IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 WA.No. 474 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.20459/2000 Dated 29/11/2007 .................... APPELLANT(S): PETITIONER ------------------------ HOTEL NEW EVEREST REPRESENTED BY ITS MANAGING PARTNER P.T.MAMMAD KOYA, OITTY ROAD, KOZHIKKODE. BY ADV. SRI.RAJIT.BHASKAR RESPONDENT(S): --------------- 1. THE SECRETARY, COMMERCIAL EMPLOYEES ASSOCIATION (AITUC) COURT ROAD, KOZHIKODE. 2. THE LABOUR COURT KOZHIKKODE. 3. M.H.RAFEEZUE,S/O.HANEEFA MELEPARAMBIL HOUSE MAVINCHODE, KALLOOR,THRISSUR 680 317. GOVT.PLEADER SMT.R.BINDU SRI.P.RAMAKRISHNAN FOR R3 SRI.C.ANIL KUMAR FOR R3 SRI.B.SAJEEV KUMAR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.474 of 2008 ---------------------------------------------- Dated 22nd March, 2010. J U D G M E N T Balakrishnan Nair, J. The writ petitioner is the appellant. It is a partnership firm, namely, Hotel New Everest. The third respondent was one of its employees. He was denied employment. That dispute was referred to the Labour Court, Kozhikode, by the Government. Since the appellant did not appear before the Labour Court, the said Court, after hearing the workman and based on the evidence tendered by him, passed an award, ordering reinstatement of the workman with back wages. Ext.P1 is the award passed by the Labour Court. Alleging that notwithstanding the award, the workman was not reinstated, he moved the Labour Court under Section 33C(2) of the Industrial Disputes Act, claiming wages, resulting from the denial of employment. He claimed Rs.33,000/- towards wages from August, 1996 to June, 1998. That petition was allowed as per Ext.P2. Later, the Labour Officer filed a complaint before the concerned Magistrate's Court for prosecuting the appellant, under Section 29 of the Industrial Disputes Act. The said court issued warrant of arrest against the appellant. Thereupon, the Writ Petition was filed, challenging WA NO.474/08 2 Exts.P1 and P2. 2. According to the appellant, he was never served with notice in the proceedings before the Labour Court and therefore, he could not challenge those orders in time or place his contentions before the Labour Court. But, the learned Single Judge dismissed the Writ Petition. Hence, this Writ Appeal. 3. From the materials produced before us, it would appear that the notices sent by the appellant to the workman, asking him to join duty, were returned unserved. The appellant would submit that the whereabouts of the third respondent workman are not known and it appears, he is working somewhere, in the Gulf. 4. Though the Writ Appeal was sent for mediation, the workman did not appear, though the employer appeared. So, no settlement could be arrived at. We made certain suggestions regarding the settlement that could be arrived at in this case. After hearing both sides, we suggested the appellant to pay Rs.40,000/- to the workman, in lieu of the benefits flowing from Exts.P2 and P3. We made that suggestion, taking note of the fact that the workman is not available to take up employment, even after he is offered employment, by registered notice. The learned WA NO.474/08 3 counsel for the third respondent submitted that he has also failed to get any instruction from the third respondent and therefore, the Court may pass appropriate orders. 5. Having regard to the facts of the case and the discussions made at the Bar, we order that if the appellant pays Rs.40,000/- to the third respondent, the same shall absolve him from all the liabilities, arising from Exts.P2 and P3. The appellant shall deposit the said amount before the Labour Court, Kozhikode within two months from today. If the payment is not made within the said time limit, this judgment shall stand recalled. On such payment, the Labour Court shall deposit the amount in a Nationalized Bank under some scheme, which may fetch maximum interest. The amount shall be released to the third respondent/workman, with accrued interest, as and when he appears and makes a claim for that. The Writ Appeal is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. tgs K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.474 of 2008 ---------------------------------------------- J U D G M E N T Dated 22nd March, 2010.