IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN MONDAY, THE 24TH DAY OF MAY 2010/3RD JAYASHTA 1932 WP(C).No. 4060 of 2007 (G) ------------------------- PETITIONER(S): ------------- AMBEDKAR MEMORIAL SC/ST PRESS WORKERS INDUSTRIAL (WORKSHOP) CO-OPERATIVE SOCIETY LTD., NO.S. IND(C) 163, THALASSERY, REPRESENTED BY ITS PRESIDENT K.SIVADASAN. BY ADV. SRI.R.SURENDRAN RESPONDENT(S): -------------- 1. R.M. RAMACHANDRAN, AGED 45 YEARS, RAYAROTH HOUSE, KOLARI AMSOM, KAYALOOR DESOM, CHAVASSERY P.O., THALASSERY TALUK, KANNUR DISTRICT. 2. THE TAHSILDAR, REVENUE RECOVERY, THALASSERY, KANNUR DISTRICT. 3. THE VILLAGE OFFICER, THALASSERY VILLAGE, THALASSERY, KANNUR DISTRICT. 4. THE DISTRICT LABOUR OFFICER, KANNUR, KANNUR DISTRICT. 5. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. SRI.GEORGE ZACHARIAH ERUTHICKEL R2 TO R5 BY GOVERNMENT PLEADER ADV. SRI. K.S.MOHAMMED HASHIM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-05-2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: NS WP(C).No. 4060 of 2007 APPENDIX PETITIONER(S) EXHIBITS : EXT.P1 : COPY OF THE AWARD IN I.D.NO.11 OF 2000 ON THE FILE OF INDUSTRIAL TRIBUNAL, KOZHICODE DATED 6.12.2000. EXT.P2 : COPY OF RHE CLAIM PETITION NO.14 OF 2004 FILED BY THE FIRST RESPONDENT BEFORE THE LABOUR COURT, KANNUR. EXT.P3 : COPY OF THE COUNTER IN C.P.NO.14 OF 2004 FILED BY THE PETITIONER. EXT.P4 : COPY OF THE ORDER DATED 26.4.2006 PASSED BY THE LABOUR COURT, KANNUR IN CLAIM PETITION NO.14 OF 2004. EXT.P5 : COPY OF THE NOTICE DATED 2.1.2007 ISSUED UNDER SECTION 7 OF THE KERALA REVENURE RECOVERY ACT. EXT.P6 : COPY OF THE NOTICE DATED 2.01.2007 ISSUED UNDER SECTION 34 OF THE KERALA REVENUE RECOVERY ACT. RESPONDENT(S) EXHIBITS : EXT. R1(A) : COPY OF THE LETTER DATED 7.06.2006 SENT FROM THE OFFICE OF THE LABOUR COMMISSIONER (TRIVANDRUM) TO THE DISTRICT LABOUR OFFICER, KANNUR. EXT.R1(B) : COPY OF THE LETTER DATED 27.7.2006SENT TO THE SECRETARY TO GOVERNMENT OF KERALA, LABOUR DEPARTMENT , TRIVANDRUM. EXT.R1(C) : COPY OF THE LETTER DATED 10.1.2007 SENT BY THE PRESIDENT OF THE PETITIONER SOCIETY TO THE 1 ST RESPONDENT. EXT.R1(D) : COPY OF THE LETTER DATED 18.01.2007 ISSUED BY THE 1 ST RESPONDENT TO THE PRESIDENT OF THE PETITIONER SOCIETY . EXT.R1(E) : COPY OF THE REGISTERED LETTER DATED 19.01.2007 ADDRESSED TO THE PRESIDENT OF THE PETITIONER SOCIETY SENT BY THE 1 ST RESPONDENT. EXT.R1(F) : COPY OF THE LETTER DATED 18.01.2007 SENT BY THE 1 ST RESPONDENT TO THE GENERAL MANAGER , DIST. INDUSTRIES CENTRE, KANNUR. EXT.R1(G) : COPY OF THE LETTER DATED 13.2.2007 SENT BY THE PRESIDENT OF THE PETITIONER SOCIETY TO THE 1 ST RESPONDENT. EXT.R1(H) : COPY OF THE WRITTEN ENDORSEMENT DATED 4.10.1996 ISSUED BY THE PRESIDENT OF THE PETITIONER SOCIETY. EXT.R1(I) : COPY OF THE NOTICE DATED 17.01.2006 SENT BY THE SECRETARY OF THE KOLARI CO-OPERATIVE BANK TO THE 1 ST RESPONDENT. EXT.R1(J) : COPY OF THE REPLY DATED 8.9.06 ISSUED BY THE SECRETARY OF THE PETITIONER SOCIETY TO THE DIST. LABOUR OFFICER, KANNUR. / TRUE COPY / NS P.A. TO JDUGE K. SURENDRA MOHAN, J. ------------------------------------------------------------ W.P(C) NO:4060 OF 2007 ----------------------------------------------------------- Dated this the 24th May, 2010. JUDGMENT The petitioner is a Co-operative Society registered under the Kerala Co-operative Societies Act, 1969. The petitioner is running a printing press at Thalassery in Kannur district. The first respondent was employed in the printing press as a foreman. He was dismissed from service on 26-11-1997 for unauthorized absence. He raised an industrial dispute with respect to his termination from service. The Government referred the dispute to the Industrial Tribunal, Kozhikode for adjudication. 2. The case was registered as I.D.No:11 of 2000 before the Tribunal. Notice was served on the Society. On receipt of notice, the then Secretary Smt. V.K.Jayasree appeared. It is the case of the petitioner that the Secretary was not authorized to receive notice or to represent the society without the sanction of the governing body. She was in service only from 1-6-2000 to 15-9-2001. She had suppressed the receipt of the notice and the pendency of the case, in collusion with the first respondent. Since she did not appear before the Industrial Tribunal, the Tribunal declared the petitioner WPC 4060/2007 2 ex parte and proceeded with the case. The case of the first respondent was that his dismissal was in violation of the principles of Natural Justice without conducting any enquiry. The Tribunal accepted the case of the first respondent and an award was passed on 6-12-2000 in favour of the first respondent. The said award is Ext.P1. As per Ext.P1 award, the petitioner-society was directed to reinstate the first respondent with full back wages. According to the petitioner the Society was not aware of the award since no effort was made by the first respondent to execute the same. 3. The first respondent later on filed C.P 14/2004 before the Labour Court, Kannur for recovery of the amounts payable as his wages. According to the petitioner, the award of the Industrial Tribunal was not binding on the Society for the reason that there was defect in the service of notice. Since the Secretary was authorized to represent the Society only with the previous sanction of the President, the subsequent proceedings were all invalid and were not binding on the Society. It was contended that collusion between the Secretary and the first respondent was evident from the fact that the case was not contested by the Secretary. Therefore, the petitioner contended that the award could not be executed against the society or its assets. WPC 4060/2007 3 4. The Labour Court after recording evidence in the case passed an order dated 26-4-2006 directing the petitioner to pay an amount of Rs.1,44,634/- with interest thereon at the rate of 6% per annum from the date of the order. The said order is Ext.P4. Pursuant to Ext.P4, Revenue Recovery proceedings were initiated against the petitioner and notice dated 2-1-2007 was served on the petitioner. Therefore, the petitioner has filed this writ petition challenging Ext.P1 award of the Industrial Tribunal as well as Ext.P4 order of the Labour Court. 5. According to the petitioner, Ext.P1 and Ext.P4 are not binding on the Society nor executable against its properties for the reason that the Society was not properly represented before the Industrial Tribunal. It is further contended that the dispute in the present case is one that falls within the scope of Section 69 of Co- operative Societies Act and therefore the Industrial Tribunal had no jurisdiction to adjudicate the said dispute. Consequently the award Ext.P1 is without jurisdiction and unenforceable. It is further contended that the dispute regarding the dismissal, can be adjudicated only by the Labour Court in view of the specific provision contained under Section 7 of the Industrial Disputes Act read with second schedule thereto. The jurisdiction of the WPC 4060/2007 4 Industrial Tribunal being covered by Section 7A of the Industrial Disputes Act, it is contended that the said Tribunal had no jurisdiction to adjudicate the case. It is also contended that the order of the Industrial Tribunal is illegal to pay full back wages to the petitioner in the absence of any evidence to show that the petitioner was unemployed during the entire period. 6. Adv. Mr. George Zachariah Eruthickal who appears for the first respondent opposes the contentions of the counsel for the petitioner. According to the counsel, the petitioner was declared ex parte on 31-10-2000, Ext.P1 award was passed on 6-12-2000. As per Ext.P1 award, the dismissal of the first respondent was held to be unjustified and illegal. Therefore, he was directed to be reinstated in service with full back wages and all other consequential benefits. Since the award was not challenged by the petitioner before any higher forum, the award became final. However, the petitioner did not comply with the terms of the award. Therefore, the petitioner filed C.P14/2004 before the Labour Court, Kannur for the recovery of the amounts due to him as back wages. On the said petition, Ext.P2 notice was issued to the petitioner society. Thereupon, the society represented by the President entered appearance and filed Ext.P3 counter statement in July WPC 4060/2007 5 2004. Evidence was adduced and after hearing the petitioner also, Ext.P4 order was passed. Since Ext.P4 was also not complied with, Revenue Recovery proceedings were initiated against the petitioner. According to the counsel, the proceedings do not suffer from any defect or infirmity as contended by the petitioner. Therefore, they do not call for any interference at the hands of this Court. Having omitted to challenge the proceedings at the appropriate time, the petitioner has filed the present writ petition, as an afterthought, by cooking up false stories to justify the delay. The first respondent being a worker who was illegally terminated is entitled to the benefit of the orders that are sought to be enforced. The attempt of the petitioner is only to deny to the first respondent what is rightfully due to him. According to the counsel the provisions of the Co-operative Societies Act do not take away the jurisdiction of the Industrial Tribunal or the Labour Court under the Industrial Disputes Act, 1947. Therefore, the counsel submitted that the writ petition was liable to be dismissed. 7. I have heard Shri. R.Surendran who appears for the petitioner as well Shri. George Zachariah Eruthickal who appears for the first respondent. I have also considered the rival contentions advanced before me, anxiously. WPC 4060/2007 6 8. It is to be noted that the award of the Industrial Tribunal was passed on 6-12-2000. The said award Ext.P1 shows that on issue of notice, the Secretary of the Society had entered appearance for the petitioner. On 6-6-2000, the petitioner filed his statement and the case was posted to 27-6-2000 for written statement of the management. However, no written statement was filed. Subsequently, there was no representation also for the management and therefore the petitioner was set ex parte. It was in the above circumstances that an ex parte award was passed on 6-12-2000. Since Ext.P1 award was not challenged before any higher forum, the award became final. 9. According to the petitioner, the Secretary of the Society had not been authorized to receive notice on behalf of the petitioner society. She was also not authorized to represent the society. However, it is to be noted that the above is an internal arrangement of the society of which neither the court nor the first respondent was aware. Since the Secretary had appeared for the petitioner it was presumed that she was competent to represent the petitioner. It is worth noticing that the petitioner has not brought to the notice of the Industrial Tribunal at any time that the Secretary was not competent to represent the petitioner. Though WPC 4060/2007 7 the petitioner has alleged that the Secretary of the petitioner society and the first respondent were colluding with each other, there is absolutely no material to support the said contention. On the contrary, the over all conduct of the petitioner gives a totally different impression. Even if it is accepted for the sake of arguments that the petitioner had no notice of the proceedings before the Industrial Tribunal, it is not in dispute that the petitioner had received notice in C.P.14/2004 from the Labour Court, Kannur. In July 2004 the petitioner has filed counter statement. At least when the counter statement was filed the petitioner had notice of Ext.P1 award and the proceedings that led to the same. In the counter statement Ext.P3 what is stated by the petitioner is that the Society does not have any Secretary after 15-9-2001. Since Ext.P1 award is dated 6-12-2000, it is clear that Secretary was available on the date of the award. At any rate, the petitioner did not take any action to challenge Ext.P1 award even after filing Ext.P3 counter statement. On the contrary, C.P.14/2004 was contested and by Ext.P4 order dated 26-4-2006 the petitioner was directed to pay the back wages of the first respondent. It is significant that the petitioner did not challenge even Ext.P4 before any higher authority. Therefore, the said order has also become final. WPC 4060/2007 8 Thereafter, Revenue Recovery proceedings were initiated against the petitioner for recovery of the amounts due to the first respondent. It is only when Exts.P5 and P6 notices were issued that the petitioner has filed this writ petition raising the above contentions. It is clear from the conduct of the petitioner that the present contentions are only put forward as an afterthought with the object of some how avoiding the obligation to make the payments due to the first respondent. Therefore the said contentions are without any bonafides whatsoever. 10. The above is further clear from the conduct of the petitioner after the issue of Exts.P5 and P6 notices also. As per Ext.R1(c) dated 10-1-2007, the petitioner called upon the first respondent to report for duty if he was willing to do so. Pursuant to Ext.R1(c), according to the first respondent, he responded by issuing Ext.R1(d) intimating the petitioner that he was willing to report for work. In fact, according to the first respondent though he reported for work there was no one present there to admit him to duty. Narrating the above facts, he has also issued Ext.R1(e) letter to the petitioner. The petitioner has responded to the said communication through Ext.R1(g) letter. Ext.R1(g) is dated 13-2-2007. The above writ petition was filed on 5-2-2007. WPC 4060/2007 9 Therefore, it is clear that the petitioner was carrying on correspondence with the respondent regarding the modes of complying with Ext.P1 award even at the time when this writ petition was filed. The fact that the petitioner had been contemplating the filing of a writ petition challenging Ext.P1 award is clear from Ext.R(j), a letter issued by the petitioner to the District Labour Officer in answer to a show cause notice directing the petitioner to comply with Ext.P1 award. Though the present writ petition was filed only on 5-2-2007 as stated above, the petitioner has taken the stand in Ext.R1(j) that a writ petition challenging Ext.P1 had already been filed by him. The above conduct clearly demonstrates the lack of bonafides on the part of the petitioner. Therefore, the case put forward by the petitioner on facts is unacceptable and liable to be rejected. It is therefore held that the contention of the petitioner that Ext.P1 award is vitiated for the reason that no notice of the said proceedings was served on the President of the Society is liable to be rejected. I do so. 11. The next contention put forward by the petitioner is that the Industrial Tribunal had no jurisdiction to adjudicate the dispute between the petitioner and the first respondent for the reason that the same was a dispute coming within the scope of Section 69 of WPC 4060/2007 10 the Co-operative Societies Act. The above question had come up for consideration before this Court in A.R.Nagar Service Co- operative Bank Ltd. v. State of Kerala {2010(1) KHC 14}. After considering the entire issue, this Court has held that the authorities under the Industrial Disputes Act are not divested of their jurisdiction to adjudicate industrial disputes, by the enactment of Section 69 of the Co-operative Societies Act. The same view has been reiterated by a Division Bench of this Court in Thodupuzha Taluk General Marketing Co-op. Society v. Michael Sebastian {2010(1) KLT 938}. In view of the above authoritative pronouncements, the above contention of the petitioner also has to fail. 12. It is to be noted further that the petitioner has put forward a contention that back wages have been awarded to the first respondent without complying with the provisions of the Industrial Disputes Act or the dictum of the Hon'ble Supreme Court in the various decisions on the point. Particular reliance is placed on the decision of the Apex Court in Talwara Co-operative Credit & Service Society Ltd. v. Sushil Kumar {(2008) 9 SCC 486} to contend that it was imperative on the part of the first respondent to have proved that he was not gainfully employed otherwise, before WPC 4060/2007 11 he could be awarded back wages under Ext.P1. For the above reason, Ext.P1 is contended to be unsustainable. However, as already found above, Ext.P1 award has become final and binding on the petitioner. Therefore, it is not open to the petitioner to assail the findings in Ext.P1 in this writ petition. For the above reason, the first respondent is certainly entitled to recover the back wages awarded to him as per Ext.P1. It is the contention of the counsel for the first respondent that though back wages were ordered to be paid to him, the payment has not been made so far. Though an amount of Rs.75,000/- was deposited as condition for the grant of the interim order, only an amount of Rs.25,000/- out of the said amount has been paid to him. Therefore, he seeks the issue of appropriate directions for payment of the balance amount also. 13. For the foregoing reasons, it is held that the petitioner has not made out any grounds for interference with the impugned proceedings. The Revenue Recovery proceedings initiated against the petitioner are also held to be justified in the facts and circumstances of the case. 14. In the result it is ordered as follows:- i) The writ petition fails and is accordingly dismissed. ii) The balance amount remaining in deposit out of the total WPC 4060/2007 12 amount of Rs.75,000/- deposited as condition for the grant of an interim order in this case shall be released to the petitioner. iii) Further proceedings pursuant to Exts.P5 and P6 for realisation of the balance amount due to the first respondent shall be continued. Sd/- K. SURENDRA MOHAN Judge rkc/jj /True copy/ P.S.to Judge WPC 4060/2007 13