Shafi Musaliar v. Labour Court, Kollam

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2016-07-11
Court Decision / Holding: Writ petition dismissed. No costs.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Shafi Musaliar

Respondents

Vijayakumaran Pillai
Daniel Varghese
Ramachandran Pillai
Laila Beegam
S. Najeem Musaliar
Ashkarkhan Musaliar
Ayubkhan Musaliar
Thahira Beegum
Rahumath Beegum
Mumthas Beegum
Labour Court, Kollam

Legal Representation & Advocates

Counsels for Petitioners

• G. Sreekumar
• Dileep P. Pillai

Counsels for Respondents

• K. Subash Chandra Bose
• S. Santhosh Kumar

Case Synopsis & Summary

This writ petition, filed under Article 226 of the Constitution, challenges Ext.P5, the Labour Court’s order in C.P. No.63/2004 (ID proceedings), in a dispute arising from an industrial relationship at Kallada Bricks and Tiles Industries. The petitioner, Shafi Musaliar, is the son of the 3rd respondent and a legal heir in a long-running saga over a going-concern sale of the factory after the demise of the original owner. The Labour Court had previously adjudicated the matter in an ID case (I.D. 31/1988) directing reinstatement with back wages; a later claim petition under section 33-C(2) of the ID Act sought to quantify amounts due as of 1991. The petition contends that, when the business and assets were sold as a going concern to the 3rd respondent, the liability to satisfy the award should pass to the purchaser/subsequent employer under the ID Act (notably s.18(3)(c)). The petitioner relies on the Kerala High Court decision in Sainulabdeen Musaliar v. District Collector and on the Supreme Court decision in A.C.A. & I Society v. Workmen. The 2nd respondent contends that Ext.P5 cannot impose liability on him, and that a previous challenge in WP(C) 11403/2008, dismissed for delay, forecloses this plea. The court ultimately holds that Ext.P5 cannot be interfered with, and the writ petition is dismissed with no costs.

Provisions of Law Cited

Industrial Disputes Act, 1947, s.33-C(2)Industrial Disputes Act, 1947, s.18(3)(c)

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends that, after sale of the going concern to the 3rd respondent, the liability to satisfy the Labour Court award should pass to the purchaser under the Industrial Disputes Act, particularly s18(3)(c), and that the legal heirs cannot re-argue the liability; The petitioner relies on Sainalabdeen Musaliar v. District Collector and on A.C.A. & I Society v. Workmen to show that a going-concern sale imposes liability on the purchaser; Ext.P5 is binding and cannot be interfered with; The challenge to the order Ext.P5 is not sustainable given prior consistent findings.

Contentions of Respondents

Respondents contend that liability under Ext.P5 cannot be sustained; The 2nd respondent had challenged the position earlier in WP(C) 11403/2008, which was dismissed for delay; The contentions should not be revisited; The sale as going concern and liability to satisfy the award is disputed by the respondents' counsel, with reliance on technical objections and prior orders.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sainalabdeen Musaliar v. District Collector	1993 (2) KLT 451	Positive	Cited to support the liability of a purchaser in a going-concern sale to satisfy a prior Labour Court award.
A.C.A. & I Society v. Workmen	AIR 1963 SC 1489	Positive	Cited to support the going-concern liability principle for the purchaser.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 11TH DAY OF JULY 2016/20TH ASHADHA, 1938** **WP(C).No. 5272 of 2007 (C)** **---------------------------** ## **AGAINST THE AWARD IN CP 63/2004 of LABOUR COURT, KOLLAM** **PETITIONER: -----------** **SHAFI MUSALIAR, AGED 49 YEARS, S/O. LATE A.M.SAINULABDEEN, MUSALIAR,, RESIDING AT SHAFI MANZIL, KARICODE, KOLLAM.** **BY ADVS.SRI.G.SREEKUMAR SRI.DILEEP P.PILLAI** ## **RESPONDENT(S):** - **--------------** **1. VIJAYAKUMARAN PILLAI, NARAYANAPURAM BUNGLOW, THIRUTHIKKARA,, KANNANALLOORE, KOLLAM.** **2. DANIEL VARGHESE, LYKKARA VEEDU, AYTTOTTUVAMURI, WEST KALLADA P.O.,, KOLLAM.** *** 3. SRI.SAINULABDEEN MUSALIAR (DIED), (DELETED) PROPRIETOR, KALLADA BRICKS AND TILES INDUSTRIES,, WEST KALLADA, PERUVELIKKARA, KOLLAM.** **4. SRI.RAMACHANDRAN PILLAI, RAJALEKSHMI SADANAM, PERUVELIKKARA, KARIMTHORUVA,, SASTHAMKOTTA, KUNNATHOOR, KOLLAM.** **5. SMT.LAILA BEEGAM, AGED 65, W/O. LATE A.M.SAINULABDEEN MUSALIAR,, RESIDING AT SHAFI MANZIL, KARICODE, KOLLAM.** **6. S. NAJEEM MUSALIAR, AGED 38, S/O. LATE A.M.SAINULABDEEN MUSAILAR,, RESIDING AT SHAFI MANZIL, KARICODE, KOLLAM.** **7. ASHKARKHAN MUSALIAR, AGED 30, S/O. LATE A.M.SAINULABDEEN MUSALIAR,, RESIDING AT SHAFI MANZIL, KARICODE, KOLLAM.** **....2** **WP(C).No. 5272 of 2007 (C)** **-2-** **8. AYUBKHAN MUSALIAR, AGED 27, S/O. LATE A.M.SAINULABDEEN MUSALIAR,, RESIDING AT SHAFI MANZIL, KARICODE, KOLLAM.** ## **9. THAHIRA BEEGUM,** **SHAFI MANZIL, KARICODE, KILIKOLLOOR, KOLLAM.** **10. RAHUMATH BEEGUM, SHAFI MANZIL, KARICODE, KILIKOLLOOR, KOLLAM.** **11. SMT.MUMTHAS BEEGUM, SHAFI MANZIL, KARICODE, KILIKOLLOOR, KOLLAM.** **12. LABOUR COURT, KOLLAM.** **R3 DELETED VIDE ORDER DATED 15.02.2007** **R4 BY ADV. SRI.S.SANTHOSH KUMAR R2 BY ADV. SRI.K.SUBASH CHANDRA BOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 5272 of 2007 (C)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1: COPY OF THE CLAIM PETITION** **P2: TRUE COPY OF THE SALE DEED** **P3: TRUE COPY OF THE AWARD OF THE LABOUR COURT KOLAM IN I.D.NO.31/1988** **P4: CPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE LABOUR COURT KOLLAM** **P5: TRUE COPY OF THE ORDER DATED 27.06.2006 PASSED BY THE 12TH RESPONDENT IN C.P. NO.63/2004** ## **//TRUE COPY//** **P.A.TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 5272 of 2007 (C) -----------------------------------------Dated: 11[th] July, 2016 ## **J U D G M E N T** The above writ petition is filed challenging Ext.P5 order of the Labour Court, Kollam, in C.P. No.63/2004. 2. The brief facts to be noticed are that the petitioner is the son of the 3[rd] respondent and respondents 5 to 11 are his siblings. The entire controversy arose when the 2[nd] respondent was managing a proprietary concern, by name, Kallada Bricks and Tiles Industries. Originally, the father of the 2[nd] respondent owned the property and on his death, it devolved on the 2[nd] respondent. The 2[nd] respondent and the other legal heirs were managing the proprietary concern and the 2[nd] respondent was the managing partner. The 1[st] respondent was dismissed from ## **W.P.(C) No. 5272/2007** **-2-** service, when the 2[nd] respondent was the managing partner of the firm. 3. Subsequently, the 2[nd] respondent and the other legal heirs of the original owner sold the property along with the factory to the 3[rd] respondent as a going concern. In the meanwhile, there was an industrial dispute pending before the Labour Court, initiated on the termination of the 1[st] respondent, numbered as I.D. 31/1988. In the aforesaid dispute the management was directed to reinstate the workman with back wages. The Award in the dispute having become final and no reinstatement having been granted, the workman was before the Labour Court with a claim petition under section 33 C(2) of the Industrial Disputes Act, 1947. The claim petition was numbered as 85/1989 and by order dated 18.09.1991, the amount payable as per the Award, as on the date of claim petition, was computed ## **W.P.(C) No. 5272/2007** **-3-** at Rs.52,388/-. When proceedings were taken against the factory, which was then occupied by the 3[rd] respondent, the 3[rd] respondent was before this Court with a writ petition against the recovery sought for by the workman who was terminated by the prior owner. 4. The writ petition was rejected and an appeal was filed, the decision in which is reported in **Sainalabdeen Musliar v. District Collector - 1993 (2) KLT 451** . It was contended before this Court that after the sale, the purchaser did not have any liability to satisfy the earlier dues created by the prior employer/owner. This Court relying on **A.C.A. & I Society v. Workmen - AIR 1963 SC 1489** and specifically noticing Section 18(3)(c) of the Industrial Disputes Act, found that the purchase made was of a going concern and hence the purchaser/subsequent employer would also have the liability to satisfy the **-4-** ## **W.P.(C) No. 5272/2007** Award passed against the establishment. 5. In such circumstance, the petitioner, the legal heir of the writ appellant in the aforesaid case cannot urge the same contention in this proceeding. The father of the petitioner who was the original purchaser had earlier challenged the order of the Labour Court on the ground of the purchase being only of land and not of a going business/concern. The said contention was specifically rejected and found otherwise. The same contention cannot be raised by the legal heir, on whom the assets of his predecessor devolved with all the disabilities attached to it; when in the hands of such predecessor. There can be no interference caused to Ext.P5, which is the order in a subsequent claim petition filed by the 1[st] respondent, for amounts due latter to the period covered in the earlier claim petition. ## **W.P.(C) No. 5272/2007** **-5-** 6. The learned Counsel appearing for the 2[nd] respondent, however, would contend that there is liability cast on him as per Ext.P5, which cannot be sustained. However, the 2[nd] respondent had earlier approached this Court with W.P.(C) 11403/2008, revising a similar challenge, which stood dismissed by judgment dated 03.04.2008 on the ground of delay. In such circumstance, the 2[nd] respondent's contentions cannot be considered in the above writ petition. The writ petition would stand dismissed. No costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 12/7/16