IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 WP(C).No. 13632 of 2010(D) -------------------------- CP.60/2007 of LABOUR COURT, ERNAKULAM .................... PETITIONER: --------------- ERNAKULAM DISTRICT PRIVATE BUS OPERATORS ASSOCIATION, ASSOCIATION BUILDING, PALARIVATTOM JUNCTION, KOCHI, REPRESENTED BY ITS GENERAL SECRETARY, M.B.SATHYAN, AGED 50 YEARS, SON OF BAHULEYAN. BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.SOBHAN GEORGE SRI.K.V.GEORGE RESPONDENTS: --------------- 1. THE PRESIDING OFFICER, LABOUR COURT, ERNAKULAM. 2. K.NARAYANAN KUTTY, S/O.KUNJAN PILLAI, THATTANPARAMBU HOUSE, AMBATTU KAVU, THAIKKATTUKARA, ALUVA-683 106. BY GOVT. PLEADER SRI.P.M.MANOJ SRI.P.VIJAYAKUMAR FOR R2 SRI.M.V.ASHIM FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 13632/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF AWARD DATED 21.3.2000 IN ID NO.124 OF 1994 PASSED BY 1ST RESPONDENT, PUBLISHED IN KERALA GAZETTE NO.30 DATED 25.7.2000 EXT.P2 : COPY OF CLAIM PETITION DATED 21.11.2007 FILED BY 2ND RESPONDENT BEFORE 1ST RESPONDENT AS CP NO.60 OF 2007 EXT.P3 : COPY OF WRITTEN STATEMENT DATED 14.8.2008 FILED BY PETITIONER BEFORE 1ST RESPONDENT IN CP NO.60 OF 2007 EXT.P4 : COPY OF REJOINDER STATEMENT DATED 19.11.2008 FILED BY 2ND RESPONDENT BEFORE 1ST RESPONDENT IN CP NO.60 OF 2007 EXT.P5 : COPY OF ORDER DATED 3.11.2009 PASSED BY 1ST RESPONDENT IN CP NO.60 OF 2007 EXT.P6 : COPY OF SHOW CAUSE NOTICE NO.B 2505/2010 DATED 3.4.2010 ISSUED BY DISTRICT LABOUR OFFICER, ERNAKULAM TO PETITIONER EXT.P7 : COPY OF CALCULATION STATEMENT DATED NIL FILED BY 2ND RESPONDENT BEFORE 1ST RESPONDENT IN CP NO.60 OF 2007 RESPONDENT'S EXHIBITS: EXT.R2(a) : COPY OF THE LETTER CIRCULAR NO.PBOA/40/2010 DATED 10.5.2010 ISSUED BY MANAGEMENT EXT.R2(b) : COPY OF THE REPRESENTATION DATED 26.5.2010 SUBMITTED BY THE WORKMAN/2ND RESPONDENT IN THE WRIT PETITION BEFORE MANAGEMENT EXT.R2(c) : COPY OF THE REPRESENTATION DATED 2.6.2010 SUBMITTED BY WORKMAN BEFORE DISTRICT LABOUR OFFICER, ERNAKULAM //TRUE COPY// P.A. TO JUDGE vps P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 13632 OF 2010 -------------------------- Dated this the 23rd day of June, 2011 J U D G M E N T Ext.P5 order passed by the Labour Court, Ernakulam in Claim Petition No.60 of 2007, an application filed by the second respondent herein under section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for short) is under challenge in this writ petition. The brief facts of the case are as follows: 2. The second respondent herein was an employee of the petitioner. His service was terminated on 16.12.1993. He thereupon raised a dispute which was referred to the Labour Court, Ernakulam for adjudication as I.D. No.124 of 1994. The issue referred to the Labour Court for adjudication was “Whether the retrenchment of Sri.K.Narayanankutty is justified or not? If not what relief he is entitled to?. By Ext.P1 award passed on 21.3.2000 after notice to and hearing the petitioner, the Labour Court held that the second respondent herein is entitled to be reinstated in service with full back wages, continuity of service and other attendant benefits. The petitioner challenged Ext.P1 award in this Court by filing O.P. No.27601 of 2000. The said original petition was dismissed by judgment delivered on 12.9.2000. The petitioner carried the matter in appeal by filing W.A. No.20 of 2007 and it was dismissed by judgment delivered on 9.1.2007. The petitioner WPC No.13632/2010 2 thereafter reinstated the second respondent in service on 15.1.2008. 3. In the meanwhile, the second respondent herein filed C.P. No.60 of 2007 before the Labour Court, Ernakulam under section 33-C(2) of the Act, wherein he claimed the sum of Rs.4,00,000/- towards arrears of wages for the period from 1.1.1994 to 14.12.2007. The year wise split up of wages was also given. The petitioner entered appearance and filed Ext.P3 written statement. The 2nd respondent filed Ext.P4 rejoinder. By P5 order, which is impugned in this writ petition, the Labour Court held that the second respondent is entitled to receive the sum of Rs.3,56,084.83 towards arrears of wages from 16.12.1993 onwards and that after giving credit to the sum of Rs.1,83,077/- paid by the petitioner, he is entitled to recover the sum of Rs.1,73.007.83. C.P. No. 60 of 2007 was accordingly allowed enabling the 2nd respondent to recover the sum of Rs.1,73,007.83 from the petitioner. The Labour Court further directed that if the petitioner does not pay the said amount within two months from the date of the order, the 2nd respondent herein will be entitled to recover the same with interest at 9% per annum from the date of the petition till realisation. 4. Sri.Ashok B Shenoy, learned counsel for the petitioner contented that at least for 3 reasons Ext.P5 order is liable to be set aside. The learned counsel contended that the petitioner had engaged the 2nd respondent as an Attender and therefore he is entitled only to the wages WPC No.13632/2010 3 payable to an Attender, but in the claim petition, the 2nd respondent had claimed the wages of a Salesman and therefore on that score, the order is liable to be set aside. The next contention raised is that in the claim petition, the 2nd respondent had claimed arrears of wages for the period from 1.1.1994 to 14.11.2007 only, but the Labour Court directed payment up to and inclusive of January 2008 and therefore the order is liable to be set aside on that ground as well. The third and the last contention is that the Labour Court erred in awarding interest in the event of default of payment of the principal amount within the stipulated time. 5. The claim of the 2nd respondent that he was working as an Attender-cum-Salesman was not disputed by the petitioner/employer in the proceedings before the Labour Court, Ernakulam which led to Ext.P1 award. In the claim petition filed by the 2nd respondent, he had stated that he entered service on 21.4.1986 as an Attender-cum-Salesman (vide paragraph 3 of Ext.P1 award ). In the written statement filed by the employer, the petitioner had stated that the workman had not done any work other than as Attender-cum-Salesman. Therefore the fact that the workman was employed as Attender-cum-Salesman was admitted by the petitioner. That apart, though in Ext.P3 written statement the petitioner had raised a contention that the amount claimed by the workman is exorbitant and excessive, the petitioner had no case that the 2nd respondent had WPC No.13632/2010 4 claimed any amount in excess of the wages payable to an Attender-cum- Salesman. In such circumstances, as the petitioner had not disputed the year wise break up of the amount payable to the 2nd respondent by setting out what according to the petitioner would have been the wages payable for the period in question, I am of the opinion that the petitioner cannot now raise the said contention. 6. The next contention raised before me is as regards the period for which the Labour Court, Ernakulam had directed payment of arrears of wages. It is not in dispute that in the claim petition, the claim was for arrears of wages for the period from 1.1.1994 to 14.11.2007. However Ext.P7 calculation statement filed along with the claim petition in the Labour Court shows that the second respondent had claimed arrears of wages for the period from 15.11.2007 to 31.1.2008 also. Arrears of wages claimed by the workman for the year 2007 is Rs. 33,051.45. Ext.P7 shows that the wages for the month of November 2007 and December 2007 claimed by the employee was Rs.2,780.05 per mensem. For January 2008, he had claimed the sum of Rs.2819.50. Since the exact figures are available, the aforesaid grievance of the petitioner is capable of being redressed by directing that from the amount payable by the petitioner to the second respondent, the wages claimed for the month of January 2008 (Rs.2819.50) for the month of December 2007, (Rs.2780.05) and half the WPC No.13632/2010 5 wages for the month of November, 2007 be deducted. However, even if such a course of action is adopted, in the light of the fact that the employee was reinstated in service only on 15.1.2008 and was therefore entitled to claim arrears of wages till 15.1.2008, the petitioner cannot withhold payment of wages for the period from 15.11.2007 to 15.1.2008. The second respondent can realise that by filing another application. The petitioner has no case that the second respondent was paid wages for the said period. Therefore, the mere fact that the workman was awarded wages for 2 1/2 months in excess of the period claimed in the application by him will not vitiate Ext.P1 award for the reason that the workman continued to be in service till 31.5.2010 and by virtue of Ext.P1 award which had attained finality he was entitled to wages till the date of reinstatement in service namely 15.1.2008. I therefore find no reason to interfere with Ext.P5 on that ground also. 7. The next and the last contention raised is as regards the award of interest. The second respondent was admittedly an employee of the petitioner from 21.4.1986. His service was unlawfully terminated on 16.12.1993. By P1 award which was passed way back on 21.3.2000 the Labour Court held that the retrenchment of the workman is illegal and unjustifiable. The petitioner was directed to reinstate him in service with back wages and all attendant benefits. Instead of complying with the WPC No.13632/2010 6 award, the petitioner unsuccessfully challenged the same in this court. It was only after the writ appeal filed by him was dismissed by this Court on 9.1.2007 that the workman was reinstated in service and that too only on 15.1.2008. Thus for nearly 8 years after the passing of the award the petitioner denied the workman the benefit of past wages and also denied him re-employment in service. It was taking note of these facts that the Labour Court passed Ext.P5 order whereby the second respondent was held entitled to recover the sum of Rs.1,73,007.83 towards arrears of wages from the date of termination till the date of reinstatement. The petitioner was directed to pay the amount within two months from the date of Ext.P5 order and in default the second respondent was allowed to recover the same with interest at 9% per annum from the date of petition till realisation. The petitioner failed to reinstate the second respondent in service, even though the award attained finality on 9.1.2007. He waited for one year before physically re-instating the second respondent in service on 15.1.2008. It cannot therefore be said that he was not guilty of contumacious conduct. For no fault of the second respondent, the petitioner did not reinstate the second respondent in service even after the challenge to the award was repelled. The petitioner could have avoided the liability to pay interest by complying with Ext.P5 order within the stipulated time. He cannot in my opinion take advantage of his own fault WPC No.13632/2010 7 and contend for the position that he should not have been mulcted with the liability to pay interest for unjustly withholding payment of monetary benefits to the workman. The direction regarding payment of interest does not therefore merit interference. I accordingly hold that no grounds have been made out warranting interference with Ext.P5. The writ petition fails and is accordingly dismissed. It is brought to my notice that while this writ petition was pending the age of retirement was fixed and the employee was superannuated from service on 31.5.2010 and that he has raised a dispute in relation to the fixation of the age of retirement and his superannuation. I make it clear that I have not expressed any opinion as regards that aspect of the matter and that both sides will be free to raise their respective contentions as and when the said issue arises for adjudication. P.N.RAVINDRAN, (JUDGE) vps