P.C. Varghese and Company v. Industrial Tribunal, Alappuzha and George Alfred

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 12TH DAY OF JULY 2013/21ST ASHADHA, 1935** ## **WP(C).No. 11845 of 2010 (E)** **----------------------------** **PETITIONER(S): --------------** **P.C.VARGHESE AND COMPANY, PUNNACHALIL ESTATE, KADAVANTHRA, ERNAKULAM COCHIN-682 020, REPRESENTED BY ITS MANAGING PARTNER, LAL VARGHESE, S/O. LATE P.C.VARGHESE, AGED 49 YEARS.** **BY ADVS.SRI.PEEYUS A.KOTTAM SMT.JAISY MATHEW** **RESPONDENT(S):** **--------------** **1. INDUSTRIAL TRIBUNAL, ALAPPUZHA, REPRESENTED BY ITS SECRETARY.** ## **2. GEORGE ALFRED,** **CHAKKALAPARAMBIL HOUSE, PEOPLES' ROAD, VADUTHALA ERNAKULAM, COCHIN-682 023.** **R2 BY ADV. SRI.PAULSON C.VARGHESE R1 BY GOVERNMENT PLEADER SRI. NOUSHAD THOTTATHIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 11845 of 2010 (E)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER'(S) EXHIBITS:** |**EXT.P1**|**COPY OF THE AWARD DATED 17.03.2004 OF INDUSTRIAL**| |---|---| ||**TRIBUNAL, ALAPPUZHA IN ID NO.130/2000.**| |**EXT.P2**|**COPY OF AWARD DATED 09.01.2009 OF INDUSTRIAL TRIBUNAL**| ||**IN ID NO.3/2008 (OLD ID NO.130/2008)**| |**EXT.P3**|**COPY OF ORDER DATED 12.03.2010 OF INDUSTRIAL TRIBUNAL,**| ||**ALAPPUZHA IN MP NO.1/2009 IN ID NO.3/2008.**| **RESPONDENT'(S) EXHIBITS: NIL** ## **//TRUE COPY//** **PA TO JUDGE** ## **BKA** ## **A.M. SHAFFIQUE, J.** ## **-------------------------------------------------W.P.(C) No. 11845 of 2010** ## **-------------------------------------------------Dated this the 12[th] day of July, 2013** ## **J U D G M E N T** The petitioner is the management in ID No.130/2000, which was renumbered as ID No.3/2008 pending before the Industrial Tribunal, Alappuzha. An award has been passed on 09.01.2009 directing reinstatement of the workman. The petitioner was exparte. The contention of the workman was that he was in employment of the management for about 20 years and he was denied employment wrongfully and he was not paid the statutory benefits. According to him, he was working as a driver in the lorry owned and controlled by the management. 2. The petitioner preferred an application to condone the delay in filing the application for setting aside the exparte order and an application was filed to set aside the exparte order. The Tribunal, as per Ext.P3 order dated 12.03.2010, dismissed the application and did not condone the delay in filing the said application. It was observed W.P.(C) No. 11845 of 2010 **==> picture [20 x 8] intentionally omitted <==** that the award was pronounced on 05.02.2009, which became enforceable on 06.03.2009 onwards and thereafter, it became functus officio. 3. It is submitted by the petitioner that though the Tribunal had pronounced the award on 05.02.2009, the award has not been published in terms of Section 17 of the Industrial Disputes Act and, therefore, the award had not become enforceable at all. In these circumstances, it is contended that the finding of the Tribunal was absolutely wrong and the Tribunal committed a serious error of law in dismissing the application for condoning delay and in fact, the petitioner is entitled to seek recalling of the award before it becomes enforceable under Section 17 of the Industrial Disputes Act. 4. The short question that has to be considered is whether the Tribunal had become functus officio on pronouncing the award on 05.02.2009. A reference of Section 17 of the Industrial Disputes Act would show that every award of the Tribunal has to be published in a manner prescribed by the Government within a period of W.P.(C) No. 11845 of 2010 **==> picture [20 x 8] intentionally omitted <==** 30 days from the date of the same being received by the appropriate Government. The award becomes final only when it is published under Section 17(1) of the Industrial Disputes Act. The learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in **Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mills Ltd. & another** [(2005) 13 Supreme Court Cases 777], in which while considering the power of the Tribunals constituted under the Industrial Disputes Act to recall an award passed in the matter after referring to the provisions of Sections 7-A, 7, 11, 17-A and 17 it is found that till the award becomes enforceable, the Tribunal retains jurisdiction over the dispute referred to it for adjudication, and up to that date, it has the power to entertain applications in connection with such dispute. In that case, the award was published in the gazette on 10.08.1987, which became enforceable on 09.09.1987. The application for recalling the award was made on 07.09.1987, which is two days prior to the award becoming enforceable in terms of Section 17 of the Act. It W.P.(C) No. 11845 of 2010 ..4.. was found that the Tribunal has not become functus officio as the award had not become enforceable as on the date of filing the application to recall the award. The same situation happened in this case also. Merely for the reason that the award was pronounced does not make it enforceable under the Industrial Disputes Act, which requires to be published under Section 17, which event did not happen, according to the petitioner, so far. 5. Under these circumstances, I am of the view that the Tribunal has committed a serious error of law in dismissing the application for condoning the delay and consequentially, dismissing the application to set aside the exparte order. Having regard to the facts mentioned in the affidavit filed in support of the application to condone delay, I am of the view that the Tribunal ought to have exercised the jurisdiction vested under law. 6. It is submitted by the learned counsel for the respondent that though an application was filed as IA No.6421/2010 for payment of Section 17B wages, so far no orders were passed and therefore, the petitioner did not W.P.(C) No. 11845 of 2010 **==> picture [20 x 8] intentionally omitted <==** pay any amount. The learned counsel for the petitioner relying upon Section 17B of the Act would say that since the award was not challenged, there is no application to pay Section 17B wages. Under Section 17B, the liability to pay the wages arises if the employer prefers any proceedings against “such award”. On this basis, it is submitted that in so far as the petitioner has not challenged the award whereas the petitioner has only challenged the dismissal of application to set aside the ex parte award, no such payment can be made. 7. I do not think so. In effect, when the award is passed and an application for setting aside the award had been filed and rejected by the Tribunal, while challenging the said order the petitioner is virtually seeking for setting aside the award which was passed ex parte. Going by the scheme of Section 17B, the obligation of the employer is to pay the wages of the employee during the time when the proceedings are pending before the High Court in a case where there is a direction for reinstatement of the workmen. W.P.(C) No. 11845 of 2010 ..6.. 8. That being the situation, I am of the view that such technical approach cannot be taken in the matter and this is a case which relates to challenge against reinstatement of the workman in question and therefore, the petitioner is under obligation to pay Section 17B wages. 9. The learned counsel for the petitioner further submits that there is no evidence to show the last drawn wages and no material has been produced in regard to the same. Since there is dispute between the parties regarding the last drawn wages, I fix the amount at ₹ 2,500/- (Rupees two thousand and five hundred only) per month. The said amount shall be paid from the date of filing the writ petition till the date of judgment. The amount shall be paid within one month from the date of receipt of a copy of this judgment. It is also made clear that until the said amount is paid, the petitioner will not be entitled for the benefit of this judgment. 10. Having regard to the aforesaid facts and circumstances, there is no point in directing the Tribunal W.P.(C) No. 11845 of 2010 **==> picture [20 x 8] intentionally omitted <==** to reconsider the application to set aside the ex parte award whereas it will be better for both parties to agitate the matter on merits. Hence, Ext.P3, MP No.1/2009, shall stand allowed and Ext.P2 award is set aside on condition of the petitioner paying the amount payable under Section 17B within the period specified above. The Tribunal shall take on file ID No.3/2008 and consider the same on merits, after notice to parties. This may be disposed of within a period of six months from the date of receipt of a copy of this judgment. Sd/- **A.M. SHAFFIQUE, JUDGE** bka/jsr/-