V.VASANTHASENAN v. A.NISAMUDEEN & Ors.

HARUN-UL-RASHID, J.=================W.P.(c). NO. 11201 of 2010=================Dated this the 7th day of November 2012JUDGMENTThe writ petition is filed seeking to quash Ext.P6award to the extent it denies back wages to the petitionerwith 12% interest and other service benefits for the periodfrom 25-5-1998 to 31-12-2001 and for a declaration thatthe petitioner is entitled to get full back wages with 12%interest including all service benefits during the period from25-5-1998 to 31-12-2001.2. The petitioner, worked as a Roaster in the 1strespondent establishment from 1957. His service wasterminated as per order dated 15-10-1998 w.e.f. 25-5-1998accepting an enquiry report finding him guilty of threecharges levelled against him by the management.Subsequently, the Government referred the matter to theLabour Court under Section 10 (1)(c) of the IndustrialDisputes Act. In the Industrial Dispute, the Labour Courtpassed a preliminary award on 7-2-2005 setting aside theenquiry report. On 23-3-2005 the Labour Court passed final W.P.(c). NO. 11201/2010-2-award directing reinstatement of the petitioner with 50%back wages. Subsequently, in C.M.P.No. 126/2005 filed bythe workman the Labour Court modified the award anddirected payment of full back wages to the petitioner from25-5-1998 to 31-12-2001, the date on which the petitionerattained age of superannuation, as if he continued in service.Ext. P1 is copy of the order passed by the Labour Court inC.M.P. No. 126/2005 in I.D.59/1999.3. Based on the award passed by the Labour Courtthe petitioner filed a Claim Petition No. 27/2007 underSection 33 (c) (2) of the Industrial Disputes Act. The LabourCourt allowed the Claim Petition and directed the 1strespondent herein to pay the amount specified therein to thepetitioner within one month, failing which the petitioner isentitled to realise that amount with interest at the rate of 9%per annum from 7-4-2006 till realisation and his claim forgratuity was left open to be decided before the appropriateForum.4. Both sides challenged Ext.P2 order before thisCourt. This Court by Ext.P3 judgment disposed of the writ W.P.(c). NO. 11201/2010-3-petitions directing to restore I.D.No. 59/1999 on the file ofthe Labour Court, Kollam, if paid costs and permitted themanagement to proceed on the basis of the written statementalready filed and contest the proceedings from the stageavailable on 7-2-2005 from the date of Ext.P3 judgment.This court also directed the Labour Court to pass a revisedaward within six months from the date of receipt of a copy ofthe judgment. Pursuant to the direction issued by this Court,the matter was again considered by the Labour Court andpassed Ext. P6 award dated 29-1-2010. In the claimstatement filed by the workman he setforth his claim forre-instatement in service with all benefits and he pleaded thathe is entitled to get full back wages in case of a finding thathis dismissal was illegal. 5. The Labour Court considered the question as towhether the management has succeeded in establishing thecharges levelled against the workman in the charge memodated 23-5-1998 and as to whether the dismissal of theworkman was legal and proper? After appreciating theevidence on record, the Labour Court held that the W.P.(c). NO. 11201/2010-4-management has not succeeded in establishing the chargeslevelled against the workman in the charge memo dated23-5-1998. In the circumstance, the Labour Court held thatthe dismissal of the workman as per order dated 15-10-1998was not legal and proper.6. The workman was dismissed from service asper order dated 15-10-1998 w.e.f. 25-5-1998 . The workmanattained the age of superannuation on 31-12-2001. TheLabour Court considered the matter and passed award on29-1-2010. Long before Ext. P6 order the workman attainedthe age of superannuation. The Labour Court found that theworkman is not entitled to get back wages till the age ofsuperannuation. It is further held that his dismissal as perorder dated 15-10-1998 was not legal and proper. Hisdismissal from service is set aside, held that the workman isdeemed to have been in service till 31-12-2001 and that heis entitled to all retirement benefits treating that he wassuperannuated on 31-12-2001 while continuing in service. 7. After recording such finding, the Labour Courtexamined the question as to whether the workman is entitled W.P.(c). NO. 11201/2010-5-to get back wages. The Labour Court, after examining thecontention of the parties held that though the dismissal of theworkman as per order dated 15-12-1998 was unjustifiable, inthe absence of a case to him that he was unemployed or notgainfully employed thereafter, he is not entitled to get backwages. 8. This writ petition was filed challenging theaward passed by the Labour Court to the extend it deniesback wages to the workman for the period from 25-5-1998 to31-12-2001.9. The main reason stated for declining the reliefof the claim for back wages is that the workman did not havea case in the claim statement that he was unemployed orgainfully employed after the dismissal from the service of theestablishment as per order dated 15-10-1998. The Tribunalalso observed that the workman has no such case when hewas in the box as WW1. The learned counsel for thepetitioner pointed out that the claim statement proceeded onthe basis that the charges levelled against him was baseless,the dismissal of the workman was illegal and therefore he was W.P.(c). NO. 11201/2010-6-entitled for reinstatement with all benefits It is contendedthat at any point of time during the proceedings themanagement has raised a contention that he is not entitled toback wages for the reason that he was employed after hisdismissal and that though this Industrial Dispute waspending from 1999 onwards, the management has not takena contention in the written statement that the workman wasemployed elsewhere after the order of dismissal. On aperusal of the materials on record it is seen that such acontention was not raised for the last several years. TheLabour Court relied on the oral evidence of MW2 who deposedthat the workman was employed in Khadeeja CashewCompany, Karunagappally after his dismissal from service andearned salary therefrom. The said statement was given whilehe was examined as MW2. At a later point of time also i.e.after the directions issued by this Court in Ext.P3 judgment,there was no pleading to the effect that the workman wasemployed elsewhere. On the basis of the statement of MW2the Labour Court found that though the dismissal of theworkman as per order dated 15-10-1998 was unjustified in W.P.(c). NO. 11201/2010-7-the absence of a case that he was unemployed or notgainfully employed thereafter he is not entitled to get backwages.10. Going by the contentions of the parties andthe pleadings in the case, it may not be possible to say thatthe workman has no case that he was unemployed or notgainfully employed after his dismissal from service. Allthroughout his contention is that he is to be reinstated withback wages. There is no whisper in the pleadings of themanagement that he was employed during the relevantperiod. In the circumstance, the finding recorded by theLabour Court will have to be reconsidered. The workmanproduced Ext.P8 certificate from the Proprietor who wasrunning Khadeeja Cashew Industries till 2003. In Ext. P8certificate it is certified that the worker was not employed atany point of time in Khadeeja Cashew Company. The learnedCounsel for the petitioner submits that in Ext.P3 judgmentthis Court specifically directed that the management shall bepermitted to proceed on the basis of the written statementalready filed and contest the proceedings from the stage W.P.(c). NO. 11201/2010-8-available on 7-2-2005, the date of Ext.P3. Unless there isproof of employment during the relevant period there is nojustification for the Labour Court to deny the claim forbackwages in a case where the definite finding was recorded,that the workman's dismissal from service is illegal. 11. The learned counsel also relied on the decisionof the Apex Court in Metropolitan Transport Corporationvs. V. Venkatesan - AIR 2010 SC 206. In the said decisionthe Apex Court observed as follows:“One of the important factors, which has to betaken into consideration , is the length of service,which the workman had rendered with the employer.If the workman has rendered a considerable period ofservice and his services are wrongfully terminated, hemay be awarded full or partial back wages keeping inview the fact that at his age and the qualificationpossessed by him he may not be in a position to getanother employment. However, where the totallength of service rendered by a workman is very small,the award of back wages for the complete period i.e.from the date of termination till the dte of the award, W.P.(c). NO. 11201/2010-9-which our experience shows is often quite large, wouldbe wholly inappropriate. Another important factor,which requires to be taken into consideration is thenature of employment. A regular service ofpermanent character can not be compared to short orintermittent daily-wage employment though it may befor 240 days in a calendar year”. In the light of the contentions raised by theparties and the materials produced, this Court is of the viewthat the matter requires reconsideration by the Labour Court.Therefore, the writ petition is disposed of directing the LabourCourt to consider the question as to whether the workman isentitled to get back wages for the period from 25-5-1998 to31-8-2001 afresh and pass appropriate orders. Ext. P6award is quashed to the extend it denies back wages to theworkman. The Labour Court shall dispose of the matterwithin a period of four months from the date of receipt of acopy of this judgment.Sd/- HARUN-UL-RASHID JUDGEkvr//True Copy/ P.A. to Judge