Kerala High Court
Suresh Babu vs State Of Kerala on 6 November, 2024
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W.P.(C) No.20210 of 2018
2024:KER:82388
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
WP(C) NO. 20210 OF 2018
PETITIONER:
SURESH BABU
AGED 46 YEARS, S/O.CHANDRAN,
THESSERY KALARICKAL HOUSE,KODAKARA P.O.,
CHALAKUDY TALUK, THRISSUR DISTRICT.
BY ADV.
SRI.N.L.BITTO
RESPONDENTS:
1 STATE OF KERALA
REP BY SECRETARY TO THE GOVT,
DEPARTMENT OF LABOUR, GOVT.SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE DEPUTY LABOUR COMMISSIONER
(APPELLATE AUTHORITY), THRISSUR - 680 001.
3 ASSI.LABOUR OFFICER
LABOUR OFFICE CHALAKUDY,
THRISSUR DISTRICT- 680 001.
4 CENTRAL KERALA KURIES P LTD.
ALOOR REP. BY THE CHAIRMAN BABU VARGHESE,
S/O.VARGHESE, CHATHELY HOUSE, ALOOR DESOM,
ALOOR P.O., CHALAKUDY TALUK,
THRISSUR DISTRICT - 680 001.
5 CENTRAL KERALA KURIES P LTD.
ALOOR REP. BY THE MANAGING DIRECTOR,
ROBIN K.A., S/O.NOT KNOWN, ARIKKATT HOUSE,
ALOOR DESOM, ALOOR P.O., CHALAKUDY TALUK,
THRISSUR DISTRICT - 680 001.
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W.P.(C) No.20210 of 2018
2024:KER:82388
BY ADVS.
SRI.D.PREM KAMATH
SMT.SONY.K.B, GP
SRI.P.BENNY THOMAS, SR.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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W.P.(C) No.20210 of 2018
2024:KER:82388
HARISANKAR V. MENON, J.
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W.P.(C) No.20210 of 2018
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Dated this the 6th day of November, 2024
JUDGMENT
The petitioner, against an order by which he was dismissed
from service, has filed an appeal before the Appellate Authority
under the statute - Section 18. The said appeal stood rejected by
Ext.P7 order essentially on the ground of delay.
2. It is challenging the findings in Ext.P7 that the
petitioner has filed the captioned writ petition.
3. I have heard Sri.N.L.Bitto, the learned counsel for the
petitioner and Sri.P.Benny Thomas, the learned Senior Counsel on
behalf of respondents 4 and 5 - the employer.
4. The learned counsel for the petitioner, Sri.Bitto, would
contend that it is true that the appeal was filed beyond the period
prescribed under Rule 3 of the Kerala Shops and Commercial
Establishments Rules, 1961 (hereinafter referred to as "the Rules"
for short). However, he points out that the petitioner was
prosecuting his remedy before various other Forums, and it is only
on account of the afore reason that the appeal happened to be
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filed beyond the period prescribed under the Rules. He would point
out that therefore, the period during which the petitioner was so
prosecuting the remedies before other Forums have to be
excluded with reference to the provisions of the Limitation Act,
1963.
5. Per contra, Sri.Benny, the learned Senior Counsel on
behalf of respondents 4 and 5, would contend that the provisions
of Rule 3 is a specific legislation as regards the appeals to be filed
with reference to the provisions of the Kerala Shops and
Commercial Establishments Rules. Insofar as a specific period has
been prescribed thereunder for condonation of delay, the
provisions of the general statute - the Limitation Act, would not
apply.
6. I have considered the rival submissions as well as the
connected records.
7. Rule 3 to the Kerala Shops and Commercial
Establishments Rules, 1961, reads as under;
"3. Appeals under Section - 18 (1) Deputy Labour
Commissioner of the Labour Department shall be the
appellate authorities within their respective jurisdiction for
the purpose of Section 18 and any such appeal shall be
preferred by the employee within sixty days from the date of
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delivery of the order terminating his services with the
employer. The date of sixty days aforesaid shall be reckoned
from the date on which the order is delivered to the employee
either personally or, if that be not practicable, by prepaid
registered post or ordinary post to his last known address in
which cases the date of delivery shall be the date when the
letter would arrive in ordinary course of post.
Provided that the appellate authority may admit an appeal
presented after the expiration of the said period, if it is
satisfied that the appellant had sufficient cause for not
preferring the appeal within the said period:
Provided further that no such appeal shall be admitted after
a period of six months from the date of delivery of the order
appealed against."
A reading of the afore Rules would show that the appeal
thereunder has to be preferred within a period of sixty days from
the date of communication of the impugned order. The first proviso
thereunder entitles the appellate authority to condone the delay
in filing the appeal as above, provided sufficient reasons are
pointed out by the appellant. However, the power under the first
proviso is subject to the limit prescribed under the second proviso.
The second proviso says that the period that can be condoned
under the first proviso is only a period of six months from the date
of delivery of the order appealed against. Therefore, the appeal
ought to have been preferred within the outer time limit of six
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months from the date of service of the impugned order. If the
appeal is being filed after the said period of six months, the statute
does not permit condonation of delay.
8. Here, the impugned order is served on the appellant on
18.04.2015, whereas the appeal is filed only on 01.03.2016, which
is admittedly beyond the period prescribed under Rule 3 - second
proviso. Therefore, the findings in Ext.P7 cannot be said to be
incorrect or illegal.
9. As regards the submission made by Sri.Bitto with
reference to the provisions of the Limitation Act, I notice that
insofar as a specific period has been prescribed under the Rules,
the said period has to prevail over the power prescribed with
respect to the provisions of the Limitation Act and I am fortified in
taking the afore stand in view of the judgment of this Court in
Penuel Nexus Pvt. Ltd. v. Additional Commissioner [2023
(4) KLT 16].
Resultantly, this writ petition would stand dismissed.
Sd/-
HARISANKAR V. MENON
JUDGE
anm
2024:KER:82388
APPENDIX OF WP(C) 20210/2018
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF MEMO ISSUED BY THE 4TH
RESPONDENT TO THE PETITIONER DATED
21/2/2014.
EXHIBIT P2 A TRUE COPY OF THE DOMESTIC ENQUIRY
REPORT FURNISHED BY THE ENQUIRY OFFICER
ADV.M.D.SHAJU DATED 10/2/2015.
EXHIBIT P3 A TRUE COPY OF THE APPEAL NO.S.A.1 OF
2016 DATED NIL.
EXHIBIT P4 A TRUE COPY OF THE APPLICATION FILED BY
THE 3RD RESPONDENT IN S.A.1 OF 2016 DATED
4/6/2016.
EXHIBIT P5 A TRUE COPY OF THE OBJECTION FILED BY THE
APPELLANT APPLICATION FILED BY THE
RESPONDENT IN S.A.1 OF 2016 DATED
30/6/2016.
EXHIBIT P6 A TRUE COPY OF THE SAID COMPLAINT FILED
BEFORE THE ASSISTANT LABOUR OFFICER
CHALAKUDY.
EXHIBIT P7 A TRUE COPY OF THE ORDER PASSED BY THE
2ND RESPONDENT IN APPEAL NO.SA 1 OF 2016
DATED 4/10/2016.
