IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 OP.No. 31202 of 1999(M) ----------------------- PETITIONER: --------------- P.M. KURIAKOSE, MANAGING EDITOR, “SAKHI WEEKLY, S.H. MOUNT P.O., KOTTAYAM – 6. BY ADV. SRI.A.K.AVIRAH SRI.VIJU ABRAHAM RESPONDENTS: ----------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SMT. P.T. AMMINI AMMAL, THANNIKKATTU HOUSE, S.H. MOUNT, KOTTAYAM. 3. THE PRESIDING OFFICER, LABOUR COURT, ERNAKULAM. 4. DISTRICT LABOUR OFFICER, OFFICE OF THE DISTRICT LABOUR OFFICE, KOTTAYAM. BY ADV. SRI.P.K.BALAKRISHNAN NAIR GOVERNMENT PLEADER SMT. M.R. SREELATHA. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 31202 of 1999 ORDERS ON C.M.P.NO. 19389/2000 IN C.MP.NO.53102/99 IN AND C.M.P.NO.53102 IN O.P.NO. 31202 OF 1999 DISMISSED. 26.2.2008 SD/- S. SIRI JAGAN, JUDGE. APPENDIX EXT.P1: COPY OF LETTER DTD 12.11.96 SENT BY SAKHI WEEKLY TO THE REGISTRAR OF NEWSPAPERS FOR INDIA. EXT.P2: COPY OF THE MEMORANDUM OF SETTLMENT DATED 15.11.1992. EXT.P3: COPY OF THE CLAIM PETITION DATED 20.2.95 SUBMITTED BY AMMINI AMMAL A WORKMAN OF M/S. SAKTHI WEEKLY BEFORE THE LABOUR COURT, ERNAKULAM. EXT.P4: COPY OF WRITTEN STATEMENT IN C.P.NO.8 OF 1995 DTD 22.5.1996. EXT.P5: COPY OF ORDER IN C.P.NO.8/95 DTD 13.10.99. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 31202 OF 1999 ---------------------------------------- Dated this the 26th day of February, 2008 JUDGMENT The petitioner is the opposite party in C.P. No.8/1995. The C.P. was filed by the 2nd respondent herein claiming 50% backwages as awarded in I.D. No.4/94 passed by the Industrial Tribunal, Idukki. She claimed that the 2nd respondent’s salary was Rs.1,850/- per month. This was accepted and 50% of backwages calculated at that rate for the period in question was directed to paid by the petitioner to the 2nd respondent workman by Ext.P5 order under Section 33C (2) of the Industrial Disputes Act. The petitioner is challenging that order. 2. The only contention now raised by the petitioner before me is that the calculation of the amount due to the 2nd respondent made by the Labour Court is not correct. He would submit that admittedly as is clear from Ext.P3 statement of the 2nd respondent till 31.12.1989 the 2nd respondent was receiving only an amount of Rs.250/, as allowance being 50% of the monthly rate of Rs.500/-. From 1.1.1990 onwards till O.P.NO.31202/99 2 31.12.1994 she claimed wages at the rate of Rs.925/- being 50% of the wages amounting to Rs.1850/-. For the period from 1.1.1995 to 31.1.1995 and from 1.2.1995 to 28.2.1995 she claimed at the rate of Rs.1850/-, probably for the period after coming into force of the award. 3. The contention of the petitioner now is that even going by the claim of the 2nd respondent herself, she could have claimed salary only in accordance with the memorandum of settlement dated 15.10.99, which was produced as Ext.P2 in the C.P. That settlement in turn refers to the Bachawat award for the purpose of calculating wages. The petitioner now contends that as per the Bachawat award the scale of pay applicable to the 2nd respondent was Rs.875-25-1000-30- 1150-35-1325-40-1525. He would submit that the 2nd respondent is entitled only to 50% of backwages calculated at the rate of Rs.875/- as monthly wages, in which case the total amounts due would be less than Rs.24,250/-. That amount has already been paid pursuant to interim direction of this Court dated 30.5.2000. The petitioner would submit that no further amounts are due to the 2nd respondent. 4. On the other hand, the learned counsel for the 2nd O.P.NO.31202/99 3 respondent would submit that Rs.875/- mentioned by the petitioner is only the basic pay and in addition to that, the 2nd respondent is entitled to DA and other allowances also total of which, according to the 2nd respondent, would come to Rs.1850/-, 50% of which would be 925/-, based on which alone Ext.P5 order has been passed. 5. From the pleadings and arguments before me, it is very clear that both sides are not sure about the actual monthly salary as per the Bachawat award. Even if the petitioner’s contention that Rs.875/- was the basic pay at the relevant time is accepted, then also it cannot be disputed that in payment of DA and other allowances is also the prevalent practice in industrial parlance. That being so, even assuming the petitioner’s contention is correct Rs.875/- alone cannot be the monthly pay packet of the 2nd respondent. At the same time, the 2nd respondent also could not satisfy me that including the DA the monthly pay packet would come to Rs.1850/-. The calculation of this monthly salary could not have been that difficult since admittedly the calculation has to be made in accordance with the Bachawat award. The scale of pay is available and the DA can also be ascertained in O.P.NO.31202/99 4 accordance with the Bachawat award or as per the minimum wages notification and the consumer price index, applicable. The Labour Court also has not taken pains to calculate the actual wages in accordance with the above inputs. Therefore I am satisfied that the calculation made by the Labour Cout in Ext.P5 is not correct calculation of the amounts due to the 2nd respondent. Accordingly, Ext.P5 order is set aside and the matter is remanded to the Labour Court, Ernakulam for fresh computation of amounts due to the 2nd respondent in accordance with the Bachawat award. The Labour Court shall give sufficient opportunity to the parties to adduce evidence in this regard. In view of the fact that the matter pertains to the year 1995, the Labour Court shall pass fresh orders within four months from the date of receipt of a copy of this judgment. The parties shall appear before the Labour Court on 17.3.2008. S. SIRI JAGAN, JUDGE Acd O.P.NO.31202/99 5