IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 WA.No. 2037 of 2007() ---------------------------------- AGAINST THE JUDGMENT DT. 17.7.07 IN WPC. NO.19698/05. ........ APPELLANT(S): PETITIONER ---------------------- THE PRESIDENT, CHELORA KSHEERA VYAVASAYA CO-OPERATIVE SOCIETY LTD., NO.C.26(D), THILANUR, P.O.KAPPAD, KANNUR-6. BY ADV. MR.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENT(S): RESPONDENTS -------------------------- 1. THE LABOUR COURT, KANNUR. 2. K.SURESHAN, S/O GOVINDAN, THILANUR, P.O.KAPPAD, KANNUR. R2 BY ADV. MR.P.M.PAREETH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY, Ag.C.J. & P.BHAVADASAN, J. -------------------------------------- W.A.No.2037 of 2007 ------------------------------------- Dated 10th February, 2009 JUDGMENT Koshy, Ag.C.J . Award of the Labour Court, Kannur in I.D.No.72 of 1993 is challenged in the writ petition. Second respondent while acting as Secretary of the appellant Co-operative Society was dismissed from service from 4.9.1990. When dismissal was referred for adjudication, contention of the management was that being Secretary, his work was mainly managerial and he was not a workman. It is also contended that he was dismissed for very serious misconducts proved in a properly conducted domestic enquiry. Labour Court found that he is a workman as defined under the Industrial Disputes Act. It was also found that the enquiry conducted was not proper and misconducts were not proved. Consequently, reinstatement with full backwages and continuity of service was ordered by the impugned award. The contention of the management before the Labour Court was that in K.M.Ulahannan v. Labour Court & Another (1996 (1) KLJ 825) a Division Bench of this court held that the Secretary of a Co-operative Society, who is holding the post in a managerial capacity, cannot be considered as a workman under W.A.2037/2007 2 section 2(s) of the Industrial Disputes Act. Therefore, such a person is not a workman under section 2(s) of the Industrial Disputes Act. Whether a person is a workman as defined under section 2(s) of the Industrial Disputes Act will depend on facts of each case. The Labour Court found that evidence of the management witness itself shows that the second respondent was mainly performing the duties of a clerk and his work is not mainly managerial and he is a workman as defined under section 2(s) of the Act. Accepting these contentions the learned Judge refused to interfere in the award. Various contentions were raised before us. However, we note that the second respondent was dismissed from 4.9.1990. 18 years have passed. Appellant is only a Milk Society. Therefore, we suggested for a settlement. It was submitted that the management is agreeable to reinstate the workman. Taking into account all these contentions, we have to see that relief is moulded in such a way so that management also is not wiped off. At the same time, relief also should be given to the second respondent workman. Therefore, we direct that the second respondent should be reinstated forthwith with continuity of service and salary to be paid should be calculated notionally as if he was continuing in service throughout and he will get his pay fixation accordingly. For calculating gratuity etc. entire period of employment W.A.2037/2007 3 should be taken into account. But, he will be entitled to backwages from 4.4.1990 only at the last drawn salary at the time when he was dismissed from service till today and not at the revised rates. The above backwages also should be paid within one month from today. He will be entitled to get full pay from today onwards. The appeal is disposed of accordingly. J.B.KOSHY ACTING CHIEF JUSTICE P.BHAVADASAN JUDGE tks