Prasanna Kumari, Dhanya Pandala and Umayamma Kovilamma v HDFC Bank Ltd. and Central Government Industrial Tribunal cum Labour Court

W.A.No.509 of 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR MONDAY, THE 13[TH] DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945 WA NO. 509 OF 2023** **AGAINST THE JUDGMENT IN WP(C)19297/2021 OF HIGH COURT OF** **KERALA** ## **APPELLANTS:** 1 PRASANNA KUMARI AGED 63 YEARS W/O LATE MOHANA KRISHNA PANDALA, MAMPEL MADOM, MAVELIKKARA P.O, ALAPPUZHA., PIN - 690101 2 DHANYA PANDALA AGED 37 YEARS D/O LATE MOHANA KRISHNA PANDALA, MAMPEL MADOM, MAVELIKKARA P.O, ALAPPUZHA., PIN - 690101 3 UMAYAMMA KOVILAMMA AGED 90 YEARS M/O LATE MOHANA KRISHNA PANDALA, MAMPEL MADHOM, MAVELIKKARA P.O, ALAPPUZHA., PIN - 690101 BY ADV K.B.PRADEEP ## **RESPONDENTS:** 1 HDFC BANK LTD. 2 ND FLOOR, SL PLAZA, PALARIVATTOM, COCHIN, ERNAKULAM PIN: 682025., PIN - 682025 W.A.No.509 of 2023 2 2 THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT KARSHAKA ROAD, ERNAKULAM., PIN - 682016 BY ADVS. SAJI VARGHESE T.G GOVERNMENT PLEADER(B/O) MARIAM MATHAI ## **OTHER PRESENT:** SRI.UNNIKRISHNA KAIMAL-SR.GP THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2023, THE COURT ON 13.11.2023 DELIVERED THE FOLLOWING: W.A.No.509 of 2023 3 ## **ANU SIVARAMAN, J. & C.PRATHEEP KUMAR, J.** **= = = = = = = = = = = = = = = = = = = W.A.No.509 of 2023** **= = = = = = = = = = = = = = = = = = = Dated this the 13[th] day of November, 2023** ## **JUDGMENT** ## **Anu Sivaraman J.** - 1.The issue which arises for consideration in this writ appeal is whether the judgment of the learned single Judge allowing the writ petition filed by the management and dismissing the industrial dispute raised by the workmen/applicant as one being belated in terms Section 2A(3) of the Industrial Disputes Act, 1947 (I.D.Act for short) requires any interference. - 2.The learned counsel appearing for the appellants vehemently contended that the question of limitation is a mixed question of fact and law and since the workman had specifically contended that the order of termination from service had not been served on him, the finding of the learned single Judge to the effect that the order of the Central Government Industrial Tribunal W.A.No.509 of 2023 4 cum Labour Court was perverse is unjustified. It is contended that the question whether the order of termination had actually been served on 10.04.1991 could be decided only after taking evidence on the point and that the order of the Tribunal was, therefore, perfectly justified. The learned counsel would place reliance on the decision of the Apex Court in **Nusli Neville Wadia v. Ivory Properties and others** [2019 KHC 7018] and in **Sukhbiri Devi and others v.Union of India and others** [AIR 2022 SC 5058] in support of his contentions. 3.The learned counsel appearing for the respondent, would, on the other hand, contend that the date of serving of the order of termination would be of absolutely no consequence in the context of the raising of the dispute under the I.D.Act. It is stated that what is required for raising the dispute under the I.D.Act is only that there must be a denial of employment for whatever reasons. It is contended that since admittedly the employment had been denied to the petitioner from April 1991 onwards and since the dispute was raised by him for the first time, 25 years thereafter, the question of considering such a W.A.No.509 of 2023 5 dispute does not arise at all, in view of the fact that Section 2A(3) was in force as on the relevant date when the dispute was attempted to be raised. In view of the specific admission by the workman that a denial of employment was in the year 1991, it is submitted that a workman who had slept over its rights for nearly three decades cannot be permitted to wake up and make an attempt to raise a dispute and thereafter contends that the question is a mixed question of the fact and law. It is, therefore, contended that in view of the provisions of the I.D.Act, the decisions relied on had absolutely no application and that the writ appeal is, therefore, devoid of merits and is liable to be dismissed. 4.Having considered the contentions advanced, we notice that the ID Act provides for remedies to workmen in cases of denial of employment and provides protection of their work and working condition. In the case of individual workman, Section 2A provides for a method of raising a dispute without undergoing the procedure of conciliation and reference as is provided under Section 10. Section 2A reads as follows:- W.A.No.509 of 2023 6 “ **2-A Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.-** (1) Where any employer discharges, dismisses, retrenches, or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. (2) Notwithstanding anything contained in section l0, any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and on receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government. (3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1 ).” W.A.No.509 of 2023 7 5.Therefore, it is clear that an individual workman whose services have been terminated by any of the modes as provided in Section 2A(1) can raise the dispute as provided under Section 2A(2). The provision does not also require that the order of termination should be challenged specifically before the Labour Court. Therefore, if the workman had a claim that his services had been terminated, the contention that the order of termination was not served on him would not stand in the way of a dispute being raised under Section 2A(1) by following procedures as provided under sub-section (2) of Section 2A. The only condition is that the dispute must be raised within the time as provided under Section 2A(3). 6.In the instant case, admittedly, the denial of employment was from 10.04.1991. It appears that there was a criminal case against the workman which ended in his acquittal in 2009. That apparently was the reason for the workman to have waited before approaching the Tribunal with a dispute. Section 2A(3) stood inserted in the statute by amendment in W.A.No.509 of 2023 8 2010. It is only in the year 2015 that the workman approached the Tribunal seeking a consideration of his claim with regard to denial of employment. In the light of the scheme of the I.D.Act and the specific provisions of Section 2A, specifically Section 2A(3) thereof, we are of the opinion that the contention of the appellant that the question of limitation or maintainability of the dispute ought to be considered either as a preliminary issue after taking evidence or has to be decided while the matter was being considered on merits cannot be accepted. This is so because the workman was all along aware that he was denied employment by the employer and had all opportunity to raise a dispute at the relevant point in time which he chose not to avail of. The dispute was not raised even within three years from the date on which the I.D.Act stood amended. - 7.In the above view of the matter, we are of the opinion that the appeal is devoid of merits and need not be entertained. However, we make it clear that neither this Court nor the Labour Court has occasion to consider the contentions of the W.A.No.509 of 2023 9 workman on merits and therefore in view of the fact that he stood acquitted of the criminal charges, the stigma cast on him by order of termination has not been considered on merits by any authority. In view of the fact that the appellants contend that the workman had been absolved in the criminal case, they will be entitled to the benefit of such acquittal in so far as it clears his name in the proceedings initiated against him. sd/- **Anu Sivaraman, Judge** sd/- **C.Pratheep Kumar, Judge** sj30/10