Muthoot M. George Bankers v. The Presiding Officer Labour Court Kollam and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **TUESDAY, THE 4[TH] DAY OF JANUARY 2022 / 14TH POUSHA, 1943** ## **WP(C) NO.22492 OF 2016** ## **PETITIONER:** **MUTHOOT M. GEORGE BANKERS REPRESENTED BY ITS MANAGING PARTNER, MUTHOOT BUILDINGS, NEAR KRISHNAKOVIL, VADAYATTUKOTTAH ROAD, KOLLAM-691 001.** **BY ADVS. SRI.B.ASHOK SHENOY SRI.K.V.GEORGE SRI.P.S.GIREESH SRI.P.N.RAJAGOPALAN NAIR SRI.RIYAL DEVASSY** ## **RESPONDENTS:** **1 THE PRESIDING OFFICER LABOUR COURT, KOLLAM-691 013. 2 K. PRASANNAKUMAR AZHIKATHU VEEDU, VENKULANGARA NAGAR 113, KAVANAD P.O., KOLLAM-691** **3 THE MANAGING PARTNER MUTHOOT FINANCE, VADAYATTUKOTTAH ROAD, KOLLAM-691 001.** ## **BY ADV SRI.C.UNNIKRISHNAN KOLLAM** **G.P.-SRI.K.M.FAISAL** **THIS WRIT PETITION (CIVIL) HAVING COME BEEN FINALLY HEARD ON 7.10.2021, THE COURT ON 04.01.2022 DELIVERED THE FOLLOWING:** W.P.(C) 22492/2016 2 ## **JUDGMENT** This writ petition is filed challenging Ext.P7 order passed by the Labour Court, Kollam under Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act', for short). The petitioner is a partnership firm which was engaged in the business of taking deposits from the public and lending to the public, at Kollam. The 2[nd] respondent, a workman employed in the service of the as Assistant was petitioner Office suspended from service on 10.06.1993 and later dismissed with retrospective effect from the said date, on allegation of misconduct. An industrial dispute was raised by the 2[nd] respondent's union, challenging the dismissal of the 2[nd] respondent from service and it was referred for adjudication of the 1[st] respondent. The issue W.P.(C) 22492/2016 3 referred for adjudication was “whether the dismissal of Sri.K.Prasannakumar, Office Assistant w.e.f. 10.06.1993 by the management of Muthoot M.George Bankers, Kollam is justifiable, if not, what relief he is entitled to”. After evidence, the Labour Court, by preliminary award dated 04.09.2004, found that the domestic enquiry is vitiated and set aside the enquiry report. Later, the Labour Court, by Ext. P1 final award dated 22.11.2005, directed the petitioner to reinstate the 2[nd] respondent in service with 20% back wages with continuity of service, but without any other attendant benefits. Ext.P1 award was challenged by the petitioner as well the 2[nd] respondent before this Court and by Ext.P2 common judgment dated 30.07.2009, this Court dismissed the writ W.P.(C) 22492/2016 4 petition filed by the petitioner and partly allowed the writ petition filed by the 2[nd] respondent, enhancing the back wages from 20% to 50%. Against Ext. P2 judgment, the petitioner preferred W.A. Nos. 2256/2009 and 2258/2009, which were dismissed by judgment dated 27.05.2016. 2. During the pendency of the writ appeals, on 31.05.2013, the 2[nd] respondent filed Ext.P3 claim petition as C.P.No.13/2013 before the Labour Court, Kollam, claiming back wages payable to him on reinstatement in terms of Ext. P1 award as modified by Ext.P2 judgment. Before the Labour Court, at the instance of the 2[nd] respondent, the 3[rd] respondent herein, the Managing Partner, Muthoot Finance, Kollam was impleaded as additional second opposite party in the claim petition, W.P.(C) 22492/2016 5 stating that, as per the counter statement filed by the writ petitioner in the claim petition, the assets and liabilities of Muthoot M.George have been transferred to Muthoot Finance. The Labour Court issued notice to the additional second opposite party; but, they did not enter appearance. Evidence was adduced in the claim petition and the Labour Court, as per Ext.P7, passed an order finding that the 2[nd] respondent is entitled to get Rs.1,62,487/- as claimed in Ext.P3, being 50% back wages from 10.06.1993 to 21.12.2005 and Rs.2,72,395/-, being the full wages from 22.12.2005 till 31.05.2013, i.e., total amount of Rs.4,34,882/-. The petitioner and the 3[rd] respondent and their assets were jointly and severely made liable to pay the said amount with interest @ 12% W.P.(C) 22492/2016 6 per annum till realisation. Ext.P7 order of the Labour Court is challenged in this writ petition by the employer. 3. Heard Sri. Gireesh P.S, the learned Counsel for the petitioner, Sri. C. Unnikrishnan, the learned Counsel for the 2[nd] respondent and Sri.K.M.Faisal, the learned Government Pleader. 4. The first contention of the petitioner is that, the petitioner's establishment was closed w.e.f. 10.02.2004 as they could not carry out the business in banking in view of Section 45-S of the Reserve Bank of India Act, 1934. In view of the stoppage of business and the establishment from 10.02.2004, the finding of the Labour Court to pay back wages and wages to the 2[nd] respondent for the period from 10.02.2004 is not sustainable in law. W.P.(C) 22492/2016 7 According to the petitioner, though it was specifically contended before the Labour Court that the petitioner is not running the establishment from 10.02.2004, the Labour Court rejected the same on an erroneous premise that, if the petitioner had stopped business from 10.02.2004, they would have taken this contention in I.D. No.105/1994, which was disposed of only on 22.11.2005 or at least before this Court in the writ petition. The learned counsel for the petitioner also relied on the Full Bench decision of this Court in **N.Mahalingam & Company (M/S), Coimbatore v. T.Santhosh Kumar and Another** [2015 (1) KHC 54: 2015 (1) KLT 460: 2015 (1) KLJ 260: ILR 2015 (1) Ker. 255] to contend that if the workmen lose their right to continue in employment W.P.(C) 22492/2016 8 during the pendency of the proceedings before the High Court or the Supreme Court on account of the closure of the establishment, they cannot claim the benefit of Section 17B of the Act. 5. I have considered the above contention of Sri. Gireesh. I agree with the reasoning of the Labour Court that, if the petitioner has closed the establishment from 10.02.2004, the said fact would have very well brought to the notice of the Labour Court in I.D. No.105/1994. However, such a contention was not taken before this Court also in the writ petition challenging Ext.P1 award leading to Ext.P2 judgment as well as in the writ appeals. Therefore, the petitioner cannot raise such a contention in a proceedings under Section 33C(2) of the Act. The W.P.(C) 22492/2016 9 power of the Labour Court while considering Ext.P3 claim petition under Section 33C(2) of the Act is only to implement the adjudication already made in Ext.P1 award which has attained finality in Ext.P2 judgment. Hence, the said contention of the petitioner is only to be rejected. 6.The other contention of the petitioner is with regard to the calculation of the benefits in the claim petition under Section 33C(2). The petitioner has taken a contention in the counter statement filed to the claim petition that, since the award was passed under Rule 26A of the Kerala Industrial Disputes Rules (Rules) on 12.04.2006, the 2[nd] respondent is entitled for full wages only from 12.05.2006. However, this contention is not seen adverted to by the Labour Court. In Ext.P1 award W.P.(C) 22492/2016 10 the Presiding Officer has endorsed as follows: “Pronounced before the open Court on this the 12[th] day of April 2006 and being published on the notice board of this Court as provided by Rule 26A of the kerala Industrial Disputes Rules.” Therefore, Sri. Gireesh contends that, as per Rule 26A of the Rules and Section 17 of the Act, the award had come into operation in terms of Section 17A of Act only on 12.05.2006 and the 2[nd] respondent will be entitled to full wages as a consequence of reinstatement only from 12.05.2006 and not from 21.12.2005. Rule 26A of the Rules reads as follows: “26A. Publication of report or award – Every report of a Board or award of a Labour Court or Tribunal required to be submitted to the Government under Section 15 W.P.(C) 22492/2016 11 shall be sent to the Government. The report/award so sent shall, within 30 days from the date of its receipt by the Government, be pronounced in the open Court by the Board, Labour Court or Tribunal concerned and be published in the notice board of the Labour Court or Tribunal and the same shall be deemed to be sufficient publication for the purpose of Section 17. Provided that the Board, Labour Court or Tribunal, as the case may be, shall inform the State Government and the parties concerned of the date of such pronouncement in open Court." The endorsement made in Ext.P1 award indicates that the award was pronounced in open Court on 12.04.2006 and published in the notice board as provided in Rule 26A. The award is thus published under Section 17 of the Act W.P.(C) 22492/2016 12 on 12.04.2006 and the award became enforceable on 12.05.2006 in terms of Section 17A. Therefore, the 2[nd] respondent is entitled to full wages as a consequence of reinstatement only from 12.5.2006 and not from 21.12.2005. Therefore, an amount of Rs.6832/- has to be deducted, being 50% of wages from 22.12.2005 till 11.05.2006. 7. It is contended that the 2[nd] respondent was not a Clerk, but only an Office Assistant and the calculation of benefits taking into account the 2[nd] respondent's employment as Clerk is erroneous. It is also the contention of the petitioner that the interim allowance of Rs.100/- taken into account by the Labour Court for calculation of benefits is not based on any proof of such W.P.(C) 22492/2016 13 entitlement. As rightly observed by the Labour Court, the very contention of the petitioner in I.D. No.105/1994 before the Labour Court leading to Ext.P1 award was that the 2[nd] respondent was appointed as Clerk. The Labour Court found that the petitioner did not raise any contention that the 2[nd] respondent was not appointed as a Clerk. Further, the petitioner did not let in any evidence or produced any document to show that the 2[nd] respondent was not a clerk. In answer to point No: 1 for consideration, the Labour Court, in Ext.P1 award, has found that the worker involved in the dispute was employed as Clerk under the petitioner is not disputed. The Labour Court considering a claim petition under Section 33C(2) of the Act cannot go behind the award. W.P.(C) 22492/2016 14 Therefore, the Labour Court has rightly rejected the said contention of the petitioner and I do not see any reason to interfere with the said finding. The Labour Court has held that since the Minimum Wages Notification applicable to Shops and Commercial Establishments is applicable to the establishment run by the petitioner, the 2[nd] respondent is entitled to calculate the amount on the basis of such a notification. The petitioner has not produced any documents or adduced evidence to show that the computation based on the claim of the 2[nd] respondent is erroneous. 8. Essentially, the role of the Labour Court in Section 33C(2) proceedings is akin to an execution Court and cannot go beyond the award of the Labour Court. The 2[nd] W.P.(C) 22492/2016 15 respondent has based his claim under Section 33C(2) on Ext. P1 award. Except for the finding as to the date on which the award became enforceable for granting full wages as a consequence of reinstatement, Ext.P7 order of the Labour Court does not warrant interference by this Court. 9. In the result, Ext.P7 order is modified as follows: The 2[nd] respondent is entitled to get Rs.1,69,319/(1,62,487+ 6832) (Rupees One Lakh Sixty Nine Thousand Three Hundred and Nineteen only) being 50% back wages from 10.06.1993 to 11.05.2006 and Rs. 2,58,732/(2,72,395 -13663) (Rupees Two lakhs Fifty Eight Thousand Seven Hundred and Thirty Two only) being the full wages from 12.05.2006 till 31.05.2013. Thus, the 2[nd] respondent W.P.(C) 22492/2016 16 is entitled to get a total amount of Rs. 4,28,051/- (Rupees Four lakhs Twenty Eight Thousand Fifty One only) from both the opposite parties and their assets jointly and severally with interest at the rate of 12% per annum on the same amount from the date of petition till realisation or payment. The writ petition is disposed of as above. There will be no order as to costs. Sd/- **MURALI PURUSHOTHAMAN JUDGE** W.P.(C) 22492/2016 17 ## **APPENDIX OF WP(C) 22492/2016** ## **PETITIONER'S EXHIBITS** - **P1 TRUE COPY OF AWARD DATED 22.11.2005 IN I.D. NO. 105 OF 1994 PASSED BY 1ST RESPONDENT.** - **P2 TRUE COPY OF COMMON JUDGMENT DATED 30.7.2009 IN W.P(C) NOS. 24575 OF 2006 AND 22420 OF 2007 OF THIS HON'BLE COURT.** - **P3 TRUE COPY OF CLAIM PETITION WITHOUT DOCUMENT DATED 31.5.2013 IN C.P. NO.13 OF 2013 FILED BY 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.** - **P4 TRUE COPY OF COUNTER STATEMENT DATED 7.1.2014 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT IN CP NO.13 OF 2013** - **P5 TRUE COPY OF IMPLEADING PETITION DATED 18.2.2014 FILED BY 2ND RESPONDENT BEFORE 1ST RESPONDENT IN CP NO. 13 OF 2013.** - **P6 TRUE COPY OF PROOF AFFIDAVIT DATED 9.6.2015 OF 2ND RESPONDENT ALONG WITH HIS TESTIMONY IN THE COURSE OF CROSSEXAMINATION, DATED 6.7.2015 IN C.P. NO. 13 OF 2013 BEFORE THE 1ST RESPONDENT.** - **P7 TRUE COPY OF ORDER DATED 12.4.2016 IN C.P. NO.13 OF 2013, PASSED BY 1ST RESPONDENT.** **spc/**