High Court of KeralaSingle Judge2014-11-20Dismissed

KERALA STATE BAMBOO CORPORATION LTD. v. P.K. RAMESAN NAIR

Case / Petition Number:WP(C).No. 16809 of 2009 (U)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2014-11-20
Court Decision / Holding: Hence, the writ petition stands dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Kerala State Bamboo Corporation Ltd., Angamaly (represented by its Managing Director)

Respondents

P.K. Ramesan Nair
Labour Court, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri K. Anand
• Ms Latha Krishnan

Counsels for Respondents

• Sri A.V. Xavier
• Sri K. Jolly John
• Sri R. Rafeeq

Case Synopsis & Summary

The petitioner, Kerala State Bamboo Corporation Ltd., aggrieved by the Labour Court’s order under Section 33(C)(2) of the Industrial Disputes Act, 1947, seeks writ relief. The background stems from the dismissal of an employee (P.K. Ramesan Nair) on 12 May 1978. The Labour Court initially directed reinstatement with modification of punishment by barring two increments under Section 11-A of the ID Act. Petitions by both management and worker led to a Division Bench remand, after which the Labour Court again upheld the two-increment punishment. In OP No.1951/1995 (extant before this Court), Ext.R1 reflects a partial allowance, granting 50% back wages and related benefits, signaling that the core penalty was effectively the denial of 50% back wages; the management was allowed to realise any legally realisable debt. The petitioner contends that a suit decree (OS No.161/1979) for Rs.28,585 with interest, and the ensuing set-off claims, should be recoverable, invoking Section 33(C)(2). Labour Court rejected set-off on the basis that there was no legally realisable debt. Relying on authorities such as Harikumaran Nair, AK Nanu and Kalliyanikutty, the Court distinguishes the facts (notably absence of mortgage) and clarifies that time-barred amounts cannot be treated as legally realisable debts. The writ petition is dismissed, reinforcing the principle that limitation bars recovery of time-barred debts even where a decree exists.

Provisions of Law Cited

Section 33(C)(2) of the Industrial Disputes Act, 1947Section 11-A of the Industrial Disputes Act, 1947

Legal Doctrines & Maxims

Limitation Act: remedies by action or set-off are removed by time but the right survives; cannot recover a statute-barred debt by set-off or action.
Legally realisable debt vs legally due debt: a crucial distinction affecting recovery; Relevance of whether debt has a practical remedy for realisation (e.g., Revenue Recovery Act applicability).
Set-off limitations: set-off barred by limitation; debt must be legally recoverable to be set off or realized.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner's stand is that the remedy of recovery is barred by limitation, but the underlying debt remains due. Ext.R1 (the court’s order) and the decree in OS No.161/1979 create a legally assessable claim for back wages; the management should be entitled to set off the decree debt against amounts still due, subject to the limitation period. The petitioner argues that the terms ‘legally realisable debt’ vs. ‘legally due debt’ are distinct; a decree creates a right and a duty, yet enforcement may be time-barred. They rely on Harikumaran Nair v. Kerala State Financial Enterprises and AK Nanu for the proposition on limitation and set-off; Halsbury’s reference is cited to support the general principle that limitation does not wipe out the right entirely. They contend that the Labour Court misapplied law by denying set-off on the ground of lack of a legally realisable debt.

Contentions of Respondents

The respondents contend that the decree debt cannot be enforced because it is time-barred; set-off under Section 33(C)(2) cannot operate where there is no legally realisable debt. Limitation eliminates the remedy, not the right, and without a legally recoverable debt, the Revenue Recovery Act cannot be invoked. The Labour Court’s refusal to consider the set-off aligns with these limitations; reliance is placed on established authorities (including AK Nanu and Kalliyanikutty) to show that time-barred debts cannot be realized via set-off or recovery when they are not legally recoverable.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Harikumaran Nair v. Kerala State Financial Enterprises	1993(2) KLT 463	Distinguished	Cited to discuss limitation but distinguished on facts (no mortgage) and not controlling the outcome here.
A.K. Nanu and Others v. State of Kerala and others	1987 (2) KLT 921	Positive	Division Bench view subsequently upheld by Supreme Court; supports the idea relating to limitation and debt recovery.
State of Kerala v. V.R. Kalliyanikutty	1999(2) KLT 146(SC)	Positive	Affirms that time-barred amounts may be included as part of ‘amount due’ but limitation cannot be wiped out; debt must be legally recoverable.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **THURSDAY, THE 20TH DAY OF NOVEMBER 2014/29TH KARTHIKA, 1936** ## **WP(C).No. 16809 of 2009 (U)** **---------------------------------------** **PETITIONER(S):** **--------------------------** **KERALA STATE BAMBOO CORPORATION LTD., ANGAMALY, REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADVS.SRI.K.ANAND SMT.LATHA KRISHNAN** ## **RESPONDENT(S):** - **----------------------------** **1. P.K.RAMESAN NAIR, KANGILIL HOUSE, VENGOORKARA KIDANGOOR POST, ANGAMALI.** **2. THE LABOUR COURT, ERNAKULAM.** **R1 BY ADVS. SRI.A.V.XAVIER SRI.K.JOLLY JOHN R2 BY GOVERNMENT PLEADER SRI.RAFEEQ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 16809 of 2009 (U)** **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **--------------------------------------** **EXT. P1: TRUE COPY OF CLAIM PETITION FILED BY THE RESPONDENT BEFORE THE 2ND RESPONDENT.** - **EXT.P2: TRUE COPY OF OBJECTION FILED BY THE PETITIONER BEFORE THE 2ND RRESPONDENT.** ## **EXT.P3: TRUE COPY OF ORDER DATED 17.2.2009 OF THE 2ND RESPONDENT.** **RESPONDENT(S)' EXHIBITS:** **-----------------------------------------** **EXT.R1: PHOTOCOPY OF THE JUDGMENT IN OP.NOS.1951/1995 AND 1951/1995 DATED 14.1.2003.** - **EXT.R2: PHOTOCOPY OF THE DECREE IN OS.NO.161/1979 BEFORE THE PRINCIPAL SUB COURT, NORTH PARAVUR DATED 15.11.1982.** **EXT.R3: PHOTOCOPY OF THE COVERING LETTER DATED 19.5.2003 WITH PAGES 1 AND 2 OF THE REPORT SUBMITTED BY THE COMMITTEE.** **EXT.R4: PHOTOCOPY OF THE STATEMENT DATED 11.8.2008 FILED BY THE 1ST RESPODENT BEFORE THE 2ND RESPONDENT WITH DETAILS OF CALCULATION OF AMOUNT.** **EXT.R5(A): COPY OF PROCEDURE DATED 4.1.2006.** **EXT.R5(B): COPY OF RADIATION ONCOLOGY TREATMENT ISSUED ON 16.3.2011.** **//TRUE COPY//** **P.S.TO JUDGE.** Ms **v/** ## **K. VINOD CHANDRAN, J. ===================== W.P.(C) No.16809 of 2009 - U ====================== Dated this the 20[th] day of November, 2014** ## **J U D G M E N T** The petitioner is aggrieved with the order of the Labour Court, Ext.P3 under Section 33(C)(2) of the Industrial Disputes Act, 1947 (for brevity, 'the I.D Act'). The application of the respondent under Section 33(C)(2) was for realisation of back wages; which has been granted by Ext.R1, judgment of this Court. 2. The brief facts necessary for the disposal of the writ petition is that the 1[st] respondent an employee of the petitioner was dismissed on 12.05.1978. The Labour Court in a dispute raised by the 1[st] respondent directed reinstatement and the punishment was interfered with under Section 11-A of the ID Act imposing a punishment of barring of two increments. Writ petitions were filed by both the management and the workman. The workman's writ petition was allowed and the management's dismissed. The W.P.(C) No.16809 of 2009 - U **2** management took the matter before the Division Bench, in appeal. The Division Bench remanded the matter. The Labour Court on remand reiterated the earlier punishment of barring of two increments. 3. The 1[st] respondent was before this Court in O.P. No.1951/1995. In the intervening period, in 1998, the workman was reinstated in service and the workman retired in 1990. Hence, the reinstatement was not challenged before this Court. By Ext.R1, the original petition filed by the workman was partly allowed. Further modification was made to the punishment. The workman was granted 50% of the entire back wages and all other attendant benefits due to a workman. This was stated to be the punishment; which indicates that the punishment awarded was, in fact the denial of 50% of back wages. The benefits granted were directed to be paid within a period of three months. The management was also given the liberty to realise any legally realisable debt from the workman. 4. The petitioner claims that a suit was filed against W.P.(C) No.16809 of 2009 - U **3** the workman in the year 1979 and decreed as against the workman and one another. The decree of the suit, is produced by the 1[st] respondent, as Ext.R2. O.S. No.161 of 1979 filed by the petitioner, was decreed granting Rs.28,585/- with interest on the principal amounts at 12% from 09.10.1979. An appeal was filed from the decree, which was unsuccessfully challenged in A.S. 65 of 1985 and A.F.A No.45 of 1995. The judgment in A.F.A is produced by the learned Counsel for the workman across the bar, which is seen dated 01.09.1995. 5. The petitioner, on the basis of the decree claim, issued a communication to the respondent computing benefits payable including 50% back wages and setting-off the amounts as per the decree with interest. Eventually, on the computation made by the petitioner, there were remaining amounts, to be paid by the workman to the petitioner/management. It was hence that the petitioner approached the Labour Court under Section 33(C)(2). The Labour Court declined to consider the set-off claimed, on W.P.(C) No.16809 of 2009 - U **4** the ground that there is no legally realisable debt. 6. The learned Senior Counsel appearing for the petitioner would contend that limitation only bars the remedy of recovery and it cannot at all be said that the amounts as per the decree is not legally due to the petitioner. To deviate the issue, the interpretation of the words employed in Ext.R1 judgment would be relevant. This Court in Ext.R1 carefully observed that the management would be entitled to recover any legally **realisable** debt. A legally due debt and legally realisable debt, are two different concepts, the former indicating the liability alone but the latter indicating the existence of legal remedies for realising the debt. Admittedly an appeal and second appeal were filed by the workman but the management does not have a contention that there was a stay of recovery, which prevented them from resorting to measures for realisation of the debt, within the period of limitation. 7. The learned Senior Counsel would place reliance on a decision of this Court in **Harikumaran Nair** v. **Kerala** W.P.(C) No.16809 of 2009 - U **5** **State Financial Enterprises [1993(2) KLT 463]** . The said decision, went on the premise that if the borrower therein had mortgaged properties to secure the transaction, then the limitation would be 12 years. There was in fact no mortgage claimed. The opinion of a Division Bench in **A.K. Nanu and Others** v. **State of Kerala and others [1987** **(2) KLT 921]** ; which was dissented from has been upheld by the Hon'ble Supreme Court. **State of Kerala** v. **V.R. Kalliyanikutty [1999(2)KLT 146(SC)]** . **Kalliyanikutty** (supra) puts the issue beyond any pale of doubt. While it was held that 'amount due' includes time barred debt it was unequivocally declared that limitation would not be wiped of and the Revenue Recovery Act could be applied only against a 'legally recoverable debt'. 8. Apposite also would be a reference to the extract from Halsbury's Laws of England 3[rd] Edition Vol.124 at pate 205: referred to by the learned Single Judge in **Harikumaran Nair** (supra) extracted hereunder: “Expect in the cases previously mentioned, the Limitation Act, 1939 only takes away the remedies by W.P.(C) No.16809 of 2009 - U **6** action or set off, it leaves the right otherwise untouched and if a creditor whose debt is statute - barred has any means of enforcing his claim other than by action or set off, this Act does not prevent him from recovering by those means....” Set-off is what is claimed by the management/petitioner, which would also be barred by limitation. To sum up the amounts awarded as per the decree cannot be said to be a legally realisable debt. Hence, the writ petition stands dismissed. Sd/- **K. VINOD CHANDRAN, JUDGE** SB // true copy // P.A To Judge.