Kerala High Court
The General Secretary vs Baby on 29 April, 2022
WA NO. 541 OF 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 29TH DAY OF APRIL 2022 / 9TH VAISAKHA, 1944
WA NO. 541 OF 2022
AGAINST THE JUDGMENT IN WP(C) 22874/2016 OF HIGH COURT OF
KERALA
APPELLANT/2ND RESPONDENT:
THE GENERAL SECRETARY,
OLLUR MEKHALA OTTUCOMPANY THOZHILALI UNION, (CITU)
AVINISSERY P.O, THRISSUR DISTRICT - 680 313.
BY ADV T.N.MANOJ
RESPONDENTS/PETITIONERS AND RESPONDENTS 1,3 AND 4.:
11. BABY, AGED 63, W/O.LATE P.M.DAVIS, PALIEKKARA HOUSE,
OLLUR POST, THRISSUR - 680306.
NITHIN DAVIS, S/O. LATE P.M.DAVIS, PALIEKKARA HOUSE,
2. OLLUR POST, TRISSUR - 680306.
3. INDUSTRIAL TRIBUNAL, PALAKKAD, 678 002.
4. V.I.KURUVILA, PARTNER (ST.CYRIAC TILE WORKS)
C/O.C.P.JOSE, CHIRAYATHU HOUSE, MARATHAKKARA P.O,
TRISSUR DISTRICT 680320
5. V.I.KIKKILI, PARTNER (ST.CYRIAC TILE WORKS)
C/O.C.P.JOSE, CHIRAYATH HOUSE, MARATHAKKARA P.O,
TRISSUR DISTRICT 680 320.
BY ADV.T.C.KRISHNA R1 & R2
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
29.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A No.541 of 2022
2
C.S.DIAS & C.JAYACHANDRAN,JJ.
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W.A No.541 of 2022
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Dated this the 29th day of April, 2022.
JUDGMENT
C.S.Dias, J.
Being aggrieved by the impugned judgment and
order passed in the writ petition and review petition, the
2nd respondent in the writ petition has filed this intra-
court appeal. The respondents 1 and 2 in the appeal are
the petitioners and the respondents 3 to 5 are the
respondents 1, 3 and 4 in the writ petition.
2. The writ petitioners had challenged the award
(Ext.P6) passed by the Court of the Industrial Tribunal,
Palakkad in I.D No.02/2010. The writ petitioners case,
in brief, is that: the 1st petitioner was a partner of
M/s.St.Cyriac Tile Works. Altogether there were five
partners. The 1st petitioner's late husband Sri.P.M.Davis
W.A No.541 of 2022
and the respondents 3 and 4 were the other partners.
Another partner named P.M.Baby had died in the year
1989. The 2nd petitioner is the son of the 1 st petitioner
and Sri.P.M.Davis. The firm M/s.St.Cyriac Tile Works
was dissolved with effect from 31.1.1991, as per the
preliminary decree passed by the Court of the
Subordinate Judge, Thrissur, in O.S. 120/1991.
Subsequently, a final decree was also passed. Late
P.M.Davis was appointed as the Receiver of the firm.
As per the final decree, the entire property of the firm
was allotted as shares of the partners. The respondents
3 and 4 were directed to pay an amount of Rs.
42,53,570/- as owelty to the other partners. The
Receiver had run the factory upto 2001 by depositing an
amount of Rs.20,000/- per month till July, 2001. Thus, an
amount of Rs.20,00,000/- is lying in deposit before the
Subordinate Judges Court. As per the final decree, the
liability of the firm including service benefits of the
W.A No.541 of 2022
employees has to be disbursed from the amount lying in
deposit in Court. The firm had completely stopped
functioning w.e.f November, 2001. The firm is defunct.
Some of the workers had filed an application for gratuity
before the Controlling authority under the Payment of
Gratuity Act, Thrissur. The claims were allowed by
Ext.P1 order. Meanwhile, the 2 nd respondent - Union-
had raised the following industrial dispute before the
Tribunal. The issue referred for adjudication was
"Whether the work stoppage and consequent denial of
employment to the workers of St.Cyriac Tile Works,
Marathakkara is justifiable? If not what relief they are
entitled to get?. The parties had entered appearance and
had filed their claim statement and written versions. T he
establishment is not functioning since November, 2001.
There is no personal liability involved in the matter.
Nonetheless, the Tribunal, on an erroneous
consideration, held that there was denial of employment
W.A No.541 of 2022
by the management from 28.11.2001, and directed
payment of wages at the rate of Rs.88/- per day for 26
days every month from 28.11.2001 onwards till they are
provided employment and paid regular wages by the
management or till the establishment is closed down
legally by the management in accordance with law.
Hence the writ petition, inter alia, to quash Ext.P6.
3. The learned Single Judge, after considering the
rival contentions, arrived at the conclusion that the
termination of employment of the workers of the firm fell
within the meaning of 'retrenchment', that too as per a
decree passed by the civil Court. Therefore, there was
no scope to direct the re-engagement and payment of
back wages to the workers. Instead, the learned Single
Judge modified Ext.P6 award by directing the workers to
approach the Labour Court and file applications for
retrenchment compensation in accordance with the
Industrial Disputes Act. The parties were also given the
W.A No.541 of 2022
liberty to place the entire materials before the Labour
Court, to substantiate their claim for retrenchment
compensation. Based on the orders to be passed by the
Labour Court, the civil Court was directed to release the
amount that is lying in deposit.
4. Aggrieved by the impugned judgment, the
appellant had filed R.P. No.33/2021, on the ground that
this Court ought not to have fixed the date of
disengagement with effect from 28.11.2001, as the
workers were dragged to this Court till the disposal of
the judgment.
5. The learned Single Judge found that there was
no error apparent on the face of the record warranting
interference and dismissed the review petition.
Nonetheless, it was clarified that, if the amount lying in
deposit before the Civil Court was insufficient, the
workers would be free to enforce the order to be passed
W.A No.541 of 2022
by the Labour Court, in accordance with law.
6. It is assailing the above findings and directions
that writ appeal is filed.
7. Heard; Sri.T.N.Manoj, the learned counsel
appearing for the appellant and Sri.T.C.Krishna, the
learned counsel appearing for respondents 1 and 2.
8. Sri.T.N.Manoj contended that, subsequent to
the impugned judgment, the workers had approached
the Industrial Tribunal and filed an interlocutory
application for retrenchment compensation. However,
the Tribunal declined to accept the application for the
want of a reference. Thus, the workers are remediless.
Hence the writ appeal.
9. Sri.T.C.Krishna countered the above submission
and argued that the appellant has not understood the
judgment in its proper perspective. This Court had
specifically directed the workers to approach the Labour
W.A No.541 of 2022
Court, as provided under Section 33-C of the Industrial
Disputes Act, 1947, which enables a worker to recover
the money due to him from his employer. Therefore, the
proper course available to the workers is to file an
independent application before the Labour Court,
instead of having filed the interlocutory application in
the disposed I.D No.02/2010. He also added that there is
no need of any reference or the decision to be forwarded
to the Government, to realise the retrenchment
compensation because the service benefits of the
workers are already lying in deposit before the civil
Court, and this Court has directed the Labour Court to
consider the application(s) and pass order(s) on them,
directing the share/proportionate share of each worker
to be withdrawn from the civil Court.
10. We have re-appreciated the impugned judgment
and order, and the pleadings and the materials on
record.
W.A No.541 of 2022
11. Admittedly, the partnership firm was dissolved
by the judgment and decree passed by the civil Court in
O.S No.120/1991. It is on record that pursuant to the
decree, the service benefits of the workers were
deposited before the civil Court. De hors the proceeding
before the civil Court, the appellant raised the industrial
dispute and Ext.P6 award was passed, without adverting
to the judgment and decree.
12. Taking note of the subsequent developments
and the enabling provision in Chapter VII of the
Industrial Disputes Act, this Court felt that the proper
course would be, especially since the service benefits of
the workers are lying in deposit before the civil Court
and the firm has become de-funct, to direct the workers
to approach the Labour Court and file independent
application(s) seeking retrenchment compensation as
provided under Section 33-C of the Industrial Disputes
W.A No.541 of 2022
Act.
13. On a consideration of the peculiar facts and
circumstances of the case at hand, we do not find any
error or illegality in the course adopted by the learned
Single Judge. Further, this Court has also clarified in
the impugned order, that if the amount lying in deposit is
insufficient to satisfy the claims of the workers, they
would be at liberty to take appropriate action in
accordance with law. Thus, we are of the firm view that
there is no error or illegality in the course adopted by the
learned Single Judge in arriving at a practical solution to
the dispute at hand.
In the result, the writ appeal is disposed of as
follows:
(i) The impugned judgment and order are
confirmed.
W.A No.541 of 2022
(ii) It is reiterated that the erstwhile
workers of M/s.St.Cyriac Tile Works would be at
liberty to approach the competent Labour Court
and file independent/joint application(s)
seeking retrenchment compensation, as provided
under Section 33-C of the Industrial Disputes Act,
1947.
(iii) On such application (s) being filed, the
Labour Court shall accept such application(s) on
its file, without any reference from the
Government.
(iv) The Labour Court shall determine the
retrenchment compensation to be paid to each
worker in accordance with law, after giving both
sides an opportunity to substantiate their
respective claim and defence, as expeditiously
as possible.
W.A No.541 of 2022
(v) The Labour Court shall specifically state
in the proposed award, the retrenchment
compensation due to each worker and direct the
Court of the Subordinate Judge, Thrissur, to
release the share of each worker from the
amount lying in deposit in O.S. 120/1991, if the
amount is sufficient. If not, the civil Court shall
only release the proportionate share of each
worker.
(vi) If the workers are unable to realise the
entire compensation amount from the amount
lying in deposit, they would be at liberty to move
the Labour Court, to recover the balance amount
from the properties of the erstwhile firm, if any,
and against the partners of firm, personally and
against their properties.
W.A No.541 of 2022
(vii) This judgment shall not be treated as a
precedent in any other case.
C.S.DIAS
JUDGE
C. JAYACHANDRAN
ma/29/4/2022 JUDGE
W.A No.541 of 2022
APPENDIX
APPELLANT'S ANNEXURES:
ANNEXURE-A: MEMORANDUM OF REVIEW PETITION 33/2021
DATED 4.1.2021
ANNEXURE B: TRUE COPY OF THE JUDGMENT DATED 3.2.2021 IN
PETITION 3/2021 DATED 4.1.2021
/TRUE COPY/
