M/S Kanji Moorarji Ramdas Haridas Rice & Oil Mills v. N. Somanathan and others

WP(C) NO. 12136 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944 WP(C) NO. 12136 OF 2009** **AGAINST THE ORDER/JUDGMENTCP 31/2006 OF LABOUR COURT, KOZHIKODE PETITIONER/S:** M/S.KANJI MOORARJI RAMDAS HARIDAS RICE & OIL MILLS,, WEST HILL,KOZHIKODE DISTRICT,REP.BY ITS, PARTNER SANJAY MARIWALA,S/O.J.V.MARIWALA,, AGED 49,E-9,WILLINGTON ENCLAVE,, CHAKOLAS HABITAL,THEVARA,KOCHI. BY ADVS. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.SAJU WAHAB ## **RESPONDENT/S:** 1 N.SOMANATHAN NELLIPPUNATH HOUSE,HOUSE NO.13/1177,, OPPOSITE UMASREE HOUSE,P.O.EDAKKAD,, CALICUT-5. [DECEASED] 2 KAUSHIK N.SAMPATH S/O.LATE NEELAN D.SAMPATH,, M/S.KANJI MOORARJI RAMDAS,, HARIDAS RICE & OIL MILLS,, WEST HILL,KOZHIKODE DISTRICT. 3 RAJANI M.SAMPATH W/O.LATE NEELAN D.SAMPATH,, M/S.KANJI MOORARJI RAMDAS,, HARIDAS RICE & OIL MILLS,, WEST HILL,KOZHIKODE DISTRICT. 4 VIKRAM N.SAMPATH S/O.LATE NEELAN D.SAMPATH,, M/S.KANJI MOORARJI RAMDAS,, HARIDAS RICE & OIL MILLS,, WEST WP(C) NO. 12136 OF 2009 2 HILL,KOZHIKODE DISTRICT. 5 SONA N.SAMPATH D/O.LATE NEELAN D.SAMPATH,, M/S.KANJI MOORARJI RAMDAS,, HARIDAS RICE & OIL MILLS,, WEST HILL,KOZHIKODE DISTRICT. 6 INDUSTRIAL TRIBUNAL KOZHIKKODE. 7 THANKAM AGED 64 YEARS WIFE OF LATE N.SOMANATHAN, RESIDING AT NANDANAM, NELLIPUNATH HOUSE, KOIOTH PARAMBA, WEST HILL, KOZHIKODE-673005 WIFE OF 8 SHEREEJA AGED 38 YEARS DAUGHTER OF LATE N.SOMANATHAN, RESIDING AT NANDANAM, NELLIPUNATH HOUSE, KOIOTH PARAMBA, WEST HILL, KOZHIKODE-673005. 9 SHARATH AGED 37 YEARS SON OF LATE N.SOMANATHAN, RESIDING AT NANDANAM, NELLIPUNATH HOUSE, KOIOTH PARAMBA, WEST HILL, KOZHIKODE-673005. (ADDL.R7 TO R9 ARE IMPLEADED AS THE LEEGAL HEIRS OF THE DECEASED R1 AS PER ORDER DTD. 12.8.2016 IN IA 12476/2016.) BY ADVS. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 12136 OF 2009 3 **P.V.KUNHIKRISHNAN, J --------------------------------------W.P.(C) No. 12136 of 2009 -------------------------------------Dated this the 28[th] day of November, 2022** ## **JUDGMENT** The petitioner is challenging Ext.P4 order passed by the Labour Court, Kozhikode in CP No. 31/2006. The petitioner herein is the 5[th] respondent in CP No. 31/2006 on the file of the Labour Court. Ext.P1 is the application submitted by the 1[st] respondent claiming the arrears of salary, bonus, leave salary and extra wages/retaining allowance. The total amount claimed as per Ext.P1 claim petition is Rs. 85,786/-. The 1[st] respondent died pending the writ petition and the respondent Nos. 7 to 9 are the legal heirs. The Labour Court after considering the contention of both sides allowed the claim petition and directed the respondents in CP No. 31/2006 to pay a sum of Rs. 85,786/together with interest at the rate of 9% per annum. Aggrieved by the same, this writ petition is filed. WP(C) NO. 12136 OF 2009 4 2. Heard the learned counsel for the petitioner and the learned counsel appearing for addl. respondent Nos. 7 to 9. 3. The short point raised by the petitioner is that the Labour Court has no jurisdiction to entertain the claim petition for the simple reason that there is no prior adjudication. It is also submitted that there is a delay of 11 years in filing the claim petition. It is the specific case of the petitioner that the entire amount claimed in Ext.P1 application is disputed in Ext.P3 counter statement filed by the Manager. The counsel for the petitioner relied the judgment of the Apex Court in **Chief Superintendent, Government Livestock Farm Hissar v. Ramesh Kumar** [1997 KHC 3885] and **Bombay Chemical Industries v. Deputy Labour Commissioner and anr.** [2022 KHC 6142] 4. On the other hand, the learned counsel appearing for the additional respondents submitted that there is no dispute about the amount claimed. The counsel submitted that the amount claimed includes Bonus. The similarly situated employees were given bonus and that is why the Tribunal awarded bonus. Therefore, it can be presumed that there is no WP(C) NO. 12136 OF 2009 5 dispute about the bonus is the contention. The counsel conceded that there is no prior adjudication in this case. 5. This Court considered the contentions of the petitioner and the respondents. This Court perused Ext.P1 petition filed before the Labour Court in which the amount claimed is towards the arrears of salary, bonus, leave salary and extra wages/retaining allowance. The total amount claimed is Rs.85,786/-. The petitioner-Management filed a counter affidavit as evident by Ext.P3. It will be better to extract para Nos. 5, 7 and 8 of Ext.P3 counter affidavit. “5. It is respectfully submitted that none of the above mentioned claims are sustainable and are liable to be paid to the petitioner. Admittedly, the establishment has stopped functioning from 30.4.1995. The monetary claims if any has to be raised within a reasonable time. It is a settled position of law that stale claims cannot be allowed. The petitioner has filed this petition after eleven years. The respondent is denying and disputing the entitlement of the claims raised by the petitioner in the above claim petition. None of the claims raised by the petitioner are supported by the award passed by this Honourable Court in ID No. 29/1998. In fact, in the management, the petitioner was working as a Manager of the establishment and he was the person to disburse salary to all its employees. 6. xxxxx xxxxx WP(C) NO. 12136 OF 2009 6 7. The allegation contained in Para 9 of the claim petition to the effect that the management was failed to disburse certain legal benefits to the petitioner is absolutely incorrect and hence denied by these respondents. His claim for extra wages and retaining allowance etc. are without any basis. To the knowledge of these respondents, the management establishment had stopped its functioning during 1991 itself. Then there was absolutely no scope for doing any extra works. The respondent is denying the entitlement of the petitioner for extra wages and retaining allowance. The respondents also deny the alleged entitlement of the petitioner to receive leave salary for the period from 1993 to 1996. Whether the petitioner is entitled for extra wages/retaining allowance and leave salary or not is a matter to be adjudicated by a competent court having jurisdiction. The said questions cannot be decided in a proceeding under Section 33(c)(2). 8. The Honourable Supreme Court and the High Courts have repeatedly held that there is no adjudication contemplated under the provisions of the Section 33(c)(2) of the Industrial Disputes Act. What is contemplated is only an execution of a claim, which is the result of a vested right. In this matter there is absolutely no vested right at all. The question whether he is entitled claim bonus, leave wages, retaining allowance etc. cannot be decided in a proceeding under Section 33(C)(2) of the Industrial Disputes Act.” 6. A perusal of the same will show that the petitionerManagement is disputing the entire amount. In such situation, whether the Labour Court has got jurisdiction to entertain an WP(C) NO. 12136 OF 2009 7 ## application under Sec. 33(c)(2) is the question to be decided. ## 7. In **Ramesh Kumar's** case (supra), the Apex Court considered this point. It will be better to extract the relevant portion of the judgment. “We are unable to appreciate how the application of the respondent could be entertained under S.33-C(2) of the Act. The remedy of S.33-C(2) is available only in those cases where there is no dispute about entitlement of the workman. The remedy of S.33 – C(2) cannot be invoked in a case where the entitlement is disputed. In the instant case, the entitlement of the respondent to regular scale was disputed by the appellant and therefore, it was not a case in which the remedy of S.33 -C(2) could be invoked. The proper course for the respondent was to have his entitlement to regular scale determined by a competent court or tribunal and in the event of non-payment of the amount payable to him as per his entitlement under such determination he could invoke the remedy under S. 33C(2).” 8. Similarly in **Bombay Chemical Industries'** case (supra) also, the Apex Court considered a similar point in which the Apex Court observed that in application Sec.33(c)(2), the Labour Court has no jurisdiction to adjudicate dispute of entitlement or basis of claim of workmen and can only interpret award or settlement on which claim is based. It is stated by the WP(C) NO. 12136 OF 2009 8 Apex Court that without prior adjudication or recognition of dispute claim of workmen, the proceedings for computation of arrears of wages etc. claimed by the workmen is not maintainable. 9. In the light of the above settled position, I am of the considered opinion that Ext.P4 order will not stand. Admittedly, there is no prior adjudication of the claim of the workman. Moreover, a perusal of Ext.P3 counter statement will show that the petitioner-Management is disputing all the claims of the employee. In such circumstances, I am of the opinion that the Labour Court has no jurisdiction to entertain an application under Sec. 33(c)(2) of the Industrial Disputes Act, 1947. Therefore, Ext.P4 is to be set aside. Therefore, this writ petition is allowed. Ext.P4 is set aside. **SD/-** **P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 12136 OF 2009 9 ## **APPENDIX** **PETITIONER'S EXHIBITS :** **EXT.P1 TRUE COPY OF CLAIM RAISED BY THE 1ST RESPONDENT EXT.P2 TRUE COPY OF COUNTER STATEMENT FILED BY RESPONDENTS 2 TO 5.** **EXT.P3 TRUE COPY OF COUNTER STATEMENT FILED BY THE** **PETITIONER** **EXT.P4 TRUE COPY OF ORDER IN CP NO 31/2006 DATED 18.12.08 OF** **LABOUR COURT.** **ANNEXURE 1 TRUE COPY OF THE DEATH CERTIFICATE OF** **SRI.N.SOMATHAN DATED 24.6.2014 AND ISSUED BY SUB REGISTRAR OF** **BIRTHS AND DEATHS, KOZHIKODE CORPORATION** **RESPONDENT;'S EXHIBITS : NIL**