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 WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 WA.No. 1517 of 2008() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.35338/2007 DATED 29/11/2007 .................... APPELLANT/PETITIONER ------------------------------------- K.V. NARAYANAN, S/O.VELAYUDHAN, DRIVER, CENTRAL PUBLIC WORKS DEPARTMENT, SUB- DIVISION- V, KENDRIYA BHAVAN, 2ND FLOOR, KOCHI-37. RESIDING AT NO.B-39, GPRA QUARTERS, KUNNUMPURAM, KAKKANAD-30, ERNAKULAM DISTRICT. BY ADV. MR.C.R.SIVAKUMAR MR.SANTHOSH PETER (MAMALAYIL) RESPONDENTS/RESPONDENTS ---------------------------------------------- 1. THE PRESIDING OFFICER, LABOUR COURT, KANNUR. 2. SMT.REMA, “LOVE DALE”, PUTHUSSERY KUNDU, PURANATTUKARA.P.O, TRICHUR. 3. SMT.MOLLY.P.J, HIDAYATHU NAGAR, ULLYATHADKA.P.O, CHETTUMKUZHI, KASARGOD DISTRICT. 4. THE TAHSILDAR (RR), KANAYANNUR TALUK, ERNAKULAM, KOCHI-11. 5. THE EXECUTIVE ENGINEER, CENTRAL PUBLIC WORKS DEPARTMENT, KENDRIYA BHAVAN, 2ND FLOOR, KOCHI-37. 6. HANEEFA, S/O. IBRAHIM, REIMA MANZIL, VIDYA NAGAR.P.O, KASARGOD DIST. GOVERNMENT PLEADER SMT.MEERA FOR R1 & R4 ADV. MR.T.SETHUMADHAVAN FOR R3 MR.PUSHPARAJAN KODOTH FOR R3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B.KOSHY, Ag.C.J. & V.GIRI, J. -------------------------------------- W.A.No.1517 of 2008 ------------------------------------- Dated 4th February, 2009 JUDGMENT Koshy, Ag.C.J . Appellant/petitioner and his wife started a small scale industry in the name M/s.K.V.C. Products. Third respondent was employed in the above establishment with effect from 21.1.1993 on a monthly salary of Rs.2,400/=. She was denied employment subsequently and the following issues were referred for adjudication to Labour Court, Kannur: “(1) Whether the action of the management of M/s.K.V.C. Products Vidyanagar, Kasargod having denied employment to Smt.P.J.Molly is justifiable or not? (2) If not, what are the relief to which she is entitled?” The award in the above industrial dispute was published in the Kerala Gazette dated 29th August, 2000 ( Ext.P1). The direction was to reinstate the workman with continuity of service and all other benefits. The above award was not challenged. Petitioner has no case that he was not aware of the award and that award has become final. Since the backwages were not paid the workman filed claim W.A.1517/2008 2 petition under section 33C(2) of the Industrial Disputes Act which resulted in Ext.P2 order by which an amount of Rs.1,24,000/= was ordered to be paid to the workman. The above order was dated 10th May, 2005. The petitioner and his wife were partners. Pursuant to the above order, attachment order was also issued and petitioner's salary is being deducted towards the attachment order. So, at that time also petitioner was aware regarding the award and order. Even then they did not challenge the same. Only in 2007, the award and consequential order were challenged. In Ext.P2 order it is stated that notice to second respondent (the writ petitioner) was returned unserved with endorsement “unclaimed”. The postal cover shows that notice is not claimed by the second respondent. He was declared ex parte. Notice sent to first respondent (wife of the petitioner) was returned with the endorsement “not in station”. Newspaper publication was effected, but, he did not appear and the ex parte order was passed. But, when attachment of the salary was issued, petitioner was aware of the existence of the claim petition. Even then it was not challenged within a reasonable time. Further, order in the claim petition is only consequence of the execution of the award. There is no case that the petitioner was not aware of the award. Now, the only contention raised is that execution is being taken only against him, but, not against the wife. That is not a valid contention because W.A.1517/2008 3 both were partners. It is also submitted that the workman is running another industry. The claim petition is filed only for implementation of the award. Learned Judge stated that the award was challenged with a long delay of seven years and even order in the claim petition was challenged after unreasonable delay. In view of the unexplained delay and laches, the learned Judge refused to exercise his discretionary jurisdiction in favour of the petitioner. We see no ground to interfere with the same. However, we make it clear that if the third respondent workman has started a business and gainfully employed and if claim petition for further period is filed, appellant can raise that contention to resist claim for further backwages. The appeal is dismissed with the above observations. J.B.KOSHY ACTING CHIEF JUSTICE V.GIRI JUDGE tks