Lokamaleswaram Service Co-Operative ... vs N.V.Mohandas
2024 Latest Caselaw 4776 Ker

Kerala High Court

Lokamaleswaram Service Co-Operative ... vs N.V.Mohandas on 7 February, 2024

Author: Amit Rawal

Bench: Amit Rawal

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE AMIT RAWAL
                                   &
              THE HONOURABLE MRS. JUSTICE C.S. SUDHA
    WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945
                          WA NO. 1679 OF 2017
    AGAINST THE JUDGMENT IN WPC NO.6533/2013 DATED 03.07.2017
                        OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:

          LOKAMALESWARAM SERVICE CO-OPERATIVE BANK LTD.NO.249,
          KODUNGALLUR, THRISSUR DISTRICT, REPRESENTED BY ITS
          PRESIDENT, I.K.GOVINDAN, AGED 72, S/O. KITTU.
          BY ADV SMT.P.R.REENA


RESPONDENTS/RESPONDENTS

    1     N.V.MOHANADAS,
          S/O. VELAYUDHAN, NADUMURI HOUSE, LOKAMALESWARAM,
          P.O KODUNGALLUR, THRISSUR DISTRICT, PIN-680 471.
    2     DEPUTY LABOUR COMMISSIONER,
          [AUTHORITY UNDER THE KERALA SHOPS AND COMMERCIAL
          ESTABLISHMENTS ACT] O/O. DEPUTY LABOUR COMMISSIONER,
          THRISSUR, PIN-680 003.


          SRI A JAYASANKAR SR GP SRI T K VIPINDAS



     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.1679 of 2017
                                          2


                      AMIT RAWAL & C.S.SUDHA, JJ.
       -------------------------------------------------------------------------
                        Writ Appeal No.1679 of 2017
       -------------------------------------------------------------------------
                 Dated this the 07th day of February, 2024

                               JUDGMENT

Amit Rawal, J.

The present appeal is directed against the judgment of the learned

Single Bench whereby the writ petition preferred by the appellant

against the order of the Appellate Authority established under the

Kerala Shops and Commercial Establishments Act, 1960 (for short, 'the

Act') directing reinstatement of the workman, has been dismissed.

2. The facts leading to the filing of the writ petition was that

the 1st respondent was employed as a night watchman w.e.f.

04.09.1995. Vide Ext.P2 resolution dated 02/04/2003, his services

were terminated on the ground that the watchmen working in other

establishment were sufficient to take care of the premises. The

aforementioned dismissal was assailed before the competent authority

as per the provisions of Section 18 of the Act. The case set up by the

respondent/workman was that there was no compliance of the

provisions of Section 18 for, there was no enquiry which is mandatorily

required in case of a misconduct, no notice nor the provisions of the

Act had been invoked. The appellant before the Appellate Authority

conceded that the workman had been in employment for more than six

months. Noticing all these facts and non compliance of the provisions,

the Appellate Authority ordered for reinstatement with backwages. The

said order when assailed in writ petition before the learned Single

Bench, contention was that the workman/respondent had an alternative

remedy as per the provisions of rule 176 of Kerala Co-operative

Societies Rules. Repelling that contention, writ petition has been

dismissed. It is in these circumstances the intra court appeal has been

preferred.

3. Learned counsel appearing on behalf of the appellant in

support of the memorandum of appeal submitted that the direction for

reinstatement is in clearly violation of the Co-operative Societies Rules

as it tantamount to appointment to a post or an appointment held in

1993. There was no sanctioned post of night watchman in the Society,

the appointment was on daily wages. There was no need of compliance

of the provisions of Section 18 of the Act as the maximum court could

have ordered, noticing that there was a violation, for payment of one

month's salary.

4. On the other hand learned counsel appearing on behalf of

the respondent/workman supported the order of the Appellate Authority

much less of the Single Bench and urged for dismissal of the appeal as

this Court while exercising the powers of Section 5 cannot re-appreciate

the evidence.

5. We have heard counsel for the parties and appraised the

paper book.

6. The respondent/workman before the Appellate Authority

examined himself as AW-1 and produced documents Exts.A1 to A16,

whereas on behalf of the appellant/petitioner, examined as MW1 and

produced ne document Ext.M1. Despite cross-examination of the

respondent/workman nothing contrary surfaced regarding the non

compliance of the provisions of Section 18 that the workman had

rendered more than six months of service. The contention that on

creation of the sanctioned post the night watchman discharging duties

of watching the other premises would have been sufficient for the

premises in question cannot be a ground for dispensing with the service.

If such procedure goes unnoticed from the scrutiny of the court, there

will be not only violation of the provisions but orders would be in

deviation of the statutory provisions.

7. As far as non availment of the alternative remedy is concerned,

the leaned Single Bench rightly rejected the aforementioned contention

for the reason that Kerala Shops and Commercial Establishments Act

itself is a code; when the establishment is already registered under the

the said Act, there was a relationship of employer and employee.

Employee therefore cannot be compelled to avail remedy provided

under the Act.

No other arguments has been raised to assail the judgment in the

writ appeal. We do not find any merit in the appeal, accordingly

dismissed.

Sd/-

AMIT RAWAL JUDGE

Sd/-

C.S.SUDHA JUDGE ak