Kerala High Court
Toc H Institute Of Science And ... vs State Of Kerala on 4 October, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
Friday, the 4th day of October 2024 / 12th Aswina, 1946
IA.NO.1/2024 IN WP(C) NO. 37804 OF 2023
APPLICANT/PETITIONER:
SUJA V.K., KORKUZHIYIL HOUSE, KAIPPATTOOR P.O., ERNAKULUM, PIN -
682313.
RESPONDENTS/PETITIONER AND 1ST RESPONDENT:
1. TOC H INSTITUTE OF SCIENCE AND TECHNOLOGY, ARAKKUNNAM P.O.,
ERNAKULAM-682313 REPRESENTED BY ITS DIRECTOR AND MANAGER, TOCH
PUBLIC SCHOOL SOCIETY, SRI. KURIAN THOMAS, SON OF P.THOMAS, AGED 51
YEARS, RESIDING AT 39/3612, MEDAYIL PUTHAN PURAYIL HOUSE,
SREEKANDATHU ROAD, AMBADI LANE, P.O. RAVIPURAM, ERNAKULAM, PIN -
682016.
2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LABOUR,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to direct the
respondents to pay the petitioner herein, wages at the rate of Rs. 17144/-
per month during the pendency of the above Writ Petition.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of M/S.ANIL KUMAR C, A.K.PREETHA & RESHMA R.KRISHNAN, Advocates for the
petitioner and of M/S.P.K.RAMKUMAR, K.V.VINOD KUMAR & SUBIN P.M.,
Advocates for R1, the court passed the following:
N. NAGARESH, J.
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I.A. No.1 of 2023
in
W.P.(C) Nos.37442, 37450, 37549, 37578,
37613, 37681, 37683 & 37695 and
I.A. No.1 of 2024 in W.P.(C) No.37804 of 2023
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Dated this the 4th day of October, 2024
ORDER
~~~~~~ All these writ petitions have been filed by the employer challenging Ext.P1 Award in various Industrial Disputes adjudicated by the Industrial Tribunal, Alappuzha. The Industrial Tribunal, after appreciating the evidence on record, ordered that the 2nd respondents in these writ petitions, who are the workmen concerned in the Industrial Disputes, are entitled to reinstatement in the service of the Management without any break and with 50% backwages and all other consequential benefits.
2. The petitioner-employer challenged the Award filing writ petitions. This Court admitted the writ petitions and stayed further proceedings to execute the Awards. The workmen, who are 2nd respondents in these writ petitions, WP(C) No.37442/2023 & connected cases :2: have filed interim applications seeking to direct the writ petitioner to pay the workmen wages under Section 17B of the Industrial Disputes Act, at the rate last drawn by them, during the pendency of the writ petitions.
3. The writ petitioner vehemently resisted the applications raising various legal and factual contentions. The counsel for the petitioner argued that the petitioner is an institution affiliated to a University and is a Self Financing College. The first statute of the University concerned would govern the workmen and hence application of Industrial Disputes Act is excluded. Since the Industrial Disputes Act is not applicable, the workmen are not entitled to invoke Section 17B of the Act.
4. The counsel for the writ petitioner further urged that the workmen have been terminated from service as per their service rules and in accordance with the appointment confirmation order. Furthermore, the workmen are gainfully employed elsewhere, drawing salary from alternate jobs. The workmen have to prove that they are not alternately WP(C) No.37442/2023 & connected cases :3: employed.
5. The counsel for the petitioner relied on the judgment of the Hon'ble Apex Court in State of M.P. and others v. Arjunlal Rajak [(2006) 2 SCC 711] and contended that the onus to prove that the workmen are not in alternate employment is on the workmen. The petitioner also relied on the judgment of the Hon'ble Apex Court in Rajasthan Gramin Bank v. Bishan Lal Bairwa [AIR 2010 SC 1789] to urge the point.
6. The counsel for the petitioner also relied on a Full Bench judgment of this Court in N. Mahalingam and Company v. T. Santhosh Kumar and another [2015 (1) KLJ 260] to contend that if the workmen lose their right to continue in employment during the pendency of the proceedings before the High Court or Supreme Court on attaining the age of superannuation or on account of the closure of the establishment, they cannot claim the benefit of Section 17B. The counsel for the petitioner pointed out that the burden of proof, having regard to the principles WP(C) No.37442/2023 & connected cases :4: analogous to Section 106 of the Evidence Act that he was not gainfully employed, was on the workmen.
7. The counsel representing the 2 nd respondents resisted and controverted the afore arguments. The workmen, who are applicants in the Section 17B petitions, are not gainfully employed elsewhere. The workmen therefore cannot prove a negative. The interim applications are therefore liable to be allowed.
8. It is not in dispute that the 2 nd respondent- workmen were not engaged by the writ petitioner. The Industrial Tribunal has found that denial of employment to the workmen is illegal. The writ petitioner has challenged the Awards passed by the Industrial Tribunal in favour of the workmen filing writ petitions under Article 226 of the Constitution of India, before this Court and obtained interim orders. Therefore, going by the mandate of Section 17B of the Industrial Disputes Act, the writ petitioner is legally bound to pay the workmen wages at the rate of last drawn wages, during the pendency of the writ petitions. WP(C) No.37442/2023 & connected cases :5:
9. The contention of the writ petitioner is that the workmen are otherwise employed and hence are not entitled to payment of wages under Section 17B. The workmen denied the said statement. It was pointed out on behalf of the workmen that it is not possible for the workmen to prove that they are not alternately employed as it would require them to prove a negative fact.
10. The writ petitioner though alleges that the workmen have alternate employment, the writ petitioner has not stated the names of the employer/establishment in which the workmen are employed. The writ petitioner has not produced any evidence to show that workmen are so employed.
11. The judgment in Municipal Council, Sujanpur v. Surinder Kumar [(2006) 5 SCC 173] was a case where the workmen could not establish non-completion of 240 days of work. In the said judgment, the Apex Court held that the burden of proof, having regard to the principles analogous to Section 106 of the Evidence Act that he was not gainfully WP(C) No.37442/2023 & connected cases :6: employed, was on the workman. The issue involved in the case was not regarding the gainful employment of the workmen. The issue involved was the burden of proof to establish non-completion of 240 days of work by the workmen. Therefore, the said judgment will not help the petitioner.
12. Arjunlal Rajak (supra) also was a case where the question was relating to the burden of proof as regards completion of 240 days. Rajasthan Gramin Bank (supra) was a case where the Management had adduced supporting evidence to show that the workman was gainfully employed. Therefore, the said judgment will not be of any avail to the petitioner.
13. In N. Mahalingam and Company (supra), the question for consideration was whether a workman lose his right to continue in employment during the pendency of the proceedings before the High Court or Supreme Court on account of attaining the age of superannuation or on account of the closure of the establishment.
WP(C) No.37442/2023 & connected cases :7:
14. In the afore circumstances, the contention of the petitioner cannot be accepted. The workmen, who are 2 nd respondents in these writ petitions, are entitled to get wages as mandated under Section 17B of the Industrial Disputes Act. As the 2nd respondent in W.P.(C) No.37695/2023 retired on superannuation on 17.05.2022 before this Court passed interim stay order, the said workman is not entitled to Section 17B wages. All other workmen in these applications are entitled to Section 17B wages till the date on which they will attain the age of superannuation.
In the circumstances, these Interim Applications, except IA No.1/2023 in W.P.(C) No.37695/2023, are disposed of directing the writ petitioner to pay wages to the 2nd respondents under Section 17B at the rate of last drawn wages from the date of interim order of stay of Award of the Industrial Tribunal. IA No.1/2023 in W.P.(C) No.37695/2023 is dismissed.
Sd/-
N. NAGARESH, JUDGE aks/07.10.2024