IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 WP(C).No. 1421 of 2010(C) -------------------------------------- CP.24/2009 of LABOUR COURT, KOLLAM .................... PETITIONER(S): ----------------------- GOPIMOHAN, AGED 65 YEARS, S/O.P.K. GOPALA PILLAI, MOHANS INTERNATIONAL KOCHUPILAMMOOD, KOLLAM, RESIDING AT GREEN HILLS, MUNDAKKAL WEST, MUNDAKKAL, KOLLAM. BY ADV. MR.C.UNNIKRISHNAN (KOLLAM) RESPONDENT(S): ------------------------- 1. C.R. UDAYAPRAKASH, PRAKASH MANDIRAM MYLAKKAD P.O., KOLLAM, THROUGH HIS REPRESENTATIVE G. JAYAPRAKASH, GENERAL SECRETARY, ALL KERALA CASHEW FACTORY STAFF (PVT) ASSOCIASTION (INTUC), JETTY ROAD, KOLLAM. 2. THE INDUSTRIAL TRIBUNAL & LABOUR COURT, KOLLAM. R2 BY SR. GOVERNMENT PLEADER MR.K.C. SANTHOSH KUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P.N.RAVINDRAN, J. ---------------------------------------- W.P.(C) No. 1421 of 2010 - C ---------------------------------------- Dated 15th January, 2010 Judgment Ext.P4 award passed by the Industrial Tribunal, Kollam on 28.10.2006 and Ext.P5 order passed by the Labour Court, Kollam on 30.11.2009 on the claim petition filed by the worker claiming the benefits under Ext.P4 award are under challenge in this writ petition. 2. By Ext.P4 award which has attained finality, the Industrial Tribunal held that the first respondent herein was denied employment during the period from 12.6.2001 till 31.12.2001, the date on which the petitioner's establishment was closed down. The Industrial Tribunal held that the denial of employment is illegal and that the first respondent is entitled to 50% of the wages for the period from 12.6.2001 to 31.12.2001, notice pay and closure compensation and also gratuity under the provisions of the Payment of Gratuity Act, 1972 reckoning the period from 1.6.1987 to 31.12.2001 as continuous and uninterrupted service. The petitioner did not W.P.(C) No. 1421/2010 2 challenge Ext.P4 award. The petitioner did not also pay monetary benefits payable to the first respondent. The first respondent thereupon filed Claim Petition No.24 of 2009 before the Labour Court, Kollam. The petitioner entered appearance and contested the application contending inter alia that he and his brother have filed O.S.No.208 of 2001 in the Court of the Subordinate Judge at Kollam for realisation of the sum of Rs.20,24,639/- together with interest and costs from the first respondent and as the said suit is pending, the first respondent is not entitled to claim any benefit under Ext.P4 award. The Labour Court overruled the said contention and directed the petitioner to pay the sum of Rs.52,983/- which was determined as the amount payable to the first respondent under Ext.P4 award. 3. The petitioner contends that as he and his brother have instituted a civil suit to recover the amount defalcated by the first respondent, the first respondent is not entitled to claim any benefit pursuant to Ext.P4 award. It was on account of the acts committed by the first respondent that the establishment W.P.(C) No. 1421/2010 3 had to be closed down, it is stated. As the claim made by the petitioner for a larger amount is pending before the civil court, the Labour Court erred in passing Ext.P5 order, it is contended. The petitioner also contends that the Industrial Tribunal has not adverted to the contentions raised in Ext.P3 written statement filed before the Industrial Tribunal, wherein also the pendency of the civil suit was referred to. 4. I have considered the submissions made at the Bar by Sri.C.Unnikrishnan, the learned counsel appearing for the petitioner. Ext.P4 award was passed on 28.10.2006. More than three years have passed thereafter. The award was passed with notice to the petitioner. The petitioner has not satisfactorily explained the long delay in challenging Ext.P4 award. The petitioner did not challenge Ext.P4 award in time and it has attained finality. Though in Ext.P3 written statement, the petitioner had contended that he and his brother have instituted O.S.No.208 of 2001 in the Court of the Subordinate Judge at Kollam claiming a large amount from the first respondent, the said contention evidently was not pressed W.P.(C) No. 1421/2010 4 before the Industrial Tribunal. In any case, the mere pendency of the civil suit instituted by the employer cannot in my opinion deny the employee the benefit of reinstatement/closure compensation for the reason that the claim made by the employer against the worker is yet to be adjudicated upon. The suit was instituted in the year 2001. The industrial dispute was referred to the Industrial Tribunal in the year 2002 and Ext.P4 award was passed in the year 2006. The Tribunal held that the plea of the management that the worker had abandoned employment cannot be sustained. It was held that the worker was denied employment. However, accepting the contention of the management that the establishment has been closed down, the Tribunal directed payment of 50% wages from the date of denial of employment till the date of closure. The Industrial Tribunal had besides directing payment of 50% backwages for a short period of six months also held that the worker will be entitled to closure compensation and also notice pay besides gratuity under the provisions of the Payment of Gratuity Act, 1972. These are statutory benefits W.P.(C) No. 1421/2010 5 which the employee is entitled to. In such circumstances, I find no merit in the challenge to Ext.P4 award. Besides, as noticed earlier, the challenge to Ext.P4 is highly belated and no acceptable explanation for the long delay in challenging Ext.P4 is forthcoming. So long as Ext.P4 stands it cannot be said that Ext.P5 order passed by the Labour Court in implementation of Ext.P4 award is vitiated. The petitioner has also not been able to demonstrate that the amount quantified by the Labour Court in Ext.P5 order is in any manner erroneous. I therefore find no grounds to entertain this writ petition. The writ petition fails and is accordingly dismissed. 5. After judgment was delivered dismissing the writ petition, the learned counsel appearing for the petitioner submitted that the petitioner may be granted a reasonable time to pay the amount covered by Ext.P5 order. Ext.P4 award was passed on 28.10.2006. The petitioner did not implement it for nearly three years. The worker was therefore compelled to move the Labour Court and the Labour Court passed Ext.P5 order on 30.11.2009. The petitioner who did not implement W.P.(C) No. 1421/2010 6 Ext.P4 award and compelled the worker to move the Labour Court seeking its implementation cannot, in my opinion, be shown any leniency. However, in order to ensure that the employee receives the benefits flowing from Ext.P4 award and Ext.P5 order, I am inclined to grant the petitioner time till 28.2.2010 to deposit the amount covered by Ext.P5 order. I accordingly grant the petitioner time till 28.2.2010 to deposit the amount covered by Ext.P5 order. It is clarified that if payment is not made within the time limit stipulated above, it will be open to the first respondent to take appropriate steps for enforcement of Ext.P5 order. P.N.RAVINDRAN Judge vaa