V. Vasanthasenan v. A. Nisamudeen (Proprietor, Quilon Cashews) and Labour Court, Kollam

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID** **WEDNESDAY, THE 7TH DAY OF NOVEMBER 2012/16TH KARTHIKA 1934** **WP(C).No. 11201 of 2010 (A)** **--------------------------ID.59/1999 of LABOUR COURT, KOLLAM** **PETITIONER(S): -------------** **V.VASANTHASENAN, KAKKIDIVILA VEEDU(VIDHYA BHAVAN), NEDUNGOLAM P.O. S.PARAVUR, KOLLAM DISTRICT.** **BY ADVS.SRI.N.DHARMADAN (SR.) SMT.D.P.RENU** **RESPONDENT(S)/MANAGEMENT AND LABOUR COURT:** **------------------------------------------** **1. A.NISAMUDEEN, PROPRIETOR, QUILON CASHEWS, KILIKOLLOOR P.O. QUILON-691 004.** **2. THE LABOUR COURT, QUILON.** **R1 BY ADVS. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH** **R2 BY SMT.ANITHA RAVINDRAN GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 11201 of 2010 -----------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1 TRUE COPY OF ORDER IN CIMP.126/05 IN I.A.59/99 DATED 7.3.2006 OF THE LABOUR COURT. EXT.P2 TRUE COPY OF ORDER IN C.P.27/07 DATED 22.1.2008 OF THE LABOUR COURT. EXT.P3 TRUE COPY OF COMMON JUDGMENT IN W.P.(C) NO.10903/2009 AND CONNECTED CASES DATED 14.7.2009 OF THIS HON'BLE COURT. EXT.P4 TRUE COPY OF JUDGMENT IN W.A.2281 OF 2009 OF THIS HON'BLE COURT. EXT.P5 TRUE COPY OF ORDER IN R.P.1191 OF 2009 IN W.A.2281/2009 DATED 10.12.2009 OF THIS HON'BLE COURT. EXT.P6 TRUE COPY OF AWARD DATED 29.1.2010 OF THE LABOUR COURT, KOLLAM.** **EXT.P7 TRUE COPY OF THE CLAIM STATEMENT IN I.D.59/99 DATED 13.3.2002 FILED BY PETITIONER. EXT.P8 TRUE COPY OF CERTIFICATE ISSUED BY THE ALUVILA CASHEW EXPORTS DATED 27.2.2010.** **RESPONDENTS' EXHIBITS : NIL** **//TRUE COPY//** **P.A. TO JUDGE** **ss/** ## **HARUN-UL-RASHID, J. ================= W.P.(c). NO. 11201 of 2010 =================** Dated this the 7[th] day of November 2012 ## **JUDGMENT** The writ petition is filed seeking to quash Ext.P6 award to the extent it denies back wages to the petitioner with 12% interest and other service benefits for the period from 25-5-1998 to 31-12-2001 and for a declaration that the petitioner is entitled to get full back wages with 12% interest including all service benefits during the period from 25-5-1998 to 31-12-2001. 2. The petitioner, worked as a Roaster in the 1[st] respondent establishment from 1957. His service was terminated as per order dated 15-10-1998 w.e.f. 25-5-1998 accepting an enquiry report finding him guilty of three charges levelled against him by the management. Subsequently, the Government referred the matter to the Labour Court under Section 10 (1)(c) of the Industrial Disputes Act. In the Industrial Dispute, the Labour Court passed a preliminary award on 7-2-2005 setting aside the enquiry report. On 23-3-2005 the Labour Court passed final ## **W.P.(c). NO. 11201/2010** ## **-2-** award directing reinstatement of the petitioner with 50% back wages. Subsequently, in C.M.P.No. 126/2005 filed by the workman the Labour Court modified the award and directed payment of full back wages to the petitioner from 25-5-1998 to 31-12-2001, the date on which the petitioner attained age of superannuation, as if he continued in service. Ext. P1 is copy of the order passed by the Labour Court in C.M.P. No. 126/2005 in I.D.59/1999. 3. Based on the award passed by the Labour Court the petitioner filed a Claim Petition No. 27/2007 under Section 33 (c) (2) of the Industrial Disputes Act. The Labour Court allowed the Claim Petition and directed the 1[st] respondent herein to pay the amount specified therein to the petitioner within one month, failing which the petitioner is entitled to realise that amount with interest at the rate of 9% per annum from 7-4-2006 till realisation and his claim for gratuity was left open to be decided before the appropriate Forum. 4. Both sides challenged Ext.P2 order before this Court. This Court by Ext.P3 judgment disposed of the writ ## **W.P.(c). NO. 11201/2010** ## **-3-** petitions directing to restore I.D.No. 59/1999 on the file of the Labour Court, Kollam, if paid costs and permitted the management to proceed on the basis of the written statement already filed and contest the proceedings from the stage available on 7-2-2005 from the date of Ext.P3 judgment. This court also directed the Labour Court to pass a revised award within six months from the date of receipt of a copy of the judgment. Pursuant to the direction issued by this Court, the matter was again considered by the Labour Court and passed Ext. P6 award dated 29-1-2010. In the claim statement filed by the workman he setforth his claim for re-instatement in service with all benefits and he pleaded that he is entitled to get full back wages in case of a finding that his dismissal was illegal. 5. The Labour Court considered the question as to whether the management has succeeded in establishing the charges levelled against the workman in the charge memo dated 23-5-1998 and as to whether the dismissal of the workman was legal and proper? After appreciating the evidence on record, the Labour Court held that the ## **W.P.(c). NO. 11201/2010** **-4-** management has not succeeded in establishing the charges levelled against the workman in the charge memo dated 23-5-1998. In the circumstance, the Labour Court held that the dismissal of the workman as per order dated 15-10-1998 was not legal and proper. 6. The workman was dismissed from service as per order dated 15-10-1998 w.e.f. 25-5-1998 . The workman attained the age of superannuation on 31-12-2001. The Labour Court considered the matter and passed award on 29-1-2010. Long before Ext. P6 order the workman attained the age of superannuation. The Labour Court found that the workman is not entitled to get back wages till the age of superannuation. It is further held that his dismissal as per order dated 15-10-1998 was not legal and proper. His dismissal from service is set aside, held that the workman is deemed to have been in service till 31-12-2001 and that he is entitled to all retirement benefits treating that he was superannuated on 31-12-2001 while continuing in service. 7. After recording such finding, the Labour Court examined the question as to whether the workman is entitled ## **W.P.(c). NO. 11201/2010** ## **-5-** to get back wages. The Labour Court, after examining the contention of the parties held that though the dismissal of the workman as per order dated 15-12-1998 was unjustifiable, in the absence of a case to him that he was unemployed or not gainfully employed thereafter, he is not entitled to get back wages. 8. This writ petition was filed challenging the award passed by the Labour Court to the extend it denies back wages to the workman for the period from 25-5-1998 to 31-12-2001. 9. The main reason stated for declining the relief of the claim for back wages is that the workman did not have a case in the claim statement that he was unemployed or gainfully employed after the dismissal from the service of the establishment as per order dated 15-10-1998. The Tribunal also observed that the workman has no such case when he was in the box as WW1. The learned counsel for the petitioner pointed out that the claim statement proceeded on the basis that the charges levelled against him was baseless, the dismissal of the workman was illegal and therefore he was ## **W.P.(c). NO. 11201/2010** **-6-** entitled for reinstatement with all benefits It is contended that at any point of time during the proceedings the management has raised a contention that he is not entitled to back wages for the reason that he was employed after his dismissal and that though this Industrial Dispute was pending from 1999 onwards, the management has not taken a contention in the written statement that the workman was employed elsewhere after the order of dismissal. On a perusal of the materials on record it is seen that such a contention was not raised for the last several years. The Labour Court relied on the oral evidence of MW2 who deposed that the workman was employed in Khadeeja Cashew Company, Karunagappally after his dismissal from service and earned salary therefrom. The said statement was given while he was examined as MW2. At a later point of time also i.e. after the directions issued by this Court in Ext.P3 judgment, there was no pleading to the effect that the workman was employed elsewhere. On the basis of the statement of MW2 the Labour Court found that though the dismissal of the workman as per order dated 15-10-1998 was unjustified in ## **W.P.(c). NO. 11201/2010** **-7-** the absence of a case that he was unemployed or not gainfully employed thereafter he is not entitled to get back wages. 10. Going by the contentions of the parties and the pleadings in the case, it may not be possible to say that the workman has no case that he was unemployed or not gainfully employed after his dismissal from service. All throughout his contention is that he is to be reinstated with back wages. There is no whisper in the pleadings of the management that he was employed during the relevant period. In the circumstance, the finding recorded by the Labour Court will have to be reconsidered. The workman produced Ext.P8 certificate from the Proprietor who was running Khadeeja Cashew Industries till 2003. In Ext. P8 certificate it is certified that the worker was not employed at any point of time in Khadeeja Cashew Company. The learned Counsel for the petitioner submits that in Ext.P3 judgment this Court specifically directed that the management shall be permitted to proceed on the basis of the written statement already filed and contest the proceedings from the stage ## **W.P.(c). NO. 11201/2010** ## **-8-** available on 7-2-2005, the date of Ext.P3. Unless there is proof of employment during the relevant period there is no justification for the Labour Court to deny the claim for backwages in a case where the definite finding was recorded, that the workman's dismissal from service is illegal. 11. The learned counsel also relied on the decision of the Apex Court in **Metropolitan Transport Corporation vs. V. Venkatesan** - _AIR 2010 SC 206_ _**.**_ In the said decision the Apex Court observed as follows: _“One of the important factors, which has to be taken into consideration , is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the dte of the award,_ ## **W.P.(c). NO. 11201/2010** ## **-9-** _which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character can not be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year”._ In the light of the contentions raised by the parties and the materials produced, this Court is of the view that the matter requires reconsideration by the Labour Court. Therefore, the writ petition is disposed of directing the Labour Court to consider the question as to whether the workman is entitled to get back wages for the period from 25-5-1998 to 31-8-2001 afresh and pass appropriate orders. Ext. P6 award is quashed to the extend it denies back wages to the workman. The Labour Court shall dispose of the matter within a period of four months from the date of receipt of a copy of this judgment. Sd/- **HARUN-UL-RASHID JUDGE** **kvr/** **/True Copy/ P.A. to Judge**