Kerala State Bamboo Corporation Ltd. Angamaly v. P.K. Ramesan Nair and The Labour Court, Ernakulam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MRS. JUSTICE SHIRCY V. THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938 WA.No. 1072 of 2015 IN WP(C).16809/2009 -------------------------------------------- AGAINST THE JUDGMENT IN WP(C) 16809/2009 of HIGH COURT OF KERALA DATED 20-11-2014 ## APPELLANT/PETITIONER: ----------------------- KERALA STATE BAMBOO CORPORATION LTD. ANGAMALY, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADVS.SRI.K.ANAND (SR.) SMT.LATHA KRISHNAN ## RESPONDENTS/RESPONDENTS: -------------------------- 1. P.K. RAMESAN NAIR KANGILIL HOUSE, VENGOORKARA, KIDANGOOR POST, ANGAMALY. 2. THE LABOUR COURT, ERNAKULAM.682031 R1 BY ADV. SRI.A.V.XAVIER R2 BY GOVERNMENT PLEADER MR. PAUL ABRAHAM VAKKANAL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.11.2016,, THE COURT ON 08-12-2016 DELIVERED THE FOLLOWING: ## **C.R.** **ANTONY DOMINIC & SHIRCY.V,JJ** **============================ W.A.No.1072 of 2015** **=========================== Dated this the 8[th] day of December, 2016** ## **JUDGMENT** ## Shircy V.,J. This appeal arises from the judgment of the learned Single Judge dated 28.11.2014 in W.P.(C) No. 16809/2009. By this judgment, the writ petition filed by the appellant/petitioner has been dismissed. 2. Material facts for disposal of this appeal are as follows: The 1[st] respondent was an employee of the appellant/management, the Kerala State Bamboo Corporation Ltd., Angamaly. He joined service on 9.5.1974 as Bundling Supervisor and while so alleging misconduct he was dismissed from service on 23.11.1979 with effect from 2 12.5.1978. In the industrial dispute that has been raised by him before the Labour Court, his punishment of dismissal from service was modified and was awarded punishment of withholding of his two increments with cumulative effect. Against the said Award, the appellant filed O.P.No.6863/1986 and the 1st respondent filed O.P.No. 4865/1986 before this Court. The original petition filed by the 1[st] respondent was allowed and the original petition filed by the appellant was dismissed. The said judgment was challenged in writ appeals before the Division Bench of this Court and this Court remanded the matter to the Labour Court for fresh consideration. After remand, though the matter was considered afresh, the punishment of barring two increments with cumulative effect was again imposed on the 1[st] respondent. The said Award was challenged by the appellant and the 1[st] respondent in O.P. Nos. 2886 of 1995 and 1951 of 1995 and in the meanwhile the 1[st] respondent was reinstated in service on 15.12.1988. 3 O.P.No.1951 of 1995 was disposed of along with O.P.No.2886 of 1995 filed by the appellant and this Court modified the punishment of withholding of two increments and held that the 1[st] respondent is entitled to 50% of the entire back wages and all other benefits including increments, allowances and such other benefits given to the employees those who are in actual service. It was also directed to pay the same within a period of three months and the appellant was allowed to realize the legally realizable amount from the 1[st] respondent. The appellant had earlier filed a suit in the year 1979 against the 1[st] respondent as O.S.No.161 of 1979 before the Sub Court, Paravur and it was decreed and the appellant was granted a decree to realize Rs.28,585/- with interest at the rate of 12% from 9.10.1979. Even though the decree was challenged by filing an appeal as well as second appeal, the 1[st] respondent could not succeed. Hence, the appellant issued communication to the 1[st] respondent computing the 4 benefits payable including 50% back wages and even after set off, amount was due to the appellant as per the decree with interest. Then the appellant approached the Labour Court under Section 33 C (2) of the Industrial Disputes Act. But the claim was not allowed as it was found that the debt is not a legally realizable one. The order was challenged in the writ petition claiming the amount, but the writ petition was also dismissed on the finding that the decree debt is barred by limitation and the decree amount cannot be considered as a legally realizable debt. The said judgment is under challenge in this appeal. 3. We heard the learned counsel for the appellant, the learned counsel for the first 1[st] respondent and the learned Government Pleader. 4. The 1[st] respondent joined the service of the appellant on 9.5.1974. While he was working as a Bundling Supervisor, the appellant/ management had dismissed him from service on 12.5.1978. The industrial dispute raised at 5 his instance as I.D. No.10/1982 was disposed of confirming the findings of the enquiry initiated by the appellant against the 1[st] respondent. But the order of dismissal was set aside and the punishment imposed on him was modified into withholding his two increments with cumulative effect and he was directed to be reinstated with back wages. The said award was challenged by both the appellant and the 1st respondent. But the original petition filed by the 1st respondent was allowed. He was reinstated in service on 15.12.1988. Thereafter, he retired from service on superannuation on 31.12.1990. Actually in this writ appeal, the question to be considered is whether the decree debt in O.S.No. 161/1979 for a sum of Rs.28,585/- with interest could be adjusted towards the amount which is ordered to be paid to the 1[st] respondent as back wages and other benefits, if any, due to him. As mentioned earlier, the learned Single Judge held in the negative on the finding that the amount due to the appellant is not a legally realizable 6 debt. It was argued by the learned counsel for the 1[st] respondent, that the Learned Single Judge has correctly held that the amount claimed by the appellant is barred by limitation and hence decree debt is not liable to be adjusted towards the amount due to him. Ext.R2 is the copy of the decree. The decree is dated 15.11.1982. The 1[st] respondent was unsuccessful in both the 1st appeal and the 2[nd] appeal preferred by him. As per the judgment in O.P.Nos.1951 of 1995 and 2886 of 1995 dated 14.1.2003, the 1st respondent was found entitled to 50% of the entire back wages with 12% interest. In the claim petition, the 1[st] respondent was allowed to recover Rs.1,31,503/- with interest at 12% per annum from 9.2.1994 till realization. Ext.R3 is the report submitted by the committee set up to work out the back wages due to him. Ext.R4 is the statement submitted by the appellant before the Labour Court after adjusting the decree amount in O.S.No.161/1979. The learned Single Judge mainly relied on the decision in **State of Kerala v.** 7 **V.R.Kalliyanikutty [ 1999(2)KLT 146(SC)]** which held that an amount due normally refers to an amount which the creditor has a right to recover and it includes time barred debt and the Revenue Recovery Act could be applied only against a legally recoverable debt. Relying on the said decision the learned Single Judge held that the time barred decree debt is not a 'legally realizable debt' and set off cannot be granted to a time barred debt. On the said finding, the writ petition was dismissed. ## 5. In **Punjab National Bank and others v. Surendra Prasad Sinha [AIR 1992 SC 1815]** , it was observed by the Supreme Court as follows : “S.3 of the Limitation Act only bars the remedy but does not destroy the right which the remedy relates to. The right to the debt continues to exist notwithstanding the remedy is barred by the limitation. Therefore when the principal debtor did not repay the bank loan, the bank as creditor can adjust it at maturity of the Fixed Deposit Receipts deposited by the guarantor with the bank as security, though the debt became barred by limitation at the time of maturity of the said Fixed Deposit Receipts. It is not obligatory to file a suit to recover the debt.” 8 6. It is clear from the above dictum that the rules of limitation are not meant to destroy the rights of the parties. Section 3 of the Limitation Act only bars the remedy, but will not destroy the right to recover a debt. Hence, it could be held that the decree debt continues to exist and the appellant is entitled to realize the decree amount from the 1[st] respondent by adjusting with the 50% of the back wages. As the appellant's right to recover the debt is not barred as per Section 3 of the Limitation Act, the decree amount in O.S. No.161/1979 which is due to the appellant from the 1[st] respondent can be adjusted towards 50% of back wages which he is entitled to recover from the appellant. So we hold that the writ appeal filed by this appellant to adjust the decree debt with 50% back wages is only to be allowed as prayed for. Hence, the judgment under challenge is set aside and the writ appeal is allowed. 9 Sd/- **ANTONY DOMINIC JUDGE** Sd/- **SHIRCY.V JUDGE** ks True copy P.S. (Hr.Gr.)To Judge