Iritty Range Kalluchethu Vyavasaya Thozhilali Sahakarana Sangham Ltd. v. Joseph

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY, THE 13TH DAY OF JANUARY 2017/23RD POUSHA, 1938 WA.No. 847 of 2013 (O) IN OP(LC).695/2011 ------------------------------------------- AGAINST THE JUDGMENT IN OP(LC) 695/2011 of HIGH COURT OF KERALA DATED 13-02-2013 APPELLANT/1ST RESPONDENT: --------------------------------------------- K.T.JOSEPH, S/O.THOMAS KUNNAMKULATH HOUSE, P.O.ANGADIKKADAVU, KANNUR DISTRICT - 670 706. BY ADVS.SRI.E.K.NANDAKUMAR (SR.) SRI.P.M.SATHEESH ## RESPONDENTS/PETITIONER & 2ND RESPONDENT: ------------------------------------------------------------------------ 1. IRITTY RANGE KALLUCHETHU VYAVASAYA THOZHILALI SAHAKARANA SANGHAM LTD., NO.C.1778, P.O.IRITTY - 670703, REPRESENTED BY ITS SECRETARY 2. LABOUR COURT KANNUR - 670 706. R1 BY ADV. SRI.M.SASINDRAN R2 BY GOVERNMENT PLEADER SRI.E.S.ASHRAF R BY ADV.SRI.P.V.SURENDRANATH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV **C.R.** ## **K.SURENDRA MOHAN & A.M.BABU, JJ. --------------------------------------------W.A.No.847 of 2013 ---------------------------------------------Dated this the 13[th] day of January, 2017** ## **J U D G M E N T** ## Surendra Mohan, J. The appellant challenges the judgment of the learned Single Judge in O.P.(LC).No.695 of 2011 dated 13.02.2013. As per the judgment appealed against, the learned Single Judge has set aside Ext.P3 order passed by the Labour Court, Kannur allowing Claim Petition No.17 of 2009 filed by the appellant. The appellant is a workman of the first respondent. The first respondent is a Cooperative Society registered under the provisions of the Kerala Cooperative Societies' Act, 1969. The appellant was suspended from service with effect from 08.08.2008. Later on, he was dismissed from service on 16.12.2009. His complaint is that, he was not paid any subsistence allowance for the period that he was under suspension. According to him, he was entitled to be paid subsistence allowance at the rate of 50% of his salary for the first three months and at the rate of 75% for the subsequent three months and full wages for the remaining period. Since he was drawing 5,700/- per month as wages, he claimed a total amount of₹ ₹84,075/-. Since the amount was not paid, the appellant approached the Labour Court, Kannur by filing a petition under W.A.No.847 of 2013 2 Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for short). 2. The first respondent contested the petition raising a number of objections. The main objection of the first respondent was that, the appellant having been dismissed from service, he was no longer an employee of the first respondent as defined by the Act. His remedy, therefore, was to raise an industrial dispute under Section 10 of the Act and to have the same adjudicated. The claim for subsistence allowance could also be raised only as part of such an adjudication. 3. Evidence was let in by both sides and the respective contentions were considered by the Labour Court. As per Ext.P3 award, the Labour Court found that the petition under Section 33C (2) was maintainable. On the quantum of the amount that was claimed by the appellant, the Labour Court found that there was no dispute and therefore, awarded the total amount of 84,075/- that₹ was claimed by the appellant, as subsistence allowance. Ext.P3 was the subject matter of challenge before this Court at the instance of the first respondent in O.P.(LC).No.695 of 2011. The learned Single Judge accepted the contentions of the first respondent and held that, the appellant having been dismissed from service, had ceased to be a workman as defined by Section 2(s) of the Act. Placing reliance on a decision of the Apex Court in _**M/s.Punjab Beverages**_ W.A.No.847 of 2013 3 _**Pvt. Ltd. v. Suresh Chand and Another [(1978) 2 SCC 144]**_ it is held that, the petition under Section 33C(2) was not maintainable at the instance of the appellant. It has also been held that, the proper remedy of the appellant is to raise an industrial dispute and to agitate his claim for subsistence allowance as part of the said dispute under Section 10 of the Act. The appellant attacks the said finding in this appeal. 4. According to the learned Senior Counsel Sri.E.K.Nandakumar, Section 33C(2) confers a valuable right on a workman to claim amounts that are due from an employer by approaching the Labour Court. If the judgment of the learned Single Judge is not set aside, it is contended that, the benefit of the statutory provision would be denied to a large section of workmen, which is not the legislative intent. According to the learned Senior Counsel, the observations made by the Apex Court in _**Punjab Beverages Pvt. Ltd.**_ 's case (supra) have been quoted out of context by the learned Single Judge to reach a wrong conclusion. Our attention has been drawn to other decisions on the point where the Apex Court has considered the scope of Section 33C(2) directly and held that the remedy available thereunder could be invoked to recover the subsistence allowance that remains unpaid. Further, according to the learned Senior Counsel, the appellant has been agitating his claim for subsistence allowance for the past many W.A.No.847 of 2013 4 years. Though the quantum of amount is not disputed, he has been denied the legitimate amount due to him, only on technical objections. He therefore contends that this is a fit case in which the first respondent is liable to comply with its statutory duty to pay subsistence allowance, without any further delay. We shall refer to the decisions relied upon by the learned Senior Counsel at the appropriate stage. 5. The learned counsel for the respondent on the other hand, points out that, even assuming that the petition under Section 33C (2) was maintainable before the Labour Court for the recovery of arrears of subsistence allowance, the Labour Court had no jurisdiction to decide the question for the reason that the first respondent was a Co-operative Society registered under the Cooperative Societies Act. Our attention is drawn to the decision of a Larger Bench of this Court in which it has been held that the remedy of a workman like the appellant herein for the redressal of the grievance was to invoke the statutory remedy provided under Section 69 of the said Act. In view of the above, it is contended that, the learned Single Judge was right in setting aside the award of the Labour Court. 6. The learned Senior Counsel who appears for the appellant responds to the above submission by pointing out that, no such contention was raised either before the Labour Court or before this W.A.No.847 of 2013 5 Court in the writ petition that was filed by the first respondent. 7. We notice that the said assertion is correct. However, the learned counsel for the first respondent draws our attention to the decision of the Apex Court in _**Harshad Chiman Lal Modi v. DLF Universal Ltd. and Another [(2005) 7 SCC 791]**_ to contend that, an objection regarding jurisdiction as to subject matter could be taken up at any time for the reason that, any such order passed by an authority would be a nullity. The learned Senior Counsel who appears for the appellant at this stage points out that, in the present case, the quantum of subsistence allowance claimed is not disputed. The dispute is confined to the proper remedy that ought to have been invoked by the appellant. In view of the above limited contention, it is pointed out that this Court in exercise of the power under Article 226 of the Constitution could grant the relief sought for, even assuming the award of the Labour Court to be invalid, instead of relegating the party to his statutory remedy under the Cooperative Societies Act, which is cumbersome and time consuming. The learned counsel points out that the workman has been running from pillar to post for the past more than eight years. Therefore, it is only appropriate that a quietus is given to the entire issue. The counsel also places reliance on a decision of the another Larger Bench of this Court to contend that in appropriate cases, writ could be issued to a Co-operative Society, where it is shown that there has W.A.No.847 of 2013 6 been violation of a statutory provision. 8. Heard. In the first place, it is necessary to consider whether the learned Single Judge was right in finding that the petition filed by the appellant for recovery of subsistence allowance under Section 33C(2) of the Act was not maintainable and that, his proper remedy was to raise an Industrial Dispute with respect to his dismissal from service and to agitate his claim in the said proceedings. We notice from a perusal of the judgment appealed against that the learned Single Judge has placed reliance on certain observations made by the Apex Court in _**Punjab Beverages Pvt. Ltd.**_ 's case (supra). We find that the issue involved in the said case was whether a workman was entitled to claim back wages for the period during which he was out of service, till the date of his dismissal. In the said case, the workman had been proceeded against on the basis of a charge sheet. The enquiry conducted against him found him guilty and he was dismissed from service. However, since an Industrial Dispute was pending before the Industrial Tribunal at Chandigarh, Section 33(2)(b) of the Act required the Management to obtain approval from the Industrial Tribunal for the action taken by it. Though an application for the purpose of obtaining such approval was submitted to the Industrial Tribunal, the same was later on dismissed as withdrawn. Since there was no approval for the action of dismissal taken by the W.A.No.847 of 2013 7 Management, it was contended by the workman that, he was entitled to be paid wages from the date of suspension, since there was no order of dismissal against him. For recovery of the said amount, he had filed an application under Section 33C(2) of the Act. In the said context, the Apex Court held that the condition regarding grant of approval was only procedural and that, it did not have the effect of invalidating the order of dismissal. Since the workman was already dismissed from service, the question as to whether such dismissal was invalid and was liable to be set aside and the further question as to whether he was entitled to claim back wages were matters that would have to be adjudicated in appropriate proceedings, challenging the dismissal itself. Therefore, the Apex Court held that the petition filed by the workman in the said case under Section 33C(2) of the Act was not maintainable. The learned Single Judge has relied on the observations of the Apex Court to hold that, the claim for subsistence allowance made by the workman in this case was also one that would have to be put forward in proceedings challenging his dismissal from service. The said finding is against the other decisions on the point where the scope of Section 33C(2) of the Act was considered by the Apex Court as well as this Court. ## 9. In _**National Buildings Construction Corporation Ltd. v. Pritam Singh Gill and Others [1972 LAB. I.C. 857 (V 5 C 163)]**_ 8 W.A.No.847 of 2013 _**= [AIR 1972 SC 1579]**_ , a three Judge Bench of the Apex Court considered the scope of Section 33C(2), and held that the remedy provided by the said provision was available to a workman, who was employed during the period in respect of which, he claimed relief even though he was no longer employed at the relevant time. Considering the scope of Section 33C(2), Dua, J. has held in paragraph 7 of the said judgment as follows : _“This section was enacted for the purpose of enabling individual workmen to implement, enforce or execute their existing individual rights against their employers without being compelled to have recourse to Section 10 by raising disputes and securing a reference which is obviously a lengthy process. Section 33-C of the Act has accordingly been described as a provision which clothes the Labour Court with the powers similar to those of an executing Court so that the workman concerned receives speedy relief in respect of his existing individual rights. The primary purpose of the section being to provide the aggrieved workman with a forum similar to the executing Courts it calls for a broad and beneficial construction consistently with other provisions of the Act, which should serve to advance the remedy and to suppress the mischief. It may appropriately be pointed out that the mischief which Section 33C was designed to suppress was the difficulties faced by individual workmen in getting relief in respect of their existing rights without having resort to Section 10 of the Act.”_ Thus, the Apex Court has held that, with respect to amounts due to W.A.No.847 of 2013 9 the workman during his period of employment, he was entitled to maintain a petition under Section 33C(2) of the Act. 10. In _**Managanese Ore (India) Ltd. v. Chandi Lal Saha and Others [AIR 1991 SC 520]**_ , the Apex Court had to consider whether Section 33C(2) could be invoked for recovery of minimum wages guaranteed to the workman. It was contended that, the Minimum Wages Act, contained a specific provision, namely Section 20, providing the means for recovering the minimum wages. Therefore, the workman was not entitled to invoke the remedy under Section 33C(2) of the Act. Repelling the said contention, Kuldip Singh, J. has in paragraph 17, held as under : _“17. In the present case there was no dispute regarding the rates of wages and it is admitted by the parties that the minimum rates of wages were fixed by the Government of India under the Act. The workmen demanded the minimum wages so fixed and the appellant denied the same to the workmen on extraneous considerations. Under the circumstances the remedy u/S.20 of the Act was not available to the workmen and the Labour Court rightly exercised its jurisdiction under S.33-C(2) of the Industrial Disputes Act, 1947.”_ ## 11. In _**Pappu v. Raja Tile and Match Works [1988 (1) KLT**_ _**476]**_ a Division Bench of this Court has held that an application under Section 33C(2) of the Act was maintainable for claiming bonus, though the Payment of Bonus Act, 1965 contained a W.A.No.847 of 2013 10 separate provision for recovery of the said amount. A Division Bench of this Court in _**Deepak Photos v. State of Kerala [2000 (3) KLT 511]**_ held that a claim for minimum wages was maintainable under Section 33C(2) of the Act. The above dictum has been followed by a Single Bench of this Court in _**G 4 S Security**_ _**Services (India) Pvt. Ltd. v. Satheesh Kumar [2010 (1) KLT**_ _**463].**_ W.A.No.501 of 2010 filed against the said judgment has been dismissed by another Division Bench of this Court by judgment dated 07.10.2016 confirming the said dictum. The scope of the remedy available under section 33C(2) of the Act as set out in _**National Buildings Construction Corporation Ltd.**_ 's case (supra) and another decision in _**A.K.Bindal and Another v. Union**_ _**of India and Others [(2003) 5 SCC 163]**_ was found by a two Judge Bench of the Apex Court to be in conflict with the decision in _**A.Satyanarayana Reddy and Others v. Presiding Officer, Labour Court, Guntur and Others [(2008) 5 SCC 280]**_ . Therefore, the question was referred to a Bench of three Judges. The same was considered by a Bench of three Judges, after referring to the decision in _**National Buildings Construction Corporation Ltd.**_ 's case (supra) as well as other cases. It has been held in the decision in _**A. Satyanarayana Reddy and Others v. Presiding Officer [AIR 2016 SC 4556] = [2016 (9) SCC 462]**_ that the remedy under Section 33C(2) would be available to a workman for W.A.No.847 of 2013 11 recovering all claims to which he was entitled to, during the period of his employment as a workman, irrespective of the fact that he has ceased to be a workman subsequently by virtue of dismissal from service or by some other means. Thus, the decision in ## _**National Buildings Construction Corporation Ltd. v. Pritam**_ _**Singh Gill and Others**_ (supra) has been reiterated and affirmed in the above decision also. The resultant position therefore is that, irrespective of whether the employee has been dismissed from service, he is entitled to invoke the remedy under Section 33C(2) for any claim to which he is entitled by virtue of his employment as a workman. In the light of the above pronouncements, the conclusion drawn by the learned Single Judge in this case that the petition filed by the appellant was not maintainable before the Labour Court under Section 33C(2) of the Act, is unsustainable and is therefore, set aside. 12. The learned counsel for the respondents has placed reliance on the decision of a Larger Bench of this Court in _**Chirayinkeezhu Service Co-operative Bank Ltd. v. Santhosh [2015 (4) KLT 163]**_ . In the said decision, this Court by a majority held that, in view of the remedy provided to an employee of a Cooperative Society by Section 69 of the Kerala Co-operative Societies Act, 1969, the provisions of Industrial Disputes Act, 1947 and the remedies provided by the said enactment stand excluded. It is W.A.No.847 of 2013 12 therefore contended that, the Labour Court in this case did not have the jurisdiction to entertain the petition filed by the claimant or to pass the award against which, the writ petition was filed. As rightly pointed out by the learned Senior Counsel, who appears for the appellant, no such contention was taken up by the first respondent before the Labour Court or before the learned Single Judge in the writ petition. The counsel for the first respondent has tried to salvage the situation by pointing out that the first respondent had taken up a ground in the objections filed before the Labour Court that the proceedings were not maintainable. However, there is no specific contention that, the remedy of the appellant was to invoke the jurisdiction under the Co-operative Societies Act, nor was any such contention pursued either during the trial or in arguments that followed before the Labour Court. There is no such ground in the writ petition filed before this Court also. However, the learned counsel for the first respondent contends that, in the case of objections regarding jurisdiction as to subject matter, even if no objection had been taken at the initial stages, it is permissible for the same to be advanced at any stage of the proceedings. This is for the reason that lack of jurisdiction regarding the subject matter would render the decision a nullity. The learned counsel places reliance on the decision of the Apex Court in _**Harshad Chiman Lal Modi v. DLF Universal Ltd. and Another [(2005) 7 SCC 791]**_ in W.A.No.847 of 2013 13 support of the above process. Speaking to the Bench, Pasayat, J. has summarized the position in paragraph 30 of the judgment as follows : _“Where a court has no jurisdiction over the subjectmatter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity.”_ The resultant position that emerges, therefore, is that though a petition under Section 33C(2) of the Act was perfectly maintainable for recovery of subsistence allowance at the instance of any other workman, since the first respondent is a Co-operative Society registered under the provisions of the Kerala Co-operative Societies, Act, 1969, in view of the Larger Bench decision in _**Chirayinkeezhu Service Co-operative Bank Ltd.**_ 's case (supra), the proper remedy of the appellant was to have invoked his remedy under Section 69 of the said Act. It is held so. 13. In the above context, the learned Senior Counsel Sri.E.K.Nandakumar points out that, subsistence allowance is payable to an employee during the period of suspension under Sub Rule 6 of Rule 198 of the Co-operative Societies Rules, 1969. The relevant Rule is extracted hereunder for convenience of reference : “ _(6) An authority competent to appoint an employee may suspend him pending enquiry into serious charges against such employee. No employee shall_ W.A.No.847 of 2013 14 _however be kept under suspension for a period exceeding six months at a time. In no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar. An employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972 (27 of 1973).”_ In view of the above, non payment of subsistence allowance due to the appellant was a statutory violation for which, the appellant is entitled to seek redressal from this Court, invoking the jurisdiction under Article 226 of the Constitution. Therefore, relegating the appellant to his remedy under Section 69 of the Co-operative Societies' Act would not be in the interests of justice, in the present case. Our attention is drawn to Ext.P3 award of the Labour Court to point out that, the first respondent had absolutely no dispute regarding the quantum of subsistence allowance that was claimed by the appellant. In view of the above, according to the learned counsel, it is only appropriate that this Court directs payment of the said amount within a specified time, in order to secure the ends of justice. The learned counsel places reliance on the decision of a larger Bench of this Court in _**Association of Milma Officers v. State of Kerala [2015 (1) KLT 849 (LB)]**_ wherein, the question as to whether Co-operative Societies registered under the Kerala Co-operative Societies' Act, 1969 were amenable to the writ W.A.No.847 of 2013 15 jurisdiction of this Court had arisen for consideration. Summing up the legal position, the Larger Bench has laid down in paragraph 19 of the judgment as follows : _“19. The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as nonfundamental rights. The words “Any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.”_ Therefore, in view of breach of a statutory duty to pay subsistence allowance, in the present case, it is only appropriate that the first respondent is directed to pay the said amount to the appellant. 14. In view of the authoritative pronouncements referred to above, we accept the submission made by the learned Senior Counsel. Consequently, it is necessary that a direction to pay the subsistence allowance to the workman is issued. In the result, it is ordered as follows : W.A.No.847 of 2013 16 1. The Writ Appeal is allowed. The judgment appealed against dated 13.02.2013 in O.P.(LC).No.695 of 2011, reported in _**Iritty Range Kalluchethu Vyavasaya Thozhilali Sahakarana Sangham Ltd. v. Joseph [2013 (3) KLT 5]**_ , is set aside. 2. The first respondent is directed to pay to the appellant the amount of 84,075/- found to be due and₹ payable to him by the Labour Court as per Ext.P3 award as subsistence allowance for the period of suspension from 08.08.2007 to 07.12.2009, within a period of one month of the date of receipt of a copy of this judgment by means of a Demand Draft drawn in favour of the appellant. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **A.M.BABU JUDGE** AV /True Copy/ P.A to Judge