NEPC AIRLINES (A Division of NEPC India Ltd.) v Philips C. Abraham and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **& THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 15TH DAY OF MARCH 2018 / 24TH PHALGUNA, 1939** **WA.No. 298 of 2018 IN WPC. 20748/2012** **-------------------------------------AGAINST THE ORDER/JUDGMENT IN WP(C) 20748/2012 of HIGH COURT OF KERALA DATED 10-08-2016** ## **APPELLANT(S)/PETITIONER:** **-----------------------** **NEPC AIRLINES,** **(A DIVISION OF NEPC INDIA LTD.) 36, WALLAJAH ROAD, CHENNAI, TAMIL NADU, REPRESENTED BY ITS DIRECTOR, TIRUPATHI KUMAR KHEMKA, S/O. RAVI PRAKASH KHEMKA, AGED 47 YEARS, DIRECTOR, NEPC AIRLINES, RESIDING AT V-101, ANNA NAGAR, CHENNAI - 40.** **BY ADV.SRI.K.SHAJ** **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. PHILIPS C. ABRAHAM** **AGED 75 YEARS, S/O. LATE M. ABRAHAM, MULAKILETHU HOUSE,** **KOTTAKKAKAM, MAVELIKARA P.O., ALAPPUZHA, PIN - 690 101.** **2. THE UNION OF INDIA,** **REPRESENTED BY SECRETARY, MINISTRY OF LABOUR, NEW DELHI.** **3. THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ERNAKULAM.** **4. THE DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL),** **OFFICE OF THE DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL), NO. 26, HADDOWS ROAD, SHASTRI BHAWAN, CHENNAI - 600 006.** **R2,R4 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------WA No.298 of 2018 ------------------------------------------Dated this the 15[th] day of March, 2018 ## J U D G M E N T ## Vinod Chandran, J. The petitioner in the Writ Petition is the appellant herein. The petitioner challenged the awards passed in ID No.17/2008, CP No.17/2009 and CP No.1/2011 on the file of the Central Government Industrial Tribunal-cum-Labour Court, Ernakulam (Tribunal). Those awards were respectively produced as Exts.P9, P10 and P12. The claim of the workman before the Industrial Court was that he was appointed on 18.01.1996 as Aircraft Maintenance Engineer at Chennai and was confirmed on 18.7.1996. His services were terminated with effect from 01.03.1997 as per Ext.R1(j) order. The reasons for termination though not available in Ext.R1(j), the ground taken by the appellant was that the employee did not acquire the requisite licence for maintenance of Aircrafts, which was a specific condition prescribed by the employer at the time of his appointment. 2. The employee had first filed claim petition, WA 298/18 -2- CP No.211/1999 before the Labour Court, Chennai for a direction to pay arrears of salary to the tune of Rs.1,15,817/- which he claimed to be dues of salary as on 8.3.1997, including the security deposit deducted from his salary. There were various proceedings before the High Court of Chennai also, which we need not refer to since the learned Single Judge has elaborately detailed the facts in her judgment. We are not concerned with the same since the proceedings before the Chennai High Court has attained finality. The arbitration proceedings directed by the learned Single Judge was interfered with by the Division Bench. The employee was permitted to prosecute his case before the Labour Court. Hence, nothing further has to be stated about the said case. But significant is the finding that the employee is a workman, affirmed by the High Court of Chennai. 3. As to the proceedings which are impugned in the instant Writ Petition, Ext.P9 (in ID 17/2008) is an award passed ex-parte for reason of the Counsel who appeared and filed vakkalath for the employer having subsequently not participated in the proceedings. The WA 298/18 -3- award of the Tribunal directed payment of backwages as also reinstatement of the workman. Based on the award passed by the Tribunal, a Claim Petition was filed under Section 33(c)(2) as CP 17/2009 for realization of salary for the period from 1.3.1977. Therein also the Management initially appeared through a counsel and filed an objection, but later did not prosecute the matter. CP 17/2009 was ordered directing payment of a sum of Rs.56,21,070/- to the employee as salary dues for the period between 1.3.1997 and 28.9.2009 @ Rs.37,275/-. Later, CP 1/2011 was filed for arrears of wages for the period from 25.9.2009 to 24.3.2011. The Labour Court by order dated 30.5.2011 allowed the claim of Rs.6,70,950/- with interest @ 6% per annum from the date of filing the petition. That order specifically indicated that even after receipt of notice, the respondent Management did not appear and repeated adjournments were made to ensure appearance of the Management. These were the orders challenged in the Writ Petition. 4. The learned counsel for the appellant argued that the entire proceedings by the workman are WA 298/18 -4- vitiated by fraud. The employee, in fact, had taken up employment with another Airlines, Sahara Airlines, from 19.9.1998 onwards. The employee was terminated from the said Airlines also which proceedings were challenged. Therein the Management raised a contention that the employee was not a workman, which was rejected by the Tribunal, but the decision was overturned by this Court. The Division Bench also confirmed the judgment of the learned Single Judge finding the employee to be not a workman under the Industrial Disputes Act, 1947. A further challenge to the Supreme Court also failed. There was also a review, which also stood rejected. The employee was an Aircraft Maintenance Engineer even in the other establishment with the same salary. The contention taken is that the present proceedings were initiated belatedly and after the judgment of this Court finding the employee to be not a workman under the ID Act, in the proceedings initiated against Sahara Airlines. 5. We do not think that, at present, the appellant can raise such a contention before this Court especially when there was no evidence produced before WA 298/18 -5- the Tribunal as to the exact nature of the work carried on by the employee when he was employed with the appellant. The learned Single Judge had elaborately considered the question raised of fraud having vitiated the various orders impugned as also the alleged suppression that the writ petitioner had been held to be not a workman in the other proceedings. The learned Single Judge found that in the other proceedings, the Management had produced sufficient materials to establish the nature of the work and prove that the employee was not a workman under the ID Act. Merely because the designation was the same and the salary was also comparable, that would not enable the appellant herein to take a contention that the employment with the appellant was also of a similar nature. 6. The learned counsel for the appellant invited us to Ext.P9 award and raised a contention that there is no finding on merits. When the Management had appeared and failed to file an objection, the Tribunal rightly allowed the claim on the basis of the claim statement filed by the workman which stood un-controverted before the Tribunal. We do not find anything wrong in such a procedure adopted. WA 298/18 -6- 7. The learned counsel relies on the decision in (2010) 4 SCC 785 [CCT v. Shukla & Bros.] wherein the Supreme Court held that recording of reasons is an essential feature of dispensation of justice and a litigant who approaches the court with a grievance is bound to be told the reasons for grant or rejection of his prayer. The Apex Court was concerned with the dismissal of a tax revision by the High Court by a cryptic non-speaking order. It was held that such orders prejudice the affected party and also hamper proper administration of justice. It was held that there should be some reasoning on merits. The decision in 1988 (2) KLT 58 [Union of India v. Subbammal] is relied on to contend that even when defendant is set ex parte, the Court should state its findings with reasons upon each separate issue. Therein, in a suit for damages the defendant appeared, filed written statement and raised issues. At the time of trial the defendant, Union Of India, appeared and sought an adjournment. The trial Court rejected the prayer for adjournment, declared the defendant ex-parte and granted a decree, as prayed for by the plaintiff, in a cryptic two line WA 298/18 -7- order. It was in this context that this Court found that the issues had to be answered and this has no application here. In 1987 (2) KLT 701 [Haridas v. Madhavi Amma] , it was held that courts have a duty to weigh the merits of the case even when there is no contest by non-appearance of the defendants. The Courts definitely have a duty to look into the pleadings and evidence and find the plaintiff to be entitled to a decree was the finding. 8. In the present case, there was no objection filed and there was no defense set up. A labour dispute cannot be equated to a complex civil dispute. The claim raised was of illegal termination, and the employment and termination even now is not disputed. The termination order was available in the records and there can be no dispute raised as to its illegality, which is evident from the face of it. The contention raised is of the respondent claimant being not a workman, which could have been considered only if it were raised before the Court. Further there is also unexplained delay, which stands against the appellant. WA 298/18 -8- The award was dated 06.07.2009 and the writ petition is of the year 2012. 9. As has been noticed, the appellant is guilty of lack of diligence in prosecuting the matter. An Advocate was engaged before the Tribunal, who failed to participate in the proceedings and defend the management. That alone cannot be a reason to explain away the absence of the Management before the Tribunal. If the Management had been diligent and following up the case with the Advocate as also before the Tribunal, they would have necessarily known the absence of the Advocate before the Tribunal. The admitted case of the appellant is that they came to know of the proceedings only when revenue recovery notices were issued to realize the amounts awarded in the claim petitions. There can also be no ground of fraud, discerned from the facts and the suppression of the writ proceedings with respect to the other employment, even if revealed would have had no impact in the instant proceedings. The contention raised of fraud as also suppression of material facts would not enable the appellant to challenge the orders impugned herein and we perfectly WA 298/18 -9- agree with the learned Single Judge on the findings rendered, after looking into the binding precedents of the Honourable Supreme Court. 10. We notice that the learned Single Judge while refusing to interfere with the award passed in ID 17/2008 directed that the order in CP 17/2009 be modified to the extent of limiting the backwages for the period up to 19.9.1998, i.e. between 1.3.1997 to 18.9.1998. This is obviously because the employee was gainfully employed otherwise, from 19.9.1998 in Sahara Airlines. This would, in fact, show that the employee had abandoned the future claims against the earlier employer. The learned Single Judge also quashed the order in CP 1/2011 awarding the backwages for the subsequent periods till 2011. Hence, in effect, the learned Single Judge has disentitled the employee from any relief after he entered into another employment. It is submitted by the learned counsel for the appellant that there is a claim petition now submitted before the Labour Court limiting the claim to what has been permitted by the learned Single Judge in the judgment. There is also no appeal WA 298/18 -10- from the judgment of the learned Single Judge by the employee/first respondent. In such circumstances, we do not think that there is anything further to be done in the matter and the net effect of the findings of the learned Single Judge is that the impugned orders would enable the employee/first respondent to claim backwages for the period between 1.3.1997 to 18.8.1998 and nothing otherwise. We do not think that any interference to the judgment has to be made by us. 11. We do not think there is any reason to interfere with the judgment on the grounds stated herein above when there was also gross delay in challenging the awards and the Management having approached this Court with a Writ Petition only when recovery was initiated on the basis of an order in a claim petition, which was allowed based on the award passed by the Tribunal. In the said claim petition filed under Section 33(c)(2) also, there was appearance for the Management and the same was also not diligently prosecuted. Considering the gross delay in approaching this Court, we are of the opinion that none of the decisions cited would apply and the Management would WA 298/18 -11- not be entitled to raise such contentions at this belated stage before this Court. As noticed by us, the question whether the employee is a workman or not, was not contested before the Labour Court and substantiated with sufficient evidence. We, hence, find ourselves unable to interfere with the judgment of the learned Single Judge. We, hence, dismiss the Writ Appeal in limine. No costs. Sd/K.VINOD CHANDRAN JUDGE Sd/ASHOK MENON JUDGE jg