IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 WP(C).No. 18707 of 2003(B) -------------------------- PETITIONER(S): --------------- APPUKUTTAN VALLIKUNNU, 47/991-A, A.C.S. ROAD, KALOOR, COCHIN-17. BY ADV. SRI.M.PATHROSE MATTHAI (SR.) SRI.A.JAYASANKAR RESPONDENT(S): --------------- 1. LABOUR COURT, KOLLAM. 2. DESHABHIMANI DAILY REPRESENTED BY ITS GENERAL MANAGER, THIRUVANANTHAPURAM. ADV. SRI.K.BALACHANDRAN (MANGALATH) FOR R2 SRI.RAJESH NAIR FOR R2 SRI.BIJOY CHANDRAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF PAY SLIPS FOR THE PETITIONER DT.28.9.98. P2: .DO. DT.2.11.98. P3: TRUE COPY OF REGISTERED LETTER SENT TO GENERAL MANAGER DESHABIMANI DAILY DT.12.1.99. P4: TRUE COPY OF LETTER SENT TO GENERAL MANAGER, DESHABHIMANI DT.10.12.99. P5: TRUE COPY OF THE PRESS RELEASE DT.11.6.2000. P6: TRUE COPY OF CHARGE SHEET DT.9.9.00. P7: TRUE COPY OF REPLY TO CHARGE SHEET DT.9.10.00. P8: TRUE COPY OF AWARD DT.10.2.03. P9: TRUE COPY OF LIST OF AUTHORITIES FILED BY PETITIONER BEFORE R1 DT.6.7.02. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.18707 of 2003 .................................................................... Dated this the 26th day of September, 2008. JUDGMENT The petitioner is challenging Ext.P8 award passed by Labour Court, Kollam, whereunder the Labour Cour declined to grant wages claimed under Section 17(2) of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (hereinafter called "the Working Journalists Act"). The petitioner's case is as follows. The petitioner who joined the second respondent in 1969 became the Associate Editor of the Daily. Admittedly second respondent is under the control of Communist Party of India (Marxist). Petitioner then a State Committee Member of the party, was removed from the party in August 1998. Even though the Central Control Commission of C.P.I.(M) allowed petitioner's appeal restoring him to the party by their decision dated 23.1.1999, he is still not restored membership. The petitioner had taken medical leave from second respondent in July 1998 and reported for work on 8.9.1998. Even though he was allowed to work on that day, the General Manager of the second respondent requested the petitioner to keep out of office probably because the person declared persona non grata for the party 2 cannot continue employment in the second respondent. According to the petitioner, he was althrough kept out of service, though he was paid salary for September and October 1998. Even though several negotiations were held for restoration of the petitioner to service of the second respondent, the same did not turn out to be successful. Since petitioner was kept out of employment without paying wages, petitioner made petition before the Government under Section 17(2) of the Working Journalists Act. The said claim petition referred to the Labour Court was rejected by it vide Ext.P8 holding that petitioner having not done any work, is not entitled to wages. 2. Senior counsel Sri.Pathrose Mathai appearing for the petitioner contended that from the conduct of the second respondent itself it is clear that the case is one of denial of employment and therefore, petitioner is entitled to wages. The petitioner has relied on Ext.P5 which is a Press Release published by second respondent wherein it is made clear that petitioner having fallen out from the party cannot be continued to be employed by the second respondent. Counsel for the second respondent on the other hand contended that petitioner was unauthorisedly absent from duty and therefore, he is not entitled to wages. I am unable to accept this contention because second respondent has no case that for unauthorised absence, disciplinary action was initiated against the petitioner until 2000 3 and the proceedings initiated in 2000 was dragged for six years and thereafter given up on account of retirement of the petitioner in between. It is now brought to my notice that question pertaining to denial of employment is referred by the Government on petitioner's application to the Labour Court, Ernakulam. The Reference Order is produced in court and the case is stated to be numbered as I.D. 25 of 2007. After going through Ext.P8 award and after hearing the parties, I am of the view that the very same issue involved in the case already decided by the Labour Court and the issue now referred to the Labour Court, Ernakulam is mainly denial of employment to the petitioner by the second respondent. To my mind, the Labour Court, Kollam has not even understood the issue properly because the first question which the Court should have considered is whether the failure of the petitioner to continue work is on account of denial of employment or not. There is no finding that the petitioner has abandoned the work or resigned his job. The Labour Court also has not taken into account the circumstances as to why the management did not take any disciplinary action in time against the petitioner, if he was unauthorisedly absent. In the circumstances and since a fresh I.D. is referred and pending before the Labour Court, Ernakulam, I vacate all findings and observations in Ext.P8 with direction to the Labour Court, Ernakulam to hear the parties 4 and decide the issues referred in both the cases i.e. one covered by decision of the Labour Court, Kollam and that presently referred to it and covered by the I.D. without any delay and in any case, within a period of three months from the date of production of copy of this judgment by either party. Both the parties are directed to appear in court on posting dates instead of asking for adjournments and help the Court to dispose of the case within the timeframe stated above. C.N.RAMACHANDRAN NAIR Judge pms