IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 WP(C).No. 11376 of 2008(D) -------------------------- PETITIONER(S): --------------- 1. NIJEESH P.S., POTHEZHATHU HOUSE PERINJANAM, THRISSUR DISTRICT-680 686 2. NISHAD P.S., POTHEZHATHU HOUSE PERINJANAM, THRISSUR DISTRICT-680 686 3. VIJAYALAKSHMI T.V., POTHEZHATHU HOUSE PERINJANAM, THRISSUR DISTRICT-680 686 BY ADV. SRI.E.K.NANDAKUMAR RESPONDENT(S): --------------- 1. THE DEPUTY TAHSILDAR (RR) KODUNGALLUR. 2. DEPUTY LABOUR COMMISSIONER & APPELLATE AUTHORITY UNDER THE SHOPS & COMMERCIAL ESTABLISHMENTS ACT, OFFICE OF THE DY. LABOUR COMMISSIONER, THRISSUR. 3. MATHEW, S/O.JOSEPH GOPURATHINGAL HOUSE, VALAPPAD-680 567 THRISSUR DISTRICT. GOVERNMENT PLEADER SHRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 11376/08. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER DTD.17.8.05 IN S.A.NO.1/2002 BY R2. P2. COPY OF THE DEMAND NOTICE DTD.10.1.08 BY R1. P3. COPY OF THE RECEIPT DTD.28.1.08 BY THE VILLAGE OFFICER. P4. COPY OF THE RECEIPT DTD.26.3.08 BY THE VILLAGE OFFICER. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.11376 of 2008 ================== Dated this the 8th day of January, 2009 J U D G M E N T The petitioners are legal heirs of the deceased employer in shop appeal No.1/2001 before the 2nd respondent. Although notice was served by the petitioner in the shop appeal, and an advocate had been engaged, according to the petitioners, the Advocate did not properly take steps to contest the matter effectively and as a result, the employer had been proceeded with ex parte and the employer was directed to pay an amount of Rs.92,300/- to the 3rd respondent as compensation for alleged illegal termination from service. The petitioner submits that there was no laches on the part of the petitioner-employer in the shop appeal, who is no more. It is because the Advocate did not inform the predecessors-in-interest of the employer in time, they could not effectively contest the appeal. According to the petitioners, there was no illegal termination from service and if the employer had a proper opportunity to defend the cade, he could have proved the same by adducing appropriate evidence. The petitioners, therefore, seek the following reliefs: “(i) call for the records leading to Ext.P1 order and to quash the same by issue a writ of certiorari; w.p.c.11376/08 2 (ii) issue a writ of mandamus or other appropriate writ order or direction directing the 2nd respondent to consider the matter afresh and pass orders in accordance with law after affording the petitioners an opportunity of hearing; (iii) issue a writ of mandamus or other appropriate writ order or direction, directing the respondents 1 and 2 not to disburse any amounts to the 3rd respondent. (iv) grant a stay of operation of Ext.P1 order and P2 notice issued pursuant thereto and to direct the respondents 1 and 2 not to disburse any amounts to the 3rd respondent, pending disposal of the Writ Petition.” 2. Although notice was taken out by special messenger to the 3rd respondent, the same was returned stating that he had sold the house in the address in which notice was taken out years ago and his present address is not known. In spite of the Village Officer making necessary enquires as directed by this Court, the present address of the 3rd respondent could not be ascertained. In the above circumstances, the petitioner was permitted to take out notice by substituted service and accordingly notice was published in the newspapers as directed by this Court. In spite of the same, there is no appearance on behalf of the 3rd respondent. Therefore, this writ petition is being heard and disposed of. 3. After hearing the petitioner, I am satisfied that the petitioners should be given another opportunity to contest the matter on merit. Accordingly, Ext.P1 order is set aside and the 2nd respondent is directed to re-adjudicate the shop appeal afresh after affording an w.p.c.11376/08 3 opportunity to the petitioners to implead themselves as legal representatives of the deceased employer and to contest the matter on merits. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge