Thaliparamba Municipality vs State Of Kerala

Kerala High Court

Thaliparamba Municipality vs State Of Kerala on 21 May, 2024

Author: Murali Purushothaman

Bench: Murali Purushothaman

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
    TUESDAY, THE 21ST DAY OF MAY 2024/31ST VAISAKHA, 1946
                      OP(LC) NO. 1811 OF 2013
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.43 OF 2006 OF LABOUR
                            COURT, KANNUR
PETITIONER:

            THALIPARAMBA MUNICIPALITY
            THALIPARAMBA
            PIN - 670 141,
            KANNUR (DISTRICT),
            REPRESENTED BY ITS SECRETARY.

            BY ADVS.
            SRI.P.V.SURENDRANATH
            SMT.BINDUMOL JOSEPH
            SRI.B.S.SYAMANTHAK
RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY ITS SECRETARY TO LABOUR DEPARTMENT,
            GOVERNMENT SECRETARIAT,
            THIRUVANANTHAURAM - 1.
    2       LABOUR COURT
            KANNUR - 670 101.
    3       SPECIAL DEPUTY TAHSILDAR
            REVENUE RECOVERY TALUK OFFICE,
            THALIPARAMBA
            PIN - 670 141, KANNUR (DISTRICT).
    4       SMT. SATHI INDERAMMEL
            D/O. BHASKARAN, INDERAMMEL HOUSE,
            THALIPARAMBA P. O,
            PIN - 670 141,
            KANNUR DISTRICT.

            SRI. P.U.SHAILAJAN
            SRI. JUSTIN JACOB - GP


     THIS   OP   (LABOUR   COURT)   HAVING   BEEN   FINALLY   HEARD   ON
12.04.2024, THE COURT ON 21.05.2024 DELIVERED THE FOLLOWING:
 O.P. (L.C) No.1811 of 2013

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                             JUDGMENT

This OP(LC) is filed by Thaliparamba Municipality challenging Ext.P9 order passed by the Labour Court, Kannur rejecting the application for condonation of delay in setting aside ex-parte order in an application filed under section 33C(2) of the Industrial Disputes Act, 1947 (for short, I.D Act).

2. The 4th respondent, who was a sanitation worker of the Municipality, filed Claim Petition No.43/2006 under section 33C(2) of the I.D Act before the Labour Court, Kannur contending that she was appointed as Badli worker from 17.04.1997 to 19.07.2001 continuously without break and is entitled for arrears of wages amounting to Rs.32,665.10 for the said period. The Secretary of the Municipality, the respondent therein, was set ex-parte and an ex-parte order was passed on 22.07.2009. Later, Ext.P6 application was filed by the Municipality to set aside the ex-parte order and the same was allowed on O.P. (L.C) No.1811 of 2013 3 12.01.2011 after condoning the delay of 307 days. However, even thereafter, the Municipality did not enter appearance or filed any counter statement. Accordingly, the Municipality was again set ex-parte. The Labour Court, by Ext.P3 order dated 10.03.2011, found that the 4 th respondent's claim can be adjudicated under section 33C(2) and ordered that the 4th respondent is entitled to realise the sum of Rs.32,665/- from the Municipality along with 6% interest p.a from the date of application till payment.

3. The petitioner filed Ext.P6 interlocutory application to set aside Ext.P3 ex-parte order in CP No.43/2006 along with Ext.P7 interlocutory application to condone delay of 368 days in seeking to set aside the ex-parte order. The petitioner filed OP(LC) No.988/2012 before this Court for direction to the Labour Court to consider and pass orders on the aforesaid interlocutory applications and this Court, by Ext.P8 judgment, directed the Labour Court to dispose of the said interlocutory O.P. (L.C) No.1811 of 2013 4 applications within three months and ordered the proceedings for realisation of the amounts due under Ext.P3 to be put on hold till the interlocutory applications are disposed of. The Labour Court, by Ext.P9 order, rejected the application for condonation of delay in seeking to set aside Ext.P3 ex-parte order and consequently dismissed the application to set aside the ex-parte order. Pursuant to Ext.P9, Ext.P10 recovery notice was issued to the petitioner. Challenging Exts.P9 and P10, this Original Petition is filed.

4. The 4th respondent has filed a counter affidavit rebutting the averments in the original petition and producing Ext.R4(a) judgment wherein this Court in an identical case filed by the petitioner Municipality held that a claim for equal remuneration can be adjudicated by the Labour Court since the claim is for an existing right.

5. Heard Smt.Bindumol Joseph, the learned counsel for the petitioner, Sri.P.U Shailajan, the learned counsel for the 4th respondent and Sri.Justin Jacob, the learned O.P. (L.C) No.1811 of 2013 5 Government Pleader.

6. Ext.P1 claim petition filed by the 4th respondent on 21.6.2006 was allowed ex-parte on 22.07.2009. The application of the Municipality to set aside the ex-parte order was allowed after condoning the delay of 307 days. Even thereafter, the Municipality neither appeared nor filed counter statement. The Labour Court was therefore constrained to pass Ext.P3 ex-parte order allowing the claim of the 4th respondent under section 33C(2) of the I.D Act. Thereafter, Ext.P6 application to set aside Ext.P3 ex-parte order was filed by the Municipality along with Ext.P7 application to condone the delay in seeking to set aside the ex-parte order. OP(LC) No.988/2012 was filed before this Court seeking for direction to the Labour Court to consider Exts.P6 and P7 applications and this Court, by Ext.P8 judgment, directed the Labour Court to consider those applications within a time frame. Exts.P6 and P7 applications were rejected by the Labour Court as per Ext.P9. The Labour Court found that the petitioner O.P. (L.C) No.1811 of 2013 6 Municipality has not shown sufficient cause for condonation of delay of 368 days in seeking to set aside Ext.P3 order. The Labour Court found that after setting aside the earlier ex-parte order on 12.01.2011, the claim petition was posted on 03.02.2011. The petitioner did not enter appearance and no counter statement was filed and the petitioner was again set ex-parte and Ext.P3 ex-parte order was passed on 10.03.2011. The Labour Court observed that even after mulcting cost on the Secretary of the Municipality though the Municipality was given opportunity to contest the case by filing counter statement, the Municipality did not prosecute the case. The Labour Court disbelieved the version of the Municipality that it came to know about the ex-parte order only on receipt of the revenue recovery notice. Having found that there is no valid ground for condonation of delay of 368 days in seeking to set aside the ex parte order, the Labour Court, by Ext.P9 order, dismissed Exts.P6 and P7 applications.

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7. The Labour Court has found that the petitioner Municipality has not shown sufficient cause for condonation of delay. There is no reason to take a different view. There is an inexplicable delay of 368 days in seeking to set aside Ext.P3 ex-parte order. Right from the institution of Ext.P1 claim petition, it can be seen that the petitioner Municipality was not diligent and vigilant in defending the claim petition. The Municipality was set ex-parte and an order was passed in the claim petition on 12.01.2011. The said ex-parte order was set aside after condoning the delay of 307 days. Even thereafter, the Municipality did not prosecute the matter and Ext.P3 ex-parte order was passed. The application to set aside the ex-parte order was filed with an application to condone the delay of 368 days. No sufficient cause has been shown for condonation of the said delay.

In Ext.P3 order, the Labour Court has considered the contention of the Municipality regarding the jurisdiction of the Labour Court to adjudicate Ext.P1 claim under section O.P. (L.C) No.1811 of 2013 8 33C(2). Referring to Ext.R4(a) judgment in a writ petition filed by the Municipality in respect of another employee, this Court has held that since the claim is made in respect of an existing right, the Labour Court can adjudicate the claim. Relying on Ext.R4(a) judgment, the Labour Court, in Ext.P3 order, found that Ext.P1 claim petition is maintainable and the Labour Court can adjudicate the claim. In Ext.P1 claim petition under section 33C(2), the 4th respondent has claimed the balance of arrears of wages from 17.04.1997 to 19.07.2001. The 4 th respondent claimed that she has been paid lesser wages being a female employee, violating the principle of equal pay for equal work. The claim for arrears of wages is an existing right which can be adjudicated by the Labour Court under section 33C(2). Further, in Ext.R4(a) judgment, this Court has upheld the claim of similarly placed person after rejecting the contention put forward by the Municipality that such claims cannot be adjudicated under section 33C(2). Therefore, on merits as well as on ground of delay, O.P. (L.C) No.1811 of 2013 9 I do not find any reason to interfere with Ext.P9 order. Accordingly, the Original Petition is dismissed. The petitioner shall pay the amount ordered in Ext.P3 along with interest after deducting amount if any already paid to the 4th respondent, within a period of two months from the date of receipt of a copy of this judgment.

Sd/-

MURALI PURUSHOTHAMAN JUDGE SPR O.P. (L.C) No.1811 of 2013 10 APPENDIX PETITIONER'S EXHIBITS:-

EXHIBIT P1 A TRUE COPY OF CLAIM PETITION 43/2006 DATED 21.06.2006 ON THE FILES OF LABOUR COURT, KANNUR.

EXHIBIT P2 A TRUE COPY OF THE RESOLUTION NO.3 PETITIONER MUNICIPALITY DATED 23-04-2001. EXHIBIT P3 A TRUE COPY OF THE ORDER IN CLAIM PETITION NO.43 OF 2006 DATED 10-03-2011. EXHIBIT P4 A TRUE COPY OF THE DEMAND NOTICE DATED 30-01-2012 UNDER SECTION 7 OF THE REVENUE RECOVERY ACT.

EXHIBIT P5 A TRUE COPY OF THE DEMND NOTICE DATED 30-01-2012 UNDER SECTION 34 IN FORM NO.10 OF THE REVENUE RECOVERY ACT.

EXHIBIT P6 A TRUE COPY OF THE PETITION CMP NO.9 OF 2012 IN CLAIM PETITIONER NO.43 OF 2006 OF SETTING ASIDE EX-PARTE ORDER. EXHIBIT P7 A TRUE COPY OF THE PETITION CMP NO 8 OF 2012 IN CLAIM PETITION NO.43 OF 2006 FOR CONDONING THE DELAY IN FILING APPLICATION FOR SETTING ASIDE EX-PARTE ORDER. EXHIBIT P8 A TRUE COPY OF THE JUDGMENT IN ORIGINAL PETITION (LABOUR COURT( NO.988/2012 OF THE HONOURABLE HIGH COURT OF KERALA DATED 06-02-2013.

EXHIBIT P9 A TRUE COPY OF THE COMMON ORDER OF THE LABOUR COURT, KANNUR IN I.A NO 8/2012 AND I.A NO.9/2012 IN C.P NO 43/2006 DATED 30- 03-2013.

EXHIBIT P10 TRUE COPY OF THE REVENUE RECOVERY DEMAND NOTICE ISSUED BY THE 3RD RESPONDNET DATED 07-05-2013.

RESPONDENTS EXHIBITS:

EXHIBIT R4(A) TRUE COPY OF THE JUDGMENT IN WPC 24682/2003 OF THIS COURT DATED 5/3/2004.