Partly allowed

Ambili Mol v. N.Indira Ammal

Kerala HC15 Jun 2022WP(C)/28773/2017

Case brief

AI extract

What is this about?

The High Court held that the Labour Court erred in basing back-wages on lower minimum wage rates and failing to award retrenchment compensation despite prior direction. The court modified the award regarding wage calculation and quantification, while remitting the determination of retrenchment compensation to a subordinate authority.

What did the court decide?

The award of the Labour Court was modified to reflect minimum wages of Rs.1500/- from 05.06.1992. Retrenchment compensation quantification was remitted to the Assistant Labour Commissioner/District La

Ambili Mol Vs N.Indira Ammal — 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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WEDNESDAY, THE 15TH DAY OF JUNE 2022 / 25TH JYAISHTA, 1944

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WP(C) NO. 28773 OF 2017

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PETITIONER:

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AMBILI MOL

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D/O.MADHAVAN PILLAI, PATHUPARAMBIL,
THURUTHY, CHANGANASSERY.

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BY ADVS.
AJITH KRISHNAN
T.RAJASEKHARAN NAIR

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RESPONDENTS:

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1 N.INDIRA AMMAL W/O.LATE S.R.NAMBI REDDIAR, SELVI NIVAS, VAZHAPPALLY P.O., CHANGANASSERY. 686103.

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2N.GOPALAKRISHNAN
S/O.LATE NAMBI REDDIAR,
SELVI NIVAS, VAZHAPPALLY P.O.,
CHANGANASSERY. 686103.

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3 N.SURESH

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S/O.LATE NAMBI REDDIAR,
SELVI NIVAS, VAZHAPPALLY P.O.,
CHANGANASSERY. 686103.

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4 V.LAKSHMI

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D/O.LATE NAMBI REDDIAR,
SELVI NIVAS, VAZHAPPALLY P.O.,
CHANGANASSERY. 686103.

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5 USHA

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D/O.LATE NAMBI REDDIAR,
SELVI NIVAS, VAZHAPPALLY P.O.,
CHANGANASSERY. 686103.

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WP(C) NO. 28773 OF 2017

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2

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6SELVI
D/O.LATE NAMBI REDDIAR,
SELVI NIVAS, VAZHAPPALLY P.O.,
CHANGANASSERY. 686103.

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BY ADV SRI.S.SREEKUMAR KOLLAM

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 15.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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WP(C) NO. 28773 OF 2017

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JUDGMENT

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The question involved in the present writ petition preferred by the workman is that whether the award of the Labour Court in allowing the claim of the workman with regard to differentiation of the back-wages confined to 27.06.2005 to November, 2019, without taking into consideration the notification fixing the minimum wages as Rs.1500/- with effect from 15.05.1987, and not assessing the retrenchment compensation is justified in law or not.

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Petitioner had worked as a sales woman in Selvi Aiswarya Silk House, Changanassery with effect from 5/6/1992. In the year 2005, was denied the employment and had taken the grievance before the Industrial Tribunal, Idukki as I.D.39/2005. Labour Court found that the action of the management/employer in denying the employment was illegal and ordered reinstatement with full back-wages by paying a sum of Rs.4,70,383/- with 9% interest. Petitioner approached the Labour Court under Section 33(c)(2) and vide Ext.P2 dated 23.08.2013 ordered the

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WP(C) NO. 28773 OF 2017

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management to pay Rs.4,70,383/- along with 9% interest. Both awards aforementioned were challenged vide W.P. (C).Nos.17254/2010 and W.P.(C).No.15295/2014. Vide common judgment Ext.P3 dated 27.01.2018 matter was remanded back to the Labour Court. In the aforementioned judgment, this Court found that the work-woman was entitled to retrenchment compensation under Section 25F of the ID Act by computing the last drawn pay. The Labour Court vide award dated 26.04.2017 Ext.P5 passed the following order:

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“15. True that it has been observed by the Hon'ble High Court of Kerala in WP(C) No 15295/2014 that the employee also be entitled to retrenchment compensation under section 25 F of the ID Act as on the said date, computing the last drawn pay as computed under the Minimum Wages Act. But it is to be noted that no such claim is seen advanced by the petitioner in the present claim petition in question. If that be so, I need not labour much to compute that benefit due to the petitioner at this point of time.

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Now from the facts and circumstances herein above stated and from the appreciation of the materials on record, it is clear that being the differential wages, arrears of back wages and being the arrears of bonus, the petitioner is entitled to get a sum of Rs.87,732, Rs.1,63,477/- and Rs.30,150/ respectively and that she is entitled to realize the

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WP(C) NO. 28773 OF 2017

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same from the assets left behind by the first management for the enjoyment of his legal heirs. Now what remains is to pass an order accordingly.

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In the result, an order is passed holding that the petitioner is entitled to get a total sum of 2,81,359/(Rs.87,732- towards differential wages, Rs.1,63,477/towards back wages and Rs.30,150/- bonus) from the 1st opposite party and that the petitioner is allowed to realize the same as against such assets which the individual first opposite party left behind for his legal heirs to enjoy.”

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The contention of learned counsel for the petitioner is that the Labour Court erred in not taking the notification though which was not placed on record but was in vogue, fixing the minimum wages as Rs.15,00/- with effect from 1987 and the claim of the back wages at the rate of Rs.1500/- was with effect from 05.06.1992 to 27.06.2005 whereas the Labour Court had determined the claim by taking the minimum wages at Rs.650/and taken Rs.1500/- only after 27.06.2005 which is totally unsustainable. Even the inspection note of the Assistant Labour Commissioner dated 15.03.2005 would reveal that the minimum wages in the year 1992 was Rs.1500/- per month, but denied the other claim of retrenchment benefit on the ground that no such

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WP(C) NO. 28773 OF 2017

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claim was made in the present petition. It is contended that once this Court had determined the controversy with regard to entitlement of retrenchment compensation the Labour Court could have granted the same as there was no challenge by the management. Petitioner was not gainfully employed during all the period as she was out of service. It is next pointed out that during the pendency of the matter before the Labour Court the principal employer namely Nampi Reddiar died and his legal heirs were brought on record as evidenced from the award Ext.P5.

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Counsel appearing for one of the legal heirs submitted that if it all this Court is inclined to accept the plea of the petitioner with regard to the differentiation in the wages as well as the retrenchment compensation, the liability as per the award of the labour court should be confined to the estate of the individual ie., employer and not of all legal heirs in view of the fact that there is an amendment in Section 8 of the Hindu Succession Act with effect from 05.05.2005 and urged this Court for dismissal of this writ petition.

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I have heard the learned counsel for the parties and

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WP(C) NO. 28773 OF 2017

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appraised the paper book and am of the view that the award of the Labour Court is liable to be modified to the extent it had committed illegality in not appreciating the fact by noticing the report of the Assistant Labour Commissioner dated 15.03.2015 reflecting the minimum wages as Rs.1500/- de hor of the fact that the petitioner had not placed on record the notification prescribing the minimum wages of Rs.1500 with effect from 1987. Quantification done by the Labour Court by determining the minimum wages at the rate of Rs.650/- with effect from 5.06.1992 to 27.06.2005 in my view is liable to be set aside. It will be construed to be minimum wages as Rs.1500. Award of the Labour Court to the aforementioned extent stands modified.

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This Court while exercising the power under Article 226

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of the Constitution of India cannot assume the role of an executing court in determining the amount of retrenchment compensation which, in my view, the petitioner is entitled to in view of the findings recorded by this Court while remitting the matter to the labour court. It would be apt to reproduce the relevant portion of the finding of this Court:

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WP(C) NO. 28773 OF 2017

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“The employee would also be entitled to retrenchment compensation under Section 25F of the ID Act as on the said date Computing the last drawn pay as that computed under the MW Act.”

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Thus, I hold that the award of the labour Court in not awarding the retrenchment compensation merely on the ground that it was not pleaded is wholly unsustainable and is hereby set aside. Award of the labour court to the aforementioned extent stands modified.

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Since this Court cannot do the exercise of quantification, I relegate the parties to appear before the Assistant Labour Commissioner where they will file the account statement reflecting the entitlement of back-wages along with an affidavit that during all the period the petitioner was not gainfully employed. The said affidavit shall be put to the all the legal heirs of the employer by issuing notice to them since only one of the legal heirs is represented in this Court. After arriving at a finding as to whether the petitioner was gainfully employed or not, shall determine the compensation. In other words, in case it is found that the petitioner was gainfully employed then there shall be no order of

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WP(C) NO. 28773 OF 2017

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quantification of retrenchment compensation. The difference of the wages as determined by this Court shall be restricted to the estate of the individual as per the findings of the Labour Court. It is clarified that the direction in the penultimate paragraph of the Labour Court with regard to realising the dues from the estate of the legal heirs remains in tact. The labour court had awarded the interest on the differential wage at the rate 9% which in my view is on a higher side, accordingly the same is reduced to 6.5%.

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Writ petition is disposed of. Parties are directed to appear before the Assistant Labour Commissioner on 13.07.2022. Let this exercise be undertaken within a period of four months.

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AMIT RAWAL JUDGE

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nak

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WP(C) NO. 28773 OF 2017

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The words “Assistant Labour Commissioner” occurring in pages 8 and 9 under paragraph 7 of the judgment dated 15/06/2022 in WP(C) 28773/2017 is corrected and substituted with the words “District Labour Officer, office of the District Labour Office, Collectorate, Kottayam” as per order dated 24/08/2022 in IA No.2/2022 in WP(C)28773/2017

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Sd/-

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Joint Registrar

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WP(C) NO. 28773 OF 2017

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APPENDIX OF WP(C) 28773/2017

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PETITIONER EXHIBITS

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EXHIBIT P1-TRUE COPY OF THE AWARD DATED 08/07/2009
IN I.D.NO.39/2005.

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EXHIBIT P2-TRUE COPY OF THE ORDER DATED 23/08/2013
IN CLAIM PETITION NO.52/2009 OF LABOUR
COURT, ERNAKULAM.

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EXHIBIT P3-TRUE COPY OF THE COMMON JUDGMENT IN W.P.
(C)NO.17254/2010 AND 15295/2014 DATED
02/01/2015.

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EXHIBIT P4-TRUE COPY OF THE JUDGMENT DATED
03/11/2016 IN W.A.NO.977/2015.

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EXHIBIT P5-TRUE COPY OF THE ORDER DATED 26/04/2017
IN C.P.NO.52/2009.

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EXHIBIT P6-TRUE COPY OF THE NOTIFICATION SRO
NO.732/87 DATED 15/05/1987.

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EXHIBIT P7TRUE COPY OF THE RELEVANT PAGE OF ENGLISH
TRANSLATION OF EXT.P6

Ambili Mol v. N.Indira Ammal

Case brief

What is this about?

What did the court decide?

Ambili Mol v. N.Indira Ammal

Case brief

What is this about?

What did the court decide?

What the court decided

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