High Court of KeralaSingle Judge2016-06-14Writ petition allowed; Exts.P2 and P6 set aside...

KERALA STATE CO-OPERATIVE BANK LTD., TRIVANDRUM v. LABOUR COURT, KOLLAM and K. SREEKUMARAN NAIR KOLLAVILAKATH MELETH MELE VEEDU MANIKANTESWARAM P.O., TRAVANDRUM

Case / Petition Number:WP(C).No. 18420 of 2004 (P)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2016-06-14
Court Decision / Holding: The writ petition is allowed and Exts.P2 and P6 Award and order, respectively, are set aside.
Final Disposition: Writ petition allowed; Exts.P2 and P6 set aside; the matter may proceed under arbitration if desired within a reasonable time; service to be communicated to 2nd respondent by registered post.

Parties to the Case

Appellants / Petitioners

KERALA STATE CO-OPERATIVE BANK LTD., TRIVANDRUM

Respondents

The Labour Court, Kollam
K. SREEKUMARAN NAIR KOLLAVILAKATH MELETH MELE VEEDU MANIKANTESWARAM P.O., TRIVANDRUM

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Nagaraj Narayanan, SC
• Sri. K. Ravikumar, SC
• Sri. George Poonthottam, SC

Case Synopsis & Summary

Petitioner Kerala State Co-operative Bank Ltd. challenges an ex parte labour court award (Ext.P2) dated 18 January 1996, which directed the reinstatement of the 2nd respondent with back wages, following a dispute over alleged illegal termination. The Labour Court Kollam had initially heard the matter; the management appeared only initially and failed to file a written statement, resulting in an ex parte decision on 4 January 1996 based on evidence submitted by the workmen. The Management later moved to set aside the ex parte order with Ext.P3, but the Labour Court rejected it on the ground that the application was beyond 30 days of termination. The petitioner contends that misplacement of the counsel’s files and lack of representation caused the ex parte award; they also point to Ext.P7, a related Labour Court decision in a similar dispute, to show the merits of declining regular employment. The petitioner argues that Rule 51(2) of the Kerala High Court Act and Rules, 1998 permits declaration of service and that binding precedent in Chirayinkeezhu Service Cooperative Bank Ltd. v. Santhosh (2015 (4) KLT 163) bars remand, suggesting arbitration under the Kerala Co-operative Societies Act, 1969 as a remedy. The High Court allowed the writ petition, set aside Exts.P2 and P6, and directed communication of the judgment to the 2nd respondent; no costs. The court did not remand the matter.

Provisions of Law Cited

Rule 51(2) of the Kerala High Court Act and Rules, 1998Kerala Co-operative Societies Act, 1969

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner-bank contends that Ext.P2, the ex parte award, was based on the 2nd respondent’s claim of illegal termination by a casual employee; the management did not file a written statement and was unrepresented when the matter was called, leading to an ex parte award. The management later moved to set aside Ext.P2 with Ext.P3, which the Labour Court rejected on the ground that the application was beyond 30 days from termination. The petitioner relies on misplacement of files and lack of representation as valid grounds to set aside the ex parte order. It cites Ext.P7 (a related Labour Court decision) to show a different outcome in similar circumstances and argues that the Labour Court would not have jurisdiction to decide the merits in light of binding precedent in Chirayinkeezhu Service Cooperative Bank Ltd. v. Santhosh. It further suggests that the matter may be taken up before the Arbitration Court under the Kerala Co-operative Societies Act, 1969 within a reasonable time.

Contentions of Respondents

The respondents contended they were employees claiming illegal termination; the Labour Court’s ex parte award directed reinstatement with back wages based on the evidence presented by the workmen; the award’s validity rested on the absence of the management and the adequacy of the evidence before the Labour Court. The respondents rely on the Labour Court proceedings that found the claim in Ext.P7 unfavourable to casual-employment status for similar disputes, and they seek protection of their remedy under the established framework.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Chirayinkeezhu Service Cooperative Bank Ltd. v. Santhosh	2015 (4) KLT 163	Positive	Cited as binding precedent; used to conclude that the Labour Court lacked jurisdiction to entertain the 2nd respondent’s claim and to justify not remanding the matter.

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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** **TUESDAY, THE 14TH DAY OF JUNE 2016/24TH JYAISHTA, 1938** ## **WP(C).No. 18420 of 2004 (P)** **----------------------------** **PETITIONER:** **-----------------** **KERALA STATE CO-OPERATIVE BANK LTD., TRIVANDRUM, REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADVS.SRI.NAGARAJ NARAYANAN,SC,K.S.CO-OP BANK SRI.K.RAVIKUMAR, SC, K.S.CO-OP BANK SRI.GEORGE POONTHOTTAM, SC, K.S.CO-OP BANK** **RESPONDENTS:** **----------------------** **1. THE LABOUR COURT, KOLLAM.** **2. K.SREEKUMARAN NAIR KOLLAVILAKATH MELETH MELE VEEDU MANIKANTESWARAM P.O., TRIVANDRUM.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 18420 of 2004 (P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :- -----------------------------------** **EXT.P1 - COPY OF THE CLAIM STATEMENT FILED IN I.D. NO.114 OF 1993 OF THE LABOUR COURT, KOLLAM DATED 21.09.1995. EXT.P2 - COPY OF THE AWARD IN I.D. NO.114 OF 1993 OF THE LABOUR COURT, KOLLAM DATED 18.01.1996. EXT.P3 - COPY OF THE PETITION FILED IN I.D. NO.114 OF 1993 OF THE LABOUR COURT, KOLLAM DATED 02.07.1996. EXT.P4 - COPY OF THE AFFIDAVIT AND PETITIONER FILED IN I.D. NO.114 OF 1993 OF THE LABOUR COURT, KOLLAM DATED 03.07.1996. EXT.P5 - COPY OF THE LETTER FROM THE ADVOCATE DATED 27.01.2003. EXT.P6 - COPY OF THE ORDER IN CMP NOS.154 AND 155 OF 1996 IN I.D. NO.114 OF 1993 OF THE LABOUR COURT, KOLLAM DATED 06.02.2003. EXT.P7 - COPY OF THE AWARD IN I.D. NO.121 OF 1990 OF THE LABOUR COURT, KOLLAM DATED 03.12.2002.** ## **RESPONDENTS' EXHIBITS:- NIL** **---------------------------------------** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **sp** ## **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). No.18420 of 2004-P ---------------------------------Dated this the 14[th] day of June, 2016** ## **JUDGMENT** The petitioner is aggrieved with Ext.P2 Award dated 18.01.1996, passed by the Labour Court, Kollam and Ext.P6 order dated 06.02.2003, by which the application filed by the petitioner for setting aside the _ex parte_ order filed with a delay of 169 days was also rejected. 2. The petitioner was the Management in a dispute raised by the 2[nd] respondent herein. The 2[nd] respondent claimed to be an employee of the petitioner, who was alleged to have been terminated from service illegally. The _W.P.(C) No.18420 of 2004-P_ **2** Management contended that there is no question of illegal termination, since the petitioner was employed on a casual basis for a period of 89 days. Ext.P2 Award was passed _ex parte_ . The Management though appeared initially did not file written statement nor was any representation made, when the matter was called. The Management was hence declared _ex-parte_ on 04.01.1996 and the case posted to 18.01.1996. On the said day, the workmen filed an affidavit in proof and on the basis of the averments in the affidavit and the documents produced, the Award was passed, directing the reinstatement of the 2[nd] respondent with all backwages. 3. Evidently, a reading of the Award would indicate that the Management's contentions were _W.P.(C) No.18420 of 2004-P_ **3** not at all considered, rightly so, since the Management failed to file a written statement or appear when the matter was posted for evidence. 4. The Management then filed an application to set aside the _ex-parte_ order and the same was supported by an affidavit of the Counsel, who appeared before the Labour Court on behalf of the Management. The affidavit filed in support of the application is produced at Ext.P3 and it discloses that the Advocate had misplaced the files due to the shifting of his Office, which led to the Management being unrepresented before Court. The Labour Court rejected the same on the short ground that the application was filed beyond the 30 days of termination. _W.P.(C) No.18420 of 2004-P_ **4** 5. The learned counsel for the petitionerManagement would submit that in a similar dispute, the Labour Court has considered the entire issues and declined the claim raised by the casual employees as per Ext.P7. The workmen in Ext.P7 were found to be casual employees appointed on a temporary basis on daily wages and hence the claim of regular employment was declined. As of now, this Court is not competent to consider such matter, suffice it to notice that the _ex-parte_ Award was sought to be set aside on valid grounds. 6. Despite notice to the 2[nd] respondent, the acknowledgment was not returned after service. The petitioner had twice taken out notice and on both occasions, the notice was not returned after service. In such circumstance, the _W.P.(C) No.18420 of 2004-P_ **5** petitioner Management has filed a petition for declaration of service under Rule 51 (2) of the Kerala High Court Act and Rules, 1998. This Court has today allowed the said application. 7. Further, it is to be noticed that as of now the Labour Court would not have the jurisdiction to consider the claim raised by the 2[nd] respondent for reason of the binding precedent in **Chirayinkeezhu Service Cooperative Bank Ltd. v. Santhosh [2015 (4) KLT 163]** . Hence, a remand to the Labour Court would not serve any purpose. Suffice it to notice that if the 2[nd] respondent is desirous of taking up the matter before the Arbitration Court under the Kerala Co-operative Societies Act, 1969, he would be entitled to do that if he approaches the Arbitration Court within a _W.P.(C) No.18420 of 2004-P_ **6** reasonable time. The writ petition is allowed and Exts.P2 and P6 Award and order, respectively, are set aside. The petitioner shall communicate a copy of this judgment to the 2[nd] respondent, by registered post. No costs. Sd/- **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/14/06/16