IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 WP(C).No. 7878 of 2004(K) ------------------------- CP.123/1990 of LABOUR COURT, KOLLAM .................... PETITIONER(S): --------------- P. SREEKUMAR, S/O. LATE PADMANABHA PILLAI, AGED 55, MADAYIL THALAYIL,KARAMANA P.O., TRIVANDRUM REP. BY HIS POER OF ATTORNEY HOLDER MRS.K.S. SREELATHAKUMARI W/O. SREEKUMAR P., AGED 46, RESIDIING AT MEDAYIL, THALIYAL KARAMANA, TRIVANDRUM. BY ADV. SRI.R.S.KALKURA RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, GOVT. LABOUR DEPARATMENT GOVT. SECRETARIAT, TRIVANDRUM. 2. MANAGING DIRECTOR, KERALA STATE SMALL INDUSTRIES DEVELOPMENT CORPN.LTD., HOUSING BOARD BUILDINGS, SHANTI NAGAR, TRIVANDRUM. 3. THE LABOUR COURT, KOLLAM. G.P. SHRI.M.R.SABU ADV. SRI.R.T.PRADEEP,SC,SIDCO FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.11.2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 7878/04. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE AWARD IN I.D.NO.20/77 AND I.D.NO.1/77. P2. COPY OF THE JUDGMENT IN O.P.NO.5160/01 OF THIS COURT. P3. COPY OF THE JUDGMENT IN W.A.NO.242/83 DTD.30.1.87. P4. COPY OF THE JUDGMENT DTD.24.11.83 IN W.P. NO.11313/83. P5. COPY OF THE PROCEEDINGS DTD.19.4.90. P6. COPY OF THE LETTER OF THE COUNSEL FOR THE UNION. P7. COPY OF THE ORDER DTD.5.4.90. P8. COPY OF THE JUDGMENT IN O.P.NO.4993/87 DTD.3.3.90. P9. COPY OF THE LETTER DTD.14.5.90. P10. COPY OF THE ORDER DTD.30.10.03 OF THE LABOUR COURT IN C.P.123/90. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.7878 of 2004 ================== Dated this the 21st day of November, 2008 J U D G M E N T The petitioner along with 68 others were engaged as provisional employees, during the years 1972 to 1974, by the 2nd respondent, which is a company owned by the Kerala Government. On appointment of PSC hands, the services of the 69 persons were terminated. The said 69 persons raised an industrial dispute challenging that termination from service. Ext.P1 award was passed directing the 2nd respondent to reinstate the workmen without backwages. Some of the PSC hands approached this Court challenging Ext.P1 award. In the proceedings, ultimately in W.A.No.242/1982 by Ext.P3 judgment a Division Bench of this Court without setting aside the award, directed that in regard to the right of 69 workmen to continue in office or in regard to seniority or in regard to the question of future promotions, whenever there is a competition between the 69 workmen on the one hand and respondents 1 to 6 in that writ appeal, who are regularly recruited by the Public Service Commission on the other, the rights of respondents 1 to 6 have w.p.c.7878/04 -2- to prevail over the rights of the 69 workmen. After that some of the provisional employees of the 2nd respondent filed a writ petition before the Supreme Court, which was dismissed on 24.11.1983 rejecting their claim upholding the validity of the appointments made through PSC with a direction to the PSC to permit these provisional employees to appear in the next recruitment process. Still thereafter, some of the 69 employees through Union filed O.P.No. 6959/1987 before this Court seeking implementation of the award. The petitioner was also represented by the Union in the said proceedings. Ultimately the Union in their representation dated 15.10.1987 informed the Government that only 12 out of the 69 employees are to be reinstated as the others had already secured employments in other various establishments or went abroad. The petitioner was one among the 12 persons. The Union also informed the 2nd respondent that the Union is agreeable to settle the dispute amicably in a conciliatory manner and the Union gave an undertaking before this Court that only 12 employees need be taken by the SIDCO, that too, without backwages. The petitioner also filed an undertaking to that effect. Pursuant thereto, the Government w.p.c.7878/04 -3- issued Ext.P7 offering the 12 persons reinstatement in service as fresh recruits. Pursuant thereto, the writ petition was withdrawn. Appointment order was issued to the petitioner. The same could not be served on him since the appointment order was returned with the postal endorsement that he is out of India. Therefore, the appointment order was cancelled and that fact was published in newspapers. Long thereafter, the petitioner filed C.P.No.123/1990 before the Labour Court, Kollam, seeking wages for the period from 1.10.1981 to 31.1.1987. That claim petition was dismissed by Ext.P10. The petitioner is challenging Ext.P10 in this writ petition. 2. According to the petitioner, the petitioner had agreed to settle the matter by filing Ext.P6 undertaking, in which he agreed only for reinstatement without any claim for backwages or arrears of salary, but what has been offered to him, by Ext.P7, is a reinstatement as a fresh recruit, which was not acceptable to him. That being so, any proceedings based on Ext.P7, not in accordance with Ext.P6 undertaking submitted by him, is not binding on him. The petitioner, therefore, submits that his claim under the award revives and he is, therefore, entitled to claim w.p.c.7878/04 -4- wages for the period subsequent to the date of coming into force of Ext.P1 award. 3. I have considered the rival contentions in detail. 4. I am of opinion that it is too late in the day for the petitioner to contend so. Admittedly his Union had filed a writ petition for enforcement of the award which was withdrawn on the basis of an amicable settlement arrived at between the parties. It is true that in Ext.P6 undertaking the petitioner did not agree for a reinstatement as a fresh recruit. But the fact remains that on the basis of Ext.P7, the Union representing the petitioner had withdrawn the writ petition filed for enforcement of Ext.P1 award. It is also not disputed before me that pursuant to Ext.P7, appointment orders were issued, which the petitioner did not accept as he was abroad. If the petitioner did not agree with Ext.P7, then he should have requested his Union to prosecute the writ petition, which was actually withdrawn by the Union accepting Ext.P7 offer. That being so, the petitioner is bound by the decision of his Union and he cannot now take a different stand apart from the stand of the Union, because he was represented by the Union in the writ petition. Having withdrawn w.p.c.7878/04 -5- the writ petition filed for enforcement of Ext.P1 award, he cannot now turn round and say that Ext.P1 revives and therefore, he is entitled to claim wages in accordance with that award. Further nothing prevented the petitioner from accepting the employment and seeking the relief claimed by raising another dispute. Obviously the petitioner had also obtained employment abroad and he was not interested in the employment with the 2nd respondent. Hence on equity also the petitioner is not entitled to the discretionary remedy under Article 226 of the Constitution of India. Therefore, I am not inclined to countenance the claim of the petitioner and accordingly, the writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.7878/04 -6- w.p.c.7878/04 -7-