IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 14TH JULY 2008 / 23RD ASHADHA 1930 OP.No. 12543 of 2002(R) ------------------------------- PETITIONER: -------------------- V.SUBHASH S/O.V.KUNHIRAMAN VAIDYAR, VALAVIL HOUSE,P.O.ERANHIKKAL. BY ADV. SRI.M.C.SEN (SR.) SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN RESPONDENTS: ----------------------- 1. THE LABOUR COMMISSIONER, THIRUVANANTHAPURAM. 2. THE DISTRICT LABOUR OFFICER, KOZHIKODE. 3. MANAGEMENT OF KARANNUR SERVICE CO-OPERATIVE BANK NO.1244,POST ELATHUR. BY ADV. SRI.K.P.DANDAPANI (SR.) FOR R3 GOVERNMENT PLEADER SRI. P.K. RAVIKRISHNAN FOR R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 12543 of 2002(R) -2- APPENDIX PETITIONER'S EXHIBITS : EXT.P1 - TRUE COPY OF JUDGMENT IN O.P. NO. 13357/97 DATED 30.6.1999 OF THIS HON'BLE COURT EXT.P2 - TRUE COPY OF REPLY DATED 3.3.97 SENT BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P3 - TRUE COPY OF LETTERE DT. 7.5.97 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P4 - TRUE COPY OF LETTER DT. 22.1.2002 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. EXT.P5 - TRUE COPY OF LETTER DT. 8.4.2002 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. / TRUE COPY / PA TO JUDGE S.SIRI JAGAN, J ================== O.P.No.12543 of 2002 ================== Dated this the 14th day of July, 2008. J U D G M E N T The petitioner in this O.P. is a workman of the 3rd respondent who obtained an award in I.D. No. 17/76 from the Labour Court, Kozhikode, for reinstatement with backwages. The 3rd respondent did not implement the award. Therefore the petitioner moved this original petition seeking a direction to respondents 1 and 2 to initiate prosecution proceedings against the 3rd respondent under Section 29 of the Industrial Disputes Act for non-implementation of the award in I.D. No. 17/76 of the Labour Court, Kozhikode. 2. The existence of the award is not disputed. It is also not disputed that it has not been implemented. The contention of the 3rd respondent is that the petitioner has attained the age of superannuation long back and therefore that part of the award by which the petitioner was directed O.P.No.12543 of 2002 - 2 - to be reinstated cannot now be implemented. Therefore, their contention is that the prayer for initiating prosecution proceedings against the 3rd respondent has become infructuous. This is disputed by the counsel for the petitioner who pointed out that even though he has crossed the age of superannuation, the direction for payment of backwages and wages till the date of superannuation has not been implemented for which prosecution under Section 29 would certainly lie. 3. I have considered the rival contentions in detail. 4. It is now admitted before me that subsequently the petitioner had filed claim petition before the Labour Court, Kozhikode for computation of the benefits due to the petitioner under the award. It is also admitted that the Claim Petitions have been allowed directing the 3rd respondent to pay amounts due to the petitioner which would come to more than Rs. 17 lakhs. 5. I am of opinion that no purpose would be served if the present secretary of the society, who is innocent of the O.P.No.12543 of 2002 - 3 - matter, is directed to be prosecuted, and the same would not serve the purpose of the petitioner also. Even then, since technically a prosecution would lie for non-implementation of the award, as a condition for avoiding prosecution proceedings, the 3rd respondent should pay a part of the amount awarded by the Labour Court immediately. Accordingly, this writ petition is disposed of directing the 3rd respondent to pay ⅓rd of the amounts computed by the Labour Court as payable to the petitioner purely as a condition for avoiding prosecution against the 3rd respondent for not implementing the award. This shall be paid within two weeks from the date of receipt of a copy of this judgment without prejudice to the right of the 3rd respondent to challenge the orders stated to have been passed by the Labour Court, and without prejudice to the right of the petitioner to realise the balance for taking appropriate proceedings. This writ petition is disposed of as above. Needless to say if ultimately the challenge of the 3rd respondent against O.P.No.12543 of 2002 - 4 - the orders of the Labour Court succeeds the petitioner would be liable to refund the amount proportionately. S.SIRI JAGAN, JUDGE rhs