IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 WA.No.1327 of 2008 -------------------------------------- AGAINST THE JUDGEMENT IN WPC.15832/2008 Dated 28/05/2008 .................... APPELLANT: PETITIONER: ------------------------------------- THE TRIVANDRUM SARVODAYA SANGH, REPRESENTED BY ITS SECRETARY, GRAMODAYA, M.G.ROAD, THIRUVANANTHAPURAM. BY ADV. SRI.T.RAJASEKHARAN NAIR RESPONDENTS: RESPONDENTS: ----------------------------------------------- 1. THE DEPUTY LABOUR COMMISSIONER & SECRETARY, STATE ADVISORY CONTRACT LABOUR BOARD, THIRUVANANTHAPURAM. 2. B.SREEKUMAR, SREE BHAVAN, PARIKEEZHATH, PADINJATTATHIL, KANNIMEL, MARUTHADI P.O., KOLLAM. R1 BY GOVERNMENT PLEADER SRI.M.P.SREEKRISHNAN. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ---------------------------------------------------------- W.A.No.1327 of 2008 ------------------------------------------------------- Dated, this the 26th day of June, 2008 JUDGMENT H.L.Dattu, C.J. This writ appeal is directed against the orders passed by the learned Single Judge in W.P.(C) No.15832 of 2008 dated 28th May, 2008. The learned Single Judge has declined to entertain the writ petition. 2. The issue in this writ appeal lies in a very narrow compass. 3. The petitioner in the writ petition filed under Article 226 of the Constitution, had called in question Ext.P5 order passed by the Deputy Labour Commissioner and Secretary, State Advisory Contract Labour Board, Thiruvananthapuram dated 22-11-2007. By the impugned order, the Deputy Labour Commissioner had directed the petitioner to pay a sum of Rs.23,535/- towards arrears of subsistence allowance payable under the provisions of the Kerala Payment of Subsistence Allowance Act, 1972 read with the Kerala Payment of Subsistence Allowance Rules 1974. W.A.No.1327/2008 -2- 4. Before the learned single Judge the one and the only contention that was canvassed by the petitioner is that the 2nd respondent is not a workman, that he is working in the petitioner organization in the managerial capacity and therefore, the provisions of the Kerala Payment of Subsistence Allowance Act, 1972 is not applicable to the 2nd respondent The learned Single Judge after going through Ext.P4 objection filed by the petitioner organization, has come to the conclusion that, before the competent authority the petitioner had not raised any contention with regard to the capacity in which the 2nd respondent was working in the petitioner organization. The learned Single Judge has also noticed that, for the first time such a contention is raised in the writ petition. The learned Single Judge is of further opinion that such a contention cannot be raised for the first time in a petition filed under Article 226 of the Constitution. That only means that, if for any reason, the petitioner organization was of the opinion that the 2nd respondent is not a workman and he is not eligible or entitled for subsistence allowance under the provisions of the Kerala Payment of Subsistence Allowance Act, 1972, that contention should have been raised at the initial stage, namely, before the Deputy Labour Commissioner who is supposed to decide the facts. W.A.No.1327/2008 -3- 5. We have also carefully perused Ext.P4 objection filed by the petitioner organization to the claim made by the 2nd respondent. In the objection statement so filed, there is not even an indication that the 2nd respondent was working in the petitioner organization in the managerial capacity, and therefore, he is not entitled for payment of subsistence allowance under the provisions of Kerala Payment of Subsistence Allowance Act, 1972. In view of the above, in our opinion, the learned Single Judge is fully justified in rejecting the writ petition and thereby confirming the order passed by the Deputy Labour Commissioner dated 22-11-2007. We do not see any reason to interfere with the orders passed by the learned Single Judge. Accordingly, the writ appeal requires to be rejected and it is rejected. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS