Dismissed

S.Ramachandran Nair v. the State of Kerala

Kerala HC10 Jul 2024WP(C)/14902/2019

Case brief

AI extract

What is this about?

Employer's writ appeal against reinstatement with full back wages awarded to a dismissed workman failed; in the companion writ petition, the court quashed the order relegating the workman to civil decree execution and directed issuance of a certificate for recovery as arrears of land revenue.

What did the court decide?

Writ appeal dismissed; Ext.P5 quashed; District Labour Officer directed to issue certificate to District Collector for recovery as arrears of land revenue.

*S.Ramachandran Nair* Vs the State of Kerala — Labour and Industrial Disputes | Kerala HC (2024)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶4

¶5

THE HONOURABLE MR. JUSTICE EASWARAN S.

¶6

WEDNESDAY, THE 10TH DAY OF JULY 2024 / 19TH ASHADHA,
1946

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WA NO. 2291 OF 2018

¶8

AGAINST THE JUDGMENT DATED 8.6.2018 IN WP(C) NO.14765 OF
2006 OF HIGH COURT OF KERALA

¶9

APPELLANT/PETITIONER IN W.P.(C) :

¶10

ALUMINIUM INDUSTRIES LTD., KAVINPURAM,
VILAPPILSALA, TRIVANDRUM- 695 573
REPRESENTED BY AN AUTHORISED SIGNATORY
BY ADVS. M.GOPIKRISHNAN NAMBIAR
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
SRI.PAULOSE C. ABRAHAM
SRI.JAI MOHAN

¶11

RESPONDENTS/RESPONDENTS IN W.P.(C) :

¶12

1SECRETARY, ALIND RELAYS EMPLOYEES UNION,
KAVINPURAM, VILAPPILSALA,
 THIRUVANANTHAPURAM- 695 573

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2 THE LABOUR COURT, KOLLAM-691 013

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ADDL.R3 IMPLEADED

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3

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S.RAMACHANDRAN NAIR, S/O. LATE SADASIVAN NAIR,
'KARTHIKA' , KOLLAMKONAM,PEYAD P.O.,
THIRUVANANTHAPURAM-695573. ** DECEASED

¶17

 IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 20.11.2019
IN I.A.1/2019 IN WA 2291/2018.

¶18

4 * ADDL.R4:

W.A. No.2291 of 2018

W.P.(C) No.14902 of 2019

¶23

USHA B S, W/O LATE S RAMACHANDRAN NAIR,
RESIDING AT KARTHIKA, KOLLAMKONAM, PEYAD PO,
THIRUVANANTHAPURAM -695573

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5*ADDL R5:

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VISHNU R, S/O LATE S. RAMAACHANDRAN NAIR,
PRESENTLY RESIDING AT FLAT 3D, BHAVANI APARTMENTS
KOLLAMKUDIMUGAL ROAD, THRIKKAKKARA PO ,PIN-682021,
KERALA

¶26

6*ADDL R6:
KARTHIKA UR, D/O LATE S RAMACHANDRAN NAIR,
RESIDING AT KARHIKA, KOLLAMKONAM, PEYAD PO,
THIRUVANANTHAPURAM -695573.

¶27

 *ARE IMPLEADED AS ADDL R4 TO ADDL R6 AS LEGAL
REPRESENTATIVES OF DECEASED ADDL R3 AS PER ORDER DTD
23/5/24 IN IA 1/24 IN WA 2291/18.
BY ADV GOVERNMENT PLEADER

¶28

SR GP SRI T K VIPINDAS

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
10.07.2024, ALONG WITH WP(C).14902/2019, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:

¶30

W.A. No.2291 of 2018 & W.P.(C) No.14902 of 2019

¶31

¶32

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶35

¶36

THE HONOURABLE MR. JUSTICE EASWARAN S.

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WEDNESDAY, THE 10TH DAY OF JULY 2024 / 19TH ASHADHA, 1946

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WP(C) NO. 14902 OF 2019

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PETITIONER/S:

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1S.RAMACHANDRAN NAIR AGED 65 YEARS
S/O. LATE SADASIVAN NAIR,
RESIDING AT KARTHIKA, KOLLAMKONAM,
PEYAD POST, THIRUVANANTHAPURAM DISTRICT-695573.

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2ADDL.P2.
USHA B S, W/O LATE S RAMACHANDRAN NAIR,
 KARTHIKA, KOLLAMKONAM, PEYAD PO,
 THIRUVANANTHAPURAM, PIN-695573
3ADDL.P3.
VISHNU R, S/O LATE S. RAMAACHANDRAN NAIR,
KARTHIKA, KOLLAMKONAM, PEYAD PO,
 THIRUVANANTHAPURAM, PIN -695573
PRESENTLY RESIDING AT FLAT 3D, BHAVANI APARTMENTS
KOLLAMKUDIMUGAL ROAD, THRIKKAKKARA PO ,PIN-682021,
KERALA
4ADDL.P4.
 KARTHIKA UR, D/O LATE S RAMACHANDRAN NAIR,
 KARHIKA, KOLLAMKONAM, PEYAD PO,
THIRUVANANTHAPURAM -695573

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*ADDL. P2 TO P4 ARE IMPLEADED AS PER ORDER DATED
10.7.2024 IN IA.NO.1 OF 2022
BY ADVS. G.P.SHINOD
SRI.RAM MOHAN.G.
SRI.GOVIND PADMANAABHAN
SHRI.AJIT G ANJARLEKAR
ATUL MATHEWS

W.A. No.2291 of 2018

W.P.(C) No.14902 of 2019

¶47

RESPONDENT/S:

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1 THE STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, LABOUR DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE LABOUR COMMISSIONER, LABOUR COMMISSIONERATE, GOVERNMENT OF KERALA, THOZHIL BHAVAN, VIKAS BHAVAN POST, THIRUVANANTHAPURAM DISTRICT-695033.

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3 THE DISTRICT LABOUR OFFICER, DISTRICT LABOUR OFFICE, THOZHIL BHAVAN, VIKAS BHAVAN POST, THIRUVANANTHAPURAM DISTRICT-695033.

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4 THE ALUMINUM INDISTRIES LTD KAVINPURAM, VILLAPPILSALA, THIRUVANANTHAPURAM DISTRICT-695573. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.T.K. VIPINDAS, SR.GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 10.07.2024, ALONG WITH WA.2291/2018 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. No.2291 of 2018 & W.P.(C) No.14902 of 2019

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¶55

AMIT RAWAL & EASWARAN S., JJ.

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W.A. No.2291 of 2018

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¶58

W.P.(C) No.14902 of 2019

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Dated this the 10th day of July, 2024

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JUDGMENT

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AMIT RAWAL, J.

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This order of us shall dispose of two matters, W.A. No.2291

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of 2018 preferred against the judgment of the Single Bench

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dated 8.6.2018 in W.P(C) No.14765 of 2006, whereby, the

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challenge to the award of the Labour Court was not found in favour of the appellant, and W.P(C) No.14902 of 2019 preferred

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by the Legal Representatives of the workman late S.Ramachandran Nair, challenging the order Ext.P5 dated 23.3.2019, whereby, the Labour Court, in a proceedings initiated

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under Section 33-C(2), permitted the workman to execute the order dated 21.8.2010 as a decree of court instead of resorting

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to the Revenue Recovery Act.

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W.P.(C) No.14902 of 2019

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During the pendency of the proceedings, Sri.Ramachandran Nair passed away and his legal

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representatives are impleaded as additional respondents in Writ

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Appeal No.2291 of 2018. Sri. Ramachandran Nair was an employee of the Aluminium Industries Limited, the appellant in Writ Appeal No.2291 0f 2018 (hereinafter called, ‘the employer’). On 21.1.1996, the employee was served with memo of charges Ext.P1 for having been misbehaved disobedient and impolite with the superiors. On 29.1.1996 on receipt of the aforementioned memo, alleged to have tored into pieces and beaten up the person who served the memo. Noticing the aforementioned incident, the second memo dated 2.2.1996 was served. Dissatisfied with the reply, the employer appointed the enquiry officer, culminated in disciplinary proceedings whereby he was ordered to be dismissed from service.

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The enquiry proceedings were challenged before the

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Labour Court. The Labour Court passed a preliminary award

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W.A. No.2291 of 2018 & 7 W.P.(C) No.14902 of 2019

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dated 23.3.2005 by rendering the finding that there was violation of Principles of Natural justice and granted opportunity

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to the parties to lead fresh evidence.

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Before the Labour Court, management examined two

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witnesses MW1, Siyad Rehman and MW2 Sreelatha, the Chief Executive Officer whereas the workman examined two witnesses besides himself, as WW1 Gopinatha Pillai and WW2 Kumaran Nair. On the examination of the aforementioned evidence, the Labour Court set aside the disciplinary proceedings and ordered for reinstatement in service with full back wages. It is pertinent

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to mention here that additional evidence was also placed on record regarding the submission of the complaint to the police by both parties which ultimately led to a settlement. The Labour Court, on analysis of the evidence ordered for reinstatement with full back wages. The said order was assailed before the learned Single Bench.

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It is pertinent to mention here the preliminary award

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W.A. No.2291 of 2018 & 8

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W.P.(C) No.14902 of 2019

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Ext.P5 was also challenged by the management in W.P.C No.10684 of 2007. Both the Writ Petitions have been dismissed

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by the learned Single Judge noticing the fact that the finding of

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fact and law arrived by the Labour Court do not suffer from any illegality or perversity, misdirection or erroneous misleading. It is in this manner Writ Appeal has been filed.

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The execution of the award is provided under Section

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33(C)(2) of the Industrial Disputes Act. The aforementioned remedy was availed by the workman which led to an order dated 2.8.2008 quantifying the amount. When the workman submitted

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an application for initiating the recovery under the Revenue Recovery Act, vide Ext.P5 in Writ Petition No.14902 of 2019 the District Labour Officer passed an order whereby the workman was relegated to seek the execution of the award passed under Section 32 as a civil court decree. It is in this circumstance, W.P(C)No.14902 of 2019 has been filed.

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Sri.Jai Mohan, the learned counsel appearing on behalf

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W.A. No.2291 of 2018 & W.P.(C) No.14902 of 2019

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of the appellant, employer, submitted that the learned Single

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Bench failed to refer to the testimonies of the witnesses as there was stark contradiction in the statement of workman and as well as the other witnesses. Both WW1 and WW2 did not witness the incident but only found the workman with his shirt torn when he came outside the room of the Divisional Executive Officer MW2 Sreelatha. Adverse inference could not have been drawn for non examination of MW2 Sreelatha for Siyad Rehman MW1 was consistent with regard to the incident referred to in the memo dated 21.1.1996 and as well as 2.1.1996. The workman superannuated in April 2013 and thereafter unfortunately died and therefore the question of reinstatement into the service would not arise except monetary compensation to the legal representatives. Thus the Single Bench ought to have allowed the petition instead of ordering the execution of the decree in terms of the order dated 2.8.2008 passed under the provisions

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of Section 33(C)(2) of the Industrial Disputes Act, 1947.

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W.A. No.2291 of 2018 & 10 W.P.(C) No.14902 of 2019

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On the other hand, Sri.Ajith G. Anjarlekar, learned

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counsel appearing on behalf the employee submitted that the labour officer persuaded the amendment caused in Sub-section 9

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to 11 of the Industrial Disputes Act introduced in 2010 and laid

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down the execution of the award as a civil court decree, however did not examine the provisions of Sub-section 1 of Section 33C which empowers the competent authority to issue certificate and

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that certificate is considered as a decree to be executed as arrears of land revenue, thus the authority could not have confined it to the provisions of Subsection 9 of section 11 of the Industrial Disputes Act and therefore there is an abdication.

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We have heard the learned counsel for the parties and appraise the paper books and of the view that there is no force

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or merit in the contention of Sri.Jai Mohan viz a viz the findings of the Single Bench dated 8.6.2018 challenged in the Writ Appeal

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No.2291 of 2018 for, it is settled law that the testimony of the witnesses cannot be re-appreciated until and unless there is a

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W.A. No.2291 of 2018 & 11

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W.P.(C) No.14902 of 2019

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complete misdirection, misinterpretation and erroneous

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appreciation. The star witness of the management MW2, where the alleged incident had occurred in her room has not been examined. The contradiction tried to be projected amongst the testimonies of WW1 and WW2, and WW3 that they were outside the room and did not witness the incident would pale into insignificance. The solitary statement of Siyad Rehman could not have been looked into as compared to the testimonies of two other independent witnesses. As a matter of record the complaint and cross complaint reported of an incident to the police on 29.6.1996 and the injuries on the person or the workman, but the matter was settled, thus, there was some incident had taken place and therefore the management cannot

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be permitted to draw a premium out of that. Moreover, the preliminary award has also attained finality where it was found that the enquiry was done in a secretive manner as there was

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complete violation of the Principles of Natural Justice. All theses

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W.A. No.2291 of 2018 & 12

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W.P.(C) No.14902 of 2019

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points if looked in cumulative leads to the conclusion that management failed to prove the charges, rightly so, have been

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upheld by the Single Bench, we, thus do not find any wrong or illegality in the findings of the Single Bench, accordingly, writ appeal stands dismissed.

¶115

As far as claim with regard to Ext.P5 in the writ petition is concerned, it is appropriate to extract the provisions of Subsection 9 of Section 11 and subsection 1 of Section 33C.

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11. Procedure and powers of conciliation officers,

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Board, courts and Tribunals and National Tribunals .

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xxx

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(9) Every award made, order issued or settlement arrived at

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by or before Labour Court or Tribunal or National Tribunal

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shall be executed in accordance with the procedure laid down

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for execution of orders and decree of a Civil Court under

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Order 21 of the Code of Civil Procedure, 1908 (5 of 1908).

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W.A. No.2291 of 2018 &

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W.P.(C) No.14902 of 2019

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33.C. Recovery of money due from an employer

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(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of [Chapter VA or or Chapter VB] the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman,

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his assignee or heirs may, without prejudice to any other of mode of recovery, make an application to the appropriate government for the recovery of the money due to him, and if the appropriate government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the

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same manner as an arrear of land revenue:

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PROVIDED that every such application shall be made within one year from the date on which the money became due to the workman from the employer.

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PROVIDED FURTHER that any such application may be entertained after the expiry of the said period of one year, if the appropriate government is satisfied that the applicant had sufficient cause for not making the application within the said period.

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Sub-section 9 of Section 11 was introduced by Act 24

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of 2010 dated 18-8-2010 w.e.f 15.9.2010. The order under

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W.A. No.2291 of 2018 & 14

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W.P.(C) No.14902 of 2019

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33(C)(2) was passed on 2.8.2010 when there was no

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amendment. It is pertinent to note that when the amendment

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was introduced by the parliament by Act 24 of 2010 it was within

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its domain to have brought consequent amendment to Section

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33C of the Act. Despite this it chose not to make any such incorporation to the said provision. Therefore it is presumed that

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the said amendment is not intended to apply to the award

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passed under Section 33 C of the Act. Even assuming that the amendment would apply to such an award, it can only mean that the workman had dual remedies available to him. He could either

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decide to execute the award as a decree of the civil court or adopt the method provided under Sub-section 1 of Section 33 C. In such circumstances the provisions of Subsection 1 of

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Section 33C was required to be taken into consideration for implementation of the award by issuing a certificate and seek

¶146

recovery treating it as a decree for recovery under the

¶147

provisions of the Act. Accordingly Ext.P5 is quashed. In

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W.A. No.2291 of 2018 & 15 W.P.(C) No.14902 of 2019

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pursuance to the award of the Labour Court under Section 33(c)

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(2) dated 2.8.2010, the Labour Officer is directed to issue

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certificate in terms of the award which shall be executable in

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accordance with the provisions of law. The 3rd respondent is

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directed to issue certificate to the District Collector and the

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collector will be empowered to recover the amount as arrears of

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land revenue.

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W.A. No.2291/2018 stands dismissed and W.P(C).

¶157

No.14902/2019 stands disposed off.

Sd/-

AMIT RAWAL

JUDGE

Sd/-

EASWARAN S. JUDGE

¶163

¶164

W.A. No.2291 of 2018 & W.P.(C) No.14902 of 2019

¶165

¶166

APPENDIX OF WP(C) 14902/2019

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PETITIONER EXHIBITS

¶168

`EXHIBIT`	`P1` `A TRUE COPY` `NO.14765 OF`	`OF THE JUDGMENT DATED 08.06.2018 IN WPC` `2006 OF THIS HONOURABLE COURT.`
`EXHIBIT`	`P2` `A TRUE COPY` `NO.10684 OF`	`OF THE JUDGMENT DATED 08.06.2018 IN WPC` `2009 OF THIS HONOURABLE COURT`
`EXHIBIT`	`P3` `A TRUE COPY` `SUBMITTED BY` `RESPONDENT.`	`OF THE PETITION DATED 14.09.2018` `THE PETITIONER BEFORE THE 3RD`
`EXHIBIT`	`P4` `A TRUE COPY` `ISSUED BY TH`	`OF THE COMMUNICATION DATED 30.01.2019` `E 3RD RESPONDENT TO THE PETITIONER.`
`EXHIBIT`	`P5` `A TRUE COPY` `ISSUED BY TH`	`OF THE COMMUNICATION DATED 23.03.2019` `E 3RD RESPONDENT TO THE PETITIONER.`

S.Ramachandran Nair v. the State of Kerala

Case brief

What is this about?

What did the court decide?

S.Ramachandran Nair v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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