IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 RP.No. 1116 of 2008(L) ---------------------- AGAINST THE ORDER IN WPC.36442/2005 .................... REVIEW PETITIONER(S): PETITIONERS --------------------------------- 1. A.K.RAVEENDRAN, S/O.KUMARAN, AGED 61 YRS RESIDING AT CHEKKIKULAM, P.O.CHEKKIKULAM, KANNUR DT. 2. C.C.GEETHA, RESIDING AT LAKSHIKUMAR NIVAS, CHEKKIKULAM, P.O.KANNUR-1. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.KAUSER EDAPPAGATH RESPONDENT(S): RESPONDENTS 2 & 3 IN IA -------------------------------------- 1. THE SECRETARY, KERALA MOTOR LABOUR UNION (INTUC),KANNUR-1. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, LABOUR DEPARTMENT, TRIVANDRUM. BY ADV. SRI. K. ANAND. GOVT. PLEADER SMT. K.R. DEEPA THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 17/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= R.P.No. 1116 of 2008 in I.A.No. 6483 of 2006 in W. P (C) No. 36442 of 2005 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 17th November, 2008. O R D E R Petitioners in the writ petition have come up with this review petition seeking review of my order dated 8-8-2006 in the writ petition, whereby I directed the petitioners in the review petition to pay to the workman involved in the industrial dispute, award in which was under challenge in the writ petition, wages under Section 17B of the Industrial Disputes Act till the disposal of the writ petition. 2. The writ petition itself was disposed of on 6-6-2008. Long thereafter, the petitioners have filed this review petition on 13-10- 2008 seeking review of my order under Section 17B of the Industrial Disputes Act passed more than two years ago. The contention now raised is that, as is evidenced by the documents now produced by the petitioners in the review petition, it is evident that a Co-operative Bank had advanced loan to the workman relying on his statement that he was employed as a driver. They further point out that as per the other documents produced, the workman was employed in a hospital as an Ambulance driver for the period from 11-2-2004 to 30-4-2004, which would go to show that the workman was not remaining idle after the alleged termination from service and coupled with the fact that subsequently the workman obtained loan from a Co-operative Bank representing himself to be a driver, would clearly go to show that the workman was gainfully employed elsewhere. They further contend that the workman had a duty to state in his affidavit the fact that he obtained a loan from the Co-operative Bank representing himself to be a driver and having now admitted that he, in fact, took loan from the Co-operative Bank on the basis that he is a driver, it is R.P. No. 1116/2008 -: 2 :- his duty to prove that he was not gainfully employed elsewhere, enabling him to claim wages under Section 17B of the Industrial Disputes Act. 3. The contentions of the petitioners in the review petition are controverted by the workman involved by filing a counter affidavit in which he asserts that he is not gainfully employed elsewhere. He points out that the averment of the petitioner in the review petition that the workman was employed as driver from 11-2-2004 to 30-4- 2002 was considered by the Labour Court in the award itself and held that the management had not proved the same. Since the award was passed taking into account such contention also, the petitioner cannot now challenge the order under Section 17B of the Industrial Disputes Act on the basis of the said contention which had been negatived by the Labour Court itself. He submits that before the Co- operative Bank from where he took loan , he did not represent that he was employed as a driver, but he only stated that his profession is that of driver. He points out that he has three daughters to be married off and it is for their marriage also the loan was taken. According to him, after taking the loan, he could not pay off the loan amount promptly because he had no steady income from any profession. In fact, after taking the loan during the period 2000-2005, the petitioner had to avail of another loan for paying off the earlier loan. The workman asserts that he is still not gainfully employed elsewhere within the meaning of Section 17B of the Industrial Disputes Act. 4. I have considered the rival contentions in detail. 5. I am not inclined to allow the review petition for more grounds than one. Firstly, the order impugned in the review petition was passed as early as on 8-8-2006, which is being challenged on 13- 10-2008, more than two years after the order. In fact, it is pointed out R.P. No. 1116/2008 -: 3 :- that for enforcing payment under Section 17B, a contempt case was filed by the workman in which when the Court was about to frame charges against the petitioner in the review petition, they paid an amount of Rs. 66,318/- as arrears of wages under Section 17B. The writ petition itself was disposed of on 6-6-2008. Even then, they did not find it necessary to challenge the order for more than four months. The petitioners haveS not satisfactorily explained this delay. 6. Further, to the petition under Section 17B of the Industrial Disputes Act the petitioners in the review petition had not filed any counter affidavit at all. In any event, the documents now produced before me by the petitioners in the review petition do not prove to any extent that the workman was gainfully employed in any establishment during the period of pendency of the writ petition. Although the petitioners in the review petition would contend that since the facts relating to loan etc., are within the exclusive knowledge of the workman, it was for him to prove otherwise, once the petitioners have produced the documents showing that the workman has obtained a loan on the basis that he is employed as a driver. I am unable to agree with the contention of the petitioners in the review petition. Section 17B is very clear. What the workman has to do is to file an affidavit stating that the workman had not been employed in any establishment during the period of pendency of the writ petition. The workman had filed such an affidavit. Once such an affidavit is filed, the section casts burden on the management to prove otherwise. The documents now produced by the petitioners in the review petition are not sufficient to prove that the workman was gainfully employed in any establishment. 7. I find considerable merit in the contention of the workman that before the Co-operative Bank, he only stated his profession as a R.P. No. 1116/2008 -: 4 :- driver and not that he was employed as driver in any establishment. In so far as the contention based on the earlier employment from 11- 2-2004 to 30-4-2004 is concerned, as rightly pointed out by the counsel for the respondent, that contention was considered and repelled by the Labour Court in the award which is under challenge in the writ petition. For all the above reasons, I am not inclined to entertain this review petition and accordingly the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge.