M. Ikbal v. A. Thajudeen and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **FRIDAY, THE 22ND DAY OF SEPTEMBER 2017/31ST BHADRA, 1939** ## **OP(C).No. 2625 of 2017 (O)** **--------------------------EA 61/17 IN EP 95/15 IN CP NO.20/13 OF MUNSIFF COURT, KARUNAGAPPALLY** **-------------** **PETITIONER:** **----------** **M.IKBAL, AGED 52 YEARS, S/O MAJEED, SABEENA MANZIL, MEVARAM, THATTAMALA P.O., THAZHATHALA VILLAGE, KOLLAM-691020.** **BY ADVS.SRI.K.SHAJ SRI.RENJIT GEORGE** **RESPONDENT(S):** **--------------** **1. A.THAJUDEEN,** **S/O ABDUL SALAM, ANOORTHEKKATHIL, KILIKKOLLOOR P.O., KILIKKOLLOOR VILLAGE, KOLLAM-691004.** **2. R. PRAKASH,** **S/O RAVEENDRA PILLAI, SARASWATHY VILASOM, THIRUMULLAVARAM, KOLLAM-691012.** **3. B. MURUKANANDAN, S/O BHASKARAN, SIVANANDALAYAM, THIRUMULLAVARAM, KOLLAM-691012.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **OP(C).No. 2625 of 2017 (O) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 THE TRUE COPY OF AGREEMENT EXECUTED BY THE FIRST RESPONDENT AND THE PETITIONER ON 15.10.2006. EXHIBIT P2 THE TRUE COPY OF AGREEMENT EXECUTED BY THE SECOND RESPONDENT AND THE PETITIONER ON 15.10.2006. EXHIBIT P3 THE TRUE COPY OF AGREEMENT EXECUTED BY THE THIRD RESPONDENT AND THE PETITIONER ON 15.10.2006. EXHIBIT P4 THE TRUE COPY OF THE INTERIM ORDER DATED 22.09.2008 PASSED BY THIS HON'BLE COURT IN W.P.(C)NO.27560/2008. EXHIBIT P5 THE TRUE COPY OF JUDGMENT DATED 26.09.2008 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.27560/2008. EXHIBIT P6 THE TRUE COPY OF SHOW CAUSE NOTICE DATED 26.09.2008 ISSUED BY THE PETITIONER TO THE RESPONDENTS. EXHIBIT P7 THE TRUE COPY OF TERMINATION NOTICE ISSUED TO THE FIRST RESPONDENT BY THE PETITIONER DATED 31.10.2008. EXHIBIT P8 THE TRUE COPY OF AWARD PASSED BY THE LABOUR COURT, KOLLAM IN I.D NO.47/2010 DATED 23.11.2010. EXHIBIT P9 THE TRUE COPY OF ORDER IN C.P.NO.20/2013 ON THE FILE OF LABOUR COURT, KOLLAM. EXHIBIT P10 THE TRUE COPY OF THE JUDGMENT DATED 06.08.2014 PASSED BY THIS HONOURABLE COURT IN W.P.(C) NO.20196/2014. EXHIBIT P11 THE TRUE COPY OF THE ORDER DATED 07.07.2017 OF THE MUNSIFF'S COURT, KARUNAGAPPALLY IN E.A.NO.61/2017 IN E.P.NO.95/2015 IN C.P.NO.20/2013. RESPONDENT(S)' EXHIBITS NIL -----------------------** **K.V. P.S.TO JUDGE** ## **ANIL K.NARENDRAN, J.** **-----------------------------------------------** O.P.(C)No.2625 of 2017 **-----------------------------------------------** Dated this the 22[nd] day of September, 2017 ## **J U D G M E N T** The petitioner, who is the Management in I.D.No.47 of 2010 on the file of the Labour Court, Kollam and the judgment debtor in E.P.No.95 of 2015 in C.P.No.20 of 2013 on the file of Munsiff's Court, Karunagappally, is before this Court in this original petition filed under Article 227 of the Constitution of India, seeking an order to set aside Ext.P11 order dated 7.7.2017 of the Munsiff's Court in E.A.No.61 of 2017 in E.P.No.95 of 2015 in C.P.No.20 of 2013 and to direct the said court to pass appropriate orders in that execution application after affording him a reasonable opportunity. 2. On 15.9.2017, when this original petition came up for admission, this Court directed the Registry to get a report from the Munsiff's Court, Karunagappally, as to whether E.A.No.61 of 2017 in E.P.No.95 of 2015 in C.P.No.20 of 2013 was advanced to 7.7.2017 with notice to the learned counsel for the counter petitioner/judgment debtor in that execution application. Pursuant O.P.(C)No.2625 of 2017 :-2-: to the said order, a report dated 18.9.2017 has been received, wherein it has been stated that E.A.No.61 of 2017 was filed on 29.6.2017. The decree holder filed E.A.No.62 of 2017 on 30.6.2017 for advancing the matter and to hear E.A.No.61 of 2017. The learned counsel for the decree holders/workmen filed a memo dated 30.6.2017, stating that copy of E.A.No.61 of 2017 and the advance petition have been sent to the judgment debtor in his address by registered post. The postal receipt has also been produced along with that memo. Thereafter, it was called in open court on 5.2.2017 ( _sic_ :5.7.2017) and then the case was advanced to 7.7.2017. There was no representation for the judgment debtor on the previous posting dates, and also on the date on which the case was advanced. Based on the memo dated 30.6.2017 and the postal receipt, the court below proceeded with the matter on the conclusion that copy of the execution application and advance petition were served properly on the judgment debtor. In the said report it has also been stated that by the judgment dated 7.2.2017 in O.P.(C)No.452 of 2017, this Court directed the court below to dispose of the execution petition on or before 30.3.2017 O.P.(C)No.2625 of 2017 :-3-: and the said time limit was later extended till 1.6.2017. Request seeking further extension by three months has also been made before this Court on 22.6.2017. 3. Heard the learned counsel for the petitioner/judgment debtor/Management. 4. The pleadings and materials on record would show that the petitioner was the operator of a stage carriage bearing registration No.KL-2/S-154 on the route Chavara-Kottiyam. The denial of employment of the respondents herein as driver, conductor and cleaner respectively, in the said stage carriage with effect from 25.9.2008, was referred for adjudication of the Labour Court, Kollam in I.D.No.47 of 2010. The Labour Court passed Ext.P8 award dated 23.11.2010 holding that the Management denied employment to the workmen named in the order of reference with effect from 25.9.2008 unjustifiably, while they were working in stage carriage bearing registration No.KL-2/S154 owned and operated by the petitioner herein and that, they are entitled for reinstatement. Accordingly, the Management was directed to reinstate them with continuity of service forthwith. ## O.P.(C)No.2625 of 2017 :-4-: However, the Labour Court found that the workmen are not entitled for back wages or any other monetary benefits. 5. As the petitioner failed to reinstate respondents in service in terms of Ext.P8 award, they approached the Labour Court, Kollam in C.P.No.20 of 2013, a claim petition filed under Section 33C(2) of the Industrial Disputes Act. The said claim petition was allowed by Ext.P9 order dated 13.11.2013, whereby the Management was directed to pay to the workmen/respondents 1 to 3 herein, Rs.2,75,020/-, Rs.2,72,400/- and Rs.2,72,055/respectively, within three months from the date of the said order, failing which the Management will be liable to pay the said amounts with interest thereon at the rate of 6% per annum from 9.7.2013 till realisation. 6. The petitioner Management made a belated challenge before this Court, against Ext.P8 award dated 23.11.2010 and Ext.P9 order dated 13.11.2013, by filing W.P.(C)No.20196 of 2014 which ended in dismissal by Ext.P10 judgment dated 6.8.2014. This Court found that the petitioner Management came to know about Ext.P8 award in I.D.No.47 of 2010, at least when O.P.(C)No.2625 of 2017 :-5-: he received notice in C.P.No.20 of 2013, which culminated in Ext.P9 order. The petitioner did not take any action to have Ext.P8 award set aside or contest C.P.No.20 of 2013 filed by the workmen. In C.P.No.20 of 2013, Ext.P9 order was passed on 13.11.2013. Thereafter, on 28.3.2014, the workmen filed E.P.No.60 of 2014 in C.P.No.20 of 2013 to execute Ext.P8 award in I.D.No.47 of 2010. On 5.8.2014, much after the filing of the execution petition, the petitioner management approached this Court in W.P.(C)No.20196 of 2014, challenging Exts.P8 and P9. In Ext.P10 judgment, this Court found that, delay and laches is writ large throughout the proceedings. The workmen have been pursuing their efforts to obtain redressal of their grievances, all along. The petitioner Management has apparently been watching the proceedings from the side lines. Therefore, this Court dismissed the writ petition, holding that there is absolutely no justification in setting aside Ext.P8 award and Ext.P9 order of the Labour Court and granting a further opportunity to the petitioner Management to contest the matter. In the absence of any challenge, Ext.P10 judgment of this Court has attained finality. O.P.(C)No.2625 of 2017 :-6-: 7. Admittedly, the petitioner Management received notice in E.P.No.60 of 2014 filed by the workmen before the Munsiff's Court, Kollam for execution of Ext.P9 order of the Labour Court in C.P.No.20 of 2013. The said execution petition was later transferred to the Munsiff's Court, Karunagappally and was renumbered as E.P.No.95 of 2015. In the said execution petition, the stage carriage owned by the petitioner Management was sold in auction to the respondents/decree holders/workmen. The sale of the stage carriage in favour of the workmen is not under challenge in this original petition. The workmen filed E.A.No.61 of 2017 in E.P.No.95 of 2015 for releasing the stage carriage, which was kept in the premises of Chavara Police Station, and for an order directing the petitioner Management/judgment debtor to handover the registration certificate and permit of the said vehicle to them. In the said execution application, the court below passed Ext.P11 order dated 7.7.2017, ordering release of the vehicle forthwith to the workmen/decree holders, under Order XX1, Rule 79 of the Code. The petitioner Management/Judgment debtor was directed to produce the registration certificate of the vehicle and O.P.(C)No.2625 of 2017 :-7-: all other relevant records before the court within 5 days, failing which the workmen/decree holders are at liberty to apply and obtain the duplicate of the records from the authorities concerned. Ext.P11 order would also show that there was no representation for the judgment debtor, though copy is seen served on him by registered post. 8. Ext.P11 order is one dated 7.7.2017 and the present original petition is filed only on 24.8.2017. In the original petition, the petitioner Management has no case that copies of E.A.Nos.61 of 2017 and 62 of 2017 in E.P.No.95 of 2015 were not served on him by registered post. Admittedly, the petitioner Management has not chosen to challenge the sale of the stage carriage in favour of the workmen at appropriate time in appropriate proceedings. The sale of the vehicle is also not under challenge in this original petition. Now, by Ext.P11 order, which is only a consequential order, the court below has ordered release of the said vehicle to the workmen/decree holders and they are permitted to apply and obtain the duplicate of the records from the authorities concerned, if the petitioner Management fails to ## O.P.(C)No.2625 of 2017 :-8-: produce the registration certificate and all other relevant records before the court within 5 days. Having failed to challenge the sale conducted by the court below in favour of the workmen/decree holders, the petitioner Management cannot now challenge Ext.P11 consequential order passed by that court in this original petition filed under Article 227 of the Constitution of India. 9. In **Shalini Shyam Shetty v. Rajendra Shankar Patil** **[(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 10. In **Jai Singh v. Municipal Corporation of Delhi** O.P.(C)No.2625 of 2017 :-9-: **[(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It can not be exercised like a 'bull in a china shop', to correct all errors of the judgment of O.P.(C)No.2625 of 2017 :-10-: a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 11. In **Sobhana Nair K.N. v. Shaji S.G.Nair [2016(1) KHC 1]** a Division Bench of this Court held that, law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 12. Viewed in the light of the law laid down in the decisions referred to _supra_ , I find absolutely no grounds to interfere with Ext.P11 order passed by the Munsiff's Court, Karunagappally. The O.P.(C)No.2625 of 2017 :-11-: present original petition is nothing but another attempt made by the petitioner Management, who failed to reinstate the workmen despite Ext.P8 award of the Labour Court dated 23.11.2010, to delay the execution proceedings. In such circumstances, this original petition fails and the same is accordingly dismissed. No order as to costs. Sd/- **ANIL K.NARENDRAN JUDGE** ami/ //True copy// P.A.to Judge