KERALA ELECTRICALS & ALLIED ENGINEERING CO. LTD v. G. MURALEEDHARAN PILLAI & TAHSILDAR (REVENUE RECOVERY), KANAYANNUR TALUK, ERNAKULAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY ,THE 31ST DAY OF AUGUST 2018 / 9TH BHADRA, 1940** ## **WP(C).No. 15557 of 2015** ## **PETITIONER/S:** **THE KERALA ELECTRICALS & ALLIED ENGINEERING CO.LTD 7TH FLOOR, HOUSING BOARD OFFICE COMPLEX, PANAMPILLY NAGAR, COCHIN 682 016, REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADVS. SRI.SAJI VARGHESE SMT.MARIAM MATTHAI** ## **RESPONDENT/S:** **1 G. MURALEEDHARAN PILLAI ANIL BHAVAN, ELAMPALLOOR, KUNDARA P.O, KOLLAM DISTRICT. PIN.691501 2 TAHSILDAR (REVENUE RECOVERY) KANAYANNUR TALUK, ERNAKULAM, KOCHI-682 011.** **BY ADVS. SRI.M.A.ASIF SMT.NAMITHA JYOTHISH SRI.T.A.SHAJI (SR.)** ## **OTHER PRESENT:** **SMT. MARY BEENA JOSEPH SR. GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.08.2018, ALONG WITH WP(C).15558/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.V.ASHA, J.** ## **W.P.(C) Nos.15557 & 15558 of 2015** ## **Dated this the 31[st] day of August, 2018** ## **JUDGMENT** Both these writ petitions are filed by the very same petitioner challenging the orders passed by the Labour Court in applications filed by the 1[st] respondent under Sec 33C(2) of the Industrial Disputes Act (“the ID Act” for short). 2. The 1[st] respondent was engaged as a casual Driver under the petitioner Company in Mamala Unit from 05.06.1980 onwards on payment of daily wages at the rate of Rs.20/- when one among the two regular drivers went on leave. At that time the first respondent was working as personal driver of the then Finance Manager. He was disengaged on 02.05.1981. He filed OP No.4814 of 1981 challenging his disengagement alleging non compliance of the provisions contained in Sec.25F of the ID Act. Taking note of the submission made by the learned counsel appearing for the petitioner that one vacancy of Driver ceased to exist subsequent to the disengagement of the 1[st] respondent, the OP was disposed of as per Ext P1 judgment dated 14.02.1986 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 sec.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_ :3: ## W.P.(C) Nos.15557/15&con.case _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 will have to be decided in proceedings under section 33c(2) of the I.D.Act. No costs”._ Thus the dispute with respect to monetary value or benefit was allowed to be decided in proceedings under section 33C(2) of the ID Act. 3. The contention of the first respondent was that there was no cessation of vacancy and his disengagement was without any reason. However the O.P. 5646 of 1986 in which he claimed reinstatement and regularisation was rejected as per Ext P2 judgment making it clear that the relief granted in Ext P1 judgment was to allow full wages to the workman till the 2[nd] vacancy ceased to exist and till retrenchment compensation was validly disbursed. 4. In the claim petitions the first respondent claimed that petitioner had purchased 2 new vehicles in September 1981; one in 1982; in 1986, in 1987, 1989,1990 and thus there arose several vacancies of Drivers after his disengagement and the petitioner company appointed skilled and unskilled workers against those posts of Drivers. Though the petitioner had issued a cheque dated 16.10.1986 for a sum of Rs.900/- as retrenchment compensation, W.P.(C) Nos.15557/15&con.case **==> picture [12 x 8] intentionally omitted <==** first respondent received it only under protest, as his right to receive wages till valid retrenchment was protected in Ext P1 judgment. 5. The 1[st] respondent filed Ext.P3 petition – C.P No.167 of 1986 under Sec. 33C(2) of the ID Act claiming full wages for the period from 03.05.1981 to 15.12.1986 which was computed at the rate of Rs.25 per day for 25 days per month. As per Ext.P4 order dated 04.06.1990 that CP was allowed as prayed for, directing the petitioner herein to make payment as claimed in the statement annexed thereto, along with interest at the rate of 6% per annum. Petitioner thereupon challenged that order in O .P. No.3917 of 1992. The O.P as well as W.A. 535 of 1992 filed against the judgment in that O.P were dismissed. In the meanwhile 1[st] respondent filed C P No.36 of 1991 [Ext.P5(a)] before the Labour Court for the wages for the period from 16.12.1986 to 13.04.1991. Though it was dismissed as not maintainable, the first respondent filed O.P.5335 of 1998 and this court directed the Labour Court to consider it on merits and the C P was allowed as per Ext.P6 order. The petitioner had challenged Ext P6 order filing W.P.(C) No. 24077 of 2006, which was dismissed as per Ext P9 judgment. 6. In W.A.No.1677 of 2013 filed against Ext.P9 judgment the petitioner raised the contention that the 1[st] respondent did not oppose W.P.(C) Nos.15557/15&con.case **==> picture [12 x 8] intentionally omitted <==** their plea that the 2[nd] vacancy has ceased to exist when Ext.P1 judgment was rendered and it was argued that the 2[nd] vacancy had become non existent by the sale of the vehicle in 1986 and therefore the burden was on the workman to show that there was vacancy. The Division Bench in Ext.P10 judgment repelled the contention observing that Ext.P1 judgment recognized the right of the 1[st] respondent to receive notice pay and retrenchment compensation apart from full wages until he is lawfully retrenched. This court found that it was for the employer to adduce cogent evidence before the Labour Court as to the cessation of the 2[nd] vacancy. It was also found that the burden of the employer cannot be shifted only because the employee was not able to get an order of reinstatement. This court found that it was not possible to pick up an artificial date as the date on which the vacancy ceased to exist. Observing that the petitioner did not adduce sufficient evidence this Court accepted the contention of the 1[st] respondent that the vacancy never ceased to exist as seen from the continuous engagement of different drivers from time to time. While dismissing the Writ Appeal, the Division Bench made it clear that it was open to the Management to adduce additional evidence in the matter, taking note of the pendency of Ext.P9 application under sec.33 C. 7. C.P. 119/2005 was allowed by the Labour Court on W.P.(C) Nos.15557/15&con.case **==> picture [12 x 8] intentionally omitted <==** 21.01.2014, as per Ext.P7 order (in WP(C) No.15557/2015), taking note of the observations in Ext P9 and P10 judgments. In paragraph 8 of Ext.P7 order the Labour Court observed that even though a copy of the judgment in the writ appeal was produced and the petitioner had filed IA No.214 of 2013 for reopening the evidence and for further evidence, the petitioner did not adduce any evidence to prove that the vacancy in which the 1[st] respondent was appointed as a casual driver ceased to exist and it found that there was no legal retrenchment as directed in Ext.P1 judgment. The Labour Court directed payment of wages for the period from October 1990 to October 2005, as admissible to a permanent Driver. The Labour Court observed that a Government owned company is made liable for payment of arrears of wages and other monetary benefits to the 1[st] respondent, who is unable to work in the Company because of the denial of work by some of the officers who did not care to preserve records of sale of vehicles and cessation of vacancy. Therefore it was legally presumed that the vacancy continued to exist. In paragraph 15 of the order, the Labour Court found that the 1[st] respondent had claimed wages on par with that of a permanent Driver. Observing that the petitioner had not filed any counter calculation statement pointing out any mistake in the calculation in the statement of the 1[st] respondent, a sum of W.P.(C) Nos.15557/15&con.case **==> picture [12 x 8] intentionally omitted <==** Rs.7,28,164/- was found due to the 1[st] respondent for the period from October, 1990 to October 2005. 8. In the meanwhile petitioner had challenged Ext P10 judgment before the Supreme Court; the SLP was dismissed as per Exts.P11 and P12 orders dated 15.4.2014 and 15.01.2015 respectively. This writ petition is filed when revenue recovery proceedings were initiated as per Exts.P14 and P14(a) (produced in WP(C) No.15557/15). WP(C) No.15558 of 2015 is filed challenging the order dated 16.12.2014 in CP No.12 of 2014 produced as Ext.P10 in that writ petition allowing wages to the 1[st] respondent for the period from 01.11.2005 to 31.12.2013 as admissible to a permanent workman. In Ext.P10 order produced in WP(C) No. 15558 of 2015, the Labour Court had referred to the entire proceedings starting from 1981. The Labour Court found that the claim petition was preferred on the basis of Ext.P1 judgment; in view of the direction contained in Ext.P1 judgment, 1[st] respondent was entitled to get full wages till the date he would have been legally retrenched on valid grounds; it was found that there was no termination of vacancy subsequent to 2.05.1981 and that there was no retrenchment on valid grounds. In paragraph 10 of its order, the Labour Court expressed its anxiety on the action of the management in not taking any effort to cross ## W.P.(C) Nos.15557/15&con.case **==> picture [12 x 8] intentionally omitted <==** examine the 1[st] respondent or to substantiate their objections. It was also noticed that none of the officers of the petitioner turned up to tender evidence. Taking note of the fact that the petitioner did not raise any objection or point out any mistake to the calculation statement attached to the claim petition, the Labour Court allowed the calculation statement filed by the petitioner and directed payment of Rs.12,64,614/-, towards arrears of wages and other allowances as claimed in the statement. 9. The first respondent filed C.P. 12 of 2014 which is produced as Ext P8 in W.P.(C).No. 15558 of 2015 claiming wages for the period from 11/2005 to 12/2013. Ext P9 in that case is the objection of the petitioner. As claimed in other claim petitions, in Ext P8 petition in that case also first respondent claimed that he would have been regularised as in the case of other casual workers, in case he was not retrenched illegally. He pointed out that several vacancies arose under the 2[nd] respondent. He further alleged that no vacancy of Driver ceased to exist after 01.11.2005 to 31.12.2013; He claimed that he was entitled to the wages payable to permanent regular Drivers. 10. The petitioner filed its objection (produced as Ext P9 in W.P.(C) No. 15558 of 2015) repeating the very same contention. According to them the quantum of benefits till the date of sale of the W.P.(C) Nos.15557/15&con.case **==> picture [12 x 8] intentionally omitted <==** Ambassador car alone could be determined in a petition under Section 33C(2) of the ID Act and that the Ambassador car was sold in 1981 and therefore he does not have any right to claim any wages for any further period. It was stated that when this court had held that his eligibility for wages is till cessation of 2[nd] vacancy, the vacancies which arose subsequently did not have any relevance. That CP. 12 of 2014 was allowed as per Ext P10 order produced in the 2[nd] writ petition, seeing that there was no valid retrenchment. In para 10 of the order the Labour Court observed : “It is anxious to note that the petitioner is not seen cross examined by the opposite party management herein”. The Labour Court observed that petitioner company did not adduce any evidence to substantiate cessation of vacancy or payment of retrenchment compensation. It was also noticed that no objection was raised against the calculation statement. 11. In these writ petitions petitioner challenges the orders in C.P. No. 106 and 2005 and in C.P. No. 12/2014. The contention raised by the learned counsel for the petitioner is that a petition under sec 33C(2) could not have been entertained for payment of wages admissible to a permanent employee though he could have claimed wages of a casual driver. Pointing out the two statements annexed to the claim petitions, claiming wages admissible to the casual driver in ## W.P.(C) Nos.15557/15&con.case **==> picture [18 x 8] intentionally omitted <==** one statement and the wages of permanent driver in another, petitioner contends that the first respondent did not have any complaint when wages admissible to casual driver alone was allowed in Ext P4 and P6 orders and therefore he could not have raised any further claim. It is also his contention that when the issue was already considered in the judgments Ext P9 and P10 judgments first respondent did not claim wages of permanent driver. It is pointed out that when the question of regularisation was not adjudicated, no claim petition is maintainable for wages of permanent employee. It is also pointed out that the petitioner is entitled to raise this objection in this writ petition because the question of eligibility for wages as permanent employee did not arise in any of the earlier cases. Therefore it is argued that the Labour Court could not have allowed the wages applicable to permanent employee in the absence of an adjudication in an ID. 12. The first respondent has filed a counter affidavit explaining the attitude of the petitioner company and opposing the contention against directions to pay wages as admissible to Regular Drivers, pointing out the absence of any such contention either in the objections to the claim petition or by adducing evidence. 13. Heard Sri. Saji Varghese, the learned Counsel appearing W.P.(C) Nos.15557/15&con.case **==> picture [17 x 8] intentionally omitted <==** for the petitioner and Sri T.A. Shaji, the learned Senior Counsel for the first respondent. 14. The 1[st] respondent has substantiated his claim for payment of wages as admissible to regular employees by examining himself and producing various documents. On the other hand the petitioner did not take any effort either to cross examine the witnesses or to adduce any evidence. It is seen that even after Exts P9 and P10 judgments, the petitioner did not take any steps to adduce evidence to prove the alleged cessation of vacancy or sale of vehicle or the ineligibility of 1[st] respondent for pay as admissible to regular employees. The case of the first respondent in the petition as well as in his uncontroverted testimony was that the subsequent vacancies of Drivers arose and were filled up by transfer of skilled or unskilled workers in the unit and also by transfer of regular drivers of other units. The Labour Court has passed the orders allowing the claim petitions on the basis of evidence on record. 15. Though the contention advanced by Sri. Saji Varghese, that the wages admissible to regular driver cannot be granted in a petition under Section 33C(2) of ID Act, in the absence of an adjudication as to the entitlement of first respondent to become regular driver, appeared to be attractive, at first blush, I find that W.P.(C) Nos.15557/15&con.case **==> picture [18 x 8] intentionally omitted <==** when the petitioner did not take any steps to controvert the claim raised of the 1[st] respondent, even in the objection, apart from the fact that no evidence was adduced by the petitioner and no steps were taken to controvert the claim substantiated by the 1[st] respondent, it is not a fit case where any interference is warranted. The attitude adopted by the officers of the petitioner company, in denying employment to the 1[st] respondent and in defending his claims all along, saying that the second vacancy ceased to exist in 1981, without substantiating the same, has resulted in directions to pay wages to a Driver without utilising his services from 1981 onwards. When petitioner has not even raised any substantial objection against the claims before the Labour Court and when this court has in Ext P1 judgment directed payment of full wages to first respondent till valid retrenchment, it cannot be said that the orders passed by the Labour Court suffers from any perversity or grave error, warranting interference of this court. 16. Though the learned counsel for the petitioner Sri.Saji Varghese argued that a petition under sec.33(c)(2) cannot be entertained when the right of petitioner for regular appointment is not adjudicated, relying on the judgment in _**State of U.P. And another vs. Brijpal Singh : (2005) 8 SCC 58**_ the factual circumstances W.P.(C) Nos.15557/15&con.case **==> picture [18 x 8] intentionally omitted <==** arising in these cases are uncomparable to those in that case. In that case the workman claimed pay and allowances on the strength of an interim passed by the High Court staying the termination. The employer had filed counter affidavit in the writ petition, before the High Court, stating that the workman did not join duty based on the interim order and he never worked on the basis of the interim order. The workman's contention was that he was not permitted to join duty. The Labour Court allowed his petition under Section 33C(2) despite objection of the employer that validity of termination was yet to be decided in the pending writ petition. The Labour Court allowed the petition and High Court dismissed the writ petition filed by the employer. The apex court, reversed it reiterating the law laid down in _**State Bank of India v. Ram Chandra Dubey:(2001) 1 SCC 73, Municipal Corpn. of Delhi v. Ganesh Razak:(1995)1 SCC 235** ,_ _**Punjab Beverages (P) Ltd. v. Suresh Chand: (1978) 2 SCC 144**_ and held that unless the entitlement of the workman is already adjudicated or recognised by the employer, the Labour Court has no jurisdiction to compute the benefit due to the workman under Section 33-C(2) of the Act. In Brijpal Singh's case (supra) the writ petition was pending; there was serious objection in the counter affidavit that he did not join duty after the interim order. The claim was based on W.P.(C) Nos.15557/15&con.case **==> picture [18 x 8] intentionally omitted <==** the interim order of stay of termination. In the judgments referred to in Brijpal's Singh's case also, the circumstances which arose for consideration were different. 17. In this case, the eligibility of the petitioner for wages till valid retrenchment is already found in Ext P1 judgment. This court had also held that the monetary benefit admissible to petitioner would have to be decided in proceedings under Section 33c(2) of ID Act. Therefore I do not find any reason to interfere with the orders of the Labour Court impugned in both these writ petitions. Therefore the writ petitions are dismissed. **Sd/-** **P.V.ASHA** **JUDGE** rkc W.P.(C) Nos.15557/15&con.case :15: ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 EXHIBIT P1. COPY OF THE JUDGMENT DATED 14.2.86 PASSED BY THIS HONOURABLE HIGH COURT IN OP NO. 4814 OF 1981.** **EXHIBIT P2 EXHIBIT P2. COPY OF THE JUDGMENT DATED 5.8.1986 PASSED BY THIS HONOUARABLE COURT IN OP 5646 OF 1986.** **EXHIBIT P3 EXHIBIT P3. COPY OF THE STATEMENT FILED BY THE 1ST RESPONDENT IN CLAIM PETITION NO.167/1986.** **EXHIBIT P4 EXHIBIT P4. COPY OF THE ORDER DATED 4.6.1990 OF THE LABOUR COURT ERNAKULAM, IN CLAIM PETITION NO.167 OF 1986.** - **EXHIBIT P5 EXHIBIT P5. COPY OF THE STATEMENT CLAIMING WAGES AS CASUAL WORKMAN IN CP 36 OF 1991.** - **EXHIBIT P5A EXHIBIT P5(A).COPY OF THE STATEMENT CLAIMING WAGES AS REGULAR WORKMAN IN CP 36 OF 1991.** - **EXHIBIT P6 EXHIBIT P6. COPY OF THE ORDER OF THE LABOUR COURT IN CP 36 OF 1991 DATED 3.4.06.** - **EXHIBIT P7 EXHIBIT P7. COPY OF THE ORDER OF LABOUR COURT IN CP NO.119 OF 2005.** - **EXHIBIT P8 EXHIBIT P8. COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN CLAIM PETITION NO.119 OF 2005.** **EXHIBIT P9 EXHIBIT P9. COPY OF THE JUDGMENT OF THIS HONOURABLE HIGH COURT IN WPC 24077 OF 2006 DATED 6.9.13.** **EXHIBIT P10 EXHIBIT P10. COPY OF THE JUDGMENT OF THE DIVISION BENCH OF THIS HONOURABLE HIGH** W.P.(C) Nos.15557/15&con.case :16: ## **COURT IN WRIT APPEAL 1677 OF 2013.** **EXHIBIT P11** **EXHIBIT P11. COPY OF THE ORDER OF THE SUPREME COURT IN SLP 10808 OF 2014 DATED 15.4.14.** **EXHIBIT P12** **EXHIBIT P12.COPY OF THE ORDER OF THE SUPREME COURT IN SLP AS RP(C)2970 DATED 15.1.15 DISMISSING THE REVIEW PETITION FILED BY THE PETITIONER.** **EXHIBIT P13** **EXHIBIT P13.COPY OF THE ORDER DATED 21.1.14 PASSED BY THE LABOUR COURT IN CP 119 OF 2005 ALLOWING THE CLAIM FOR WAGES OF REGULAR WORKMAN.** - **EXHIBIT P14 EXHIBIT P14. COPY OF THE REVENUE RECOVERY NOTICE NO.E7-6682/2014 LD DATED 24.12.14 ISSUED UNDER SECTION 34 OF THE REVENUE RECOVERY ACT.** **EXHIBIT P14(A)** - **EXHIBIT P14(A).COPY OF THE REVENUE RECOVERY NOTICE NO.E7-6682/2014 LD DATED 24.12.14 ISSUED UNDER SECTION 7 OF THE REVENUE RECOVERY ACT.** ## **RESPONDENTS' EXHIBITS :** **EXT.R1A : COPY OF THE JUDGMENT DT.24.3.92 IN OP3917/92 OF THIS HON'BLE COURT** **EXT.R1B : COPY OF THE JUDGMENT DT.18.6.92 IN WA NO.535/92 OF THIS HON'BLE COURT.** **EXT.R1C : COPY OF THE LETTER DT.15.5.14 OF THE COMPANY ADDRESSED TO THE DISTRICT LABOUR OFFICER** **EXT.R1D : COPY OF THE LETTER DT.8.7.14 OF THE COMPANY ADDRESSED TO THE DISTRICT LABOUR OFFICER** **EXT.R1E : COPY OF THE LETTER DT.12.7.14 OF THE COMPANY ADDRESSED TO THE DISTRICT LABOUR OFFICER** **EXT.R1F : COPY OF THE LETTER DT.18.7.14 OF THE COMPANY ADDRESSED TO TEH DISTRICT LABOUR OFFICER.**