P. Sreedharan, P. Madhuri and P. M. Geejabhai v. Project Director, STED Project & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 22[ND] DAY OF MAY 2023 / 1ST JYAISHTA, 1945** ## **WP(C) NO. 6709 OF 2010** ## **PETITIONER/S:** 1 P.SREEDHARAN, PROJECT ASSISTANT STED(SCIENCE & TECHNOLOGY ENTREPRENEURSHIP DEVELOPMENT) PROJECT, KOZHIKODE-673002, RESIDING AT PUTHIYOTTIL HOUSE, MUCHUKUNNU P.O., QUILANDY673 307. 2 P.MADHURI, RECEPTIONIST, STED PROJECT KOZHIKODE-673 002, RESIDING AT "AMMA", NEAR GOVT. HSS SCHOOL, FEROKE P.O., KOZHIKODE. 3 P.M.GEEJABHAI FORMERLY COMPUTER FACULTY STED PROJECT, KOZHIKODE-673 002, RESIDING AT, "SANTHOSH", 29/1265, KOTTOLI, KOZHIKODE 673 016. BY ADVS. TITUS MANI BINNY THOMAS P.A.JACOB SWAROOP A.P. ## **RESPONDENT/S:** 1 PROJECT DIRECTOR, STED PROJECT 5TH FLOOR, INDUS AVENUE, KALLAI ROAD,, KOZHIKODE673 002. 2 EX-OFFICIO SECRETARY TO GOVERNMENT OF KERALA SCIENCE AND TECHNOLOGY DEPARTMENT & CHAIRMAN, STEC (SCIENCE, TECHNOLOGY AND, ENVIRONMENT COMMITTEE), GOVERNMENT OF KERALA,, SASTHRA BHAVAN, PATTOM, PATTOM, THIRUVANANTHAPURAM. **WP(C) NO. 6709 OF 2010** 2 *ADDL. R3 STATE OF KERALA REPRESENTED THE SECRETARY, KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY AND ENVIRONMENT, 4TH FLOOR, KSCSTE, SHASTHRA BHAVAN, PATTOM, THIRUVANANTHAPURAM-695004. . *(ADDL.R3 IS IMPLEADED AS PER ORDER DATED 01-11-2022 IN IA 1/2022) BY ADVS. SMT.M.LISHA SRI.A.RANJITH NARAYANAN SRI.SHYAM PADMAN SRI.S.K.SAJU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 6709 OF 2010** 3 ## J U D G M E N T Petitioners, 3 in number, were appointed on daily wage basis as project assistant, receptionist and computer faculty in the services of the first respondent, Science & Technology Entrepreneurship Development Project. While working so, petitioners 2 and 3 had submitted a complaint of gender harassment against the previous incumbent in the post of Project Director. The first petitioner was the witness to the said incident. Instead of proper enquiry by constituting a proper enquiry committee, they were dismissed from service entailing into preference of OP No.3535/2003 before this Court. This Court by judgment Ext.P1, dated 12.1.2007, disposed of the original petition by issuing direction to constitute a committee as contemplated in the Supreme Court decision in Vishaka & Others v. State of Rajasthan & others [(1997) 6 SCC 241] and complete the proceedings, and even after receipt of the report of the **WP(C) NO. 6709 OF 2010** 4 committee so constituted, if the disciplinary authority was still of the opinion that the proceedings against the petitioners should be continued, complete the proceedings after complying with the principles of natural justice. In the meanwhile, the petitioners were ordered to be reinstated in service and continue till final orders were passed in the disciplinary proceedings. Question with regard to their entitlement of back wages for the period they were kept out of service was ordered to be decided only after the conclusion of the disciplinary proceedings, subject to the result of the disciplinary proceedings. 2. The aforementioned judgment was assailed in writ appeal No.659/2007 by the Project Director. The Division Bench of this Court vide judgment Ext.P1(a) dated 13.4.2007 noticing that no material was placed on record to show that the petitioners were given an opportunity before the enquiry officer, disposed of the writ appeal by upholding the judgment of the learned Single Judge with the **WP(C) NO. 6709 OF 2010** 5 rider to proceed with the disciplinary action, if so advised, after completing the enquiry on the allegation of gender harassment. It was further directed that the petitioners would not be entitled to any wages during the period they were kept out of employment and the matter was left open to be decided at appropriate stage by the management. 3. Petitioners vide proceedings, Ext.P2, dated 29.5.2007 were re-engaged on daily wage basis in the head office, subject to the conditions laid down in the judgments dated 12.1.2007 and 13.4.2007, Exts.P1 and P1(a), respectively. An interlocutory application was filed in the decided original petition (OP No.3535/2003) by the Project Director for extension of time for completion of the enquiry on the complaint of gender harassment. This Court vide order Ext.P4 dated 11.3.2008 dismissed the aforementioned I.A., against which writ appeal No.2008/2008 was preferred before this Court. The Division Bench of this Court called for report dated 25.6.2007 and statement of the **WP(C) NO. 6709 OF 2010** 6 witnesses and vide judgment Ext.P5 dated 22.10.2008, dismissed the writ appeal. It is in this background, the petitioners have sought indulgence of this Court for payment of full back wages during the aforementioned period and in this regard had made representations, Ext.P6, P6(a), P6(b) and P6(c), respectively. It was further contended that the refusal to extend the benefit is absolutely illegal and arbitrary. The daily wage was a very paltry amount. The period they kept outside service was from 22.1.2003 to 29.05.2007. 4. On the contrary, the respondents opposed the prayer and raised objection that the writ petition was bereft of complete particulars and rather withholding of the information, in asmuch as in the first round of litigation in OP No.3535/2003 in ground No.(F) thereof, the petitioners had categorically stated that the dispute regarding fitment of daily wage staff like them to regular posts in appropriate scales of pay was pending consideration before the concerned labour officer, **WP(C) NO. 6709 OF 2010** 7 conciliation officer as per the Industrial Disputes Act, 1947. There are no pleadings regarding the outcome of the same. Petitioners have an alternate remedy under Section 33 of the Industrial Disputes Act as it requires detailed evidence with regard to their gainful employment during the period they remained out of daily wage service as alleged, much less, even they were not reinstated. They were reinstated without any back wages, therefore, the present writ petition would not lie on the principle laid down in Order-2 Rule-2 of the Code of Civil Procedure. In fact, they were all gainfully employed in a private concern as per the contents of paragraph 2 of the writ petition. 5. I have heard the learned counsel for the parties and appraised the paper book. 6. It would be, in the fitness of things, to extract the relevant paragraphs of the Division Bench judgment, Ext.P1(a), affirming the findings of the learned Single Bench in OP No.3535/2003. The same read as under: **WP(C) NO. 6709 OF 2010** 8 “20. In the circumstances, the learned Single Judge was perfectly justified in quashing Exts.P14 to P16 termination orders issued to the petitioners. The learned Single Judge, however, has safeguarded the interest of the management to proceed with the disciplinary action, if so advised, after completing the enquiry into the allegation of gender harassment in accordance with the apex court decision in Vishaka's case (supra). Further, petitioners were not directed to be paid any wages during the period during which they were kept out of employment, which is also a matter left open to be decided later by the management at appropriate stage. Since termination of services were held illegal, necessarily, they have to be reinstated. According to the learned counsel for the appellant, they are only casual employees and therefore, the direction to reinstate them into the service may not be appropriate. But we find that the learned Single Judge has only directed to reinstate the writ petitioners in the same position which they were holding prior to the termination of service. In other words, they were only restituted to the same position which they were holding and therefore, the nature of employment in no way has been altered by the direction in the judgment under appeal. The position being thus clarified as above, we find no merits in this appeal. According, it is dismissed.” **WP(C) NO. 6709 OF 2010** 9 On a perusal of the same, it is evident that the question of payment of back wages was kept open. 7. Section 33-C of the Industrial Disputes Act, 1947 reads as under: “ 33C. Recovery of money due from an employer .- (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A or Chapter V- B, the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue: Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer : Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. **WP(C) NO. 6709 OF 2010** 10 (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months: Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit. (3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a Commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the Commissioner and other circumstances of the case. (4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in subsection (1). (5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for **WP(C) NO. 6709 OF 2010** **==> picture [13 x 10] intentionally omitted <==** the recovery of the amount due may be made on behalf of or in respect of any number of such workmen. Explanation.- In this section “Labour Court” includes any Court constituted under any law relating to investigation and settlement of industrial disputes in force in any State.” It envisages a situation for any affected workman to claim the dues/money due from an employer. For such claim, a detailed evidence is required to be led as to whether they were gainfully employed or not since their employment was only on daily wage basis and not permanent or on regular basis. Hence, the matter cannot be decided at the drop of a hat by invoking the provision under Article 226 of the Constitution of India, particularly when the question of back wages was kept open and to be taken in appropriate stage. No material has been brought on record with regard to the outcome of the proceedings pending before the conciliation officer as per the averments in ground No.(F) of the original petition (OP No.3535/2003) which is reproduced herein below: **WP(C) NO. 6709 OF 2010** 12 “(F) It is most humbly urged that the dispute regarding the fitment of daily wage staff like the Petitioners to regular post in the appropriate scales of pay is pending consideration with the labour officer concerned, who is the conciliation officer as per the Industrial Disputes Act. Daily wage staff of the STED, like the Petitioners, are “workmen” as per the Industrial Disputes Act. Though the Task Force Committee of the STED have decided to place the daily wage staff to regular posts in the appropriate scales of pay, the same has not been implemented in favour of the Petitioners by the 3rd respondent, due to extraneous considerations. As per Sec.33 of the ID Act, no employer shall during the pendency of any proceedings for a conciliation officer, a board, an arbitrator, Labour Court or Tribunal in respect of an industrial dispute, shall terminate the service of the workman concerned, by way of dismissal, discharge etc., unless the permission and approval of the competent authority is obtained in writing by the employer. In the instant case, though the matter relating to regularization of the daily wage staff is pending before the labour officer concerned, the 3rd respondent has issued the impugned orders terminating the service of the Petitioners, without obtaining the permission of the authority concerned as per Sec. of the ID Act. The Supreme Court in (2001) 9 SCC 99 has held that the order of dismissal or discharge against the workman remains in an inchoate state till the employer obtains permission in terms of Sec.33 and the **WP(C) NO. 6709 OF 2010** 13 relationship of employer and employee is not legally terminated till approval of discharge or dismissal is granted by the competent authority and that the employee is entitled to have his right enforced by filing a petition under Art.226 of the Constitution of India. Thus the impugned termination orders are non-est and void.” For the reasons aforementioned, I do not find any merit in the writ petition. The same stands dismissed. Sd/AMIT RAWAL JUDGE jg **WP(C) NO. 6709 OF 2010** 14 ## APPENDIX ## PETITIONER'S EXHIBITS P1 : TRUE COPY OF JUDGMENT DATED 12.1.2007 IN OP 3535/2003 P1(a) : TRUE COPY OF JUDGMENT DATED 13.4.2007 IN WA 659/07. P2 : TRUE COPY OF PROCEEDINGS NO.1/STED/KKD/ESTT/2007/938 DATED 29.5.2007 ISSUED BY R1. P3 : TRUE COPY OF IA NO.2639/2008 IN OP 3535/2003 P4 : TRUE COPY OF ORDER DATED 11.3.2008 IN IA NO.2639/2008 IN OP 3535/2003. P5 : TRUE COPY OF JUDGMENT DATED 22.10.2008 IN WA NO.2008/08. P6 : TRUE COPY OF 1ST PETITIONER'S REPRESENTATION P6(a) : TRUE COPY OF 1ST PETITIONER'S REPRESENTATION P6(b) : TRUE COPY OF 1ST PETITIONER'S REPRESENTATION P6(c) : TRUE COPY OF 3RD PETITIONER'S REPRESENTATION RESPONDENT'S EXHIBITS R1(a) : TRUE COPY OF CERTIFICATE OF REGISTRTION OF SOCIETIES DATED 18.11.2009 R1(b) : TRUE COPY OF GO (RT) NO.109/2009/S&TD DATED 21.10.2009. R1(c) : TRUE COPY OF MEMORANDUM OF WRIT PETITION IN OP NO.3535/2003 FILED BY THE PETITIONERS. R1(d) : TRUE COPY OF JUDGMENT IN CC NO.33/2004 OF THE JFCM III, KOZHIKODE.