IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 WA.No. 207 of 2009() -------------------- {IN WPC.7878/2004 Dated 21/11/2008 .................... APPELLANT(S): PETITIONER ---------------------------------------------- P.SREEKUMAR, S/O.LATE PADMANABHA PILLAI, AGED 59,MADAYIL THALAYIL, KARAMANA.P.O, THIRUVANANTHAPURAM,REP; BY HIS POWER OF ATTORNEY HOLDER K.S.SREELATHAKUMARI,W/O.SREEKUMAR.P, RESIDING AT MEDAYIL,THALIYAL,KARAMANA, THIRUVANANTHAPURAM. BY ADV. SRI.R.S.KALKURA RESPONDENT(S): RESPONDENTS ------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GOVERNMENT LABOUR DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. MANAGING DIRECTOR, KERALA STATE SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD, HOUSING BOARD BUILDING, SHANTI NAGAR, THIRUVANANTHAPURAM. WA.No. 207 of 2009 :: 2 :: 3. THE LABOUR COURT, KOLLAM. BY GOVERNMENT PLEADER SMT.K.MEERA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY, Ag.C.J. & V.GIRI, J. ------------------------- W.A.No.207 of 2009 ------------------------- Dated this the 4th day of February, 2009. JUDGMENT GIRI, J. The appellant, the petitioner in W.P.(C)No.7878/04, was serving with the 2nd respondent as provisional workman. When candidates were advised by the Public Service Commission for appointment in the 2nd respondent Corporation, the services of 69 persons, including the petitioner, came to be terminated. They approached the Industrial Tribunal, which proceeded to pass Ext.P1 award directing reinstatement of the workmen, but without back wages. 2. Some of the hands advised by the Public Service Commission approached this court challenging the award and by Ext.P3 judgment, a bench of this court, without interfering with the above, declared that the rights of persons who are regularly appointed through Public Service Commission will prevail over the 69 workmen. Some of the provisional employees, thereafter, approached the Supreme Court in a writ petition, which was dismissed on 24.11.1983 as per Ext.P4 order and the Supreme W.A.No.207 of 2009 :: 2 :: Court rejected their claim upholding the validity of the appointments made through Public Service Commission, with a direction to the Commission to permit the provisional employees to appear in the next recruitment process. 3. Some of the 69 provisional employees approached this court in O.P.No.6959/87, seeking implementation of Ext.P1 award. The Union, which represented the petitioner, was also a party to the said proceedings. It seems that the Union, vide representation dated 15/10/87 informed the Government that due to passage of time only 12 out of the 69 employees are required to be reinstated, as others are employed elsewhere. The petitioner was one among the 12 employees. The Union gave an undertaking before this court that 12 employees alone need be reinstated by the 2nd respondent, without a liability for back wages. The petitioner also gave an undertaking. Ext.P7 was, thereafter, issued by the Government directing that the 12 persons, including the petitioner, be reinstated in service as fresh recruits. Taking note of Ext.P7 as well, the writ petition filed for enforcement of Ext.P1 award was withdrawn. An order of appointment was issued to the petitioner. It seems that the W.A.No.207 of 2009 :: 3 :: petitioner had secured employment abroad in the meantime and therefore, his appointment order was cancelled and the same was published in the news paper. It was later that the petitioner filed C.P.No.123/90 before the Labour Court under Section 33(c)(ii) of the Industrial Disputes Act, apparently claiming wages from 1.10.1981 to 31.01.1987. The claim was rejected by Ext.P10 award. The writ petition was filed challenging Ext.P10. Learned single Judge held that the order of appointment was cancelled finding that the petitioner was employed abroad; that the said appointment order itself was issued pursuant to a settlement arrived at between the Union and the management, which contemplated appointment of 12 among the 69 workmen as fresh recruits. It was taking note of the settlement that the writ petition filed by the Union came to be withdrawn. The petitioner is bound by the action taken by the Union and an order of appointment came to be issued in favour of the petitioner also. He could have accepted the employment and if at all he felt aggrieved by the offer of appointment, insofar as it contemplated treating him as a fresh recruit, he could have agitated the matter later. But he did not do so and in the circumstances, there was no residuary right W.A.No.207 of 2009 :: 4 :: available to the petitioner to be enforced. On the aforementioned reasoning, among others, the learned single Judge declined to interfere with Ext.P10 and dismissed the writ petition. The petitioner has come up in appeal. 4. We heard learned counsel for the 2nd respondent, who submitted that since Ext.P1 award became final, the appellant must always be allowed to enforce the same. 5. We are unable to accept the said contention. Ext.P1 was followed by several other events. In fact, Ext.P3 judgment passed by the Division Bench will show that though the award was not interfered with, it was made clear by the Division Bench that the rights of the provisional employees will always be subject to the rights of the hands recruited through the Public Service Commission. It was thereafter, that a writ petition was filed for enforcement of the award. The Union therein had confined its demand to 12 employees out of the original 69 employees. It was taking note of the offer made by the Union that the Government had issued Ext.P7 order directing the said 12 employees, including the petitioner, be appointed. The petitioner will have to take upon himself the blame for not accepting Ext.P7, as he was W.A.No.207 of 2009 :: 5 :: employed abroad, at that point of time. The offer of appointment was pursuant to the broad conciliation arrived at between the Union and the management and any such conciliation would be binding on the petitioner also. 6. In these circumstances, there are no residuary rights available to the petitioner. This aspect has been rightly considered by the Labour Court and the learned single Judge. We find no merit in this appeal and it is accordingly dismissed. Sd/- (J.B. KOSHY) ACTING CHIEF JUSTICE Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge