W.P.(C) Nos. 24666/2021 & 2144/2020

1 WPC 24666/21 & 2144/20 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` FRIDAY, THE 22[ND] DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 ``` ``` WP(C) NO. 24666 OF 2021 ``` ## **`PETITIONER/S:`** ``` UNNITHERI, AGED 66 YEARS S/O.MOIDU, RESIDING AT PUTHIYARA HOUSE, KANNACHANKUNNU, AMARAMBALAM, MALAPPURAM-679 332. ``` ``` BY ADVS. C.S.AJITH PRAKASH T.K.DEVARAJAN FRANKLIN ARACKAL PAUL C THOMAS M.B.SOORI BABU M. NIDHIN RAJ VETTIKKADAN HAARIS MOOSA ADESH JOSHI ``` ## **`RESPONDENT/S:`** - `1 THE DISTRICT COLLECTOR, MALAPPURAM, OFFICE OF THE DISTRICT COLLECTOR, CIVIL STATION, MALAPPURAM-676 505.` - `2 THE DEPUTY TAHSILDAR (RR), NILAMBUR TALUK, NILAMBUR P.O., MALAPPURAM-679 329.` - `3 THE DISTRICT LABOUR OFFICER, MALAPPURAM, CIVIL STATION COMPLEX, MALAPPURAM-676 505.` - `4 BABUMON JOSEPH, S/O.JOSEPH, PANTHANAZHIKUNNEL HOUSE, MUKKATTA, NILAMBUR P.O., MALAPPURAM DISTRICT-679 329.` - `5 MOLLY JOSEPH, W/O.LATE ABRAHAM, NANNIKATUPADAVIL, MUKKATTA, NILAMBUR P.O., MALAPURAM DISTRICT-679 329.` - `6 SMT.SINI JOSEPH, W/O.RAJU THOMAS, THALLISSERI VEEDU, KANJIKULAM P.O., PALAKKAD DISTRICT, PIN-678 596.` - `BY ADVS. P.SAMSUDIN M.ANUROOP SHYAM NAIR LIRA A.B.` ## **`OTHER PRESENT:`** ``` GP SHEEBA G ``` > `THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.12.2023, ALONG WITH WP(C).2144/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:` 2 WPC 24666/21 & 2144/20 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 22[ND] DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 WP(C) NO. 2144 OF 2020 ``` ## **`PETITIONER/S:`** ``` BABUMON JOSEPH, AGED 45 YEARS S/O.JOSEPH, PANTHANAZHIKUNNEL HOUSE, MUKKATTA, NILAMBUR P.O., MALAPPURAM DISTRICT. ``` ``` BY ADVS. P.SAMSUDIN M.ANUROOP S.K.SREELAKSHMY ``` ## **`RESPONDENT/S:`** ``` 1DISTRICT LABOUR OFFICER, MALAPPURAM, CIVIL STATION, MALAPPURAM-676505. ``` - `2 K.T.ALAVI, PRESIDENT, MALAPPURAM DISTRICT ESTATE LABOUR CONGRESS (INTUC), POOKOTTUMPADAM P.O. - 679332, NILAMBUR TALUK, MALAPPURAM DISTRICT.` ``` 3UNNITHERI, S/O.MOIDU, PUTHIYARA HOUSE, KANNACHANKUNNU, AMARAMBALAM P.O., -679332, NILAMBUR TALUK, MALAPPURAM DISTRICT. ``` ``` 4THE DEPUTY TAHSILDAR (RR), NILAMBUR TALUK, NILAMBUR P.O., -679329, MALAPPURAM DISTRICT. ``` ``` BY ADVS. GOVERNMENT PLEADER SRI.C.S.AJITH PRAKASH SRI.T.K.DEVARAJAN SMT.T.N.SREEKALA SRI.FRANKLIN ARACKAL SRI.PAUL C THOMAS SRI.M.B.SOORI SMT.ANCY THANKACHAN SHRI.BABU M. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.12.2023, ALONG WITH WP(C).24666/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 WPC 24666/21 & 2144/20 ## **JUDGMENT** (Dated this the 22[nd] day of December 2023) [WP(C) Nos.24666/2021 and 2144/2020] The petitioner in W.P.(C) No.2144 of 2020 challenges the award in I.D.No.18/2014 and the Revenue Recovery notice under section 34 read with Section 7 of the Kerala Revenue Recovery Act (for short, ‘the RR Act’). W.P.(C.) No. 24666 of 2021 is filed by the worker to implement the award in his favour for retrenchment compensation. Since the subject matter of both writ petitions is one and the same, these writ petitions are heard together, and a common judgment is passed. 2. W.P.(C) No.24666 of 2021 is taken as a leading case, and the facts are narrated below: The petitioner was a toddy tapper in the rubber estate owned by Smt.(late) Mary Joseph, inherited by respondent Nos.4 to 6. The petitioner joined the service in September 1992 4 WPC 24666/21 & 2144/20 and worked continuously upto 6.2.2012. In 2011, he took leave for 4 months after the leave period and reported for joining duty, but the employer denied employment. The denial of employment was taken as an industrial dispute before the conciliation officer. The conciliation ended in failure, and the government referred the matter for adjudication before the Labour Court in Kozhikode. The matter for adjudication was as follows: “whether the denial of employment to Sri Unnithari, tapper, by the employer Smt.Mary Joseph is justifiable? If not, what is the remedy?” 3. The Labour Court, after evaluating the order and documentary evidence, passed an award in I.D.No.18 of 2014 on 7.9.2016, holding that there was no denial of employment. Still, he is entitled to notice wages and retrenchment compensation as provided under Section 25F(a) and (b) of the Industrial Disputes Act (for short ‘the I.D. Act’). When the 5 WPC 24666/21 & 2144/20 employer refused to pay the compensation as ordered by the Labour Court, a claim petition was filed under Section 33C(2) of the I.D. Act for quantification of the amount. The labour court, by order dated 16.2.2017 quantified the amount as Rs.1,37,000/- and Rs.5,000/- as cost. Thereafter, a revenue recovery notice was issued on the requisition of the Labour Court. When recovery proceedings were initiated against the original employer and the 4[th] respondent, the 5[th] respondent approached this court by filing W.P.(C) No. 23161 of 2018 challenging Section 7 and 34 Notice under the R.R. Act. The original award was not challenged in the above-mentioned Writ Petition. The Writ Petition was closed as infructuous on 25.3.2019. The petitioner filed a detailed representation to respondent Nos.1 and 3 to complete the recovery proceedings. This Writ Petition, is filed for a writ of mandamus directing respondent Nos.1 and 2 to complete the proceedings for recovery of the amounts from the legal heirs of Smt. Mary 6 WPC 24666/21 & 2144/20 Joseph. At the same time, W.P.(C) No.2144 of 2020 is filed challenging the award and the revenue recovery notice. 4. Heard Shri Ajith Prakash, counsel for the petitioner in W.P.(C) No.24666 of 2021, and Sri Shamsudheen, counsel for the 4[th] respondent. 5. Shri Ajith Prakash argued that the labour court passed Ext.P1 award on 7.9.2016 and it was not challenged till 2020 and it is for the first time, the 4[th] respondent has filed W.P.(C) No.2144 of 2020 challenging the award. The contention raised is that his mother, Smt. Mary Joseph was the employer and she passed away on 25.01.2017 and therefore, he was not aware of the proceedings before the labour court. He further argued that the 4[th] respondent in his Writ Petition had not challenged the order dated 16.2.2017, which is C.P.No.1 of 2017 filed under Section 33C(2) of the I.D. Act. 7 WPC 24666/21 & 2144/20 6. MW1, examined on the management’s side, is the petitioner in W.P.(C) No.2144 of 2020, who is the son of the original employer. Therefore, he cannot contend that he was unaware of the proceedings before the labour court. Moreover, the order under Section 32C (2) is not challenged. 7. The petitioner in W.P.(C) No.2144 of 2020 is challenging Ext.P1 award of the labour court on the ground that the provisions of the I.D.Act cannot be invoked as it is not an industrial dispute. This question was raised as a preliminary issue before the labour court. The contention was that the Kerala Agricultural Workers Act applies to the facts of the case and not the I.D. Act. The Labour court, relying on the judgment of this court in **Abraham Thomas v. Labour court, Ernakulam and another [1997(2) ILR 99]** , held that the dispute has to be resolved under the I.D. Act and not under the Kerala Agricultural Workers Act. 8 WPC 24666/21 & 2144/20 8. The 2[nd] contention raised was that the worker had abandoned the work, and therefore, there is no denial of employment. The labour court, on appreciation of the documentary and oral evidence, came to the finding that though there was no denial of employment the worker was not given the notice wages and retrenchment compensation. The labour court held that the worker is entitled to notice wages and retrenchment compensation as provided under Section 25F(a)(b) of the I.D. Act. Since the employer did not grant the compensation, proceedings under Section 33C(2) of the I.D. Act were initiated, ending in order dated 16.2.2017. 9. The learned counsel, Shri.Ajith Prakash relied on a judgment of the apex court in **Essen Deinki v. Rajiv Kumar (2002 KHC 1391)** and also **Jai Singh and others. v. Municipal Corporation of Delhi and another** [2010 KHC 4702] for the proposition that the jurisdiction under Article 227 9 WPC 24666/21 & 2144/20 of the Constitution of India is revisional and not appellate. Even wrong decisions made by the lower courts cannot be interfered with under Article 227 of the Constitution of India unless the finding is perverse and not based on any material whatsoever and causes manifest in justice. 10. It is a fact that the petitioner in W.P.C 2144 of 2020 was examined as MW1 in I.D. No.18/2014 and he cannot contend that he was not aware of the proceedings before the labour court. The 5[th] respondent, his sister, has approached this court challenging the revenue recovery proceedings in W.P.(C.) No.23161 of 2018 apprehending that her property will be attached, the said Writ Petition was closed as infructuous on 25.3.2018. It is thereafter W.P.(C.) No.2144 of 2020 is filed by the 4[th] respondent, the son of the original employer. Even in the Writ Petition, the order under Section 33C(2) of the I.D. Act is not challenged. Moreover, the death of 10 WPC 24666/21 & 2144/20 the original employer occurred after the passing of the award and the order in C.P.No.1/2017. Ext.P3 in W.P ( C ) No 24666 of 2021 was issued on 04.04.2018 to the petitioner and the original employer. The petitioner in W.P ( C ) No 2144 of 2020 did not challenge the award or the order in C.P.No.1 of 2017, though the same was challenged by the 5[th] respondent, who was never served with any recovery proceedings at that time. 11. I have gone through the award of the labour court, as well as the order under Section 33C(2) of the I.D. Act, and I find that there is no illegality, impropriety, or perversity in the order passed. As mentioned earlier, Ext.P1 award passed in 2016 is challenged in the Writ Petition only in 2020. The petitioner, after participating in the trial as MW1 before the Labour court, cannot now turn around and contend that he was unaware of the award on the proceedings in C.P.No.1 of 2017. Hence, the Writ Petition cannot be entertained. 11 WPC 24666/21 & 2144/20 In the result, W.P.(C) No.2144 of 2020 is dismissed, and W.P.(C) No.24666 of 2021 is allowed, directing respondent Nos.1 and 2 to complete the revenue recovery proceedings initiated against the legal heirs of the original employer within a period of 6 months from the date of receipt of a copy of this judgment. Sd/- **BASANT BALAJI JUDGE** dl/ 12 WPC 24666/21 & 2144/20 ## **`APPENDIX OF WP(C) 2144/2020`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1TRUE COPY OF AWARD DATED 07.09.2016 OF THE LABOUR COURT, KOZHIKODE IN ID NO.18/2014. ``` ``` EXHIBIT P2TRUE COPY OF THE DEMAND NOTICES U/S 34 R/D WITH 7 OF THE KERALA REVENUE RECOVERY ACT. ``` ## `RESPONDENT EXHIBITS` ``` Exhibit A TRUE COPY OF THE FAILURE OF CONCILIATION (FOC) R3(a)REPORT DATED 25.03.2014 BY 1ST RESPONDENT. Exhibit A TRUE COPY OF THE LETTER ISSUED BY THGE DEPUTY R3(b)RUBBER PRODUCTION COMMISSIONER DATED 20.08.2007. Exhibit A TRUE COPY OF THE LETTER DATED 22.08.2007 ISSUED R3(c)BY THE RUBBER PRODUCTION COMMISSIONER WITH COPY TO THE 3RD RESPONDENT. Exhibit A TRUE COPY OF THE AWARD IN C.P.NP.01/2017 DATED R3(d)16.02.2017 PASSED BY THE HON'BLE LABOUR COURT, KOZHIKODE. Exhibit A TRUE COPY OF THE REVENUE RECOVERY NOTICE UNDER R3(e)SECTION 7 OF THE RR ACT ISSUED BY THE DEPUTY TAHSILDAR RR, NILAMBUR, DATED 04.04.2018. Exhibit A TRUE COPY OF THE COUNTER AFFIDAVIT IN W.P(C) R3(f)NO.23161/2018 FILED BY THE DEPUTY TAHSILDAR, NILAMBUR DATED 14.02.2019 Exhibit A TRUE COPY OF THE JUDGMENT IN W.P(C) R3(g)NO.23161/2018 DATED 25.03.2019 Exhibit A TRUE COPY OF THE REPRESENTATION SUBMITTED TO R3(h)THE DISTRICT COLLECTOR AND THE DISTRICT LABOUR WITHOUT ITS ENCLOSURES SUBMITTED BY 3RD RESPONDENT ``` 13 WPC 24666/21 & 2144/20 ## **`APPENDIX OF WP(C) 24666/2021`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1A TRUE COPY OF AWARD IN ID 18/14 DATED 07.09.2016 OF THE HON'BLE LABOUR COURT, KOZHIKODE. ``` ``` Exhibit P2A TRUE COPY OF THE ORDER IN CP NO.01/2017 DATED 16.02.2017 OF THE HON'BLE LABOUR COURT, KOZHIKODE. ``` ``` Exhibit P3A TRUE COPY OF THE NOTICE UNDER SECTION 7 OF THE RR ACT DATED 04.045.2018. ``` ``` Exhibit P4A TRUE COPY OF THE COUNTER AFFIDAVIT IN WPC NO.23161/2018 DATED 14.02.2021 FILED BY THE 2ND RESPONDENT HEREIN. ``` ``` Exhibit P5A TRUE COPY OF THE JUDGMENT DATED 25.03.2019 IN WPC NO.23161/2018 OF THIS HON'BLE COURT. ``` ``` Exhibit P6A TRUE COPY OF THE REPRESENTATION SUBMITTED IN JANUARY 2020 BY THE PETITIONER TO THE 1ST AND 3RD RESPONDENT. ``` - `Exhibit P7 A TRUE COPY OF THE INTERIM ORDER DATED 27.01.2020 IN WPC NO.2144/2020 FILED BY THE 4TH RESPONDENT.` - `Exhibit P8 A TRUE COPY OF THE STATEMENT FILED BY THE 3RD RESPONDENT HEREIN DATED 28.02.2020.`