Partly allowed

Standard Tile & Clay Works (P) Ltd. v. Sri.Raghavan.K.

Kerala HC1 Apr 2022OP(LC)/1148/2013

Case brief

AI extract

What is this about?

The Court modified a Labour Court award granting reinstatement and back wages. It held that the workman is not entitled to back wages for the period between termination and reinstatement due to unauthorized absence, as no pleading regarding employment existed. The period was also excluded for calculating continuity of service. Writ petition allowed.

What did the court decide?

Back wages from 01.03.2005 to 17.04.2014 disallowed and period excluded for continuity of service computation. Accounts to be reconciled within three months.

Standard Tile & Clay Works (P) Ltd. Vs… — Labour and Industrial Disputes | Kerala HC (2022)

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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 AMIT RAWAL

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FRIDAY, THE 1ST DAY OF APRIL 2022 / 11TH CHAITHRA, 1944
OP(LC) NO. 1148 OF 2013

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AGAINST THE ORDER/JUDGMENT IN ID 11/2012 OF LABOUR COURT, KOZHIKODE

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PETITIONER:

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STANDARD TILE & CLAY WORKS (P) LTD.,
FEROKE P.O., KOZHIKODE-673 631,
REPRESENTED BY ITS MANAGING DIRECTOR.

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BY ADVS.
SHRI.JAWAHAR JOSE
SRI.P.S.MURALI

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RESPONDENTS:

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1SRI.RAGHAVAN.K.,
KAZHUNGATHODAN HOUSE,
KARUVANTHURUTHI P.O.,
KOZHIKODE-673 643.

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2 THE LABOUR COURT, KOZHIKODE-673 001.

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BY ADV SRI.NIRMAL. S
 SRI JUSTIN JACOB, SR. GP

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THIS OP (LABOUR COURT) HAVING COME UP FOR ADMISSION ON
01.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(LC) NO. 1148 OF 2013 -2-

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JUDGMENT

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The present Original Petition has been filed by the management against the award of the Labour Court dated 21.08.2012 rendered in I.D.No.11 of 2012 preferred by the workman respondent challenging the termination with effect from 01.03.2005 without following the procedure or domestic enquiry resulting into reinstatement and entitlement of entire back wages.

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Respondent workman while in the employment had suffered an injury on 11.03.2002 and requested the management to assign in a lighter work. He was temporarily disabled from 10.03.2002 to 11.09.2002 and was under a certified absentation for claiming the benefits under the medical benefits had also approached ESI Court for the period 25.10.2002 to 23.07.2003, 0108.2003 to 04-08-2003 and 09.08.2003 to 19.09.2003. The ESI Court vide award dated 05.02.2009 granted the sickness benefit to the workman with effect from 13.09.2002. On the allegation that the petitioner

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management erroneously terminated the service of the workman when the communication dated 20.11.2008 was received though termination was only with effect from 01.03.2005 respondent workman preferred the claim petition before the Labour Court.

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Management contested the aforementioned claim petition and stated that the management had not withheld any benefit legally entitled to the workman and was ready to disburse the benefit eligible under the law and acknowledge the certified absentation for the period referred to above. The TDB was also disbursed to the workman. But the workman did not report for the duty and when remained absent, a notice dated 22.11.2005, was sent by the management in response to that the workman gave the reply and M7. Labour Court on the basis of the evidence brought on record found that the termination of workman was not preceded by any domestic enquiry, therefore, there was a violation of settled positions of law, the termination is unjustifiable

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and issued direction to the management to reinstate the workman within a period of thirty (30) days and also entitlement of back wages at the rate not less than the minimum wages with effect from 01.03.2005 till reinstatement along with the attenuated benefits.

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The aforementioned award was stayed by this Court on 25.03.2013 but despite that he was permitted to join the management on 17.04.2014 and superannuated on 31.12.2014. The claim before the controlling authority under the Payment of Gratuity Act was also preferred wherein the controlling authority granted the benefit of the gratuity along with the consequential benefits to the workman having been considered as in service. But the Labour Court failed to take into consideration the fact that the workman faulted in not making the specific pleadings in the claim petition or in the affidavit with regard to his gainful employment during the period he remained out of service. The position of law on the aforementioned issue is no longer

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res integra as held by the Supreme Court in Pradeep Vs. Manganese Ore (India) Limited & Others in Civil Appeal No.7607/2021 decided on 10.12.2021 and Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Others. (2013) 10 SCC 324 and General Manager, Electrical Rengali Hydro Electric Project, Orissa and Others Vs. Giridhari Sahu and Others (2019) 10 SCC 695. If this contention is accepted, then there has to be a variation in the continuity of service with the aforementioned period when workman remained absent till the joining and would have an impact on the order of the controlling authority under the Payment of Gratuity Act.

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On the other hand, learned counsel appearing on behalf of the workman submitted that the workman had replied vide M7 that the matter was pending before the ESI Court and therefore there was no question of reporting on duty as on account of the injury and disability. Even if there is no averments with regard to

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the gainful employment, the attenuating circumstances

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can always be looked into. In the proceedings before the controlling authority for payment of the gratuity, the Management did not produce any interim order resulted into ordering the gratuity while taking into consideration the period of unauthorized abstention. That cannot be now set aside and urged this Court for dismissal of the writ petition.

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I have heard learned counsel for the parties and appraised the paper books.

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The respondent workman had sustained the injury while in employment on 11.03.2002 and had remained for certified absentation for the period aforementioned, which has been acknowledged by the ESI Court in the verdict dated 05.02.2009. The question which is required to be adjudicated by this Court is “Whether the workman in the absence of the pleadings in the claim petition or evidence in the affidavit or for the Labour Court regarding the gainful employment for the

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period he worked, illegally and erroneously terminated is entitled for the back wages.” The answer to the aforementioned question would be negative in view of the authoritative judgments referred to above wherein after noticing the position of law it has been consistently held that if the workmen failed to plead or state the evidence regarding on non-employment/back wages cannot be granted. The aforementioned observation of mine is derived on looking at the claim petition supplied to the court during the course of the argument.

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The employees evidence and pleading has not been looked into by the Labour Court for determination of the back wages. The order per se is perverse and suffers from a material irregularities, this Court while exercising the power of judicial view under Article 227 of the Constitution of India can always interfere for bringing the matter to a logical conclusion.

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During the pendency of the writ petition an application was also moved for stay of the recovery

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OP(LC) NO. 1148 OF 2013 -8-

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proceedings initiated as a fallout of the order passed by the controlling authority under the Payment of Gratuity Act and this Court in interim application No.1/2021, did not stay proceedings as the remedy for the management was to prefer an appeal. Be that as it may, the award of the Labour Court in view of the findings rendered herein above as well as the settled position of law vis-a-vis the back wages cannot be permitted to sustain and hereby modified. The period of termination from 01.03.2005 till the joining of the workman on 17.04.2014, the workman would not be entitled to the back wages and the aforementioned period would be also excluded for the purpose of getting other benefits under the expression 'continuity of service'. Writ petition stands allowed in the aforementioned observations.

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At this stage Mr.Jawahar Jose submits that the back wages had already been disbursed to the workman and gratuity has been paid upto 01.03.2005 but of the balance period in terms of the award of the Labour Court

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is yet to be paid. Management is at liberty to deduct the amount of back wages from the outstanding dues of the gratuity as being claimed by the workman and reconcile the accounts and in case anything else is to be paid, should be paid; otherwise will be at liberty to recover from the workman in accordance with law. Let this exercise be undertaken within a period of three months from the date of receipt of a certified copy of the judgment.

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Sd/- AMIT RAWAL JUDGE

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vv

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OP(LC) NO. 1148 OF 2013 -10-

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APPENDIX OF OP(LC) 1148/2013

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PETITIONER EXHIBITS

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EXHIBIT P1COPY OF THE NOTICE DTD.22.11.2005.
EXHIBIT P2COPY OF THE STANDING ORDERS.
EXHIBIT P3COPY OF LETTER DTD.6.10.2008.
EXHIBIT P4COPY OF ORDER DTD.17.9.09.
EXHIBIT P5COPY OF AWARD DTD.21.8.2012.

Standard Tile & Clay Works (P) Ltd. v. Sri.Raghavan.K.

Case brief

What is this about?

What did the court decide?

Standard Tile & Clay Works (P) Ltd. v. Sri.Raghavan.K.

Case brief

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What did the court decide?

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