W.P.(C) No.14087/2019 (C. Ance, Jamaludheen A.K., Mumthas Babu, Lalitha A.K. v KMJ Public School & its Principal; Labour Court, Ernakulam)

W.P.(C) No.14087/2019 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 05TH DAY OF MAY 2020 / 15TH VAISAKHA, 1942 WP(C).No.14087 OF 2019(I)** ## **PETITIONERS:** **1 C.M.ANCE, AGED 39 YEARS S/O.MOHAMMED, CHULIKKOTTIL HOUSE, KULAYETTIKKARA, MARITHAZHAM P.O., KANJIRAMATTOM- 682315, ERNAKULAM DISTRICT. 2 JAMALUDHEEN A.K., AGED 61 YEARS S/O.KASIM, THIRANDITHOTTIL, KULAYETTIKKARA P.O., KANJIRAMATTOM- 682315. 3 MUMTHAS BABU, AGED 41 YEARS W/O.BABU, EDAMPADATH HOUSE, KANJIRAMATTOM P.O- 682315, ERNAKULAM DISTRICT. 4 LALITHA A.K., AGED 45 YEARS W/O.KRISHNANKUTTY, MANAKKADU VEEDU, KANJIRAMATTOM P.O- 682315, ERNAKULAM DISTRICT. BY ADVS. SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SRI.C.K.GEORGE SRI.JOBI.A.THAMPI SMT.ASHIFA YOUSEFF SMT.FASHIYA YOUSEFF SMT.M.KABANI DINESH SRI.C.M.EBRAHIM SRI.SHOUKATH HUSAIN** **RESPONDENT/S:** W.P.(C) No.14087/2019 2 - **1 KMJ PUBLIC SCHOOL, REPRESENTED BY ITS MANAGER, KANJIRAMATTOM MOSQUE, KANJIRAMATTOM- 682315, ERNAKULAM DISTRICT.** **2 THE PRINCIPAL, KMJ PUBLIC SCHOOL, KANJIRAMATTOM- 682315, ERNAKULAM DISTRICT.** - **3 LABOUR COURT, ERNAKULAM- 682031.** **R1-2 BY ADV. SRI.BABU KARUKAPADATH R1-2 BY ADV. SMT.M.A.VAHEEDA BABU R1-2 BY ADV. SRI.K.M.FAISAL (KALAMASSERY) R1-2 BY ADV. SRI.P.U.VINOD KUMAR R1-2 BY ADV. SMT.STIYA SIVAN R1-2 BY ADV. SRI.AVINASH P RAVEENDRAN R1-2 BY ADV. SMT.ARYA RAGHUNATH R1-2 BY ADV. SMT.KADIJA JASMINE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.14087/2019 3 ## **J U D G M E N T** The above captioned Writ Petition is filed challenging the order dated 20.2.2019 of the Labour Court, Ernakulam, by which the claim petition filed by the petitioner herein was dismissed finding that the application filed by them under Section 33C(2) of the Industrial Disputes Act, 1948 seeking payment of salary at par with the salary paid to employees of their respective class was not maintainable. 2. Before venturing to decide on the questions raised, it would be profitable to state the relevant facts. The 1[st] respondent is the K.M.J Public School, represented by its Manager. The 2[nd] respondent is the Principal of the said school. The petitioners 1 and 2 have been working as drivers for the past 14 and 9 years respectively in the said school whereas the petitioners 3 and 4 have been working as sweepers in the same institution for the past 8 years. They contended that they have been receiving wages at less than the minimum wages prescribed by the State Government by various notifications and also as per the directions issued by this Court in **State of Kerala vs Mythri Vidya Bhavan English Medium School and another[1]** . They contended that a person junior to them, 1 [2013 (1) K.L.T short note 36] W.P.(C) No.14087/2019 4 who was a Class-IV grade employee, was drawing a much higher wage as compared to the petitioners. According to them, they are entitled to higher amounts toward salary from 1.7.2013 onwards. 3. The respondents filed a counter contending that the petitioners 1 and 2 are part-time drivers and the petitioners 3 and 4 are part-time sweepers of the 1[st] respondent institution. The salary and other benefits paid to the petitioners are commensurate to the work rendered by them. It was also stated that in addition to the monthly salary, the petitioners are provided with Provident Fund, ESI benefits, Festival and other service benefits etc. It was further contended that the pay scale directed to be paid by this Court was for full-time employees and the petitioners, being part-time employees, are not entitled to the benefits of the judgment. 4. To the contentions advanced in the counter, the petitioners filed replication asserting that the petitioners are full-time workers appointed by the 1[st] respondent and entitled to the salary as prayed for by them. An application for amending the claim statement was filed which was allowed. The respondents filed counter reiterating their contentions. W.P.(C) No.14087/2019 5 5. The 1[st] petitioner entered the box and gave evidence as PW1 and on his side, Exhibits P1 to P3 were marked. The 2[nd] respondent entered the box and gave evidence as DW1. Exhibits D1 to D 7 were marked on her side. 6. The Labour Court, after evaluating the evidence adduced by the parties, found fault with the petitioners for not adducing any evidence to show that they are permanent employees of the establishment. The Labour Court also concluded that Section 33C(2) does not envisage the determination and adjudication of the rights of the petitioners for the entitlement. Reliance was also placed on a decision of this Court in **M. Karunakaran v Grassim Industries Ltd[2]** to come to the conclusion that the Labour Court had no jurisdiction to entertain a dispute between the workman and the employer in the absence of a pre-existing right to any amount or any benefit. 7. Heard Sri.Mohammed Yousuf, the learned Senior Counsel appearing for the petitioner as instructed by Sri C.M. Ebrahim and Smt. Waheeda Babu, the learned counsel appearing for the respondent. 8. Sri.Mohammed Yousuf would place reliance on the decisions of this Court in **G4S Security Services (India) Ltd v.** 2 [1997 (1) KLJ 789] W.P.(C) No.14087/2019 6 **Satheeshkumar K and others[3]** and it was argued that merely because the management disputes the right of the workmen for the benefit claimed, the jurisdiction of the Labour Court under Section 33 C (2) is not ousted. He would point out that the stand taken by the Labour Court that only those rights already adjudicated upon by a competent authority can be enforced under Section 33 C (2) is perverse. According to the learned counsel, it would be a travesty of justice to hold that for enforcing crystallised rights also a workman should first go through the cumbersome procedure of raising an industrial dispute, getting it referred by the Government for adjudication to the Labour Court / Industrial Tribunal and getting the dispute adjudicated by the Labour Court / Industrial Tribunal. In the case on hand, the rights of the employees had already been crystallized by the notifications issued by the State as well as the decisions of this Court. He would then point out that the Labour Court has committed an egregious error in failing to mention in the order that the petitioners had filed an application as I.A.No.185 of 2015 seeking a direction to the Labour Court to summon Sri.V.K. Pramod, who is working as Superintendent of the KMJ Public School, to prove Exhibit D5 and D6 which were admittedly prepared by him. The respondents had filed 3 2010(1) KLT 463 W.P.(C) No.14087/2019 7 objection and the Court had allowed the same. Though summons was issued to Sri V.K. Pramod to appear and tender evidence, he failed to appear. No coercive steps were, however, taken to ensure his presence. Without doing that, the Labour Court, in the impugned order, found fault with the petitioners for not letting any positive evidence to substantiate the fact that they were full time employees. He would specifically refer to the observations in paragraph No.10 of the order wherein it is observed by the Labour Court that the petitioners ought to have taken steps to direct the opposite parties to produce documents but the same was not done. This is clearly against the true state of affairs contends the learned counsel and he asserts that by the above approach, gross prejudice has been caused. He would then point out that the 1[st] respondent did not enter the box and instead, evidence was tendered by the 2[nd] respondent. Referring to the evidence tendered by the 2[nd] respondent, it is argued that the version tendered by her was at variance with the documents which were produced. 9. Smt.Waheeda Babu, the learned counsel appearing for the respondent, submitted that no interference is warranted in the facts and circumstances as the petitioners failed to adduce any material to substantiate their version that they were full time employees. She W.P.(C) No.14087/2019 8 would forcefully urge that the Labour Court was right in rejecting the claim petition in the light of the settled position of law that the power of the said court is akin to an execution court. The petitioners having failed to establish a pre-existing right or to any amount due could not have been granted any relief. 10. I have considered the submissions advanced and have gone through the pleadings and evidence. 11. I find from the pleadings that the petitioners assert that they are full time employees of the 1[st] respondent and they have been working as such for quite a number of years. They contend that they are being paid wages which are less than the minimum wages prescribed by the State as per various notifications as well as by this Court in **Mythri** (supra). Though the respondents do not deny that the petitioners are their employees they contend that they work part time and therefore are not entitled to the benefits of the notification or the judgment relied on by them. However, the respondents admit that the petitioners are being paid, in addition to their monthly salary, Provident Fund, ESI Benefits, Festival Allowance and all other service benefits. The Labour Court has rejected the claim petition mainly on the ground that the petitioners have failed to adduce any evidence to prove their W.P.(C) No.14087/2019 9 claim. I find that nowhere in the order does the Labor Court mention about the application filed by the petitioners to summon Sri.V.K. Pramod, the custodian of the documents, which were produced before the Court and also the fact that the same was allowed by the Court. No mention is made about this fact in the order. I find from Exhibit P7 that I.A. No 185 of 2015 was in fact filed by the petitioners and an objection was also filed and it is asserted by the petitioners that the same was allowed. If that be the case, the Labour Court instead of finding fault with the petitioners for not adducing any evidence ought to have granted an opportunity to the petitioners to prove the documents through the Superintendent. The respondents have also not denied in the objection filed before this Court the reason as to why the witness who was summoned to the Court to give evidence on the documents was not permitted to appear and tender evidence. 12. Furthermore, I fail to understand as to why the Labour Court failed to take note of the principles laid down by this Court in **G4S Securities** (supra) where it was observed as under. “At the outset, I must note that it cannot be the law that simply because the management disputes the right of the workmen for the benefit claimed, the jurisdiction of the Labour Court under W.P.(C) No.14087/2019 10 S.33C(2) is automatically ousted. That dispute must be a bona fide dispute, for deciding the bona fides of which dispute also the Labour Court has jurisdiction. So also, it is not correct to say that only those rights already adjudicated upon by a competent authority can be enforced under S.33C(2). Rights vested in workmen by operation of statutes are also existing rights, which can also be enforced by resort to jurisdiction under that Section, provided that no other jurisdictional fact needs to be adjudicated upon, before computing the monetary benefits of that right. It would be a travesty of justice to hold that for enforcing statutory rights also a workman should first go through the cumbersome procedure of raising an industrial dispute, getting it referred by the Government for adjudication to the Labour Court / Industrial Tribunal and getting the dispute adjudicated by the Labour Court / Industrial Tribunal, unless it is necessary to adjudicate upon a fact giving rise to that right like in the case where for computing retrenchment compensation it would be necessary to decide a disputed question as to whether there is retrenchment at all. When statute confers a benefit on the workman, and if that benefit can be computed in terms of money without adjudicating upon another jurisdictional fact relating to existence of that right, certainly the Labour Court has the jurisdiction to entertain the claim of the workman for computation of that benefit under S.33C(2). The decisions referred to by the counsel for the petitioner certainly lays down that proceedings under S.33C(2) is in the nature of execution proceedings and that only existing right can be enforced under that Section. But, none of those decisions lay down a law that for enforcing a statutory right also, the workman has to first get the right adjudicated in an industrial dispute under S.10 of the Industrial Disputes Act. Right to be paid minimum wages is statutorily vested in employees working in notified industries, in respect of which industry the appropriate Government has fixed minimum wages by notification. Employers in such industries are W.P.(C) No.14087/2019 11 statutorily bound to pay minimum wages so fixed. An employer who pays to an employee less than the minimum rates of wages to that employee's class of work or less than the amount due to him under the provisions of the Minimum Wages Act is liable for punishment, in appropriate cases even of imprisonment for six months, under S.22 of the Act. Therefore, right to get paid notified minimum wages is a right already vested in employees of notified industries, for claiming which, a separate adjudication by an authority is not necessary at all. That is a benefit which can be computed in terms of money, for recovery of which a petition under S.33C(2) of the Industrial Disputes Act would certainly lie, beyond shadow of any doubt, whatsoever.” 13. I am of the view that sufficient opportunity was not granted to the petitioners to tender evidence. At any rate, there was no justification on the Labour Court to reject the petition on the ground of lack of evidence after denying the petitioners an opportunity to let in the best evidence possible by summoning and examining the witness called for by them. In view of the above, I am of the view that the order passed by the Labour Court suffers from grave perversity warranting interference by this Court under Article 226 of the Constitution of India. 14. This petition will stand allowed. The order passed by the Labour Court in Claim Petition No.49 of 2014 dated 20.2.2019 will stand set aside and the matter is remitted back to the Labour Court for fresh W.P.(C) No.14087/2019 12 consideration in accordance with law. The petitioners shall be permitted to adduce evidence to substantiate their case. The Labour Court shall proceed to pass final orders untrammeled by any observations made in this order. ## **Sd/-** **RAJA VIJAYARAGHAVAN. V.,** **JUDGE.** Ps/25/4/2020 W.P.(C) No.14087/2019 13 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 PHOTOCOPY OF THE APPLICATION UNDER SECTION 33(C)(2) OF THE INDUSTRIAL DISPUTES ACT.** - **EXHIBIT P2 PHOTOCOPY OF THE OBJECTION FILED BY THE COUNSEL FOR THE RESPONDENTS.** - **EXHIBIT P3 PHOTOCOPY OF THE REPLICATION FILED BY THE PETITIONER AGAINST THE COUNTER STATEMENT.** - **EXHIBIT P4 PHOTOCOPY OF THE ADDITIONAL COUNTER STATEMENT DATED 19.07.2016 FILED BY THE RESPONDENTS.** - **EXHIBIT P5 PHOTOCOPY OF THE DEPOSITION OF 1ST PETITIONER DATED 21ST JULY 2015.** - **EXHIBIT P6 PHOTOCOPY OF THE DEPOSITION OF DW1 DATED 27.07.2015.** - **EXHIBIT P7 COPY OF THE I.A.NO.185/15 DATED 20.10.2015.** - **EXHIBIT P8 PHOTOCOPY OF THE OBJECTION DATED 27.10.2015.** - **EXHIBIT P9 PHOTOCOPY OF THE ATTENDANCE REGISTER OF ALL THE EMPLOYEES INCLUDING TEACHING AND NON TEACHING STAFFS FOR THE MONTH OF JUNE 2014.** - **EXHIBIT P10 PHOTOCOPY OF THE ATTENDANCE REGISTER OF ALL THE EMPLOYEES INCLUDING TEACHING AND NON TEACHING STAFFS FOR THE PERIOD OF JULY, 2014.** - **EXHIBIT P11 PHOTOCOPY OF THE ATTENDANCE REGISTER FOR THE MONTH OF DECEMBER, 2014.** - **EXHIBIT P12 PHOTOCOPY OF THE ATTENDANCE REGISTER OF THE 2ND PETITIONER FOR THE MONTH OF SEPTEMBER, 2014.** W.P.(C) No.14087/2019 14 **EXHIBIT P13 PHOTOCOPY OF THE ATTENDANCE REGISTER OF THE 2ND PETITIONER FOR THE MONTH OF JANUARY, 2015. EXHIBIT P14 PHOTOCOPY OF THE APPLICATION DATED 27.02.2017 FOR AMENDMENT FILED BY THE PETITIONERS. EXHIBIT P15 PHOTOCOPY OF THE OBJECTION DATED 19.12.2017 FILED BY THE RESPONDENTS. EXHIBIT P16 PHOTOCOPY OF THE ARGUMENT NOTE DATED 03.10.2018 FILED BY THE PETITIONERS. EXHIBIT P17 CERTIFIED COPY OF THE ORDER DATED 20.02.2019 IN C.P 49/2014.** - **EXHIBIT P18 PHOTOCOPY OF THE NOTIFICATION NO.G.O(P)NO.155/2011/LBR DATED 12.09.2011.** - **EXHIBIT P19 PHOTOCOPY OF THE PROCEEDINGS NO.E11756/13 DATED 1.8.2013 OFTHE MANAGER, KMJ PUBLIC SCHOOL.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(A) A TRUE COPY OF THE APPLICATION DATED 13.8.2012 SUBMITTED BY THE 3RD PETITIONER TO THE 1ST RESPONDENT** **//True copy//** **PS to Judge**