Sreepriya N v. State of Kerala & ors (WP(C) Nos. 13996/2023 & 13907/2023)

``` WP(C)NOs.13996&13907OF2023 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945 WP(C) NO. 13996 OF 2023`** ## **`AGAINST THE ORDER DATED 10.02.2023 IN I.A.NO. 341/2022 IN ID 13/2021 OF LABOUR COURT, KANNUR`** ``` PETITIONER: ``` ``` SREEPRIYA.N AGED33YEARS THUNOLIHOUSE,W/OLATEJAYANANDAN,NEARKADALAYISREE - KRISHNATEMPLE,CHIRAKKALP.O,KANNURDISTRICT.,PIN 670011 ``` ``` BYADVC.LEENA ``` ## **`RESPONDENTS:`** ``` 1STATEOFKERALAREPRESENTEDBYSECRETARYTOGOVERNMENT. DEPARTMENTOFLABOUR - SECRETARIATE.THIRUVANANTHAPURAM,PIN695001 2PRABHAKARAN.K S/OBAPPU,AGENOTKNOWN.KUNDATHILHOUSE,DHARMADAMP.O - KANNURDISTRICT.,PIN670106 ``` ``` BYADVS. K.P.SREEKUMAR P.M.SATHEESH(K/1066/2001) ``` ``` SRI.IMAMGREGORESOUSKARAT,GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 22.01.2024,ALONGWITHWP(C).13907/2023,THECOURTONTHESAMEDAY DELIVEREDTHEFOLLOWING: ``` ``` WP(C)NOs.13996&13907OF2023 ``` ``` 2 ``` ``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV MONDAY,THE22[ND]DAYOFJANUARY2024/2NDMAGHA,1945 WP(C)NO.13907OF2023 IA.NO.344/2022INID20/2021OFLABOURCOURT,KANNUR PETITIONER: ``` ``` SREEPRIYA.N AGED33YEARS SREEPRIYA.N.THUNOLIHOUSE,W/OLATEJAYANANDAN,NEAR KADALAYISREEKRISHNATEMPLE,CHIRAKKALP.O,KANNUR - DISTRICT,PIN670011 BYADVC.LEENA ``` ``` RESPONDENTS: ``` ``` 1STATEOFKERALAREPRESENTEDBYSECRETARYTO GOVERNMENT,DEPARTMENTOFLABOUR, - SECRETARIATE.THIRUVANANTHAPURAM,PIN695001 2ANEESH.K.P S/ONARAYANAN.P,AGENOTKNOWN.NIVINAMHOUSE, - KAITHERIPOYIL,PATHIRIYADE.P.OKANNURDISTRICT,PIN 670643 BYADVS. P.M.SATHEESH K.P.SREEKUMAR(K/237/1973) SRI.IMAMGREGORESOUSKARAT,GP. ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 22.01.2024,ALONGWITHWP(C).13996/2023,THECOURTONTHESAMEDAY DELIVEREDTHEFOLLOWING: ``` ``` WP(C)NOs.13996&13907OF2023 ``` ``` 3 ``` ## **JUDGMENT** The petitioner has been arrayed as the management in I.D. No. 13/2021 and I.D. No. 20/2021 on the files of the Labour Court, Kannur. The party respondents are the claimants in these disputes. These Industrial Disputes arose following a referral order by the Government to adjudicate the dispute as to whether the denial of employment of the Claimants who were employees of the “Jayanadha Lodge, Kannur” was justifiable or not and the relief to which the claimants were entitled to. 2. The Labour Court issued notice to the management by registered post. Despite service, the petitioner failed to appear, and hence, she was set ex-parte. Separate awards were passed on 12/11/2021, and the same was forwarded to the Government under Section 15 of the Act. After getting concurrence, the award was pronounced on 31/12/2021, ordering reinstatement with back wages and consequential benefits. 3. On 10/10/2022, the petitioner approached the Labour Court and filed an application to set aside the ex parte award and to permit her to contest the matter on merits. In her application, it was contended that she ``` WP(C)NOs.13996&13907OF2023 ``` ``` 4 ``` was residing in a separate address. She sought to condone the delay spanning from 31.12.2021 to 10.10.2022. 4. The Labour Court, after reviewing the facts and circumstances, came to the conclusion that no cogent material was produced before the Court about the sufficiency of the cause for not appearing before the Court after receipt of the summons. Nonetheless, the Court was of the view that the petitioner ought to be given an opportunity to appear and defend her case. Accordingly, the Court ordered the petitioner to pay 50% of the award amount of Rs. 2,50,000/- as provisional payment to the workers, and on such payment, the ex-parte order could be set aside. Being aggrieved, the petitioner filed a review petition before the Labour Court, which was dismissed, holding that there was no error apparent on the record. 5. It is against the above orders that this writ petition is filed under Article 226 of the Constitution of India. 6. A counter-affidavit has been filed by the respondents, contesting the petitioner's claims. They maintain that despite ample opportunities given to the petitioner to defend the case on its merits, she failed to do so. It is contended that after the Labour Court had held that no justifiable cause was made out, there was absolutely no reason to interfere ``` WP(C)NOs.13996&13907OF2023 ``` ``` 5 ``` with the said order. 7. Smt. Leena, counsel for the petitioner, pointed out that the imposition of a condition to deposit 50% of the award amount as a condition precedent to set aside the award cannot be justified and can only be regarded as punitive. According to the learned counsel, the claimants failed to produce any cogent evidence entitling them to be granted the reliefs ordered. 8. The learned counsel appearing for the workman submitted that the Labour Court had only followed the law laid down by the Apex Court and, referring to the well-considered order, submitted that no interference is warranted. 9. I have considered the submissions. 10. After considering the submissions, I note that the Labour Court was guided by the precedent set by the Hon'ble Supreme Court in **M/s. Haryana Sooraj Malting Ltd v. Phool Chand[1]** wherein, after considering the earlier precedents on the subject, it was held as under in paragraphs 37 and 38. > 1 [2018(16) SCC 567] ``` WP(C)NOs.13996&13907OF2023 ``` ``` 6 ``` 37. Merely because an award has become enforceable, does not necessarily mean that it has become binding. For an award to become binding, it should be passed in compliance with the principles of natural justice. An award passed denying an opportunity of hearing when there was a sufficient cause for non-appearance can be challenged on the ground of it being nullity. An award which is a nullity cannot be and shall not be a binding award. In case a party is able to show sufficient cause within a reasonable time for its non-appearance in the Labour Court/Tribunal when it was set ex parte, the Labour Court/Tribunal is bound to consider such an application and the application cannot be rejected on the ground that it was filed after the award had become enforceable. The Labour Court/Tribunal is not functus officio after the award has become enforceable as far as setting aside an ex parte award is concerned. It is within its powers to entertain an application as per the scheme of the Act and in terms of the rules of natural justice. It needs to be restated that the Industrial Disputes Act, 1947 is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent. 38. We may also add that when an application for setting aside an ex parte award is made at the instance of the management, the Labour Court/Tribunal has to balance equities. The appeals are hence disposed of as follows. The awards are remitted to the Labour Court for consideration as to whether there was sufficient cause for non-appearance of the management. Since the litigation has been pending for a long time, we direct the appellants to pay an amount of Rs 1,00,000 in each case to the workmen by way of provisional payment. However, we make it clear that the payment is subject to the final outcome of the awards and will be adjusted appropriately. …………………… As correctly pointed out by the learned counsel appearing for the respondents, the petitioner, in her writ petition, has no case that she is facing any financial stringency to pay the amounts as ordered. The case of the workman is different. The workman could have filed an application under Section 17B of the ID Act, 1947, seeking full wages last drawn by him, ``` WP(C)NOs.13996&13907OF2023 ``` ``` 7 ``` inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period. Drawing the analogy of the above provision, I am of the considered opinion that the Labour Court was well justified in putting the petitioner on terms for setting aside the ex-parte award. As ordered by the Apex Court, the payment shall be subject to the final outcome of the awards. In view of the discussion above, no interference is warranted. These writ petitions are dismissed. There will be no order as to costs. sd/- **RAJA VIJAYARAGHAVAN V.** **JUDGE** DCS ``` WP(C)NOs.13996&13907OF2023 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 13996/2023`** ``` PETITIONEREXHIBITS ``` ``` ExhibitP1TRUECOPYOFAWARDDATED12.11.2021OFLABOUR COURTKANNURINID13/2021 ExhibitP2CERTIFIEDCOPYOFORDERDATED10.02.2023OF LABOURCOURTKANNURINIA341/2022INID 13/2021 ExhibitP3CERTIFIEDCOPYOFORDERDATED22.03.2023OF LABOURCOURTKANNURINREVIEWPETITIONNUMBER 1/2023INIA341/2022INID13/2021 ``` ``` RESPONDENTEXHIBITS ``` ``` EXHIBITR2(A)THECOPYOFTHECLAIMPETITIONDATED01/04/2022 EXHIBITR2(B)THECOPYOFTHEORDEROFTHELABOURCOURTDATED 29/06/2022 EXHIBITR2(C)ACOPYOFTHECLAIMPETITIONNO.20/2023 EXHIBITR2(D)TRUECOPYOFTHECOVERINGLETTERDATED 01/03/2022SENTALONGWITHTHEAWARD EXHIBITR2(E)TRUECOPYOFTHECOVERWHICHWASRETURNEDTOME BYTHEPOSTALDEPARTMENT EXHIBITR2(F)TRUECOPYOFTHEACKNOWLEDGMENTCARDADDRESSED TOTHEPETITIONER ``` ``` WP(C)NOs.13996&13907OF2023 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 13907/2023`** ``` PETITIONEREXHIBITS ExhibitP1TRUECOPYOFAWARDDATED12.11.2021OFLABOUR COURTKANNURINID20/2021 ExhibitP2CERTIFIEDCOPYOFORDERDATED10.02.2023OF LABOURCOURTKANNURINIA344/2022INID 20/2021 ExhibitP3CERTIFIEDCOPYOFORDERDATED22.03.2023OF LABOURCOURTKANNURINREVIEWPETITIONNUMBER 2/2023INIA344/2022INID20/2021 RESPONDENTEXHIBITS EXHIBITR2(A)THECOPYOFTHECLAIMPETITIONDATED01-04-2022 EXHIBITR2(B)THECOPYOFTHEORDEROFTHELABOURCOURT, DATED29/06/2022 EXHIBITR2(C)THECOPYOFCLAIMPETITIONNO20/2023DATED 03-06-2023 EXHIBITR2(D)ATRUECOPYOFTHECOVERINGLETTERDATED 01/03/2022SENTALONGWITHTHEAWARD EXHIBITR2(E)ATRUECOPYOFTHECOVERWHICHWASRETURNEDTO MEBYTHEPOSTALDEPARTMENT EXHIBITR2(F)ATRUECOPYOFTHEACKNOWLEDGMENTCARD ADDRESSEDTOTHEPETITIONER ```