IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 WP(C).No. 15456 of 2004(M) -------------------------- PETITIONER: ---------------- G.P.N. CASHEW HEAD OFFICE, BEACH ROAD, POST BOX NO.276, KOLLAM, REPRESENTED BY ITS PROPRIETOR, SRI.V.N.CHANDRA MOHAN. BY ADV. . SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN RESPONDENTS: ------------------- 1. THE GENERAL SECRETARY, KERALA CASHEW STAFF AND WORKERS UNION (AITUC), CMP OFFICE, ANDAMUKKAM, KOLLAM. 2. LABOUR COURT, KOLLAM. BY ADV. SRI.S.SUDHEESHKAR FOR R1 SRI.PRATHEESH.P FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15456 of 2004 EXT.P1: COPY OF THE AWARD IN ID NO.30/94 OF THE 2ND RESPONDENT DATED 28.10.03. EXT.P2: COPY OF THE CLAIM STATEMENT FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT DTD 23.5.1994. EXT.P3: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD 27.5.02. EXT.P4: COPY OF THE CLAIM PETITION DTD NIL, FEBRUARY, 04 FILED BY THE WORKMEN. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.15456 OF 2004 ---------------------------------------- Dated this the 16th day of July, 2008 JUDGMENT The management in I.D.No.30 of 1994 before the Labour Court, Kollam is the petitioner herein. They are challenging Ext.P1 award passed by the Labour Court in that I.D. The issue referred for adjudication was : “Denial of employment to Sri. K. Samban, Clerk with effect from 8.1.1993.” The Labour Court found that the workman was originally working as a Clerk, who was demoted as a Watchman and was directed to report for duty as Watchman. The workman refused saying that he cannot be demoted. Thereafter, he was directed to report for duty at Kollam office without mentioning as to whether as Clerk or Watchman. The workman gave reply stating that he is prepared to join duty as Clerk provided he is paid backwages for the period from December 1992 to 11.1.1993, bonus for the year 1992 to 1993 and contribution of the management towards ESI and Provident Fund for the said period. The management took W.P.(c)No.15456/08 2 this as a refusal to accept the posting order and abandonment of his service. Accordingly his services were dispensed with. The dispute regarding demotion was conciliated by the conciliation officer. It was pending such conciliation that the other events took place. Failure report was sent to the Government and the Government referred the above issue for adjudication to the Labour Court. The Labour Court after adjudicating, came to the conclusion that the demotion itself was unsustainable. But when he was offered posting at Kollam, he should have accepted the same and then agitated for backwages etc. Taking into account the fact that the establishment is finally closed, the award was passed in the following terms: “1. Ext. W2 memo dated 8.1.1993 is declared as illegal and invalid. 2. Ext.M1 order of removal of the workman from the rolls of the management is set aside. 3. The workman is entitled to full backwages and attendant benefits for the period from 8.1.1993 till 30.11.1993. 4. The workman will be entitled to 50% of backwages for the period from 1.12.1993 till this date ie, 31.10.2003 and he will also be entitled to continuity of service. 5. The management is directed to treat the workman as retired from service with effect from this date ie. 31.10.2003 and the workman will be paid all his W.P.(c)No.15456/08 3 service benefits adopting his service as from 3.10.1991 till 31.10.2003 and he will also be given full backwages for the period from 8.1.1993 till 30.11.1993 accepting his salary as Rs.850/- per month and also 50% of the backwages for the remaining period from 1.12.1993 till 31.10.2003. It is clarified that the 50% backwages is to be computed on the basis of the lawful wages of a clerk of a cashew company or Rs.850/- P.M. which ever is higher”. 2. One of the contentions raised by the petitioner is that the validity of demotion of the workman was not an issue referred for adjudication and therefore the Labour Court travelled beyond the scope of the reference order. It is further submitted that when subsequently the management itself withdrew its earlier order of demotion and directed the workman to join duty at Kollam, he, having not joined duty, must be deemed to have abandoned his employment. On these grounds the learned counsel for the management would contend that the award is unsustainable. 3. On the other hand, the learned counsel for the workman would contend that the issue referred was denial of employment which only has been adjudicated by the Labour Court. The decision on the validity of the demotion order was only incidental and entered into for supporting the finding W.P.(c)No.15456/08 4 regarding denial of employment. As such according to him, the Labour Court has not travelled beyond the scope of the reference. He would specifically state that when the subsequent communication did not specifically mention that he was being posted as Clerk at Kollam, the very intention of the management was to make grounds for dispensing his services. He points out that otherwise when he issued a letter saying that he is prepared to accept the posting order as Clerk subject to these conditions mentioned by him, the management ought to have issued a communication to him in this respect, which has not been done. Instead straightaway his services were dispensed with. The workman would therefore, argue for sustaining the award. 4. I have considered the rival contentions in detail. One thing is certain that the issue referred for adjudication was denial of employment and the workman was not employed after 30.11.1993. The Labour Court found that Ext.M1 order of removal of the workman from the rolls of the management was invalid. I do not find anything perverse in such finding. Admittedly, the workman had issued a reply to the effect that he is willing to work as Clerk subject to certain conditions. No reply to the same had been issued by the management, W.P.(c)No.15456/08 5 instead M1 order of removal was issued. Those situations would not warrant a conclusion that the workman had actually abandoned employment. Therefore, the finding of the Labour Court that the workman was denied employment cannot be said to be perverse by any stretch of imagination. As such, in respect of the findings in Ext.P1 award, I do not find any infirmity whatsoever. Going by the operative portion of the award quoted above, in addition to the retirement benefits, the workman would be entitled roughly to an amount of Rs.60,000/-. In the peculiar circumstances of the case, I am of opinion that the workman should accept an amount of Rs.50,000/- as monetary benefits arising out the award. Ordered accordingly. This amount shall be paid within one month from today, failing which the workman would be entitled to 12% interest on the amount from the date of award. Needless to say, it would be open to the workman to seek appropriate remedies for recovery of retirement benefits such as gratuity. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.15456/08 6