Kerala High Court
Mr.Stanly vs State Of Kerala on 12 April, 2024
Author: Murali Purushothaman
Bench: Murali Purushothaman
WP(C) No.29847/2019 1 / 11
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
Friday, the 12th day of April 2024 / 23rd Chaithra, 1946
IA.NO.2/2020 IN WP(C) NO. 29847 OF 2019(E)
PETITIONER/RESPONDENT 2 IN W.P.C:
Y.PANCHAMAN, AGED 64 YEARS, S/O. THE LATE MR. YESUDASAN, RESIDING AT
CHUTTUMANNADI VEEDU, KALAYIL, OTTASEKHARAMANGALAM P.O., PIN- 695125,
KATTAKKADA TALUK, THIRUVANANTHAPURAM DISTRICT.
RESPONDENTS/PETITIONERS AND RESPONDENT 1 IN W.P.C:
1. STANLY, AGED 54 YEARS, S/O.THOMSON, THE PRESIDENT, PARENTS TEACHERS
ASSOCIATION, LMS HIGHER SECONDARY SCHOOL, CHEMBOOR, NEYYATTINKARA,
THIRUVANANTHAPURAM- 695124.
2. L.M.S. HIGHER SECONDARY SCHOOL, CHEMBOOR, OTTASEKHARAMANGALAM P.O.,
NEYYATTINKARA, REPRESENTED BY ITS PRINCIPAL-IN-CHARGE, SAJEEV S.,
S/O.V.M.STANLY, AGED 54 YEARS, AMBI NIVAS, POOVAR ROAD,
NEYYATINKARA, THIRUVANANTHAPURAM- 695124.
3. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,
INDUSTRIAL DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695001.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to direct respondents
1 & 2 to deposit Rs.32,000/- forthwith, or reinstate the petitioner herein
in service and pay the wages regularly, with liberty to him to realise
aliunde the arrears of wages prior to 5.7.2019.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of SRI. PRATAP ABRAHAM VARGHESE, Advocate for Petitioner in
I.A./Respondent 2 in WP(C), M/S.G.SUDHEER & R.HARIKRISHNAN, Advocates for
the Respondents 1 and 2 in I.A./Petitioners in WP(C) and of GOVERNMENT
PLEADER for respondent 3 in I.A./Respondent 1 in WP(C), the court passed
the following:
WP(C) No.29847/2019 2 / 11
MURALI PURUSHOTHAMAN, J.
========================
I.A.No.2 of 2020
in
W.P.(C) No.29847 of 2019
==================
Dated this the 12th day of April, 2024
ORDER
This is an application filed by the 2 nd respondent workman under Section 17B of the Industrial Disputes Act, 1947 (for short 'the I.D. Act) for payment of full wages last drawn by him during the pendency of this writ petition. The Labour Court, Kollam, as per Ext.P1 award dated 04.04.2019 in I.D. No.06/2013 found that the termination of the worker is not justifiable and directed the 1st writ petitioner-Management to reinstate him within three months or else, he is entitled to be reinstated with an amount of Rs.4,000/- per month from 05.07.2019. The 1st WP(C) No.29847/2019 3 / 11 I.A.No.2 of 2020 in W.P.(C) No.29847 of 2019 : 2: petitioner did not reinstate the 2 nd respondent in service, but preferred the captioned writ petition challenging Ext.P1 award and this Court, by order dated 19.07.2022, has stayed the execution of the award. The 2nd respondent has filed W.P.(C) No.6618 of 2020 challenging Ext.P1 award to the extent it denies back wages to him.
2. Heard Sri.G.Sudheer, learned counsel for the petitioner and Sri.Prathap, the learned counsel appointed by this Court for the 2nd respondent workman.
3. In the affidavit filed by the 2nd respondent- workman dated 27.01.2020 in support of the application under Section 17B of the I.D. Act, it is stated that he has no job or other means of livelihood and is starving.
4. The 2nd petitioner has filed a counter WP(C) No.29847/2019 4 / 11 I.A.No.2 of 2020 in W.P.(C) No.29847 of 2019 : 3: affidavit in the above interlocutory application wherein it is stated in paragraph '3' as follows:-
"3. The petitioner in I.A./2nd respondent is gainfully working as a security guard in the Security Agency G4S Securities Pvt.Ltd., 'Anupama', TC16/1800, Kukkiliyar Lane, D.P.I Junction, Jagathy, Thiruvananthapuram from 2017 onwards and getting Rs.12,000/- per month as salary, form the said job. Petitioner/2nd respondent is not entitled to get any relief under Section 17-B of ID Act. From 2013 to 2017 the petitioner had been gainfully working as security guard in TV Sundaram Iyangar & Sons Pvt.Ltd., Karamana, Thiruvananthapuram for a monthly salary of Rs.10,000/-."
5. Paragraph '7' of the affidavit reads as WP(C) No.29847/2019 5 / 11 I.A.No.2 of 2020 in W.P.(C) No.29847 of 2019 : 4: follows:-
"7. Admittedly petitioner/2nd respondent (worker) is aged more than 62 years and cannot seek reinstatement, hence not entitled to claim amount under Section 17B of the ID Act.'
6. Though it is averred by the 1 st writ petitioner that the 2nd respondent-workman is gainfully employed, no evidence has been produced to substantiate the said contention. The workman has denied the averments in the counter affidavit and has reiterated that he has no job or means for survival. In the light of the affidavit filed by the workman stating that he is not gainfully employed after the award and during the pendency of this writ petition and since there is no contra evidence, I find that the workman is entitled to the benefit of WP(C) No.29847/2019 6 / 11 I.A.No.2 of 2020 in W.P.(C) No.29847 of 2019 : 5: Section 17B of the I.D Act.
7. In Ext.P1 award, the Labour Court has observed that the managements have no dispute that the last drawn salary of the worker was not Rs.4,000/-. In the counter affidavit filed in the interlocutory application under Section 17B also, there is no dispute regarding the last drawn wage of the 2nd respondent.
8. It is contended by Sri.G.Sudheer, the learned counsel for the writ petitioners that the 2 nd respondent worker is aged more than 62 years and cannot seek reinstatement, and therefore not entitled to claim the benefit of Section 17B of the I.D Act. Sri.Prathap, the learned counsel for the 2 nd respondent submits that no age of retirement has been stipulated and the 2nd respondent cannot be denied the benefit of payment of full wages during WP(C) No.29847/2019 7 / 11 I.A.No.2 of 2020 in W.P.(C) No.29847 of 2019 : 6: the pendency of the writ petition.
9. From the affidavits filed by the 2 nd respondent workman in the writ petition, it is seen that he is now aged 67 years. As per Ext.P1 award, he was appointed in the service of the 1 st petitioner on 06.08.2014 (SIC. 06.08.2004) and was terminated on 31.08.2011. The 2nd respondent was aged 47 years at the time of his appointment. His service was terminated when he was 54. By Ext.P1 award dated 04.04.2019, the Labour Court ordered his reinstatement when he was 62 years of age. The Full Bench of this Court, in N.Mahalingam & Company (M/s) Coimbatore V. T.Santhosh Kumar & Another [2015 (1) KHC 54 : 2015 (1) KLT 460], has held that an employer is not obliged under Section 17B of the I.D Act, to pay last drawn wages to the workman after the closure of the WP(C) No.29847/2019 8 / 11 I.A.No.2 of 2020 in W.P.(C) No.29847 of 2019 : 7: establishment. In the light of the said dictum, the employer is not obliged under Section 17B of the I.D Act, to pay last drawn wages to the workman after his superannuation/retirement. There is nothing on record to show that the management has fixed any age of retirement for the workman. By Ext.P1, the Labour Court has ordered his reinstatement after he attained the age of 62 years. Therefore, I find that no age of superannuation has been fixed for the 2 nd respondent and therefore the benefit of Section 17 B cannot be denied to him on the ground that he is aged more than 62 years and cannot seek reinstatement. Whether his termination is justifiable and whether he can seek reinstatement are matters to be decided in the writ petition.
10. Sri.Sudheer submits that since the writ petition is ripe for hearing, the petition filed under WP(C) No.29847/2019 9 / 11 I.A.No.2 of 2020 in W.P.(C) No.29847 of 2019 : 8: Section 17B of the I.D Act does not deserve to be heard.
11. The Hon'ble Supreme Court in Workmen represented by Hindustan V. O.Corpn. Ltd. v. Hindustan Vegetable Oils Corporation Ltd. and Others [2000 KHC 4195 : 2000 (9) SCC 534], has held that an application under Section 17B should be disposed of before the principal petition and it should be disposed of most expeditiously.
12. Accordingly, there will be a direction to the 1st writ petitioner to pay the workman, the 2 nd respondent, the full wages last drawn by him (Rs.4,000/-) and admissible to him from 05.11.2019, the date of filing of this writ petition, during the pendency of this writ petition, until further orders. The arrears shall be paid within a period of six weeks.
WP(C) No.29847/2019 10 / 11I.A.No.2 of 2020 in W.P.(C) No.29847 of 2019 : 9: W.P.(C) Post the writ petition along with W.P.(C) No. 6618 of 2020 on 30.05.2024.
Sd/-
MURALI PURUSHOTHAMAN JUDGE SB 12-04-2024 /True Copy/ Assistant Registrar WP(C) No.29847/2019 11 / 11 APPENDIX OF WP(C) 29847/2019 EXHIBIT P1 TRUE COPY OF THE AWARD IN INDUSTRIAL DISPUTE NO.6/2013 DATED 04.04.2019 OF THE LABOUR COURT, KOLLAM. 12-04-2024 /True Copy/ Assistant Registrar