Kerala Electrical and Allied Engineering Co. Ltd. v. G. Muraleedhran Pillai and The Labour Court, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **& THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **FRIDAY, THE 6TH DAY OF DECEMBER 2013/15TH AGRAHAYANA, 1935** ## **WA.No. 1677 of 2013** **----------------------------[AGAINST THE JUDGMENT DATED 06/09/2013 IN W.P.(C) 24077/2006 OF THIS HON'BLE COURT]** **..................** ## **APPELLANT/PETITIONER:** **-------------------------------------** **KERALA ELECTRICAL AND ALLIED ENGINEERING CO. LTD., MAMALA, COCHIN-682 305, REP.BY ITS MANAGING DIRECTOR.** **BY ADV. SRI.ASOK M.CHERIAN.** ## **RESPONDENTS/RESPONDENT:** **---------------------------------------------** ## **1. G.MURALEEDHRAN PILLAI,** **ANIL BHAVANAM, ELAMPALLOOR, KUNDARA P.O - 691 501.** **2. THE LABOUR COURT, ERNAKULAM - 682 031.** **R1 BY SRI.T.A.SHAJI, SENIOR ADVOCATE, ADV. SRI.M.A.ASIF.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29-11-2013, THE COURT ON 06-12-2013 DELIVERED THE FOLLOWING:** **Prv.** ## **T.R.RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.A.No. 1677 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 6TH DAY OF DECEMBER, 2013** ## **JUDGMENT** ## Ramachandran Nair, J. The legality of Ext.P8 order of the Labour Court in a petition filed under Section 33C(2) of the Industrial Disputes Act, 1947 (for short 'the Act') was under challenge in the writ petition at the hands of the appellant herein. The learned Single Judge dismissed the same. 2. We heard learned counsel for the appellant, Shri Asok M. Cherian and Shri T.A. Shaji, learned Senior Counsel appearing for the first respondent. 3. Shri Asok M. Cherian, learned counsel for the appellant submitted that the entire issue turns on the scope of the judgments, Exts.P1 and P2 between the same parties. It is submitted that the first respondent was engaged to drive an Ambassador car from 11.6.1979 on daily wage basis at the rate of Rs.20/- per day against the leave vacancy of a regular driver. The appointment was in the Mamala unit of the Company which had only two vehicles, viz. one Ambassador car and a Tractor Trailer. After the sale of WA No.1677/2013 -2- the Tractor trailer, the service of the first respondent was terminated on 2.5.1981. The first respondent challenged the validity of the termination before this Court by filing a writ petition alleging violation of Section 25F of the Act. Even though this Court found that the termination is violative of Section 25F of the Act, an order of reinstatement with backwages was not granted. It is submitted that going by the direction issued by this Court, the Company had offered the notice pay and retrenchment compensation and the wages till the date of termination of vacancy. It is submitted that this Court has left the remedy by way of application under Section 33C(2) of the Act, if any dispute arises between the parties as to the monetary value. Claiming reinstatement when a new vehicle was purchased by the appellant, a second writ petition was filed which was dismissed by Ext.P2 judgment wherein the scope of the direction in Ext.P1 was further explained. The Labour Court, by Ext.P3, ordered payment of an amount of Rs.35,528/- for the period from 3.5.1981 to 15.12.1986 which was challenged before this Court but the writ petition was dismissed on the ground of delay, by Ext.P4 which was confirmed in Ext.P5 judgment by a Division Bench. A similar application for a subsequent period was rejected by Ext.P6, as not WA No.1677/2013 -3- maintainable. In a writ petition filed against it at the instance of the first respondent, as per Ext.P7 judgment this Court directed consideration of the matter on merits and thereafter Ext.P8 order has been passed. 4. It is submitted that the crucial aspect is that the vacancy itself had ceased to exist in 1986, even before the judgment Ext.P1 was rendered. Any engagement of drivers afresh in the Company in respect of any vehicle purchased thereafter cannot advance the case of the first respondent. Therefore, the Labour Court in Ext.P8, went wrong in considering those aspects. It is submitted that the grant of benefit of any amount as backwages for the period from 16.12.1986 to 13.4.1991 by Ext.P8 is unjustified and it was never intended by this Court in Ext.P1 judgment. By Ext.P9, a fresh application has been filed for a later period, which is now pending. 5. It is submitted that the view taken by the learned Single Judge that no evidence was adduced by the management with regard to the cessation of vacancy, is not correct. It is argued that the fact that the vacancy had ceased to exist was reported before this Court when Ext.P1 judgment was rendered and therefore it can be safely concluded that the vacancy was WA No.1677/2013 -4- terminated in 1986. The said argument of the management is further supported by Ext.P2 judgment, by which the original petition filed by the workman seeking reinstatement stating that another vehicle has been purchased, stood dismissed. 6. Learned Senior Counsel appearing for the first respondent, Shri T.A. Shaji submitted that the above contentions cannot be countenanced in the light of the fact that all these contentions have been gone into by the Labour Court in Ext.P3 order and there is a clear finding against the management. The said order has become final in the light of Exts.P4 and P5 judgments. The same reasoning has been adopted by the Labour Court in Ext.P8 also. The management has not adduced any evidence to show the cessation of vacancy, before the Labour Court either when Ext.P3 order was passed or when Ext.P8 order was passed. These facts were within the knowledge of the Management and the first respondent cannot be saddled with the burden of proof to establish the same. It is submitted that even when Ext.P1 judgment was rendered, this Court made it clear with regard to the right of the employee to get notice pay and retrenchment compensation and full wages till the date he could have been legally retrenched on valid WA No.1677/2013 -5- grounds, which has never happened. The dismissal of the second original petition as per Ext.P2 judgment has no significance, since therein what was raised is only a request for reinstatement. 7. We have considered the rival submissions. Going by the facts available from Ext.P1 judgment, it is clear that the first respondent had continuous service within the meaning of Section 25B of the Act, viz. 273 days. He was terminated without following the procedure under Section 25F of the Act. Para 5 of the judgment reads as follows: “5. It is pointed out by Mr. B.S. Krishnan appearing for the employer that even if non - employment was in violation of Section 25F there can be no question of reinstatement now because subsequent to the date in question one vacancy ceased to be there. The O.P. is therefore disposed of with a direction that the petitioner should be paid notice pay and retrenchment compensation in accordance with law and also full wages till the date he could have been legally retrenched on valid grounds, such as termination of the vacancy. If any dispute arises between the parties as to the monetary value or the benefit the petitioner could claim under this judgment, the same will have to be decided in proceedings under Section 33c(2) of the I.D. Act. No costs.” This Court, in para 4 of the judgment considered the decision of the Apex WA No.1677/2013 -6- ## Court in **S.K. Varma v. Industrial Tribunal - cum - Labour Court** (AIR 1981 SC 422) whereby it has been held as follows: “Nor do we propose to engage ourselves in the unfruitful task of answering the question whether the termination of the services of a workman in violation of the provisions of S. 25F is void ab initio or merely invalid and inoperative, even if it is possible to discover some razor's edge distinction between the Latin 'void ab initio' and the Anglo-Saxon 'invalid and inoperative'. Semantic luxuries are misplaced in the interpretation of 'bread and butter' statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions. 'Void ab initio', invalid and inoperative' or call it what you will, the workmen and the employer are primarily concerned with the consequence of striking down the order of termination of the services of the workmen. Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages.” WA No.1677/2013 -7- Evidently, this Court was not informed by the Management of the date on which the vacancy has ceased to exist. It is evident that the Management has not furnished any supporting evidence regarding the same when the writ petition was heard. Therefore, significantly the direction in Ext.P1 is that the workman should be paid notice pay and retrenchment compensation in accordance with law and also full wages till the date he could have been retrenched on valid ground such as termination of vacancy. In Ext.P2 judgment it was also clarified that “the operative part of Ext.P3 proceeded on the understanding that the petitioner here could have been retained in service for some time more, i.e. till the other vacancy had also come to an end. The relief granted was to allow full wages, and allowances till the second vacancy had come to an end and that grant of retrenchment compensation and notice pay step necessary for retrenchment in accordance with law.” 8. When we refer to the impugned judgment of the learned Single Judge, the learned Single Judge has significantly observed in para 8 after considering Exts.P1 and P2 judgments, as follows: “This should have settled the issue and the management should have retrenched the employee on the date when the second vacancy WA No.1677/2013 -8- was terminated by paying him the retrenchment compensation as also the full wages till then.” 9. What happened after Ext.P2 judgment, is clear from Ext.P3 order passed by the Labour Court. It was held by the Labour Court that “no vacancy of driver ceased to exist in the Company after 2.5.1981 but three or four vacancies of drivers were arose in the Company after 2.5.1981. Therefore, I hold that the Opposite Party has failed to establish the fact that subsequent to the date of termination, viz. 2.5.1981, one vacancy of driver ceased to exist and because of the termination of the vacancy the petitioner was retrenched on valid grounds. In the absence of such evidence, I find that the petitioner is entitled to get full wages as claimed in the petition till the date he could have been legally retrenched on valid grounds, such as termination of vacancy.” In para 7 of the order, it was found that “the opposite party has no case that he has paid retrenchable compensation till the second vacancy has come to an end.” It is clear from the first paragraph that the Management had offered Rs.900/- which was received by the workman under protest. Therefore, the legality of the same was under consideration by the Labour Court. The contents of the said letter is clear from Ext.P8 order passed by the Labour Court wherein also the WA No.1677/2013 -9- Management has not indicated the way in which the compensation has been quantified and there is no worthwhile information as to the cessation of the second vacancy. In the context of the said letter, the Labour Court found in Ext.P8 that “there is no evidence that the opposite party has retrenched the petitioner.” After considering these aspects, the learned Single Judge, in para 9 of the judgment, has found has follows: “It is pertinent that even before the Labour Court the management did not have a contention that the retrenchment compensation was paid on the cessation of the vacancy, in which the respondent employee was engaged as a daily wage worker. In fact, there was not even any evidence adduced to substantiate the contention of the sale of the vehicle, which would show the date of cessation of the vacancy. It was in this context that Ext.P3 was passed and on merits the order of the Labour Court has been upheld by Ext.P5 judgment.” 10. With regard to the efforts, if any, taken by the Management to adduce evidence before the Labour Court in the subsequent proceedings which culminated in Ext.P8 also, in para 10 the learned Single Judge has found as follows: “In the context of no retrenchment compensation having been established to have been paid as per Ext.P1; in the teeth of the WA No.1677/2013 -10- binding precedent in Ext.P5, this Court cannot sit in judgment of the entitlement of the respondent. Ext.P8 order passed by the Labour Court again under Section 33C(2) for the subsequent period also does not disclose any efforts by the Management to substantiate the termination of vacancy or payment of retrenchment compensation, in accordance with Ext.P1. It is also to be noticed that even in Ext.P8 the management did not have a contention that the retrenchment compensation as per Ext.P1 has been paid nor did they take any efforts to establish and substantiate before Court that the vacancy ceased to exist; as has been clearly noticed in Exts.P1 and P2 judgments. The question of disputed issue being considered under Section 33C(2) is also settled by the decision of another learned Single Judge of this Court in Ext.P7, which has become final inter-parties. Finally, it was held that “even when Ext.P8 order was passed by the Labour Court, the management has not substantiated their contentions with proper evidence.” It was further held that the officers of the petitioner Company are responsible for the situation resulting in keeping alive the claim of the first respondent for full wages. 11. Vehement arguments were raised by the learned counsel for the appellant, Shri Asok M. Cherian by pointing out that when the first respondent did not oppose before this Court on the first occasion in 1986 WA No.1677/2013 -11- the plea that the second vacancy has ceased to exist, as clear from para 5 of Ext.P1 judgment, it can be safely concluded that the said vacancy had become non-existent by the sale of the vehicle in 1986 and the burden is on the workman to show that there was vacancy. We are afraid, that the said contention cannot be countenanced at all. In fact, the submission before this Court was only that subsequent to the date in question, (i.e. 2.5.1981) one vacancy ceased to exist. The direction in Ext.P1 judgment which we have already extracted, is very significant and the right of the employee to receive notice pay and retrenchment compensation and full wages was protected. The employer, therefore, had to adduce cogent evidence in the matter before the Labour Court as to the cessation of the second vacancy which they claimed before this Court when Ext.P1 judgment was rendered, to prevent reinstatement with backwages. Merely because the employee had failed to get an order of reinstatement in Ext.P2 judgment, the burden of the employer to prove the same is not shifted. Without any material to support, this Court cannot pick up an artificial date in the year 1986 as the date on which the vacancy ceased to exist. 10. Therefore, we find no reason to interfere with the judgment of the WA No.1677/2013 -12- learned Single Judge and it cannot be said that the view taken is perverse warranting interference. A reading of Exts.P3 and P8 orders will show that the Management did not adduce sufficient evidence in the matter and we will not be justified in casting the burden on the workman, as rightly pointed out by the learned Senior Counsel Shri T.A. Shaji, as his case is that the vacancy never ceased to exist which according to him, is clear from the continuous engagements of different drivers from time to time. Therefore, the Writ Appeal is dismissed, but we make it clear that since Ext.P9 is said to be pending and evidence has been partly adduced, it is open to the Management to adduce all evidence in the matter and our judgment will not stand in the way of the same. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(B. KEMAL PASHA, JUDGE)** **kav/**