IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 24467 of 2007(K) --------------------------------------- ID.NO.59/1999 OF LABOUR COURT, KOLLAM. .................... PETITIONER: ------------------- A.NISAMUDEEN, PROPRIETOR, QUILON CASHEWS, KILIKOLLOOR P.O., KOLLAM- 691 004. BY MR.K.P. DANDAPANI, SENIOR ADVOCATE, ADVS. MR. MILLU DANDAPANI. RESPONDENTS: ------------------------ 1. V.VASANTHASENAN, KAKKIDIVILA VEEDU (VIDHYA BHAVAN), NEDUNGOLAM P.O., S.PARAVUR, KOLLAM DISTRICT. 2. THE LABOUR COURT, KOLLAM. R1 BY MR.N.DHARMADAN, SENIOR ADVOCATE, ADV. SMT.D.P.RENU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2009, ALONG WITH W.P.(C). NOS. 29491/2008 & 10903/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.24467/2007-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE DEMAND NOTICE DTD. 17/10/1998 SUBMITTED BY THE R.1. BEFORE THE DISTRICT LABOUR OFFICER, KOLLAM. EXT.P.2: COPY OF THE COUNTER STATEMENT DTD. JUN 2000 FILED BY THE PETITIONER BEFORE THE LABOUR COURT, KOLLAM. EXT.P.3: COPY OF THE PRELIMINARY ORDER DTD. 07/02/2005PASSED BY THE LABOUR COURT, KOLLAM. EXT.P.4: COPY OF THE AWARD DTD. 23/03/2005 PASSED BY THE LABOUR COURT, KOLLAM. EXT.P.5: COPY OF THE ORDER DTD. 07/03/2006 PASSED BY THE LABOUR COURT, KOLLAM. EXT.P.6: COPY OF THE CLAIM STATEMENT DTD. 25/04/2007 IN C.P. NO. 27/2007 FILED BEFORE THE LABOUR COURT, KOLLAM. RESPONDENTS' EXHIBIT: EXT.R1.A: COPY OF THE AFFIDAVIT FILED IN C.P. NO.27/07. //TRUE COPY// P.A. TO JUDGE. Prv. V.GIRI, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) Nos.24467 OF 2007, 29491 OF 2008 & 10903 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2009 J U D G M E N T The parties in these writ petitions are the same and the issues are inextricably linked. The writ petitions have been heard together pursuant to the direction issued by the Division Bench in W.A No.117 of 2008, which was an appeal preferred against the interim order passed in W.P(C) No.24467/07. They are being disposed of by this common judgment. 2. I will refer to the facts in W.P(C)No.24467/07 in the first instance and the same shall be treated as the leading case. 3. Petitioner is the proprietor of Quilon Cashews. The first respondent was working as a Roaster, having entered service in the year 1957. A domestic enquiry was conducted against the first respondent on three charges, framed on WPC.Nos.24467 OF 2007, 29491 OF 2008 & 10903 OF 2009 : 2 : 26.11.1997 and after enquiry, the employee was found guilty. The employer dismissed the workman as per order dated, 15.10.98 with effect from 25.5.98, that is about three years and seven months prior to him attaining the age of superannuation which was on 11.12.2001. His complaint before the Labour Officer objecting to the termination ultimately resulted in a reference to the Labour Court under section 10 (1)(C) of the Industrial Despute Act. Ext.P1 claim petition was filed by the workman before the Labour Court and Ext.P2 Counter Affidavit was filed by the employer. The domestic enquiry was set aside by a preliminary order dated 7.2.2005 Ext.P3. It seems that after the preliminary order there was no participation on the part of the Management. The Labour court then proceeded to pass an ex parte award on 23.3.2004 ordering reinstatement with 50% back wages. It seems that the Labour Court had not taken note of the fact that the workman had already attained the age of superannuation on 31.12.2001. The workman therefore filed CMP 126/2005 for what is termed as a correction of the award. 4. By Ext.P5 order dated 7.3.2005, the labour court WPC.Nos.24467 OF 2007, 29491 OF 2008 & 10903 OF 2009 : 3 : purported to correct the award and held that the workman will be entitled to back wages in full from 25.5.98 to 31.12.2001 as if he continued in service. It is seen from Ext.P5 that this order was passed after notice to the management, through counsel. Thereafter claim petition no.27/05 was filed by the workman under Sec.33 c (2) of the Industrial Dispute Act for computing the benefits in terms of the award, on 25.5.98. Notice of the claim petition was issued directly to the party. It was then that they came to know that an ex-parte award was passed in the year 2004. It was in this context that W.P(C) 24467/07 was filed challenging the final award and order Ext.P5 passed on a correction petition. 5. This court did not grant a stay of the award as such. In fact learned Judge of this court by order dated 13.8.2007 observed that Ext. P4 order award has become final. It is seen that notice was issued on the writ petition in relation to the challenge against Ext.P5 order. But later the Division Bench of this court in W.A.117/08 directed that the writ petition be heard on all issues on condition that the management deposits an amount of Rs.60,000/- and the workman was permitted to WPC.Nos.24467 OF 2007, 29491 OF 2008 & 10903 OF 2009 : 4 : withdraw the amount. The said direction has been complied with. 6. In the meanwhile, the Labour Court proceeded to pass an order on the claim petition and said order has been challenged by the management in WP(C)No.29491/08 and the workman in WP(C)No.10903/2009. 7. I heard Mr.K.P Dandapani learned Senior Counsel along with Mr.T.M.Chandran and Sri. N. Dharmadan learned senior counsel along with Smt. Renu. The first issue is whether interfere with Ext.P4 award passed by the Labour Court and grounds to P5 order on the correction petition. As Mr. Dharmadan pointed out, the Management had filed a counter affidavit in the Labour Court but later kept away. 8. Mr. Dandapani pointed out that the party was not at fault for the absence as there was a continuous default on the part of a Clerk attached to the office of the counsel who was engaged before the Labour Court. It is further submitted by Mr. Dandapani that apart from Ext.P4 award, Ext.P5 order is without jurisdiction, as the labour court has no jurisdiction to entertain a correction petition. WPC.Nos.24467 OF 2007, 29491 OF 2008 & 10903 OF 2009 : 5 : 9. Mr. Dharmadan pointed out that the labour court has jurisdiction to correct error under Rule 23 of the Industrial Tribunal Rules. The management had notice on the correction petition but it kept away. 10. I have taken note of the averments made in this writ petition that the absence of the Management before the labour court was not really on account of any contumacious default on the part of the management or by the counsel. 11. I find no reason not to accept the submission made by the Senior counsel for the management that there was a default on the part of the clerk. I also take note of the submission by the workman that he is a senior citizen who is fighting a protracted legal battle. An opportunity to the management to again contest the proceedings should not be lightly granted. After all the workmen has been compelled to fight these writ petitions before the High Court. 12. I further take note of the fact that pursuant to the direction issued by the bench in WA No.117/08 an amount of Rs.60,000/- has been deposited by the Management and disbursed to the worker. Since the ex parte award was passed WPC.Nos.24467 OF 2007, 29491 OF 2008 & 10903 OF 2009 : 6 : in 2005, considerable time has lapsed thereafter. If at all the management is to be given an opportunity to contest the proceedings on merits, it must be on terms. 13. On an overall appreciation of the facts and circumstances, I am of the view that the management must be given an opportunity to contest the reference on merits. In the circumstances Exts.P4 and P5 in WP(C) No.24467/07 shall stand set aside on condition that the petitioner therein pays an amount of Rs.25,000/- as costs to the first respondent, workman within six months from today. If the costs are paid then I.D. No.59/99 shall restored to the file of the labour court, Kollam. The Management shall be permitted to proceed on the basis of the written statement already filed and contest the proceedings from the stage available on 7.2.2005, the date of Ext.P3. It is needless to say that in such circumstances, Ext.P5 will have no consequences. Revised Award in such circumstances shall be passed within six months from the date of receipt of a copy of this judgment. 14. In so far as WP(C) Nos. 29491/2008 and 10903/2009 are concerned, if costs are paid as directed in WP WPC.Nos.24467 OF 2007, 29491 OF 2008 & 10903 OF 2009 : 7 : (C) No.24467/2007, then obviously the order passed in the claim petition will have to be treated as bereft of any consequences. It is made clear that if the award is set aside pursuant to the management depositing the amount as already directed, then the claim petition shall be treated as closed and it will be open to the workman to file a fresh claim petition depending upon the revised award to be passed by the Labour Court as already directed. 15. But if the management fails to pay the cost as directed in WP(C)No.24467/07 then again the order passed in the claim petition shall stand set aside, in circumstances, where both parties have challenged the said order and the labour court shall pass a fresh order on the claim petition after hearing both sides. These writ petitions are disposed of as above. Sd/- (V.GIRI, JUDGE) jma