IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 OP.No. 194 of 1999(W) --------------------- PETITIONER: ------------ THE SECRETARY, PERUVAYAL AREA CLAY AND INDUSTRIAL WORKERS UNION, CITU, POOVATTUPARAMBA, KOZHIKODE-8. BY ADV. SRI.V.V.SURENDRAN RESPONDENTS: ------------- 1. THE PRESDIENT, PERUVAYAL CLAY WORKERS INDUSTRIAL CO-OP. SOCIETY, KOZHIKODE. 2. THE SECRETARY, PERUVAYAL CLAY WORKERS INDUSTRIAL CO-OP. SOCIETY, KOZHIKODE. 3. THE LABOUR COURT, KOZHIKODE. G.P.T.T.MUHAMOOD. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.no.194/99. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE CLAIM STATEMENT DTD.24.5.95. P2. COPY OF THE REPLY STATEMENT DTD.2.12.95. P3. COPY OF THE AWARD IN I.D.NO.22/95. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 194 of 1999 ================== Dated this the 28th day of January, 2008 J U D G M E N T The petitioner is the union involved in I.D.No.22/1995 before the Labour Court, Kozhikode. The issue referred for adjudication was regarding the justifiability of denial of employment to Sri.Unnikrishnan, one of the workmen of Peruvayal Clay Workers Industrial Co-operative Society. The Labour Court after considering the evidence adduced by both sides, came to the conclusion that the management denied employment to the workman and that such denial is illegal and unsustainable. However, on the ground that the workman did not attend the work from 1st December, 1992 onwards and he did not work for the concerned period, the workman was directed to be reinstated with continuity of service, but without backwages. That award is Ext.P3 which is under challenge in this writ petition, at the instance of the union. 2. The contention of the petitioner is that when it is held that there was denial of employment there is no logic in saying o.p.194/99 2 that because the workman did not do any work during the concerned period, he is not entitled to any back wages. Athough notice had been declared served once and later, again notice was taken out as ordered by this court and served on respondents 1 and 2, they have not cared to enter appearance and contest the case. Before the Lok Adalath also they did not appear. 3. It is submitted that shortly after the award, the workman involved died. Therefore, the only question now involved is as to whether his legal representatives should be given the benefit of backwages due to the workman. The Labour Court had categorically held that the management denied employment to the workman and that such denial is illegal and unjustified. There is no logic in the finding of the Labour Court that since the workman did not do any work during the concerned period, he is not justified in claiming backwages. When the management themselves denied employment, the workman cannot be found fault with for not doing work. As such, there is no justification for denying backwages to the workman. Considering the fact that the the workman was actually unauthorisedly absent for two months which only gave rise to the o.p.194/99 3 dispute, I feel that backwages could be restricted to 50 per cent. Accordingly, I modify Ext.P3 award to that extent and hold that the legal heirs of the deceased workman are entitled to 50 per cent of the backwages due to the workman from 21.1.1993 till the date of his death. Naturally the legal heirs would be entitled to other terminal benefits due to the workman also. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE o.p.194/99 4 S.SIRI JAGAN, J. =============== O.P.No. 194 of 1999-w =============== J U D G M E N T 28th January, 2008