IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 8TH SEPTEMBER, 2009 / 17TH BHADRA, 1931 OP.No. 2646 of 1998(M) PETITIONER: ------------------- ERNAKULAM DISTRICT CANTEEN, BAKERY AND HOTEL, MAZDOOR SANGH (BMS) REGISTERED NO.43/86, TRANSFORMER AND ELECTRICALS KERALA LTD., CANTEEN UNIT, SOUTH ANGAMALY REPRESENTED BY ITS GENERAL SECRETARY P.SADANANDAN. BY ADV. SRI.K.SHRIHARI RAO SRI.K.R.REGHUNATH RESPONDENTS: ---------------------- 1. TRANSFORMERS AND ELECTRICALS KERALA LTD., REPRESENTED BY ITS MANAGING DIRECTOR, ANGAMALY SOUTH, ANGAMALY.P.O. 2. THE DEPUTY LABOUR COMMISSIONER, (AUTHORITY UNDER THE KERALA PAYMENT OF SUBSISTENCE ALLOWANCE ACT, 1972), KAKKANAD, ERNAKULAM. BY ADV. SRI.M.PATHROSE MATTHAI, SENIOR ADVOCATE FOR R1 SRI.SAJI VARGHESE FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/08/2009, ALONG WITH WPC NO. 35703 OF 2003, THE COURT ON 08/09/2009 DELIVERED THE FOLLOWING: APPENDIX (O.P.NO.2646 OF 1998) PETITIONER'S EXHIBITS: Ext.P1: Copy of the claim application SACP No.23/92 dtd.19.10.92 made by the petitioner before the 2nd respondent. Ext.P2: Copy of the statement filed by the 1st respondent before the 2nd respondent in SACP No.23/92. Ext.P3: Copy of the Order dated 22.10.1996 issued by the 2nd respondent in SACP No.23/92 by the 2nd respondent. Ext.P4: Copy of the clarification order dated.22.11.1996 in Ext.P3 made by the 2nd respondent. -true copy- P.A.to Judge V.K.MOHANAN, J. --------------------------------------------- O.P.No. 2646 of 1998 --------------------------------------------- Dated this the 8th day of September, 2009 J U D G M E N T The above writ petition is preferred by the Union representing the employees of the canteen unit of the Transformers and Electricals Kerala Limited, the first respondent herein. In this writ petition, the main prayer is to quash Exts.P3 and P4 by which, the the applications for subsistence allowance filed by the petitioner/Union by the appellate authority under the Kerala Payment of Subsistence Allowance Act, 1972, were rejected holding that the same are not maintainable against the opposite party- the management. The Appellate Authority has also held that the employees of canteen have not come under the service of the first respondent-Management and therefore, the Management is not bound to pay subsistence allowance. 2. In fact, this writ petition is linked with W.P. (C) No.35703 of 2003 because the common issue involved in these two writ petitions is, whether O.P. NO.2646 of 1998 :-2-: the employee of the canteen run in the premises of the first respondent-company is part of the establishment of the first respondent-management. The other writ petition has already been disposed of remanding the matter to the Industrial Tribunal for fresh decision on the basis of the evidence and materials. 3. In order to enter into a finding in this writ petition, sufficient materials and evidence are necessary, especially when the opposite party took rival contentions and pleadings. Therefore, no finding can be arrived in these proceedings unless there is evidence or finding in this regard by a fact finding authority. Since the above issue is pending before the Industrial Tribunal, Alappuzha, no finding can be entered into by this Court in these proceedings until an award was passed by the said Tribunal in the matter, which is pending before it. Therefore, this writ petition is liable to be dismissed for the time being. Thus, this original petition is dismissed, reserving the right of the petitioner to approach this O.P. NO.2646 of 1998 :-3-: Court as and when required, especially on the basis of the outcome of the dispute pending before the Industrial Tribunal, Alappuzha as indicated above. V.K.Mohanan, Judge MBS/ O.P. NO.2646 of 1998 :-4-: V.K.MOHANAN, J. -------------------------------------------- O.P.NO. 2646 OF 1998 -------------------------------------------- J U D G M E N T DATED: 8-9-2009 O.P. NO.2646 of 1998 :-5-: