IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 15TH JULY 2008 / 94TH ASHADHA 1930 WP(C).No. 23571 of 2004(F) ------------------------------------ PETITIONER: -------------------- THE REGIONAL MANAGER, VIJAYA BANK, REGIONAL OFFICE, SWASTIC CENTRE, M.G.ROAD, THIRUVANANTHAPURAM-1, (NOW SHIFTED TO ERNAKULAM, COCHIN-16). BY ADV. SRI.C.P.SUDHAKARA PRASAD (SR.) SRI.ELVIN PETER P.J. SRI.S.RAMESH SRI.P.N.SANTHOSH SRI.NAVEEN.T RESPONDENTS: ----------------------- 1. A.UMESH, PUTHEN MADOM, LINE BUILDING, EAST GATE, A.N.PURAM, ALAPPUZHA. 2. THE CENTRAL GOVERNMENT LABOUR COURT, KOLLAM. BY ADV. SRI.M.V.MATHEW FOR R1 SRI.D.SOMASUNDARAM, ADDL.CGSC FOR R.2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2008, THE COURT ON 15/07/2008 DELIVERED THE FOLLOWING: WP(C).No. 23571 of 2004(F) -2- APPENDIX PETITIONER'S EXHIBITS EXT.P1 - TRUE COPY OF AWARD DATED 24TH MAY, 1999 IN I.D.NO. 11/1997 OF THE INDUSTRIAL DISPUTE, ALAPPUZHA. EXT.P2 - TRUE COPY OF CLAIM PETITION, C.P. NO. 1/2001 FILED BY THE 1ST RESPONDENT BEFORE THE LABOUR COURT, KOLLAM. EXT.P3 - TRUE COPY OF THE OBJECTION FILED BY THE MANAGEMENT BANK IN C.P. NO.1/2001 BEFORE THE LABOUR COURT, KOLLAM. EXT.P4 - TRUE COPY OF ORDER DATED 23RD OCTOBER, 2003 IN C.P. NO. 1/2001 OF THE 2ND RESPONDENT. / TRUE COPY / PA TO JUDGE rhs S.SIRI JAGAN, J ================== W.P(C)No.23571 of 2004 ================== Dated this the 15th day of July, 2008. J U D G M E N T The petitioner is the opposite party in C.P. No 1/2001 before the Labour Court, Kollam which was filed by the 1st respondent herein claiming backwages as awarded in Ext.P1 award. By Ext.P1 award, the Industrial Tribunal, Alappuzha adjudicated the following issue. “Whether the action of the management of Vijaya Bank in terminating the services of Shri. Umesh, Temporary part-time sweeper w.e.f. 20.12.1993 is legal and justified? If not, to what relief the said workman is entitled?”. 2. After adjudication, the Industrial Tribunal found that, since the 1st respondent was not validly retrenched from service, he would be deemed to be in service till he is validly retrenched. The Industrial Tribunal further held that the consequence is that the 1st respondent would be entitled to full backwages for the entire period during which he was kept out of employment. The workman was reinstated in W.P(C)No.23571 of 2004 - 2 - service with effect from 18.1.2000 pursuant to Ext.P1 award. He was kept out of employment from 20.12.1993 to 8.1.2000. He was not paid back wages for this period although he was reinstated. Therefore he filed Ext.P2 claim petition before the Labour Court, Kollam which was numbered as C.P.1/2001 in which Ext.P4 order was passed by the Labour Court, directing the petitioner herein to pay an amount of Rs.1,24,057/- to the 1st respondent - workman as backwages. That order is under challenge before me. 3. The petitioner's contention is that in every case of denial of employment payment of back wages is not automatic. He would submit that since the 1st respondent did not take a contention before the Industrial Tribunal that, he was not gainfully employed elsewhere during the period he was kept of the service, the 1st respondent is not entitled to any backwages. He would further submit that even if the 1st respondent is entitled to backwages, it would only be at rate which he was being paid prior to his W.P(C)No.23571 of 2004 - 3 - termination from service. 4. The learned Counsel for the 1st respondent would dispute the contention of the petitioner. According to him, the petitioner has not challenged Ext.P1 award not even in this writ petition. Therefore, Ext.P1 award has become final and binding on the petitioner. In Ext.P1 award the petitioner has been directed to pay backwages also to the workman. Therefore, there is no escape for the petitioner from payment of back wages for the period from 20.12.1993 to 18.1.2000. According to him, as per the Sastry award, part-time employees are entitled to half scale wages which only has been directed to be paid as per Ext.P4 order. Since that award is binding on the petitioner, the petitioner cannot wriggle out his liability to pay backwages to the workman at the rates provided for in the Sastry award, for part-time employees is the contentions raised. 5. I have considered the rival contentions in detail. 6. The main contention of the petitioner is that in the W.P(C)No.23571 of 2004 - 4 - absence of any pleading before the Industrial Tribunal in the I.D. to the effect that the workman was not gainfully employed elsewhere during the period he was kept out of service, the 1st respondent is not entitled to claim backwages for the said period. He relies on the decision of the Supreme Court in U.P. State Brassware Corporation Ltd and Another v. Uday Narain Pandey reported in (2006) 1 S.C.C. 479. 7. I am of opinion that the said judgment is not relavant for our purpose at all. That judgment would be relevant only for the purpose of denying backwages in an Industrial Dispute in the absence of a pleading by the workman that he was not gainfully employed elsewhere. In Ext.P1 backwages have already been awarded. The petitioner has not challenged the same anywhere. That award has become final and binding on the petitioner. The petitioner therefore cannot now raise a contention that the workman is not entitled to back wages for want of proper W.P(C)No.23571 of 2004 - 5 - pleading in the claim statement before the Tribunal in that I.D. Therefore, the only question which the Labour Court could only have computed the backwages payable to the 1st respondent in terms of money and could not have considered as to whether he is entitled to backwages for want of pleadings in the I.D. Of course, the petitioner raises the contention that prior to termination of service of the 1st respondent he was being paid only Rs. 20 per day as a temporary part-time sweeper. But either in Ext.P1 award or in Ext.P3 written statement filed by the petitioner before the Labour Court in the C.P. such a contention is seen taken. He raised such a contention only at the time of hearing before the Labour Court, which is reflected in the order of the Labour Court. But the Labour Court has specifically found that the petitioner was in custody of all the records and no such records have been produced to show the wages which was being actually paid to part-time sweepers. W.P(C)No.23571 of 2004 - 6 - 8. The Labour Court entered the finding that the part- time sweeper is entitled, as per the provisions of bi-partite settlement, to half scale wages. It was not specifically disputed by the petitioner before the Labour Court. The Labour Court further entered a finding that there is considerable force in the contention of the petitioner that the amount calculated by him in the claim settlement is the half scale wages which was given to similar part-time sweepers of the same bank. It is on that basis the amount of Rs. 1,24,057/- was directed to be paid to the 1st respondent by the petitioner. The petitioner does not appear to have made any attempt before the Labour Court to challenge the evidence and arguments of the 1st respondent in this regard. Of course, in Ext.P3 written statement he has taken a contention that as per the Sastry and Desai awards, appointment of temporary part-time employees are permitted but no where is it stated that such part-time employees were being paid only Rs.20/- per day as W.P(C)No.23571 of 2004 - 7 - stated by the petitioner. The Labour Court can decide the case only on the basis of evidence before it. When the petitioner has not taken pains to prove before the Labour Court that the rate of wages payable to the petitioner was only Rs. 20 per day, the Labour Court cannot be found fault with for accepting the evidence adduced by the 1st respondent to the effect that he is entitled to half scale wages as per the bi-partite settlement. In the above circumstances, I do not find any perversity whatsoever in the Ext.P4 order. Therefore, I do not find no merit in this writ petition and accordingly, the same is dismissed. S.SIRI JAGAN, JUDGE rhs