IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 WP(C).No. 17108 of 2005(J) -------------------------- PETITIONER(S): --------------- V.K.BHARATHI, W/O.LATE SREENIVASAN, AGED 54 YEARS, PATHIYIL HOUSE, SACHIVOTHAMAPURAM P.O., KURICHY, CHANGANASSERRY. BY ADV. SRI.SABU GEORGE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHAIRMAN, ATHURASRAMAM N.S.S. HOMEO MEDICAL DEGREE COLLEGE, ADMINISTRATIVE OFFICE, N.S.S.HEAD OFFICE, PERUNNAI P.O. CHANGANSSERRY -2. 3. THE GENERAL SECRETARY, NAIR SERVICE SOCIETY, PERUNNAI. CHANGANASSERRY. 4. THE WARDEN, SUSEELA SADANAM LADIES HOSTEL, N.S.S.HOMEO COLLEGE, KURICHY, SACHIVOTHAMAPURAM P.O. ,CHANGANASSERRY. 5. THE LABOUR COURT, ERNAKULAM. ADV.SRI.P.G.PARAMESWARA PANICKER,SENIOR ADVOCATE-R2 TO R4 SRI.P.GOPAL FOR R2 TO R4. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.NO.17108 OF 2005 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of the Industrial Dispute No.120/1995 filed before the Labour Court, Ernakulam dated 22.06.1996. Ext.P2: True copy of Objection filed by the 2nd and 3rd respondents before the Labour Court, Ernakulam in I.D.No.120/1995 dated 19.04.1997. Ext.P3: True copy of the replication filed by the petitioner along with others dated 25.081997. Ext.P4: True copy of the award of the Labour Court Ernakulam dated 08.10.2003 in I.D.No.120/1995. Ext.P5: True copy of the memo issued by the 2nd respondent dated 28.12.2005. Ext.P6: True copy of the letter issued by the 2nd respondent dated 17.01.2006. Ext.P7: True copy of the letter issued by the 2nd respondent dated 10.2.2006. RESPONDENTS' EXHIBITS: NIL C.T. RAVIKUMAR, J. --------------------------------------------- W.P.(C) NO.17108 of 2005 --------------------------------------------- Dated this the 21st day of October, 2009 JUDGMENT Petitioner was a Sweeper in the Suseela Sadanam Ladies Hostel attached to NSS Homeo Medical College, Kurichy. She along with certain others were denied employment without assigning any reason and without any notice of enquiry. On the said allegations, a dispute was raised and the Government as per order G.O (Rt) No.1937/1995/LBR dated 11.8.95 referred the dispute for adjudication to the Labour Court, Ernakulam. Ext.P1 is the claim statement in I.D No.120 of 1995. In response to that, the management had filed Ext.P2 objection. Evidences were adduced by both the parties and it consisted of oral testimonies of WW1 to WW 5 on the side of workmen and MW1 on the side of the management. Exts.W1 and W2 were marked on the side of the workmen and Exts.M1,M2 and M3 series were marked on the side of the management. The Labour Court thereupon formulated the following issues for determination: (1) whether the six workers referred in the reference order were employees under the 3rd management? (2) whether they were denied employment? (3) The relief if any due to the employees? W.P.(C) NO.17108 of 2005 2 2. Answering the reference, the Labour Court has passed Ext.P4 award dated 8/10/03. Ext.P4 would reveal that the first two points formulated for consideration viz., with respect to the question as to whether they were employees under R4 viz., 3rd management therein and whether they were denied employments were answered in the affirmative by the Labour Court and then observed thus:- “if the retrenchment is illegal, the relief due to the workmen is reinstatement with back wages and continuity in service”. However, the Labour court after entering into a specific finding that the workmen, including the petitioner herein, were workers of the 3rd management and they were denied their employment, denied the relief of reinstatement in service with back wages and continuity in service. Petitioner herein challenges Ext.P4 award to the extent it denied her that relief. 3. The undisputed factual position obtained in this case is that both the parties got no grievance with respect to the findings of the Labour court as regards whether the petitioner was an employee under the 3rd management and whether she was denied employment. The dispute confines only to the correctness or otherwise of the denial of the relief of reinstatement with back wages and continuity in service even after entering into definite W.P.(C) NO.17108 of 2005 3 finding favourable to the Petitioner. The case of the petitioner herein is that even if the case of the respondent- management is taken as correct, it would only reveal that the mess attached to the hostel is closed and the hostel is still functioning. Based on the aforesaid factual position, it is contended that the Labour court should have considered the case of the petitioner separately and independently as relates to the entitlement of reinstatement with back wages and continuity in service inasmuch as she was engaged under the 4th respondent as a Sweeper. According to her, the respondent cannot be heard to say that the necessity to engage a sweeper would cease with the closing down of the mess when they themselves admit the fact that the hostel is functioning. The admitted position before the Labour Court as also before this Court is that the mess in the hostel was closed down and the hostel is functioning. Admittedly, there are inmates in the hostel. In the circumstances, I am of the view that there is substance in the submission made on behalf of the petitioner. The Labour Court having observed that the inevitable impact of the finding of retrenchment as illegal is reinstatement with back wages and continuity in service should have addressed that question pertaining to the petitioner in a different perspective taking into account the fact that she was being engaged therein as a sweeper in the hostel. W.P.(C) NO.17108 of 2005 4 In that view of the matter, the finding of the Labour Court in Ext.P4 that it is only just and proper for the finality of the dispute to award only compensation in lieu of the reinstatement with back wages is liable to be interfered with to the extent it pertains to the petitioner so as to enable the Labour Court to consider the matter afresh as to the entitlement of the petitioner for the relief of reinstatement with back wages and continuity in service. I make it clear that Ext.P4 is interfered with only to the said extent. Accordingly, the matter is remitted back to the Labour Court to consider the said point with respect to the petitioner. Taking into account the fact that the matter is of the year 1995, I think that the matter requires expeditious consideration and disposal. The Labour Court shall, therefore, issue notices to the petitioner herein viz., Smt.V.K Bharathi and respondents 2 to 4 before taking up the matter for such consideration and it is only desirable that the matter be disposed of expeditiously, at any rate, within a period of four months from the date of receipt of copy of this judgment. (C.T. RAVIKUMAR) JUDGE spc W.P.(C) NO.17108 of 2005 5