUSE, AVITTATHOOR P.O.,IRINJALAKUDA,THRISSUR. BY ADVS. DILEEP VARGHESE SMT.TESMY VARGHEESE ## **RESPONDENT/PETITIONER:** C.D.SURESH, AGED 38 YEARS S/O C DAMODHARAN, PRESENT SECRETARY REPRESENTING INDIAN COFFEE BOARD WORKERS CO-OPERATIVE SOCIETY LTD NO.4227 P.B.NO 184, THRISSUR-680001. BY ADV SRI.V.RAJENDRAN (PERUMBAVOOR) SRI JIMMY GEORGE, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2022, ALONG WITH WP(C).22447/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CO(C) No.98/2019 & WP(C) No.22447/2012 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944** **WP(C) NO. 22447 OF 2012** ## **PETITIONER:** INDIA COFFEE BOARD WORKERS CO-OPERATIVE SOCIETY LTD. NO.4227, THRISSUR, P.B.NO 184 PIN 680001 REP.BY ITS SECRETARY VARGHESE, S/O.THOMAS BY ADVS. V.RAJENDRAN (PERUMBAVOOR) GEORGE VARGHESE KIZHAKKAMBALAM RAHUL SURENDRAN ## **RESPONDENTS:** 1 STATE OF KERALA REP.BY PRINCIPAL SECRETARY DEPARTMENT OF LABOUR & REHABILITATION (A), SECRETARIAT THIRUVANANTHAPURAM 695001 2 K.K.RAJESH AGED 38 YEARS S/O.KUMARAN, KADALIKKATTIL HOUSE AVITTATHOOR P.O 680683, IRINJALAKUDA, THRISSUR 3 INDUSTRIAL TRIBUNAL PERUMEDU, IDUKKI DISTRICT 685531 BY ADVS. SRI.DILEEP VARGHESE SMT.TESMY VARGHEESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2022, ALONG WITH Con.Case(C).98/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CO(C) No.98/2019 & WP(C) No.22447/2012 3 ## **JUDGMENT** The writ petition has been revived by virtue of an order dated 24.07.2018 rendered in Writ Appeal No.1426 of 2018. Earlier vide judgment of this Court dated 09.08.2016, the Writ Petition was dismissed on the ground that the workman was an employee of the Co-operative Society and for claiming relief against the illegal retrenchment, the provisions of the Co-operative Society was required to be invoked. The Division Bench set aside the findings of the Single Bench by relying upon the judgment of the Supreme Court rendered in _**K.A.Annamma v. The Secretary, Cochin Cooperative Society Ltd.**_ [2018 (1) KLT 414], where it has been held that despite the fact that the workman was an employee of Co-operative Society, the remedy for claiming the relief under the Industrial Disputes Act cannot be denied. 2. Facts of the case : The 2[nd] respondent workman was employed as counter clerk from 18.02.1993 and while working in Pala Branch, had availed a loss of pay leave from 24.07.2006 to 31.10.2006 to look after his ailing mother. After having availed the aforementioned leave, submitted an application for extension by submitting a request from 01.11.2006 as evident from the courier CO(C) No.98/2019 & WP(C) No.22447/2012 4 receipt dated 23.10.2006, but the same was not accepted by the management. The petitioner reported for duty, but was dismissed from service without serving any charge sheet, enquiry or opportunity of hearing necessitating the petitioner to seek reference from the Government. While reference was sent to the Labour Court, it was registered as Industrial Dispute No.154 of 2010. On receipt of the aforementioned reference, Labour Court sent notice to the management. The management filed the written brief in advance following the claim statement of the workman, but thereafter did not appear and was proceeded exparte. Workman led the exparte evidence by submitting his statement as WW1 and brought on record Exts.W1 and W4 which included the letter of the committee dated 22.02.2007 and Services and Gratuity Rules. Labour Court on preponderance of the ex parte evidence found that it was a case of violation of provisions of Section 25 (F)of Industrial Disputes Act and ordered for reinstatement with full back wages. As noticed above, there was a ground of litigation resulting into revival of the Writ Petition. The Labour Court award is of 2011 whereby the workman was reinstated in 2009. The question which revolves before this Court is whether the workman would be entitled to full back wages with CO(C) No.98/2019 & WP(C) No.22447/2012 5 effect from 01.02.2007 or not. 3. Learned counsel for the petitioner Coffee Board submitted that there is no assertion or averment in the claim petition or in the affidavit filed by the workman regarding gainful employment or otherwise during the period he remained out of service. In support of the aforementioned contention, learned counsel has relied upon the judgment of the Hon'ble Supreme Court in _**Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and others**_ [(2013) 10 SCC 324], wherein it has been held that denial of the full back wages can be only supported and justified had there not been any pleadings on behalf of the workman. 4. On the other hand, learned counsel for the workman submits that in paragraph 38, the Supreme Court had laid down the guidelines, wherein it has been held that in cases of wrongful termination of service, reinstatement with continuity of service and backwages is the normal rule which is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct etc. and the employee whose services are terminated and desirous of getting CO(C) No.98/2019 & WP(C) No.22447/2012 6 back wages is required to either plead or at least make a statement before the adjudicating authority or the court. The statement of the petitioner that he remained out of job and was starving is sufficient requirement of law to overcome the ratio decidendi culled out in the judgment. 5. I have heard the counsel for the petitioner and appraised the paper book. 6. I am of the view that the award of the Labour Court with regard to the termination of the workman is fully justified as it is a clear cut case of violation of Section 25(F) of the Industrial Disputes Act. Even if the workman had remained absent and reported for duty, the management ought to have issued a charge sheet and held an enquiry. Thus it is a case of exploitation and cannot be construed to be a misconduct of the workman. 7. Now coming to the backwages, the conditions laid down in the judgment aforementioned are extracted hereinabove. _(i) The impugned award dated 10.8.2011 in I.D.No. 154/2010 passed by the Industrial Tribunal, Idukki [Ext.P-5 in W.P.(C).No. 22447/2012 and Ext.P-5 in W.P.(C). No. 17554/2016] is set aside. In case the workman in these case files requisite petition before the Co-operative Arbitration Court, Kozhikode, within a period of six weeks from the date of receipt of certified copy of this judgment, then the same shall be entertained on merits by the said court, without going into the issue of delay. However, if there is any delay on the part of the petitioner in preferring such application/petition before the aforementioned court within the stipulated time lime, then the condonation of such delay therefrom may be considered by that court based on the delay condonation application that may be submitted by the workman._ _(ii) The workman will be at liberty to make necessary application_ CO(C) No.98/2019 & WP(C) No.22447/2012 7 _for securing legal services, by approaching the Chairman/Secretary of the District Legal Services Authority, Kozhikode, by filing requisite application along with necessary materials, upon which, the same shall be processed and decided in accordance with law and as indicated in the previous portion of this judgment. (iii) Both the employer and the workman will be at liberty to submit their necessary pleadings as well as adduce evidence, documentary as well as oral._ _(iv)The Co-operative Arbitration Court, Kozhikode, will take all reasonable endeavours possible under the circumstances, to ensure that the main matter is disposed of without much delay, preferably within four months from the date of first appearance of both the parties, at any rate, within an outer time limit of six months from the date of first appearance of both parties before that forum._ _(v) The petitioner will forward a copy of this judgment to the competent village officer/revenue official concerned who is competent to issue the income certificate, along with his application for issue of income certificate._ _(vi) The Registry will forward a certified copy of this judgment to the Chairman/Secretary, District Legal Services Authority, Kozhikode for information and further action, if so required.”_ 8. The aforementioned principles are required to be followed conjunctively and not in isolation. There is no pleading on behalf of the workman that during the period he remained out of service was not gainfully employed. Even if the respondent management was ex parte, there has to be a specific pleading. Had there been a pleading, the adverse inference was liable to be drawn. But in the absence of the same, Labour Court ought not to have granted the backwages. Keeping in view of the attenuating circumstances, the workman had to undergo the rigmarole of litigation and was reinstated after the award dated 2011 only in 2019. 9. I am of the further view that this is a fit case where the award of the Labour Court is required to be modified by CO(C) No.98/2019 & WP(C) No.22447/2012 8 determining the back wages to the extent of 50% only. Writ Petition stands allowed in part. Contempt Petition in this view of the matter stands disposed of. Counsel for the workman submits that there has been a gap in not making the payment as determined under Section 17B. The petitioner management is directed to recoup all the losses within a period of one month and also pay the 50% backwages. In case the same is not disbursed, liberty is granted to revive the Contempt Petition. **Sd/-** **AMIT RAWAL JUDGE** csl CO(C) No.98/2019 & WP(C) No.22447/2012 9 ## **APPENDIX OF WP(C) 22447/2012** PETITIONER'S EXHIBITS |EXHIBIT P1|TRUE COPY OF RELEVANT PAGE OF DESABHIMANI| |---|---| ||DAILY DATED 25.02.08 WITH ENGLISH| ||TRANSLATION.| |EXHIBIT P2|TRUE COPY OF LETTER ISSUED TO 2ND RESPONDENT| ||BY THE PETITIONER ON 1.4.08 WITH ENGLISH| ||TRANSLATION.| |EXHIBIT P3|TRUE COPY OF LETTER ISSUED TO 2ND RESPONDENT| ||BY THE PETITIONER ON 11.7.08 WITH ENGLISH| ||TRANSLATION.| |EXHIBIT P4|TRUE COPY OF WRITTEN STATEMENT FILED BY THE| ||PETITIONER BEFORE THE 3RD RESPONDENT ON| ||3.12.2010 WITH ENGLISH TRANSLATION.| |EXHIBIT P5|TRUE COPY OF AWARD PASSED BY 3RD RESPONDENT| ||IN INDUSTRIAL DISPUTE NO.154/2010 DATED| ||10.8.2011.| |EXHIBIT P6|TRUE COPY OF LETTER SUBMITTED BY 2ND| ||RESPONDENT BEFORE THE PETITIONER ON| ||11.6.2012.| |EXHIBIT P7|TRUE COPY OF THE RELEVANT PAGES (FRONT PAGE| ||AND PAGE NOS.6 TO 9) OF THE SERVICE RULES OF| ||THE SOCIETY WITH ENGLISH TRANSLATION.| |EXHIBIT P8|TRUE COPY OF LEAVE APPLICATION FILED BY THE| ||2ND RESPONDENT ON 24.10.06 BEFORE THE| ||PETITIONER SOCIETY TOGETHER WITH ENGLISH| ||TRANSLATION.| |EXHIBIT P9|TRUE COPY OF LETTER ISSUED BY PETITIONER| ||SOCIETY TO THE 2ND RESPONDENT ON 6.11.06| ||TOGETHER WITH ENGLISH TRANSLATION.| |EXHIBIT P10|TRUE COPY OF LETTER SENT BY MANAGER, PALA| ||BRANCH OF COFFEE HOUSE TO THE SECRETARY ON| ||24.11.16 TOGETHER WITH ENGLISH TRANSLATION.| |EXHIBIT P11|TRUE COPY OF PETITION FILED BY 2ND RESPONDENT| CO(C) No.98/2019 & WP(C) No.22447/2012 10 BEFORE THE SECRETARY ON 2.2.07 TOGETHER WITH ENGLISH TRANSLATION. EXHIBIT P12 TRUE COPY OF LETTER SENT BY THE SOCIETY TO THE 2ND RESPONDENT ON 22.2.07 TOGETHER WITH ENGLISH TRANSLATION. EXHIBIT P13 TRUE COPY OF POSTAL ACKNOWLEDGEMENT CARD. EXHIBIT P14 TRUE COPY OF PETITION FILED BY THE 2ND RESPONDENT BEFORE THE DISTRICT LABOUR OFFICER, THRISSUR ON 4.10.18 TOGETHER WITH ENGLISH TRANSLATION. CO(C) No.98/2019 & WP(C) No.22447/2012 11 ## **APPENDIX OF CON.CASE(C) 98/2019** PETITIONER'S ANNEXURES ANNEXURE 1 A TRUE COPY OF THE ORDER IN WPC NO 22447/2012 DATED 29.10.2018