IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 WP(C).No. 39355 of 2003(I) -------------------------- PETITIONER(S): --------------- EXCEL GLASSES LTD., PATHIRAPPALLY, ALAPPUZHA, REPRESENTED BY ITS VICE PRESIDENT (TECHNICAL). BY ADV. SRI.B.S.KRISHNAN, SENIOR ADVOCATE SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENT(S): --------------- 1. K.K.PRAKASHAN, T.NO.1309, PACKING DEPART. EXCEL GLASS LTD., PATHIRAPPALLY, ALAPPUZHA. 2. RAJENDRAN P., T.NO.742, ASST. OPERATOR, -DO-. 3. DEVADAS, T.NO.1316, PACKING DEPARTMENT, -DO-. 4. V.JOSEPH, T.NO.131, -DO- -DO-. 5. S.RADHAKRISHNAN, T. 1312, -DO- -DO-. 6. THE LABOUR COURT, KOLLAM. ADV. SRI.THAMPAN THOMAS FOR R1TO5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF APPOINTMENT ORDER DATED 16.1.1997 ISSUED TO THE THIRD RESPONDENT. EXT.P2 TRUE COPY OF ORDER DATED 25.9.1997 CONFIRMING THE SERVICE OF THE THIRD RESPONDENT. EXT.P3 TRUE COPY OF THE PETITION DTED 23.12.1999 FILED BY THE FIRST RESPONDENT AS CP 88/99 EXT.P4 TRUE COPY OF THE PETITION DATED 23.12.1999 FILED BY THE 2ND RESPONDENT AS CP 89/99 EXT.P5 TRUE COPY OF THE PETITION DATED 23.12.1999 FILED BY THE THIRD RESPONDENT AS CP 90/99 EXT.P6 TRUE COPY OF THE PETITION DATED 23.12.1999 FILED BY THE FOURTH RESPONDENT AS CP 91 OF 1999 EXT.P7 TRUE COPY OF THE PETITION DTED DATED 23.12.1999 FILED BY THE FIFTH RESPONDENT AS CP 92/99 EXT.P8 TRUE COPY OF THE WRITTEN OBJECTION DATED 25.4.2002 FILED BY THE PETITIONER MANAGEMENT IN COP 88/99 EXT.P9 TRUE COPY OF MEMORANDUM OF SETTLEMENT DATED 30.11.1996 EXT.P10 TRUE COPY OF THE COMMON ORDER OF THE 6TH RESPONDENT LABOUR COURT DATED 23.10.2003 IN CP 88/99 TO 92/99 RESPONDENTS 1 TO 5'S EXHIBITS: EXT.R3(a) TRUE COPY OF AN APPOINTMENT ORDER DATED 11.11.1997 OF MR. K.R. OMANAKUTTAN. EXT.R3(b) TRUE COPY OF AN APPOINTMENT ORDER DATED 25.9.1997 OF THE THIRD RESPONDENT. EXT.R3(c) TRUE COPY OF THE WAGE SLIPS ISSUED TO THE 5TH RESPONDENT AND MR. OMANAKUTTAN IN THE YEAR 2002 EXT.PR3(d) TRUE COPY OF THE WRITTEN OBJECTION IN CLAIM PETITION NO. 90/1999 TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 39355 OF 2003 -------------------------------------------- Dated this the 23rd day of July, 2009 JUDGMENT Petitioner is challenging Ext.P9 order issued by the Labour Court, Kollam, under Section 33C(2) of the I.D. Act directing the petitioner to pay variable DA upto 370 points from the date of appointment to the respondents. I have heard counsel appearing for the petitioner and Sri. Thampan Thomas appearing for respondents 1 to 5. 2. Respondents 1 to 5 were temporary workers in the petitioner- company, and they were made permanent workers on different dates in 1997. Copy of the appointment letter issued to one of respondents 1 to 5 is produced as Ext.P1 and the terms with regard to salary and allowances are given in Ext.P2 issued by the Management. It is seen from Ext.P2 that after fixing basic salary and the scale of pay, it is mentioned in Ext.P2 that the appointee will be eligible for fixed DA, variable DA, fringe benefits, etc. The case of respondents 1 to 5 before the Labour Court is that under Ext.P9 settlement, which was between the management and the workers on 30.11.1996, upto 370 points of 2 variable DA was to merge with the basic pay and the employees were eligible for variable DA for the remaining points, which was 330 points. When respondents 1 to 5 were appointed they were not given 370 points of variable DA merged with basic pay, is the allegation they made before the Labour Court. Labour Court concluded that the benefit under Ext.P9 settlement was not given to respondents 1 to 5 inasmuch as they were not given variable DA upto 370 points. Accordingly, orders were passed directing payment by adding 370 points of variable DA given to other permanent workers in 1996 under the settlement. 3. Counsel for the petitioner contended that since respondents 1 to 5 were appointed subsequent to the settlement, their basic pay fixed by the Company includes merged portion of variable DA. On the other hand, counsel appearing for respondents 1 to 5 contended that 370 points of variable DA was not added to the basic pay of respondents 1 ; to 5 and therefore they are entitled to the relief granted by the Labour Court. I am unable to uphold the order of the Labour Court because Ext.P9 settlement provides for merger of value of 370 points of 3 variable DA with the basic pay of the permanent employees. In other words, settlement did not apply to temporary employees. After settlement, permanent employees obviously got their wage revision in the form of increase in basic pay after merging variable DA upto 370 points. Therefore any permanent employee appointed after the settlement cannot ask for addition of 370 points of variable DA to the scale of pay fixed by the company. In fact once variable DA upto 370 points is merged with the basic pay, in any subsequent appointment, pay scale has to be fixed by including such portion of the variable DA. I do not think there is any scope for this Court going into the question whether the pay scale fixed for the respondents is comparable with the other permanent employees which is not the issue decided by the Labour Court. If there is any grievance for the contesting respondents with regard to pay scale fixed including the basic pay, it is for them to seek relief in appropriate forum. However, fixation of pay scale at the time of appointment is not a matter to be settled by the Labour Court in proceedings under Section 33C(2) of the I.D. Act. Obviously what the Labour Court has done is virtually refixation of basic pay of the newly 4 made permanent employees which is not permissible under Section 33C(2) of the I.D. Act. However, I make it clear that if merged variable DA was not granted to respondents 1 to 5 or the pay-scale was fixed in a discriminatory manner, it is for them to raise their grievance before appropriate forum. I further make it clear that any genuine claim in this regard should not be declined on the ground of delay because they have initiated the proceedings before the Labour Court in 1999 and got successful orders. W.P.C. is allowed vacating the order of the Labour Court, but with the above observations. (C.N. RAMACHANDRAN NAIR) Judge kk 5