Issac Pilathara v. Mangalam Publications India Pvt. Ltd. and Labour Court Kannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944** ## **WP(C) NO. 36543 OF 2009** ## **AGAINST THE ORDER/JUDGMENTCP 35/2005 OF LABOUR COURT, KANNUR** ## **PETITIONER:** ISSAC PILATHARA, S/O.MANUAL K., BETHAL HOUSE, P.O PILATHARA, KANNUR DISTRICT. BY ADV.P.M.SATHEESH (RELINQUISHED) ## **RESPONDENTS:** 1 THE MANAGING DIRECTOR, M/S.MANGALAM PUBLICATIONS INDIA PVT.LTD., S.H.MOUNT, KOTTAYAM. 2 THE OFFICE MANAGER M/S.MANGALAM PUBLICATIONS INDIA PVT.LTD., YOGASALA ROAD, KANNUR. 3 LABOUR COURT KANNUR. BY ADVS. SRI.DEVIDAS.U.K SRI.V.KRISHNA MENON - R1 SRI.E.K.MADHAVAN SMT.P.VIJAYAMMA SRI.C.N.PRABHAKARAN, SENIOR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 36543 OF 2009 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P. (C).No. 36543 of 2009** **---------------------------------------------Dated this the 16[th] day of Septermber, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(a) Call for the records leading to Exhibit P21 and quash or set aside the same;_ _(b) Issue a writ of mandamus or any other writ, order or direction, directing the Labour Court, Kannur to consider CP No.35/2005 on merit, adjudicate the issues therein and pass final orders thereon in accordance with law._ _(c) Pass such further orders or directions which this Hon'ble Court may be pleased to grant on the facts and circumstances of the case.”[SIC]_ 2. The main grievance of the petitioner is against Ext.P21 order passed by the Labour Court, Kannur in Claim Petition No.35/2005. When this writ petition came up for consideration, the Registry informed that the counsel appearing for the petitioner relinquished his vakalath as per the CMS data. There WP(C) NO. 36543 OF 2009 3 is no appearance for the petitioner and there is no fresh vakalath filed for the petitioner. When this writ petition came up for consideration on 14.09.2022, there was no representation for the petitioner. Therefore, this writ petition was posted today for hearing. Today also there is no representation. 3. Heard counsel appearing for the 1[st] respondent. 4. This Court perused Ext.P21 order. It is an order passed in a Claim Petition filed under Section 33C(2) of the Industrial Disputes Act. The Labour Court considered all the aspects in detail and found that the petitioner is not entitled for any of the benefits. The Labour Court considered the matter in detail in Paragraph 8 onwards in Ext.21 order. It will be better to extract the relevant portion of Ext.P21 order: _“8. Sec.33C(2) of the Industrial Disputes Act deals with cases of implementation of the individual rights of workmen falling under its provisions. The power of the Labour Court in a proceeding Under_ WP(C) NO. 36543 OF 2009 4 _Sec.33C(2) is akin to that of the executing court. Sec.33C(2) takes within its purview cases of workmen who claim that the benefit to which they are entitled should be computed in terms of money. Even though, the right to the benefit on which their claim is based is disputed by the employers, it is open to the Labour Court to interpret the award or settlement on which the workmen's right rests._ _In 1995 (I) LLJ 395 (Municipal Corporation of Delhi v.Ganesh Razak & Another) Paragraph 12 at page 400 the Hon'ble Supreme Court held as follows:_ _“Where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is therefore, clearly outside the scope of a proceeding under Sec.33C(2) of the Act. The Labour Court has no jurisdiction to first decide the workman's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Sec.33C (2) of the Act. It is only when the entitlement has been earlier adjudicated or recognized by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Sec.33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution.”_ WP(C) NO. 36543 OF 2009 5 _9. In AIR 1974 S.C.1604 (C.I.W.T Corporation v. Workmen) the Hon'ble Supreme Court held at para 12 as follows:-_ “ _it is now well-settled that a proceeding under Section 33C(2) is a proceeding, generaly, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workmen from his employer, or if the workmen is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit_ _in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for.”_ _10. So the above two decisions would indicate that there must be pre-existing right to the money or benefit which has been previously adjudged or otherwise duly provided for, in order to attract the provisions of Sec.33C(2) of the I.D. Act. The very claim of the workmen has been denied by the management. So it is not a mere case of calculation of the money due on an existing right. There is no award which has adjudicated the claim and the eligibility of the workmen to realise the amount from the respondents. Further there is Ext.D1 receipt in the handwriting of the workman which says that he had received the sum of Rs.25,000/- in full and final settlement of all his dues accrued claims with the management. In his own_ WP(C) NO. 36543 OF 2009 6 _handwriting on 16.11.1998 he stated that he has no further claim whatsoever against the management regard to his wages, bonus and other benefits such as gratuity etc. He has further assured in the receipt that he would not raise any claim in future also. The learned counsel for the workmen admits issuance of Ext.D1 receipt and payment of Rs.25,000/-. But he would say that is regarding the arrears of salary. But the wordings are otherwise. If the receipt is related to the arrears of salary only and there are further amount due to him that it has to be adjudicated in a properly referred Industrial dispute and on the outcome of an award, it is to be decided whether the petitioner is entitled to any amount from the management. This is a matter to be adjudicated first. So there is no existing right available with the workmen to file an application under Sec. 33C(2) of the I.D Act._ _11. The learned counsel for the workman has produced Exts.P1 to P5 and submits that the workmen is still in service these are matters which cannot be considered at this stage. I am not going into the case of the workmen that he is still a workmen under the management. The preliminary issue that has come up for hearing is whether there is an existing right available to the petitioner to claim the benefit. By an undertaking the workmen stated that he had no existing right and he had availed all his rights on receipt of a specific sum. When the liability to provide something else is disputed that is a matter which is to be adjudicated and in such circumstances this application is not maintainable under Sec. 33C (2) of_ WP(C) NO. 36543 OF 2009 7 _the Industrial Disputes Act and an adjudication on the benefits due is not warranted in an application under Sec. 33C (2) of the I.D Act.”_ In the light of the above discussion, I think the petitioner is not entitled for any relief. Therefore, this writ petition is dismissed. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO. 36543 OF 2009 8 ## **APPENDIX OF WP(C) 36543/2009** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE BACHAWAT AWARD. EXHIBIT P2 TRUE COPY OF MANISANA WAGE BOARD RECOMMENDATIONS. EXHIBIT P3 TRUE COPY OF THE CLAIM PETITION DATED 27/05/2005. EXHIBIT P4 TRUE COPY OF THE IMPLEMENTATION OF BACHAWAT AWARD AS PER THE MEMORANDUM OF SETTLEMENT DATED 25/01/1990. EXHIBIT P5 TRUE COPY OF THE IMPLEMENTATION OF MANISANA AWARD AS PER THE MEMORANDUM OF SETTLEMENT DATED 27/06/2001. EXHIBIT P6 TRUE COPY OF THE LAWYER NOTICE ISSUED TO THE 1ST RESPONDENT DATED 25/04/2005. EXHIBIT P7 TRUE COPY OF THE CIRCULAR NO.WB/34 DATED MAY 14, 1998 ISSUED BY THE INDIAN NEWS PAPER SOCIETY AS PER THE BACHAWAT WAGE BOARD AWARD. EXHIBIT P8 TRUE COPY OF THE CIRCULAR NO.WB/497 DATED FEBRUARY 12, 2001 ISSUED BY THE INDIAN NEWS PAPER SOCIETY AS PER THE MANISANA WAGE BOARD AWARD. EXHIBIT P9 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 1ST RESPONDENT IN CP 35/2005 BEFORE THE LABOUR COURT, KANNUR. EXHIBIT P10 TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER. EXHIBIT P11 TRUE COPY OF THE PETITION TO HEAR THE MAINTAINABILITY OF THE CLAIM PETITION IN CP 35/2005. EXHIBIT P12 TRUE COPY OF THE RECEIPT DATED WP(C) NO. 36543 OF 2009 9 16/11/1998. EXHIBIT P13 TRUE COPY OF THE COUNTER STATEMENT TO THE PETITION FILED BY THE PETITIONER TO HERAR THE MAINTAINABILITY OF THE CLAIM PETITION. EXHIBIT P14 A TRUE COPY OF THE LIST OF OFFICE BEARERS EXECUTED BY PRESS CLUB, KANNUR. EXHIBIT P15 TRUE COPY OF THE AUTHORITY LETTER EXECUTED BY THE DISTRICT ELECTION OFFICER, KANNUR. EXHIBIT P16 TRUE COPY OF THE LETTER EXECUTED BY THE MANAGING EDITOR, VARTHA MANGALAM DATED 25/11/2000. EXHIBIT P17 TRUE COPY OF THE CERTIFICATE ISSUED BY THE DIRECTOR, KERALA INSTITUTE FOR LOCAL ADMINISTRATION DATED 13/12/2004. EXHIBIT P18 TRUE COPY OF MANGALAM DAILY DATED 13/12/2004. EXHIBIT P19 TRUE COPY OF THE ORDER OF THE ASSISTANT PF COMMISSIONER, KOTTAYAM DATED 11/11/2005. EXHIBIT P20 TRUE COPY OF THE FINAL SETTLEMENT OF EPF PAYMENTS DATED 19/04/2006. EXHIBIT P21 TRUE COPY OF THE ORDER OF THE LABOUR COURT, KANNUR IN CP 35 OF 2005 DATED 06/08/2009. RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE