Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945 WP(C) NO. 594 OF 2017 PETITIONER: THE KERALA ELECTRICAL & ALLIED ENGINEERING CO.LTD 7TH FLOOR, HOUSING BOARD OFFICE COMPLEX, PANAMPILLY NAGAR, COCHIN - 682 016, REPRESENTED BY ITS GENERAL MANAGER.
BY ADVS. SRI.SAJI VARGHESE SMT.MARIAM MATHAI RESPONDENT: G.MURALEEDHARAN PILLAI, ANIL BHAVAN, ELAMPALLOOR, KUNDARA P.O., KOLLAM DISTRICT, PIN - 691 501. BY ADVS. Mohan Lal B P.S.PREETHA(K/883/1998) ASWIN V. NAIR(K/1019/2017) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 29.02.2024, ALONG WITH WA.2166/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, WP(C) NO. 17495 OF 2021 PETITIONER: G.MURALEEDHARAN PILLAI AGED 63 YEARS, S/O. GANGADHARAN PILLAI, ANIL BHAVAN, ELAMPALLOOR, KUNDARA P.O., KOLLAM DISTRICT. BY ADVS. Mohan Lal B ASWIN V. NAIR(K/1019/2017) P.S.PREETHA(K/883/1998) RESPONDENT: THE KERALA ELECTRICAL AND ALLIED ENGINEERING CO. LTD.7TH FLOOR, HOUSING BOARD, OFFICE COMPLEX, PANAMPILLY NAGAR, COCHIN 682 016, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADVS. SAJI VARGHESE MARIAM MATHAI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 29.02.2024, ALONG WITH WA.2166/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, WA NO. 2166 OF 2018 AGAINST THE JUDGMENT DATED 31.08.2018 IN WP(C) NO.15558 OF 2015 OF HIGH COURT OF KERALA APPELLANT/PETITIONER IN WPC: THE KERALA ELECTRICALS AND ALLIED ENGINEERING CO LTD 7TH FLOOR, HOUSING BOARD OFFICE COMPLEX, PANAMPILLY NAGAR, COCHIN 682 016 REPRESENTED BY ITS MANAGING DIRECTOR BY ADVS. SAJI VARGHESE SMT.MARIAM MATHAI RESPONDENT/RESPONDENT IN WPC: G. MURALEEDHARAN PILLAI, ANIL BHAVAN, ELAMPALLOOR, KUNDARA PO, KOLLAM DISTRICT, PIN- 691 501 BY ADVS. Mohan Lal B P.S.PREETHA(K/883/1998) ASWIN V. NAIR(K/1019/2017) THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 29.02.2024, ALONG WITH WP(C).17495/2021, 594/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, WA NO. 2167 OF 2018 AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.15557 OF 2015 OF HIGH COURT OF KERALA APPELLANT/PETITIONER IN WPC: THE KERALA ELECTRICAL AND ALLIED ENGINEERING CO LTD. 7TH FLOOR, HOUSING BOARD OFFICE COMPLEX, PANAMPILLY NAGAR, COCHIN 682016, REPRESENTED BY ITS MANGING DIRECTOR BY ADVS. SAJI VARGHESE SMT.MARIAM MATHAI RESPONDENTS/RESPONDENTS IN WPC: 1 G.MURALEEDHARAN PILLAI ANIL BHAVAN, ELAMPALLOOR, KUNDARA PO, KOLLAM DISTRICT, PIN 691501 2 TAHSILDAR (REVENUE RECOVERY) KANAYANNUR TALUK, ERNAKULAM, PIN - 682011. BY ADVS. Mohan Lal B P.S.PREETHA(K/883/1998) ASWIN V. NAIR(K/1019/2017) THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 29.02.2024, ALONG WITH WA.2166/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMIT RAWAL & C.S.SUDHA, JJ. ------------------------------------------------------- ---------------------------------------------------- Dated this the 29th day of February 2024
JUDGMENT
Amit Rawal, J.
This order shall dispose of two writ appeals preferred against the common judgment of the learned Single Bench dated of the Labour Court in C.P.Nos.119/2005 and 12/2014 preferred under Section 33C(2) of the Industrial Dispute Act; and two writ petitions, that is, W.P.(C) No.594/2017 on behalf of the Management against the
order of the Labour Court in C.P.No.10/2015 and W.P.
(C)No.17495/2021 preferred by the workman against the order dated 33C(2) of the Industrial Disputes Act.
2. The appellant in two appeals/petitioner in one writ petition
would be referred as Management whereas the respondent in the appeals/petitioner in the other writ petition, who was the claimant before a Labour Court would be referred to as workman. Management is indulged into the business of manufacturing of Electrical and Engineering goods and for carrying out the said activity, had employed many workers including the drivers in respect of the cars maintained for the purpose of officers etc,. There were two vacancies of driver in the Management. One of the drivers went on leave with effect from 01/06/1980 and the worker who was discharging duties of personal driver of the Finance Manager was substituted. He was disengaged from the service with effect from
3. Aggrieved of such action, an O.P. bearing No.4814/1981 was preferred in this Court. This Court vide judgment dated
“The O.P., is therefore disposed of with a direction that the petitioner should be paid notice pay and retrenchment compensation in accordance with law and also full wages till the
date he could have been legally retrenched on valid grounds, such as termination of the vacancy. If any dispute arises between the parties as to the monetary value or the benefit the petitioner could claim under this judgment, the same will have to be decided in proceedings under Section 33C(2) of the I.D.Act. No costs.”
The aforementioned findings leads to two situations. One, this Court found that termination/retrenchment of the services of the worker was not in accordance with the provisions of Section 25F of the Industrial Dispute Act and over in view of such situation, would continue to draw monetary benefits/wages till the formal retrenchment order is passed, leaving open aggrieved party -worker to claim compensation in terms of money by invoking the provisions of Section 33C(2) of the Industrial Disputes Act.
4. Since the Management failed to pass a retrenchment order
and pay the wages, the worker was compelled to approach the Labour Court by preferring C.P.No.167/1986 claiming the casual wages with effect from 03/05/1981 to 15/12/1986. The aforementioned claim was allowed by the judgment dated 04/06/1990. It was assailed before this Court and was dismissed. Again, workman sought the indulgence of the Labour Court vide C.P.No.36/1991 claiming the wages with effect from 16/12/1986 to 30/04/1991. The said claim petition was allowed by granting casual wages vide judgment dated 03/04/2006. It is pertinent to mention here that the claim of the workman seeking regular wages was declined. The said order was also not assailed by the workman but Management could not succeed in the High Court. For the period October 1990 to October 2005, the workman preferred another C.P. under Section 33C(2) bearing No.119/2005 and claimed wages as regular workman and in the alternative had also filed a statement claiming wages as a casual employee. On contest, the Labour Court vide order dated 21/01/2014 allowed the petition by granting regular wages. The said judgment was assailed in Writ Petition No.15557/2015.
5. During the pendency of the aforementioned petition,
another Claim Petition was preferred by the workman bearing No.12/2014 claiming regular wages from 2005 to 2013. The said claim petition was allowed vide order dated 16/12/2014. It was assailed by the management in Writ Petition No.15558/2015.
6. The things did not stop here. For the period 2014 to 2015
C.P.No.10/2015 was preferred which was allowed on 31/08/2016. Against which Writ Petition on behalf of the management bearing No.594/2017 is pending consideration before us. This perpectual filing went on as late as in 2018 when another C.P.No.68/2018 whereby worker claiming the regular wages for the period 2015-2018 was dismissed, which lead to a challenge through Writ Petition(C) No.17495/2021 on behalf of the workman.
7. Learned Single Bench in two writ petitions, that is, W.P. (C)Nos.15557/2015 and 15558/2015 vide common judgment dated Labour Court finding thereby the worker was held entitled to regular wages.
8. Mr.Saji Varghese, the learned counsel appearing on behalf
of the Management in support of the writ appeals and the writ petitions by assailing judgment of the learned Single Bench, has raised the following submissions: The workman did not challenge the findings of the Labour Court in C.P.Nos.167/1986 and 36/1991 for the period 03/05/1981 to other words, the said order attained finality. Despite the aforementioned orders, the Labour Court in subsequent C.Ps. that is, C.P.Nos.119/2005, 12/2014 and 10/2015 gave a different version and
held that the workmen were entitled to regular wages.
9. A very anomalous situation occurred when the claim for
regular pay/wages in C.P.No.68/2018 was rejected. Management passed the order of reinstatement only in 2016. In such scenario, the orders of the Labour Court much less the judgment of the learned Single Bench are not sustainable in the eyes of law. The proceeding under Section 33C(2) are akin to the execution petition.
10. There has to be a pre-existing right or a prior adjudication
of right to sustain a claim under section 33C(2). Workman admitted in cross examination in C.P.No.68/2018 in W.P.No.17495/2000 that he was engaged as a casual employee and there was no prior adjudication whether entitled to regularisation or regular wages.
11. On the other hand, Mr.B.Mohan Lal the learned counsel
appearing on behalf of the workman supported the findings of the learned Single Bench and as well as findings of the Labour Court rendered in C.P.Nos.12/2014 and 10/2015 to contend that in the absence of order by the Management of retrenchment, particularly when in 2016 the employee was taken back, the appointment of the worker was deemed to have been regular, that is by considering the length of the service. It is in that background, Labour Court ordered for payment of regular wages and the worker thereafter had retired with effect from 30/04/2018. On account of the lapse of the Management in not passing the retrenchment order or otherwise, for reinstatement which was done as late as in 2016, the worker was compelled to approach the Labour Court to claim the wages a right that had already existed and continue to operate in view of the
judgment of this Court dated 14/02/1986 rendered in
O.P.No.4814/1981.
12. We have heard the learned counsel for the parties and
appraised the paper books. Before we could assign our reasons it would be axiomatic to extract the relevant portion of the orders of the Labour Court passed in C.P.No.167/1986 and 36 of 1991. C.P.No.167/1986 :
“In this petition under Sec 33C(2) of the I.D. Act filed by the petitioner it is stated as follows:- The Petitioner joined duty as a casual Driver in the Opposite Party Company on 4-7-1980 and he worked there as a full time Driver till 2-5- 1981. During the period he was paid salary of Rs. 20/- per day. The Petitioner has worked for 273 days between 4-7-1980 and 2-5-1981. The Petitioner was denied employment by the Company from 3-5-1981 onwards. Having continuous service for more than 240 days in a year, the Petitioner is entitled to get protection under Sec. 25F of the I.D. Act. Since no notice or payment in lieu thereof and payment of retrenchment compensation due in accordance with the provisions of the I.D. Act has been paid, there is no valid retrenchment. .......................
5. …......The Hon'ble High Court by its judgment
Ext.Pl held that the retrenchment of the petitioner is illegal and he is entitled to be reinstated in service with backwages. But a direction for reinstatement was not given on the basis of the submission made by the learned counsel for the Opposite Party that subsequent to 2-5-1981 one vacancy of driver ceased to exist in the company. .....................
7. It is to be noted that the Petitioner has filed another writ petition, O.P. No.5646/86 praying for employment which was disposed of on 8.8.1986 as evidenced by Ext. D1. It is stated in Ext. D1 judgment as follows:-
"The relief granted was to allow full wages and allowances till the second vacancy had come to an end, end that grant of retrenchable compensation and notice pay as a step necessary for retrenchment in accordance with law." This observation in Ext. D1 judgment would also go to show that the Petitioner is entitled to get full wages as directed in Ext. Pl judgment till the second vacancy had come to an end or the Petitioner was retrenched after paying retrenchment compensation in accordance with law. The Opposite Party has no case that he has said retrenchable compensation till the second vacancy had come to an end. In these circumstances, on careful full consideration of the entire evidence or record and the directions contained in Exts. Pl and DI judgments I find that the Petitioner is entitled to get full wages till the date he could have been legally retrenched on valid grounds. Therefore the Petitioner is entitled to the benefits claimed in the petition."
C.P.No.36/1991 :
“The petitioner was a casual driver. So he should also entitled to get the benefits. Therefore the petitioner is entitled to get Rs.28,671/- (Rupees Twenty eight thousand six hundred and seventy one only) as stated in statement No.2 attached in the petition towards arrears of pay, bonus/exgratia from 16-12-86 to 13-12-86. In the result, the opposite party directed to pay Rs.28,671/- (Rupees twenty eight thousand six hundred and seventy one only) to the petitioner within 3 months from this date, failing which the petitioner is allowed to realise the above such amount with interest there on at the rate of 10% per annum
from this date till realisation.”
13. We are unable to fathom as to how and in what manner the
Labour Court in subsequent C.P.Nos.119/2005, 12/2014 and 10/2015 ordered for payment of the regular wages. The relevant findings rendered are extracted hereunder - In C.P.No.119/2005 :-
“15. Though petitioner was engaged as a casual driver on daily wages of ₹20/- per day, he claimed wages in parity with a permanent driver in service and showed the calculation of the amount in the statement for the period from October 1990 to October 1995. As the petitioner is found entitled to claim arrears of wages and opposite party did not file any counter calculation statement pointing out any mistake in the calculation, the petitioner is found entitled to recover the money as prayed for.”
In C.P.No.12/2014:-
“10. …........................Along with the claim petition, the petitioner had submitted a calculation statement also. No objection or mistakes are seen raised by the opposite party management to that statement filed by the petitioner along with the petition. If that be so, I find no reason to doubt the calculation statement filed by the petitioner and as per that statement, the amount due to the petitioner towards arrears of wages and other allowances comes to the tune of ₹12,64,614/-.
11. Now from the facts and circumstances as herein
above stated and from the evidence on record, I am of the view that the petitioner is entitled to realise his arrears of wages and other benefits as claimed for in the petition. Accordingly, the petition stands allowed.” In C.P.No.10/2015:-
“22. Now from the principle laid down by the Hon'ble Supreme Court of India in the decisions cited above, it is abundantly clear that during his employment, since the workman herein had been doing the very same work of a regular driver (as admitted by DW1) he is entitled to get the benefits of a regular driver as shown in the annexure of this petition. It is curious enough to note that no objection to the statement is seen filed by the opposite party. But for a blanket denial that the petitioner is no entitled to get benefits in par with a regular driver, no effort is seen taken by the opposite party to substantiate the same. Then it is clear that the petitioner is entitled for the benefits as claimed for.”
14. Things did not stop here as noticed from the extraction of the facts. The Labour Court in C.P.No.68/2018 rejected the claim of casual wages for the period 2015. The relevant findings reads as under -
“18........................... The opposite party contended that they paid entire dues till his retirement, 30.4.2018 as casual driver. Therefore, the claim for back wages from 1.3.2005 to
1.1.2016 has not proved by the petitioner/casual driver. He has also admitted that leave surrender etc. are eligible only to Regular Driver and not Casual Driver. He has availed the overtime wages for the period from 2.1.2016 to 30.4.2018 as Casual Driver, but here claims the amount as if Regular Driver. He has also claimed bonus as Regular Driver. From the evidence as well as documents. it reveal that the service of the petitioner was never regularised by the opposite party or court till his retirement, 30.4.2018. As per order in Ext P1, he is entitled to get notice pay and retrenchment compensation in accordance with law and also full wages till the date he could have been legally retrenched on valid grounds, such as termination of vacancy. Thereafter though the petitioner approached before the Hon'ble High Court in O.P.5646/1986, the claim of reinstatement as well as regularization of service were dismissed since there was no such direction in Ext. Pl judgement. Therefore, it is clear that there is no direction from any court regarding his regularization or entitlement and hence he is not entitled to get back wages or benefits of Regular/Permanent Driver."
15. It is settled law that that the party aggrieved cannot be
permitted to blow hot and cold. There is no force in the argument of Mr.Saji Varghese with regard to the fact that the subsequent petitions under 33C(2) for regular wages would not be maintainable as there was no pre-existing right for sustaining the claims, for, the management failed to comply with the directions contained in the
judgment of this court dated 14/02/1986 in O.P.No. 4814/1981
extracted above. There is inconsistency in the orders of the Labour Court. There is no order of the Management granting regularisation of services from a particular period entitling workman to set up the claim under the head of regular wages. Not only this, the findings rendered in C.P.Nos.167/1986 and 36/1991 accepting the claim qua casual wages of the workman have never been assailed by the workman. Workman in such circumstances cannot be permitted to blow hot and cold in the absence of any order by the Management for regularising the service.
16. For the reason aforementioned, the writ appeals are to be
allowed by setting aside the judgment of the learned Single Bench as well as the orders of the Labour Court and declare that the workman, for the period mentioned in the claim petitions, would be entitled to casual wages and not regular wages.
17. As an upshot of our findings, the writ petition filed by the
workman bearing No.17495/2021 would not sustain and is hereby dismissed, W.P.(C) No.594/2017 filed by the Management against the decision rendered in C.P.No.10/2015 is allowed and Writ Appeal Nos.2166/2018 and 2167/2018 filed by the Management are also allowed. The Management is directed to comply with the judgment of this Court and also pay other charges which the employee is entitled to, as expeditiously as possible, within a period of two months from the date of receipt of the certified copy of this judgment, failing which it would entail interest at the rate of 6% per annum. Sd/- AMIT RAWAL JUDGE Sd/- C.S.SUDHA JUDGE Jms APPENDIX OF WP(C) 594/2017 PETITIONER EXHIBITS EXHIBIT P1. TRUE COPY OF THE JUDGMENT DATED 14.02.1986 PASSED BY THIS HON'BLE COURT IN OP NO.4814 OF 1981. EXHIBIT P2. TRUE COPY OF THE JUDGMENT DATED 13.08.1986 PASSED BY THIS HON'BLE COURT IN OP NO.5646 OF 1986. EXHIBIT P3. TRUE COPY OF THE STATEMENT FILED BY THE RESPONDENT, IN CLAIM PETITION NO.167/1986. EXHIBIT P4. TRUE COPY OF THE ORDER DATED 04.06.1990 OF THE LABOUR COURT ERNAKULAM, IN CLAIM PETITION NO.167 OF 1986. EXHIBIT P5. TRUE COPY OF THE STATEMENT CLAIMING WAGES AS CASUAL WORKMAN. EXHIBIT P5(A). TRUE COPY OF THE STATEMENT CLAIMING WAGES AS REGULAR WORKMAN. EXHIBIT P6. TRUE COPY OF THE ORDER OF THE LABOUR COURT IN CP NO.36 OF 1991 DATED 03.04.2006. EXHIBIT P7. TRUE COPY OF THE CLAIM PETITION NO.10 OF 2015 FILED BY THE RESPONDENT ALONG WITH THE STATEMENT SHOWING THE DETAILS OF THE CLAIM. EXHIBIT P8. TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN CLAIM PETITION NO.10 OF 2015. EXHIBIT P9. TRUE COPY OF THE ORDER DATED 31.08.2016
PASSED BY THE LABOUR COURT ERNAKULAM IN CP 10 OF 2015 ALLOWING THE CLAIM FOR WAGES OF REGULAR WORKMAN
APPENDIX OF WP(C) 17495/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 14.2.1986 OF THIS HON'BLE COURT IN O.P.NO.4814 OF 1981. Exhibit P2 TRUE COPY OFTHE ORDER DATED 4.6.1990 THE HON'BLE LABOUR COURT, ERNAKULAM IN C.P.NO.167 OF 1986. Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 24.3.1992 OF THIS HON'BLE COURT IN O.P.NO.3917/1992. Exhibit P4 TRUE COPIES OF THE ORDER DATED 23.12.1997 THE HON'BLE LABOUR COURT, ERNAKULAM.X Exhibit P5 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 31.8.2005 IN O.P.NO.5335/98. Exhibit P6 TRUE COY OF THE JUDGMENT DATED 6.9.2013 OF THIS HON'BLE COURT IN WPC NO.24077/2006. Exhibit P7 TRUE COPY OF THE ORDER DATED 15.4.2014
OF HON'BLE SUPREME COURT OF INDIA IN THE SPECIAL LEAVE PETITION (C) NO.10808/2014 (CC NO.5871/2014).
Exhibit P8 TRUE COPY OF THE ORDER DATED 21.1.2014 OF THE HON'BLE LABOUR COURT, ERNAKULAM IN C.P.NO.119/2005. Exhibit P9 TRUE COPY OF THE R.P.(C) NO.2970/2014 FILED BY THE RESPONDENT BEFORE THE HON'BLE SUPREME COURT. Exhibit P10 TRUE COPY OF THE ORDER DATED 15.1.2015 OF THE HON'BLE SUPREME COURT IN R.P.(C) NO.2970/2014. Exhibit P11 TRUE COPY OF THE ORDER DATED 16.12.2014 OF THE HON'BLE LABOUR COURT, ERNAKULAM IN C.P.NO.12/2014. Exhibit P12 TRUE COPY OF THE ORDER DATED 31.8.2016 OF THE HON'BLE LABOUR COURT, ERNAKULAM IN C.P.NO.10/2015. Exhibit P13 TRUE COPY OF THE COMMON JUDGMENT DATED 31.8.2018 OF THIS HON'BLE COURT IN WPC NOS.15557/2015 AND 15558/2015.
Exhibit P14 TRUE COPY OF THE COMMON INTERIM ORDER
DATED 7.11.2018 OF THE DIVISION BENCH OF THIS HON'BLE COURT IN W.A.NOS.2166 AND 2167 OF 2018. Exhibit P15 TRUE COPY OF THE MEMO DATED 19.12.2015 ISSUED BY THE RESPONDENT REINSTATING THE PETITIONER BACK IN SERVICE. Exhibit P16 TRUE COPY OF THE ORDER DATED 14.7.2018 OF THE HON'BLE LABOUR COURT, ERNAKULAM IN C.P.NO.68/2018.