IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 WA.No. 2441 of 2009 --------------------- AGAINST THE JUDGEMENT IN WPC.30967/2005 Dated 24/08/2009 .................... APPELLANT/PETITIONER: ---------------------------- THE KAMUKINKODE HANDLOOM WEAVERS' INDUSTRIAL CO-OP. SOCIETY LIMITED NO.3433, KAMUKINKODE, KODANGAVILA.P.O, NEYYATTINKARA, THIRUVANANTHAPURAM, REPRESENTED BY ITS PRESIDENT, G.THANKAPPAN. BY ADV. SRI.P.GOPAL RESPONDENTS/RESPONDENTS: ----------------------------------- 1. T.PUSHPAVALLY, SIMI BHAVAN, KAMUKINKODE, KODANGAVILA P.O., NEYYATTINKARA. 2. THE LABOUR COURT, KOLLAM. R1 BY ADV. SRI.GOPAKUMAR R.THALIYAL R2 BY SENIOR GOVT. PLEADER, SRI.BENNY GERVACIS. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & Antony Dominic, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 2441 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of June, 2011 JUDGMENT Antony Dominic, J. This writ appeal arises from the judgment in W.P.(C) No.30967 of 2005. Brief facts of the case are that the 1st respondent was the Secretary of the appellant Co- operative Society incorporated under the provisions of the Kerala Co-operative Societies Act. Disciplinary proceedings were initiated against the respondent and by order dated 13.05.1992, she was placed under suspension. An enquiry was held in which the 1st respondent has found guilty of the misconducts. The findings in the report was accepted by the disciplinary authority and by order dated 07.04.1994 she was dismissed from service. 2. A dispute under Section 2A of the Industrial Disputes Act was raised by the 1st respondent, which was WA No. 2441 of 2009 -:2:- was eventually referred for adjudication to the 2nd respondent, and the same was registered as ID No.78 of 1996. Before the Industrial Tribunal the respondent filed Ext.P5 claim statement and Ext.P6 is the written statement of the appellant. The validity of the enquiry was tried and a preliminary order was passed on 23.02.2005. Taking note of the fact that the management did not seek an opportunity to justify the dismissal before the Tribunal by adducing fresh evidence, such an opportunity was denied and the Labour Court, by Ext.P7 award ordered reinstatement of the respondent with full back wages and attendant benefits within one month. 3. It was challenging Ext.P7 award and the preliminary order, the writ petition was filed by the appellant management. By the judgment under appeal, a learned Single Judge of this Court upheld the award and dismissed the writ petition and this writ appeal is filed by the management. 4. Apart from the contentions on merits it is now pointed out before us that by the time the award was rendered WA No. 2441 of 2009 -:3:- by the labour court on 17.05.2005 and the award became enforceable, the 1st respondent had attained the age of superannuation on 24.05.2005. It is stated that therefore, there is no question of reinstatement of the workman. As far as the directions of the Labour Court to grant full back wages to the 1st respondent is concerned, the contention raised by the learned counsel for the management is that in Ext.P5 claim statement or in any proceedings before the Labour Court did the 1st respondent make a pleading that she was unemployed subsequent to her dismissal on 07.04.1994. It is contended that therefore, the Labour Court should not have directed payment of back wages. This plea of the management is controverted by the learned counsel for the 1st respondent by referring to the affidavit filed in support of the application under Section 17 B of the Industrial Disputes Act. 5. We have considered the submissions made by both sides. In our view, as far as the requirement of pleading to sustain a claim for back wages is concerned, it is covered by WA No. 2441 of 2009 -:4:- a judgment of the Apex Court in J.K. Synthetics Ltd. v. K.P. Agrawal and another [(2007) 2 SCC 433] wherein it has been held thus: “18. Coming back to back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in Rudhan Singh and Uday Narain Pandey. Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may.” 6. We have already stated that Ext.P5 is the claim statement which is the only pleading filed by the workman. In the said claim statement there is no averment whatsoever to WA No. 2441 of 2009 -:5:- the effect that the 1st respondent was remaining unemployed after the dismissal from the service of the management. From the records it is also evident that no further materials or other evidence was adduced by the 1st respondent that she was remaining unemployed. 7. Having regard to the materials available in this case, in the light of the aforesaid decision of the Apex Court, the Labour Court could not have ordered payment of back wages to the workman and therefore, to that extent the award needs to be modified. However, it is noticed that pursuant to the directions of this Court dated 20.11.2009 the appellant management has already made a payment of `1,00,000/- to the 1st respondent. Taking note of the fact that the dismissal has been held to be illegal by the Labour Court, and also considering that she has already attained the age of superannuation, we deem it appropriate that the management should not recover the said amount. 8. Therefore, this writ appeal is allowed deleting the WA No. 2441 of 2009 -:6:- directions in the award in ID No.78/1996 of the 2nd respondent, to pay back wages to the 1st respondent. Counsel for the 1st respondent workman submits that so far her retirement benefits have not been settled. By the award the Labour Court has held that the workman is entitled for reinstatement in service and this Court has upheld that finding of the Labour Court. In view of the above, the workman is deemed to have continued in service till her superannuation and on that basis she is entitled to be disbursed all statutory and other eligible benefits. This shall be disbursed as expeditiously as possible, at any rate, within a period of three months of receipt of a copy of this judgment. J.Chelameswar, Chief Justice. Antony Dominic, Judge. ttb WA No. 2441 of 2009 -:7:-