R.G. THULASI KUMAR, PARVATHI KUMAR, PARVATHI MANDIRAM v. THE LABOUR COURT, KOLLAM; THE PRESIDENT, THE ARTISANS CO-OPERATIVE TRADE & FUNDS LIMITED; THE KERALA CO-OPERATIVE EMPLOYEES UNION (CITY AREA COMMITTEE)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943** **WP(C) NO. 32394 OF 2015** ## **AGAINST THE ORDER IN ID 75/1991 OF LABOUR COURT, KOLLAM** ## **PETITIONER :** **R.G.THULASI KUMAR, PARVATHI KUMAR, PARVATHI MANDIRAM, TC 27/1454, RISHIMANGALAM, VANCHIYUR, THIRUVANANTHAPURAM - 695 035.** **BY ADVS. SRI.P.RAMAKRISHNAN SRI.C.ANIL KUMAR SMT.ASHA K.SHENOY SRI.S.K.HARISH SRI.T.C.KRISHNA SMT.PREETHI RAMAKRISHNAN SRI.PRATAP ABRAHAM VARGHESE** ## **RESPONDENTS :** **1 THE LABOUR COURT, KOLLAM PIN-691 001.** **2 THE PRESIDENT, THE ARTISANS CO-OPERATIVE TRADE & FUNDS LIMITED NO.2033, SREEKANTESWARAM, THIRUVANANTHAPURAM - 695 023.** **3 THE KERALA CO-OPERATIVE EMPLOYEES UNION, CITY AREA COMMITTEE, THAMPANOOR, THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS SECRETARY.** ## **BY ADV SRI.D.KISHORE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 32394 OF 2015** 2 ## **JUDGMENT** Dated this the 2[nd] day of July, 2021 A workman who was terminated on 21.11.1990 challenges Ext.P6 award, to the extent it denies reinstatement in service and the quantum of back wages fixed in the award as payable to him. Amongst the reliefs sought for, petitioner seeks compensation awarded to be reckoned based on the pay presently being paid to a similar workman. 2. Petitioner claimed to be an Attender working under the 2[nd] respondent from 11.10.1984 until 21.11.1990 when he was allegedly terminated illegally. He claimed to have been engaged continuously from 1984 till he was terminated and the 3[rd] respondent Union took up his case before the Labour Court. Though the Labour Court initially, by Ext.P4 award found the termination to be illegal and directed reinstatement of the petitioner with 50% back wages by Ext.P5 judgment, this Court set aside the award and remitted the matter for fresh consideration. Ext.P6 thus came to be passed by the Labour Court. 3. Pursuant to the remand, and after considering the factual aspects and the evidence adduced in the case, the Labour **WP(C) NO. 32394 OF 2015** 3 Court concluded that termination of the workmen from the service of the 2[nd] respondent management was illegal and directed the management to pay him 40% of back wages and attendant benefits from 22.11.1990 till the date of passing of the award apart from 15 days' monthly wages for every completed year of continuous service in excess of six months as retrenchment compensation based on the monthly wages of Rs.500/-. The claim for reinstatement was denied thus resulting in this writ petition. 4. The management opposed the contentions of the writ petitioner and stated that petitioner was neither a regular employee nor a daily wage employee. It was contended that petitioner's appointment was not against a regular vacancy and hence the Joint Registrar of the Co-operative Society directed the appointment of the petitioner to be terminated. In the absence of a regular appointment, petitioner had no right to any post and the claim for reinstatement was unjustified. 5. I have heard Adv.Pratap Abraham Varghese and Adv.P.Ramakrishnan, the learned counsel for the petitioner. I also heard Adv.D.Kishore for respondents 2 and 3. 6. It is necessary to point out at this juncture itself that the management has not challenged the award. The challenge is only **WP(C) NO. 32394 OF 2015** 4 by the workman. Thus, the findings in Ext.P6 that the termination of the workmen was illegal, is not open for any consideration in this writ petition. 7. The challenge in this writ petition relates to three aspects. (i) The quantum of back wages fixed, (ii) the compensation awarded as retrenchment compensation, and (iii) declining reinstatement. 8. It is seen from the affidavit accompanying the writ petition that the writ petitioner is now more than 58 years in age and hence he has crossed the age of retirement. Thus, the claim for reinstatement as vehemently argued by the learned counsel for the petitioner does not satisfy the legal principles that govern the field. Accordingly, this Court rejects the claim for reinstalment in the peculiar facts and situation arising in the case. 9. The Labour Court fixed 40% of back wages as payable from 22.11.1990 till the date of passing of the award which is 16.04.2015 and also fixed 15 days monthly wages for every completed year of continuous service as retrenchment compensation. The learned counsel for the petitioner submitted that even the amounts due as per the award have not been paid and that though an amount of Rs.83,000/- was paid to the writ petitioner during the **WP(C) NO. 32394 OF 2015** 5 course of the proceedings, the same were amounts due under Section 17B of the Act. However, the case of the writ petitioner is that the compensation awarded as retrenchment and the back wages awarded to the petitioner is too meagre a sum. It was also contended that reckoning the monthly wages of the petitioner as Rs.500/- was too low and that once the court had found the termination to be illegal, the quantum of wages ought to have been calculated with the periodic increase in the wages for the post of attender till 2015 and the compensation should have been based on such quantum. 10. Though the learned counsel for the respondent attempted to argue on the invalidity of the initial appointment of the petitioner itself and as one being bad in law relying upon Ext.R2(a), he did not pursue the said contention once it came to his notice that Ext.R2(a) was never marked in evidence before the Labour Court. As mentioned earlier the Labour Court had already found the termination of the writ petitioner as illegal and since the said finding has become final the first question is whether reinstatement ought to have been ordered. 11. The Labour Court had after taking into consideration the entire perspective of the case instead of ordering reinstatement directed retrenchment compensation to be paid to the petitioner. **WP(C) NO. 32394 OF 2015** 6 When the award was passed, the writ petitioner was aged 52 years and with a lapse of six years from the date of award till now, he has either attained the age of retirement or is on the verge of retirement. The termination was in 1990. 31 years have elapsed since the date of the alleged termination. In such circumstances, the order of the Labour Court directing payment of compensation in lieu of reinstatement cannot be found to be unjustified. This view of directing compensation to be paid in lieu of reinstatement has been propounded by the Supreme Court in several cases. It has time and again been held that the illegality in an order of termination need not necessarily result in reinstatement in service. Appropriate compensation in lieu of such reinstatement can be resorted to depending upon the facts and circumstances of the case. The decisions in _**Mahboob Deepak v. Nagar Panchayat, Gajraula and Another**_ [(2008) 1 SCC 575], _**Sita Ram v. Moti Lal Nehru Farmers Training Institute**_ [(2008) 5 SCC 75], _**Telegraph Department v. Santhosh Kumar Seal**_ [(2010) 6 SCC 773, (2014) 16 SCC 130 (supra) are all instances where the Supreme Court had ordered compensation in lieu of retrenchment, considering the nature and circumstances arising in each individual case. In the circumstances, this Court finds that the direction to pay retrenchment compensation **WP(C) NO. 32394 OF 2015** 7 in lieu of reinstatement is fully justified in the facts and circumstances of the case. 12. However, as far as the quantum of compensation directed to be paid is concerned, this Court is of the view that the amount ordered is too meagre a sum for a person, who was found to have been illegally terminated. If not for the illegal termination, petitioner would have been entitled to the corresponding increase in wages until his date of superannuation. In such a scenario, the contention of the learned counsel for the petitioner that the compensation awarded to the petitioner is too low a sum has substance. In the decision in _**Bhavnagar Municipal Corporation v.**_ _**Jadeja Gobubha Chhanubha**_ [(2014) 16 SCC 130] after referring to the various decisions of the Supreme Court, it was concluded that reinstatement can give way to award of compensation. 13. Taking into consideration the totality of the circumstances, this Court is of the view that reinstatement of the petitioner is not an acceptable option and the same was rightly rejected by the labour court. However, keeping in view the length of service actually rendered by the writ petitioner, a compensation amount of Rs.1,25,000/- (Rupees One lakh twenty five thousand only) is liable to be paid as a lumpsum amount as compensation in lieu of **WP(C) NO. 32394 OF 2015** 8 retrenchment. Accordingly, Ext.P6 Award of the Labour Court in ID.No.75/1991 is modified and respondents 2 and 3 are directed to pay a sum of Rs.1,25,000/- to the writ petitioner/ workman in lieu of reinstatement. The amount already paid under Section 17B of the Act shall not be deducted from the above-said amount. The amount shall be paid by respondents 2 and 3 within a period of two months from the date of receipt of a copy of this judgment failing which the amount shall carry an interest of 9% per annum from the date of order till the date of payment. The writ petition is thus allowed in part. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **WP(C) NO. 32394 OF 2015** 9 ## **APPENDIX OF WP(C) 32394/2015** ## **PETITIONER ANNEXURE :** - **P1 : TRUE COPY OF CLAIM STATEMENT DT 12-9-1991 IN ID NO.75/91.** - **P2 : TRUE COPY OF WRITTEN STATEMENT DT 3-1-1992 FILED BY THE 2ND RESPONDENT.** - **P3 : TRUE COPY OF REPLICATION DT NIL FILED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT.** - **P4 : TRUE COPY OF THE AWARD DT 20-8-2004 PASSED BY THE 1ST RESPONDENT.** - **P5 : TRUE COPY OF THE JUDGMENT DT 15-7-2014 IN WPC.NO.35871/2004** - **P6 : COPY OF THE AWARD DATED 16.04.2015 PASSED BY THE 1ST RESPONDENT.**