## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON**
**&**
## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR**
**FRIDAY ,THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940**
## **WA.No. 679 of 2019**
## **AGAINST THE ORDER/JUDGMENT IN WP(C) 22447/2012 of HIGH COURT of KERALA**
## **APPELLANT/S:**
**INDIA COFFEE BOARD WORKERS, CO-OPERATIVE SOCIETY LTD., NO.4227, THRISSUR, P.B.NO.184, PIN-680 001. REPRESENTED BY ITS PRESENT SECRETARY, C.D. SURESH, MOB.9349963098.**
**BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM**
## **RESPONDENT/S:**
**1 STATE OF KERALA, REPRSENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF LABHOUR AND REHABILITATION (A), SECRETARIAT, THIRUVANANTHAPURUAM-695 001. 2 K.K.RAJESH, AGED 44 YEARS, S/O KUMARAN, KADALIKKATTIL HOSUE, AVITTATHOOR P.O.-680 683, IRINJALAKUDA, THRISSUR. 3 INDUSTRIAL TRIBUNAL, PEERUMEDU, IDUKKI DISTRICT-685 531.**
**BY ADVS. SRI.DILEEP VARGHESE SMT.TESMY VARGHEESE**
## **OTHER PRESENT:**
**SR.GP SRI.P.N.SANTHOSH**
**THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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## **JUDGMENT**
## **P.R.Ramachandra Menon, J.**
The appeal is at the instance of the writ
petitioner management, a co-operative society who challenges Ext.P5 award passed by the Tribunal. The challenge in the writ appeal is in respect of the order
passed by the learned single Judge on 29.10.2018 in W.P.(C).No.22447 of 2012 directing the appellant/writ petitioner to satisfy the arrears payable under Section
17B of the ID Act to the 2[nd] respondent worker.
2. Heard Sri.V.Rajendran, the learned counsel
appearing for the appellant, Sri.Dileep Varghese, learned counsel appearing for the 2[nd] respondent worker and Sri.P.N.Santhosh, learned Government Pleader.
3. Normally, no appeal requires to be entertained, particularly, when it is preferred against an order under Section 17B of the ID Act. This is obviously for the reason that the law makers had introduced Section 17B to curb the attitude and approach of the
unscrupulous management in challenging the awards passed by the Labour Court/Industrial Tribunal in
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favour of the workman who does not have that much financial or such other capacity to face the challenge by the management and in protracting the relief from being extended to him. When the management is in a position to afford to the litigation, the worker may be facing absolute poverty and prejudice in pursuing the matter, despite the verdict already passed in his favour. It is with the said intent that the provision has been introduced, which is discernible from the provision itself as noted below:
“ **17B.Payment of full wages to workman pending proceedings in higher courts.-** Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court:
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Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.”
From the above, it is clear that the interest of
the worker is sought to be protected, by making available the 'last drawn salary'; once reinstated is awarded.
4. Now coming to the case in hand, the industrial
dispute between the worker and the management (pursuant to the order of dismissal) was the subject matter of
consideration before the Industrial Tribunal, where it
was numbered as I.D.No.154 of 2010. Though the
management entered appearance and filed written statement, it appears from Ext.P5, that they did not pursue the matter and were declared _ex parte_ . Evidence was tendered only by the worker. Based on the available materials on record, Ext.P5 Award was passed ordering reinstatement with full backwages. This is sought to
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be challenged by the appellant management. It is stated that the worker had filed a petition under Section 17B of the ID Act and an order was passed in the writ petition in favour of the worker and the appellant management was satisfying the same till 09.08.2016. Things took a different turn on that day, by virtue of the declaration of law by a Larger Bench of this Court as per the decision reported in **Chirayinkeezhu Service Co-operative Bank v. Santhosh [2015(4) KLT 163 (L.B)],**
whereby it was held that in the case of disputes involving co-operative societies, it was not possible
to have it agitated under the Industrial Disputes Act, but had to be pursued in terms of the Kerala Cooperative Societies Act, 1969. In view of the Larger Bench ruling, the writ petition filed by the appellant management was allowed by the learned single Judge, whereas the writ petition filed by the worker/claimant (W.P.(C).No.22447 of 2012) seeking to implement Ext.P5
Award was dismissed.
5. Some of the aggrieved parties had taken up the
matter (arising from the cause of action in some other cases) before the Apex Court and as per the verdict
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passed by the Apex Court in **K.A.Annamma v. The**
## **Secretary, Cochin Co-operative Society Ltd.[2018(1) KLT**
**414]** the law was declared in crystal-clear terms to the effect that the rights and liberties of the parties, particularly the workers and the Unions to pursue the remedy in terms of the ID Act cannot be watered down with reference to the provisions in the Kerala Cooperative Societies Act. It was accordingly, that the verdict passed by the Larger Bench of this Court in
**Chirayinkeezhu Service Co-operative Bank (supra)** was overruled on that point.
6. Having set the platform for pursing the matter further, the 2[nd] respondent/worker filed a Review Petition, which however was not entertained and it was dismissed by the learned single Judge. The 2[nd] respondent worker filed appeal W.A.No.1426 of 2018
challenging the original verdict passed by the learned single Judge along with a petition to condone the delay. Taking note of the sequence of events, the delay was condoned and the appeal was allowed by this Court[to which one of us (PRRM (J))was a member] as per judgment dated 24.07.2018. The operative portion of
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the said judgment is extracted below:
“6. In the said circumstances, we set aside the verdict passed by the learned Single Judge in the light of the verdict passed by the Apex Court (cited supra) and remit the matter to be considered afresh by the Single Bench as to whether the challenge against the award passed by the Industrial Tribunal is sustainable on other grounds, if any. The appeal stands allowed to the said extent. Considering the submission made by the learned counsel for the appellant that from 2006 onwards the appellant is out of employment and that no enquiry was conducted by the management, we find it appropriate to relegate the petitioner to raise all his grievances before the learned Single Judge and to have an early disposal of the matter.”
7. The learned counsel for the appellant submits
that, after restoration of the matter, they are complying with Section 17B and the writ petition is still pending. However, considering the better interest of both the sides, the appellant management has taken a decision to give employment to the worker, subject to the outcome of the writ petition and
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accordingly, an offer was made; pursuant to which the 2[nd] respondent has joined duty with effect from 01.03.2019. The learned counsel for the appellant submits that the 2[nd] respondent worker filed
I.A.No.1/2018 seeking for arrears of Section 17B wages, which came to be allowed by the learned single Judge as per order dated 29.10.2018, which is the subject matter of challenge in this appeal.
8. The case put up by the appellant management is that, there was no fault, lapse or any act on the part of the management in not satisfying Section 17B payment during the period from 09.08.2016 to 24.07.2018, as the writ petition filed by the appellant came to be allowed by the Larger Bench of this Court, which was the law at that point of time. Since the legal position was reversed by the Apex Court only as per **K.A.Annamma's case** (supra) and the matter was restored only on
24.07.2018, there cannot be a higher liability upon the
appellant to satisfy 17B from 24.07.2018 onwards. The
grievance is only with regard to the direction to pay lasts drawn wages for the period from 09.08.2016 to 24.07.2018. The learned counsel for the 2[nd] respondent
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submits that, as per the verdict passed by this Court, the writ petition came to be restored and as such it is liable to be treated as pending from 09.08.2016. Hence, the worker is entitled to have the arrears as well. In view of the particular facts and circumstances and the turn of events, whether the course sought to be pursued is correct or not is a matter which requires detailed scrutiny and consideration. In so far as the 2[nd]
respondent worker has now been permitted to work in the appellant's establishment and is continuing to do the duties as above and further since the writ petition is still pending consideration, it is for the parties concerned to raise all the contentions with reference to the relevant provisions of law and precedents before
the learned single Judge. It is open for the learned single Judge to have the same considered and to mould the relief in an appropriate manner, when the final verdict is passed. So as to facilitate such exercise, we find it appropriate to cause the order dated
29.10.2018 passed by the learned single Judge in W.P. (C)22447 of 2019 be kept in abeyance, till the matter
is finalized. All the contentions raised by the parties
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are left open. The appeal stands disposed of accordingly. It is made clear that we have not expressed anything with regard to the merit of the rival contentions.
DG
**Sd/P.R.RAMACHANDRA MENON JUDGE Sd/N.ANIL KUMAR JUDGE**
