Partly allowed

Ramanika Jewellery v. the Industrial Tribunal, Palakkad

Kerala HC14 Dec 2016WP(C)/5045/2007

Case brief

AI extract

What is this about?

The Court dismissed the writ petition challenging an industrial tribunal award as unsustainable due to delay of over three years. Additionally, the Court set aside revenue recovery proceedings initiated under Section 33C(1) for failing to compute monetary dues, directing the workman to approach the Labour Court under Section 33C(2) instead.

What did the court decide?

The writ petition was dismissed on the challenge to the award, but the demand notice (Ext. P7) under the Revenue Recovery Act was set aside, allowing the petitioner to recover monies via Labour Court

Ramanika Jewellery Vs the Industrial Tribunal, Palakkad — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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WEDNESDAY, THE 14TH DAY OF DECEMBER 2016/23RD AGRAHAYANA, 1938

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WP(C).No. 5045 of 2007 (A)

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PETITIONER:

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K.G.SURESH KUMAR, AGED 40, S/O.K.R.GOPALAKRISHNAN, KUTTIKATUPARAMBIL HOUSE, P.O.CHOVOOR, CHERUVATHERY, THRISSUR, MANAGER, M/S.RAMANIKA JEWELLERY, PALLITHANAM COMPLEX, COCHIN DEVASWOM BOARD BUILDINGS, THRISSUR.

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BY ADV. SRI.G.SREEKUMAR (CHELUR)

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RESPONDENT(S):

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1. THE INDUSTRIAL TRIBUNAL, PALAKKAD.

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2. THE DEPUTY TAHSILDAR, REVENUE RECOVERY, THRISSUR.

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3. V.J. TONY, VAZHAPPILLY VEEDU, P.O.ELTHURUTH, THRISSUR.

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4. THE STATE OF KERALA, REP. BY THE SECRETARY TO THE GOVERNMENT, LABOUR DEPARTMENT, THIRUVANANTHAPURAM.

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R1, R2 & R4 BY GOVT. PLEADER SRI.M.V.ANANDAN R3 BY ADV. SRI.P.RAMAKRISHNAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 5045 of 2007 (A)

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APPENDIX

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PETITIONERS' EXHIBITS:

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EX.P1 : A TRUE	COPY OF THE STATUTORY FORM ISSUED TO THE FIRM
BY THE	REGISTRAR OF FIRMS DATED 20.3.93.

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EXT. P2 :	A TRUE COPY OF THE	CLAIM STATEMENT OF THE THIRD
	RESPONDENT DATED 13	.1.03.

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EXT. P3	: A TRUE COPY OF THE	STATEMENT MADE BY THE FIRST
	RESPONDENT IN EXT.	P2, DATED 7.2.04.
EXT. P4	: A TRUE COPY OF THE RESPONDENT DATED 17	REJOINDER SUBMITTED BY THE THIRD .3.03.
EXT. P5	: A TRUE COPY OF THE	PROOF AFFIDAVIT FILED BY THE THIRD
	RESPONDENT DATED 8.	12.03.

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EXT. P6 :	A TRUE COPY OF THE AWARD PASSED BY THE FIRST
	RESPONDENT DATED 28.9.04.

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EXT. P7 : A TRUE COPY OF THE REVENUE RECOVERY NOTICE ISSUED BY THE SECOND RESPONDENT DATED 23.1.07.

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RESPONDENTS' EXHIBITS: NIL.

//TRUE COPY//

P.S. TO JUDGE

mbr/

A.MUHAMED MUSTAQUE, J. ============================== W.P.(C).No.5045 of 2007

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============================== Dated this, the 14^th day of December, 2016.

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J U D G M E N T

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This Writ Petition is filed challenging an Award passed in an industrial dispute and consequent recovery proceedings initiated to recover amount due from the Management. The Management is the writ petitioner. The Award of the Industrial Tribunal was passed on 28.09.2004. The Writ Petition was filed only on 13.02.2007. The revenue recovery proceedings were initiated to recover the amount due under the Award.

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The workman/third respondent herein raised an industrial dispute, alleging denial of employment. This was referred to the Industrial Tribunal, Palakkad, by the Government, as per order dated 29.10.2002. The case of the Management before the Tribunal is that, there was no denial of employment and the workman absented unauthorizedly from duty from 12.08.2000 onwards. It is also clear from the facts, disciplinary proceedings were taken on account of

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W.P.(C).No.5045 of 2007 : 2 :

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unauthorised absence from the service. It also appears that Management had taken a contention that one Surendran is the Managing partner, he should be impleaded in the party array. Accordingly, Surendran was impleaded. However, Surendran contended that he retired from the partnership and he is not answerable to the claims. When the matter was posted for hearing, the Management was absent and his counsel reported no instruction. There is no other contra evidence. Accepting the evidence on the side of workman, the Tribunal held that denial of employment to the workman is unjustifiable. He was ordered to be reinstated with continuance of service and back wages. Thereafter, invoking provisions under Section 33C(1) of the Industrial Disputes Act, proceedings were initiated under the Revenue Recovery Act to recover the amount due from the petitioner. In regard to challenge regarding Award, this Court is of the view that challenge is unsustainable in as much as that petitioner has chosen to challenge the Award only after 3 years from the date of the issuance of Award. The petitioner's case in this Writ Petition is that, the partnership firm was not impleaded before the Tribunal and no opportunity was given to the petitioner herein to contest the case. It is to be noted that

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W.P.(C).No.5045 of 2007 : 3 :

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Management originally contended that Surendran was the Managing partner, he should be impleaded. Accordingly, he was impleaded. There is no dispute regarding the receipt of notice from the Industrial Tribunal. The real facts in relation with the composition of the Management could have been disclosed before the Tribunal, when an opportunity was given to the petitioner. It is to be noted, a domestic enquiry was conducted and workman has been dismissed pursuant to the domestic enquiry. It is relevant to refer to the finding of paragraph 7 of the impugned order, which reads as follows:

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“ 7. A perusal of the proof-affidavit of the workman and the documents produced by him reveals that the original management-party (hereinafter referred to as the first management) was running the jewellery shop where he was employed as a Salesman and the first management denied him employment. It is further observed from the documents produced by the second management that he retired from the partnership and the above jewellery shop was given to the first management. In fact, the first management has filed the written statement dt.10.2.2003 as if he was the employer of the workman. He himself had also initiated the disciplinary action against the workman and issued the termination order dt.4.1.2002 in his capacity as the proprietor of the jewellery shop.

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W.P.(C).No.5045 of 2007 : 4 :

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It is therefore abundonedly clear that the first management is the real employer of the workman and he is answerable to the claims of the workman.”

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In the light of the facts and circumstances, this Court is

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of the view that there is no merit in the contention of the petitioner. Further, the challenge is made after 3 years of passing the Award. Accordingly, challenge regarding Ext.P1 is found unsustainable.

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In regard to the proceedings initiated under Revenue Recovery Act, this Court is of the view that in the Award, no amount has been quantified. The Award only directed reinstatement with continuance of service and back wages. In that view of the matter, without computing the wages payable and amount due to the workman, the proceedings under Section 33C(1) could not have been initiated. The remedy of the workman is to approach the Labour Court under Section 33C(2) to get the amount due computed. Therefore, this Court is of the view that the Revenue Recovery Proceedings now issued, based on the proceedings initiated under Section 33C(1) is liable to be interfered. Accordingly, Ext.P7 demand is set aside. However,

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W.P.(C).No.5045 of 2007 : 5 :

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it is made clear that workman is at liberty to approach Labour

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Court under Section 33C(2) to compute the amount due to him under the Award.

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The writ petition is disposed of as above. No costs.

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Sd/- A.MUHAMED MUSTAQUE, JUDGE

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[True copy]

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P.A to Judge

Ramanika Jewellery v. the Industrial Tribunal, Palakkad

Case brief

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Ramanika Jewellery v. the Industrial Tribunal, Palakkad

Case brief

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