This Honourable Court set aside the Labour Court order denying back wages to a deceased workman. The Court modified the award to grant back wages calculated at Rs.180/day for 18 months from 5.10.2008 to 9.4.2010, totaling Rs.48,600.
Respondent directed to pay Rs.48,600 as back wages within 2 months, with interest at 9% per annum if not paid.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
MONDAY, THE 14TH DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944
OP(LC) NO. 3828 OF 2011
AGAINST THE ORDER/JUDGMENTID 58/1998 OF LABOUR COURT, ERNAKULAM
PETITIONER/S:
1 SANTHAMMA JOSE, W/O. M.T. JOSE, MATTATHIL HOUSE, INDUSTRIAL NAGAR, CHANGANASSERY.
2 LATHA, D/O. LATE M.T. JOSE, PANITHIKKALAM, MAMPILLY P.O., CHANGANASSERY.
3 LEKHA, D/O. LATE M.T. JOSE, CHENADIL HOUSE, KADAYINIKKAD P.O. 4 JAYAN, S/O. LATE M.T. JOSE, MATTATHIL HOUSE, INDUSTRIAL NAGAR, CHANGANASSERY.
BY ADVS. SRI.JOSEKUTTY MATHEW SRI.PRAFIN JOSEPH ZACHARIA SMT.PRASEENA ELIZABETH JOSEPH
RESPONDENT/S:
1 ANNAMMA ALEXANDER, W/O. LATE ALEXANDER, KOTTAPPURAM HOUSE, CHEERAMCHIRA P.O., CHANGANASSERY - 686101.(DIED MEMO RECORDED) IT IS RECORDED THAT R1DIED AND THE LEGAL HEIRS ARE IN THE PARTY ARRAY AS RESPONDENTS 2 TO 3 VIDE ORDER DATED 21/1/2019 IN MEMO DATED 16/1/2019
2 JOSEPH ALEXANDER, S/O. LATE ALEXANDER, KOTTAPPURAM HOUSE, CHEERAMCHIRA P.O., CHANGANASSERY - 686101.
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4 ANNAMMA JOSEPH, W/O. LATE K.J. ALEXANDER, IYYAKULANGARA HOUSE, KURUSHUMOODU P.O., CHANGANASSERY - 686101. BY ADVS. SRI.S.JAYAKRISHNAN SRI.S.PARAMESWARA PRASAD
THIS OP (LABOUR COURT) HAVING COME UP FOR ADMISSION ON 14.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP(LC) NO. 3828 OF 2011
JUDGMENT
Petitio ners are the legal representatives of the deceased workman, M.T Jose, who unfortunately died on 9.4.2010 after having been successful before the labour court in setting aside the dismissal from service with reinstatement with full back wages.
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33(C)(2) of the Industrial Dispute Act as claim petition No.1 of 2009.
4 . Learned coun sel appearing on behalf of the petitioner workman submitted that the award of the labour court was never assailed either by management or workman. The presiding officer while entertaining the petition, seeking execution of the award, cannot change the tenor and mode of the award particularly, in the manner it has been done. There has been a categoric finding in the award that the salary of the petitioner was Rs.180/- per day and had been discharging the duties for 15 days instead of 7. The back-wages have been denied by misinterpreting the award of the labour court to be without back wages, thus, there is a repugnancy and arbitrariness much less illegality.
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of the labour court in the order dated 3.2.2011, Ext.P2 is wholly justified and is based upon the preponderance of the evidence. There is no ambiguity in the award of the labour court, Ext.P1.
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owner. It is the case of the workman that as per the settlement on 9.4.97 in the presence of the District Collector, it was agreed that the arrears of wages as per the revising wage will be given and according to WWI, he has informed that Rs.180/- will be withdrawn from the funds collected on 17.7.97 and that he has withdrawn wages at this rate from 17.7.97 to 31.7.97. This version of WWI was not challenged during cross examination. WWI has also further stated that as per the Minimum Wages Act during this period. the conductor is entitled to get monthly Rs.29-1-1/- and this is for 26 days duty for 8 hours per day and he was doing duty-for-210 hours during his 15 days of service and that he is entitled to draw Rs 180- per day. This version of WWI was not challenged during his cross examination and it is quite admitted that the workman was entitled to Rs. 180/- per day as his wages. It is to be noted that it is quite admitted that the workman was submitting the daily statement daily to the owner and from 17.7.97 to 31.7.97 he was withdrawing the wages from the amount collected and only on 8.8.97 he was served with suspension order alleging that the amount withdrawn on 17.7.97 as wages of Rs.180/- is unauthorized Though Ext. W10 was issued on 8.8.97. no mention regarding the withdrawal of wages during the subsequent days stated in Ext. W10. If the amount was withdrawn unauthorisedly as alleged in Ext. W10, the owner would not have allowed to continue him to work as conductor on the subsequent days and that fact itself is sufficient to hold that the withdrawal of the amount is only with the consent of the owner. It is to be noted that after denying employment to the workmen from 1.8.97, the management has got an injunction order from the Munsiff's Court. Changanassery restraining the workman from working as a conductor and it is there after he was suspended from service by issuing Ext. W10. Considering all these facts, I find that the management was acting against the workman as a part of victimisation, may be because of his union activities. From the discussions made above, I find that the management has failed to establish that workman is guilty of the alleged charges and that the dismissal of the woman oy the management is liable to be set aside.
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owner. WWI had also stated that the owner was having another bus KL S R.1243 and ut present that bus is conducting service in the name of the owner of the bus who is already impleaded. That being so, it is reasonable to direct the management to reinstate the workman but in the circumstances, without backwages.
In the result, award is passed holding that the dismissal of the workman Sri M.T.Jose. Conductor is unjustifiable and he is entitled to get reinstatement. The management is directed to reinstate the workman with back wages. Award passed accordingly. The award will take effect after one month from the date of pronouncement in the open court. If the workman is not provided employment, he is entitled to back wages from this date on which award takes effect.
It is true that the last paragraph of Ext. Pl award will
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give an impression that the opposite parties are bound to give entire backwages to the petitioner till his reinstatement in service. The last paragraph of Ext. Pl award is as under.-" In the result, award is passed holding that the dismissal of the workman Sri MT Jose, Conductor is unjustifiable and he is entitled to get reinstatement The management is directed to reinstate the workman with back wages. Award passed accordingly. The award will take effect after one month from the date of pronouncement in the open court. If the workman is not provided employment, he is entitled to back wages from this date on which award takes effect" After the exhaustive consideration of the entire facts, circumstances and evidences, it is unequivocally and unambiguously stated in the penultimate paragraph in Ext. Pl award that the management is bound to reinstate the workman without any back wages. The relevant sentence about the same is as under "That being so, it is reasonable to direct the management to reinstate the workman, but in the circumstances, without backwages". After the application of judicial mind to the entire facts, circumstances, pleadings and evidences, my learned predecessor in office made a definite finding in the operative portion of Ext.Pl award to the effect that the workman is entitled for the relief of reinstatement in service only and he is not entitled for backwages. In the above circumstances, the direction given in the last paragraph of Ext. Pl award to the management to give backwages to the workman can be considered only as an inadvertent mistake and it is to be ignored in view of the unequivocal contra finding about the same in the penultimate paragraph of Ext. Pl award. So in view of what has been stated above, it has to be held that the petitioner is not entitled to backwages as per Ext. Pl award. The fact that the workman was reinstated in service and he died on 9.4.2010 is admitted by both sides and is established by evidences and circumstances There is no dispute that Ext. P1 award has become final and conclusive Ext. Pl award has come into force from 5.10.2008. The wages for the period from 5.10.2008 to 9.4.2010 is due to the petitioner The amount so due to the petitioner for a period of 18 months from 5.10.2008 to 9.4.2010 is 18 months x 7 duties = 126 duties x Rs 140/(last drawn daily wage), ie Rs 17,640/- The additional petitioners have no case that the wages due to the petitioner from the opposite parties during that period is more than the aforesaid sum. The additional petitioners 2 to 6 are entitled to realize the aforesaid sum from the assets left behind by the deceased petitioner and inherited by the additional petitioners.
In the result, the claim petition is partly allowed. The opposite parties are directed to pay Rs 17,640/- to the petitioners 2 to 6
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within 3 months from this date, failing which the petitioners are allowed to realize the said sum with interest at the rate of 9% per annum from this date, till realization.
The said findings are also modified. The amount of wages shall be confined for a period of 18 months from 5.10.2008 to 9.4.2010 ie., 18 months x 15, which comes to 270 days ie., Rs.48,600/- (270x180). Thus there shall be an increase of Rs.30,960/-. The award of the labour court is modified and the writ petition is allowed to the aforementioned extent. Respondents are directed to make the payment and back wages to the petitioners within a period of two months from the date of receipt of a copy of this judgment.
SD/-
sab
AMIT RAWAL JUDGE
OP(LC) NO. 3828 OF 2011
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APPENDIX OF OP (LC ) NO.3828 OF 2011
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF AWARD IN I.D NO.58/98 OF LABOUR COURT ERNAKULAM DATED 29.5.2008 Exhibit P2 TRUE COPY OF ORDER IN CLAIM PETITION NO.1/2009 IN I.D NO.58/98 DATED 3.2.2011
RESPONDENT EXHIBITS
R2(a) TRUE COPY OF THE LETTER NO.B4/821/10 DATED 7.10.21010 R2(b) TRUE COPY OF THE IDENTITY CARD ISSUED BY THE KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, KOTTAYAM TO THE 2ND RESPONDENT.
2 issues framed by the court
Whether the order of the Labour Court denying back wages despite award ordering reinstatement with full back wages is sustainable.
Whether the discrepancy in the award between operative findings and relief clause requires modification of the claim petition.
1 provisions across 1 enactments
SAN. TAMMA JOSE AND OTHERS
ANNAMMA ALEXANDER AND OTHERS
AMIT RAWAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
