IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 WP(C).No. 5515 of 2004(F) ------------------------------------ ID.141/1995 of LABOUR COURT, KOLLAM .................... PETITIONER(S): --------------------- THE PRESIDENT, KSHEEROLPADAKA CO-OPERATIVE SOCIETY LTD., NO.170 (D), APCOS, PANAVALLY P.O., CHERTHALA. BY ADV. MR.V.G.ARUN MR.T.R.HARIKUMAR RESPONDENT(S): ------------------------ 1. K.R. CHAKRAPANI, KUNNELVELI, K.R.PURAM.P.O., CHERTHALA, (PRESIDENT KERALA CO-OPERATIVE MILK SOCIETIES EMPLOYEES ASSOCIATION, I.N.T.U.C-I), TALUK COMMITTEE, CHERTHALA. 2. M. KARTHIKEYAN, NIKARTHIL HOUSE, PANAVALLY.P.O., CHERTHALA-688 566. R2 BY ADV. MR.ALIAS M.CHERIAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/03/2009, ALONG WITH WPC NO.20164 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 5515/2004-F APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE MEMO OF CHARGES DATED 26/07/1994. EXT.P2: COPY OF THE AWARD IN INDUSTRIAL DISPUTE NO.141/95 OF THE LABOUR COURT, KOLLAM, DATED 09/06/2003. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ V.GIRI, J ------------------- W.P.(C)s.5515/2004 & 20164/2008 -------------------- Dated this the 27th day of March, 2009 JUDGMENT The parties in these two writ petitions are common and to an extent, the issues are also common. Therefore the writ petitions have been heard together and are being disposed of by a common judgment. 2. Petitioner in W.P.(C).5515/2004 is the Management of a milk producing Co-operative Society. Petitioner in W.P.(C).20164/2008 was earlier employed as Secretary in the said Society. It seems that after the conduct of domestic enquiry, his services were terminated from 1.7.1994 and this was challenged by the petitioner in Industrial Dispute No.141/1995, before the Labour Court, Kollam. By a preliminary order dated 14.3.2003, the domestic enquiry was held to be invalid. It seems that the management had not made any specific prayer for permission to adduce evidence, in the written W.P.(C).5515/04 & 20164/08 2 statement. In the circumstances, Labour Court posted the case for hearing on the question of quantum of punishment. But on a motion made by the management for permitting them to adduce evidence for proving the charges, Labour Court permitted the management to do so and posted the case for the evidence of the management. It seems that the management failed to avail this opportunity, no evidence was adduced and the Labour Court took up the matter for award. 3. Finding that the domestic enquiry held against the management was already found to be invalid, Labour Court held that the dismissal is unsustainable and the workman is entitled to be reinstated in service. Noting that the workman had been dismissed from service with effect from 1.7.1994, Labour Court passed an award setting aside the dismissal and directed the management to reinstate the workman with 70% of the back wages and other benefits and also continuity in service. W.P.(C).5515/04 & 20164/08 3 Award has been challenged in W.P.(C).5515/2004. 4. Workman entered appearance in the said writ petition and filed an application under Section 17B of the Industrial Disputes Act. It seems that this Court did not pass any order on the said application taking note of the fact that the award directing reinstatement was not stayed by this Court in W.P. (C).5515/2004. 5. Accordingly, the workman filed Claim Petition No.14/2007, under Section 33 C (2) of the Industrial Dispute Act, along with a detailed statement showing the wages that he would have earned, had he continued in service. Aggregate amount has also been shown. It seems that the management did not file objections to the claim petition. Workman was examined, but the management did not even choose to cross examine the witness. The Labour Court nevertheless proceeded to dismiss the claim Petition W.P.(C).5515/04 & 20164/08 4 on the ground that workman had not adduced any evidence in substantiation of the Claim Petition. Said order has been challenged in Writ Petition No.20164/2008, at the instance of the workman. 6. I heard learned counsel on both sides. 7. In so far as the correctness of the award passed by the Labour Court challenged in W.P.(C). 5515/2004 is concerned, I find hardly any ground to interfere with the award passed by the Labour Court. In spite of the fact that a plea for adducing evidence in the event of domestic enquiry being held invalid, was not taken up in the written statement. Labour Court had, after hearing on the question of the quantum of punishment for the purpose of 11A of the Act, given the management an opportunity to adduce evidence. It was not availed. In the circumstances, Labour Court was justified in proceeding on the basis that the management had not adduced any evidence. W.P.(C).5515/04 & 20164/08 5 8. Learned counsel for the management submits that an application for adjournment was filed on 5.6.2007, but it was unjustifiably rejected by the Labour Court. It can be seen that a belated application filed by the management for permission to adduce evidence, was allowed by the Labour Court on 8.5.2003 and the case was posted for further evidence only on 5.6.2003. Almost one month's time was given to the management. They failed to avail the opportunity and the Labour Court had therefore, passed an award directing reinstatement. Labour Court restricted the back wages to 70% thereof. I do not find any grounds to interfere with the award passed by the Labour Court. 9. Learned counsel for the Management submits that the respondent was working as Secretary in the Society and therefore, he was not a workman. He contends that the Labour Court had no W.P.(C).5515/04 & 20164/08 6 jurisdiction to pass an award. I am not inclined to consider this contention on merits. Firstly no such contention is seen to have been taken up before the Labour Court. Secondly, no contention is seen to have been taken even in the writ petition filed before this Court. For all these reasons, I am of the view that W.P.(C).5515/2004 is liable to be dismissed and it is accordingly dismissed. 10. In so far as W.P.(C).20164/2008 is concerned, I am constrained to observe that the stand taken by the Labour Court is patently unsustainable. The award in question was not accepted by the management, but it was not implemented as well. Workman therefore, filed a Claim Petition under Section 33 C (2) of the Act. It is evident from Ext.P2 that the relevant details have been given. But the management did not file any objection to the claim petition. In other words, quantum was not questioned. The workman examined himself as a witness, as evidenced by Ext.P3. Workman was not W.P.(C).5515/04 & 20164/08 7 even cross examined on behalf of the management. Had the management a dispute regarding the quantum of the wages claimed by the workman, it could have filed objections and it could have proposed the wages in relation to the period subsequent to the termination of service. No evidence was adduced on behalf of the management. Workman could only raise a claim and it was not the responsibility of the workman to compell the management to adduce evidence. The wages, as pleaded by the workman, was not disputed. In these circumstances the stand taken by the Labour Court that the workman did not adduce any evidence and therefore, the Claim Petition is liable to be dismissed, is clearly unsustainable. 11. Accordingly, W.P.(C).20164/2008 is allowed. Ext.P4 is set aside. Labour Court, Kollam, is directed to pass a fresh order in Claim Petition No.14/2007. The management shall be given one W.P.(C).5515/04 & 20164/08 8 more opportunity to file objections to the Claim Petition and if they file such objections, they shall be given an opportunity to adduce evidence. If they fail to do so, it is open to the Labour Court to pass an order as if the management has no objection to the Claim Petition filed by the petitioner. Fresh orders shall be passed within six months from the date of receipt of a copy of this judgment. V.GIRI, Judge mrcs