Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946 WP(C) NO. 12890 OF 2016 AGAINST THE ORDER/JUDGMENT DATED IN CP NO.28 OF 2011 OF LABOUR COURT, KOLLAM PETITIONERS: 1 THE EXECUTIVE ENGINEER PWD BUILDING DIVISION OFFICE, PATHANAMTHITTA (WRONGLY MENTIONED AS BUILDING SECTION OFFICE IN CLAIM PETITION). 2 THE ASSISTANT EXECUTIVE ENGINEER P.W.D. BUILDING SUB DIVISION, THIRUVALLA (WRONGLY MENTIONED AS BUILDING DIVISION IN CLAIM PETITION). SRI. DHEERAJ - GP RESPONDENT: JOHNSON S/O. MATHAI, BINCY BHAVAN, MATHRA P.O., KARAVALOOR VILLAGE, PATHANAPURAM TALUK. BY ADV SRI.K.V.ANIL KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.04.2024, THE COURT ON 23.05.2024 DELIVERED THE FOLLOWING: :2:
JUDGMENT
The Executive Engineer and the Assistant Executive Engineer, PWD Building Division Office, Thiruvalla have filed this writ petition challenging Ext.P2 order passed by the Labour Court, Kollam in Ext.P1 claim petition filed by the respondent workman under Section 33-C(2) of the Industrial Disputes Act, 1947 (for short, ‘ID Act’). In Ext.P1 claim petition, it was contended by the respondent/claimant as follows:-
“2. About 30 years back petitioner had joined as a cook at P.W.D, Rest House, Pathanamthitta. Later first respondent posted him as the Rest House Watcher and transferred him to P.W.D Rest House, Thiruvalla. The salary agreed to be given to him by the respondents for the above post was Rs.140/per day. He got his entire wages up to 14.08.2008. In between 15.08.2008 and 31.12.2008 petitioner had worked for a period of 127 days, but respondent had paid him only 7 days’ salary and the salary for the balance 120 days comes to Rs.16,680/- and it still remains unpaid. Not only that with effect from 01.01.2009 respondents had denied job also to the petitioner without stating any reason. In the above circumstance petitioner approached the District Labour Officer, Pathanamthitta claiming arrears of wages due to him, but Labour Officer advised him to approach this court for remedying his grievance. So on 30.07.2009 and on 11.10.2010 petitioner had :3: sent legal notices to the respondents demanding the above said amount. Though they received notices they did not come forward to pay the amount to the petitioner. Petitioner is entitled to realize a sum of Rs. 16,680/- with interest from the respondents, Hence this petition. Petition may be allowed as prayed for.”
2. The claim petition was taken to file and notice
was issued to the opposite parties, the writ petitioners herein. However, the opposite parties did not appear and they were set ex parte. The claimant filed chief affidavit in lieu of chief examination. Exts.P1 to P6 documents were marked on the side of the claimant. Ext.P1 produced along with the chief affidavit is a letter dated 09.06.2011 sent to the claimant from the office of the
Deputy Labour Officer, Pathanamthitta asking him whether the labour dispute raised by him still remained unsolved. Ext.P2 is the letter dated 21.07.2011 sent to the claimant from the District Labour Office, Pathanamthitta advising him to file claim petition before the Labour Court, Kollam for redressing his grievance. Exts.P3 and P4 are copies of lawyer notice sent to the :4:
opposite parties at the instance of the claimant and Exts.P5 and P6 are the acknowledgment cards for receipt of the above legal notices by the opposite parties. The Labour Court, on the basis of the evidence on record, found that the claim of the workman is true and bona fide. Since the opposite parties remained ex parte, the Labour Court drew an adverse inference that they are conceding to the claim of the workman. The Labour Court allowed the claim by directing the opposite parties to pay the claimant an amount of Rs.16,680/- with interest thereon @ 6% per annum from the date of
petition till the date of realisation. Challenging Ext.P2 order, this writ petition is filed.
3. In the writ petition, it is contended that the
respondent workman has worked only for 19 days during the period from 15.08.2008 to 31.12.2008 and has not worked for 120 days during the said period as claimed in Ext.P1. In support of the said contention, the petitioners have produced Ext.P3 statement of details of engaging :5: the respondent as CLR worker in PWD Rest House, Thiruvalla during the above period, maintained in the office of the 2nd petitioner. It is contended that the respondent has not produced any documents to prove that he had worked during the period in question and is entitled to wages for the said period. It is also contended that the Labour Court can adjudicate only undisputed amount of arrears, salaries etc. under Section 33-C(2) of the ID Act. It is further contended that non appearance of the petitioners would not relieve the claimant from the initial burden of establishing the prima facie case for the exercise of jurisdiction under Section 33-C(2) of the ID Act. It is also contended that at the time of filing the claim petition, the employer- employee relationship had ceased and the claim petition ought not have been entertained by the Labour Court.
4. Heard Sri.Dheeraj, the learned Government Pleader for the petitioners and Sri.K.V. Anil Kumar, the learned counsel for the respondent. :6:
5. The learned Government Pleader relied on the
decisions of the Hon'ble Supreme Court in Krishnan D. and another v. Special Officer, Vellore Coop. Sugar Mill and another [(2008) 7 SCC 22; AIR 2009 SC 395] and Chief Superintendent, Government Livestock Farm Hissar v. Ramesh Kumar [(1997) 11 SCC 363: 1997 KHC 3885] to contend that the proceedings under Section 33-C(2) of ID Act are in the nature of execution
proceedings and cannot be invoked where the entitlement of the workman is disputed. Sri.Dheeraj also cited the decision of this Court in KMJ Public School and another v. C.M. Ance and others [2020 (5) KHC 330] to contend that when there is dispute as to whether the workman is a full time regular employee or working only for a few hours, the Labour Court cannot adjudicate
a claim under Section 33-C(2) of ID Act. Sri.Dheeraj has also relied on the decision of this Court in Iritty Range Kalluchethu Sahakarana Sangham v. K.T. Joseph[2013 (2) KHC 486] to contend that a claim under :7: Section 33-C(2) will be maintainable only when the employer-employee relationship subsists.
6. Ext.P2 order impugned in the writ petition was passed by the Labour Court on 22.05.2013. This writ petition was filed on 21.03.2016 after an inexplicable delay of almost three years.
7. In the claim petition, notice was issued to the
opposite parties. However, they did not appear and contest the case and were set ex parte. The Labour Court found that the claim of the workman was proved by the chief affidavit and the documents produced therewith. As stated, Ext.P2 ex parte order was passed on 22.05.2013. Rule 22 of the Kerala Industrial Disputes Rules, 1957 (for short ‘the Rules') permits the Labour Court to proceed ex parte if any party to the proceedings fails to attend the Court or to be represented without good cause shown. The Labour Court cannot be faulted for passing the ex parte order. Rule 23 of the Rules provides for power to Labour Court to set aside ex parte :8: decision. Rule 23 of the Rules reads as follows:-
"23. Setting aside ex-parte decision -(1) The Board, Court, Labour Court, Tribunal or Arbitrator may for sufficient cause set aside after notice to the opposite party the ex-parte decision either wholly or in part on an application made within fifteen days of the ex-parte decision. The Board, Court, Labour Court or Tribunal or Arbitrator may extend the time on sufficient cause being shown.
2. Such an application must be supported by an affidavit.”
The power under Rule 23 to set aside an ex parte decision applies to an order passed under Section 33- C(2) of the ID Act as well, since the Rule does not differentiate between ex parte awards and ex parte orders. No petition to set aside the ex parte order was filed by the petitioners. Even in the writ petition, no reason, whatsoever, is stated for not contesting the claim before the Labour Court. The petitioners were not diligent and vigilant in defending the claim before the Labour Court. I do not find any reason to exercise the power of judicial review in favour of the petitioners.
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8. It is contended by the learned Government Pleader that a claim under Section 33-C(2) of the ID Act is maintainable only where there is no dispute about the entitlement of the workman. Before the Labour Court, the entitlement of the workman was not disputed. The
claimant, by filing chief affidavit and producing documents, has met the initial burden of establishing a prima facie case. In the absence of a contest from the opposite parties, the Labour Court has drawn an inference that they have no valid defence in the case. Section 33-C(2) of the ID Act reads as follows:-
“33-C (2).Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months:” :10:
The writ petitioners do not have a case that the respondent was not engaged by them. The employer- employee relationship is not disputed. In the writ petition, attempt is made to dispute the period of
employment. According to the petitioners, the respondent had worked only for 19 days during the period for which wages are claimed in Ext.P1 claim petition. Since the employment of the respondent with the petitioner is not disputed, he has a pre-existing right for wages. The claim for arrears of wages is an existing right which can be adjudicated by the Labour Court
under section 33-C(2). Ext.P3 statement of details of engaging the respondent as CLR produced before this Court will not help the petitioners to contend otherwise. The respondent has established a legal right in relation to his claim.
9. The learned Government Pleader, relying on the decision in Iritty Range Kalluchethu Sahakarana :11:
Sangham (supra), would contend that at the time of filing claim petition, the employer- employee relationship between the petitioners and the respondent had ceased and the claim petition cannot be entertained by the Labour Court. In National Buildings Construction Corporation Ltd. v. Pritam Singh Gill and Others [AIR 1972 SC 1579], the Hon'ble Supreme Court, after
considering the scope of S.33-C(2) of the ID Act, held
that, the remedy provided by the said provision is available to a workman who was employed during the period in respect of which he claimed relief even though he was no longer employed at the relevant time. A Division Bench of this Court in Thomas P.K. and others v. Sahitya Pravarthaka Co-op Society, Kottayam [2014 (3) KHC 195: 2014 (3) KLT 761: ILR 2014 (3) Ker. 429] held that an application under S.33-C(2) can be maintained by a retired workman in respect of his claims with reference to the period of employment under the employer. This Court, in Sabumon M.C. v. Managing
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Director and another [2015 KHC 320], held that a resigned employee would also be entitled to invoke the provisions under S.33-C. The decision in Iritty Range Kalluchethu Sahakarana Sangham (supra), relied on by Sri. Dheeraj, has been overruled in K.T. Joseph v Iritty Range Kalluchethu Sahakarana Sangham [2017 KHC 7545] wherein the Division Bench of this Court held that, irrespective of whether the employee has been dismissed from service, he is entitled to invoke the remedy under S.33-C(2) for any claim to which he is entitled by virtue of his employment as a workman. Section 33-C(2) provides remedy for recovery of the amount payable by the employer to the workman. From the language employed, it is clear that the scope of the provision is not restricted to the claim by a person who continue to be and is still in employment with the
employer. The claim made by the respondent for arrears of wages during the period he was employed by the petitioners is therefore maintainable. :13: I find no reason to interfere with Ext.P2 order. Accordingly, the writ petition is dismissed. This Court had, by order dated 24.05.2016, stayed Ext. P2 order for a period of one month. The interim order is seen not extended thereafter. If the amount covered by Ext.P2 is not paid so far, the same shall be paid along with interest ordered therein, within a period of two months from the date of receipt of a copy of this judgment.
Sd/- MURALI PURUSHOTHAMAN JUDGE SPR :14: APPENDIX PETITIONERS EXHIBITS:- EXHIBIT P1 TRUE COPY OF THE CLAIM PETITION NO.28/2011 FILED BY THE RESPONDENT HEREIN BEFORE THE LABOUR COURT, KOLLAM. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 22.05.2013 PASSED BY THE LABOUR COURT KOLLAM IN CP EXHIBIT P3 TRUE COPY OF THE STATEMENT OF DETAILS OF
ENGAGING THE PETITIONER DURING THE PERIOD, MAINTAINED IN THE OFFICE OF THE ASSISTANT ENGINEER, PWD BUILDING SECTION, THIRUVALLA. RESPONDENT’S EXHIBITS: NIL.