Kerala High Court
Abdul Khader.E.M vs The Employees Compensation ... on 4 August, 2025
WA NO. 1449 OF 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
MONDAY, THE 4TH DAY OF AUGUST 2025 / 13TH SRAVANA, 1947
WA NO. 1449 OF 2025
AGAINST THE JUDGMENT DATED 20.06.2024 IN WP(C) NO.859 OF 2014
OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
ABDUL KHADER.E.M
AGED 64 YEARS
S/O.MUHAMMED, PROPRIETOR, AL-IQBAL HOSPITAL
(NOW CLOSED) CHENTRAPPINNI,
RESIDING AT EDAVAZHIPURATH, CHEMAKKALA P.O.,
CHENTRAPPINNI, PIN: 680 687.
BY ADVS.
SRI.P.RAMAKRISHNAN
SRI.K.A.HAZAN
SMT.PREETHI RAMAKRISHNAN (P-212)
SRI.PRATAP ABRAHAM VARGHESE
SHRI.MANOJKUMAR G.
SHRI.ASHOK MENON
RESPONDENTS/RESPONDENTS:
1 THE EMPLOYEES COMPENSATION COMMISSIONER,
THRISSUR AND THE AUTHORITY UNDER THE MINIMUM WAGES ACT
OFFICE OF THE EMPLOYEES COMPENSATION COMMISSIONER,
THRISSUR, PIN - 680001
2 THE ASSISTANT LABOUR OFFICER
KODUNGALLUR, THRISSUR,
PIN - 680684
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3 THE TAHSILDAR
KODUNGALLUR, THRISSUR,
PIN - 680684
4 THE THRISSUR DISTRICT PRIVATE HOSPITAL AND GENERAL
WORKERS UNION, MANNADIAR LANE, THRISSUR,
REPRESENTED BY ITS SECRETARY, SOPHY TILAKAN,
PIN - 680001
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.07.2025,
THE COURT ON 04.08.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
Sushrut Arvind Dharmadhikari, J.
Heard Adv.Sri.P.Ramakrishnan, learned counsel for the appellant,
Adv.Sri.K.P Harish, learned Senior Government Pleader for
respondents 2 and 3 and Adv.Sri.V.M KrishnaKumar, learned counsel
for the 4th respondent.
2. This appeal has been filed with a delay of 50 days.
Having perused the reasons stated in the affidavit filed in support of
the application to condone delay, we are satisfied that sufficient cause
has been made out to condone the delay. Hence, C.M Appln. No. 2 of
2025 to condone the delay is allowed.
3. The present writ appeal is directed against the
judgment of the Single Bench dated 20.6.2024 in W.P(C) No. 859 of
2014 wherein the appellant-petitioner had challenged the action of the
2nd respondent - the Assistant labour officer under the Minimum
Wages Act for determining the wages of 87 employees for the period
September 2005 to February 2006. The aforementioned application
was filed by the 2nd respondent in 2008, Ext.P5. In those proceedings,
the appellant-petitioner was proceeded ex-parte. The recovery
proceedings, Ext.P11, was initiated in the year 2013 and the appellant
moved an application for setting aside the ex-parte order on 6.11.2012
which has been dismissed vide order dated 30.4.2013. It is pertinent to
mention here that the Labour Officer has determined the
compensation in terms of money to the tune of Rs.10,08,840/-.
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4. It is contended that the order of the labour court and
as well as the Single Bench did not notice the fact that Rule 33(4) of the
Kerala Minimum Wages Rules, 1958 (hereinafter referred to as the
Rules, 1958) does not envisage any limitation for moving an application.
In other words, the provisions of Section 5 of the Limitation Act, 1963
are not excluded by Section 29 of the said Act. All these factors if had
been looked into, no harm and prejudice would have been caused to the
other side by giving a chance to the appellant-petitioner to lead
evidence.
5. In an identical issue considered by the learned
Division Bench of this Court in W.A No.460 of 2025, the Court had
passed the following order:
"Sri.P.Ramakrishnan submitted that the provisions of Sub-rule
(4) of Rule 33 of the Kerala Minimum Wages Rules do not oust
the non-applicability of provisions of Limitation Act even if the
application for setting aside the ex parte was not filed within
one(1) month. There is no bar for seeking recalling of the order
along with an application seeking condonation of delay. Already
a sum of Rs.5 lakhs out of Rs.10,08,840/- (Rupees ten lakhs
eight thousand eight hundred forty only) has been deposited. We
are of the view that though the appellant-petitioner have been
not diligent in moving an application for setting aside the ex
parte proceedings dated 28.01.2008, but in the interest of
justice, the appellant should have been given a chance to
contest the averment of non-deposit of minimum wages of
eighty seven(87) workmen for the period September, 2005 to
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February, 2006. Issue notice before admission.
Sri.T.K.Vipindas, accepts notice on behalf of the
respondent. Coercive measures against the appellants are
ordered to be stayed till the next date of hearing. Interim order
is subject to the quantification of the cost which this Court will
determine on the next date of hearing."
6. Considering the predicament and the fact that the
Rule 33(4) of the Rules, 1958 which is extracted herein, below does
not envisage any bar in moving the application. Obviously, the
applicability of Section 5 cannot be ruled out, the courts below ought
to have considered this aspect either by framing the issue or giving a
chance to lead evidence to show whether the delay was either
intentional or bonafide.
"33(4) An order passed under Sub-rule (2) or Sub-rule(3) may be
set aside on sufficient cause being shown by the defaulting party
within one month of the date of the said order, and the
application shall then be reheard after service of notice on the
opposite party on the date fixed for rehearing in the manner
specified in Sub-rule (I)."
7. Be that as it may, since the matter has already
reached in an intra court appeal, we do not deem it appropriate to
traverse on such issue and deem it appropriate to set aside the ex
parte proceedings against the appellant. There shall be a direction to
the 1st respondent to consider the application of the workmen by
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giving chance to the appellant-petitioner to file reply and lead
evidence by giving three-three (3-3) effective opportunities in a span
of 1-1 month each and decide the case within a period of four
months from the date of receipt of certified copy of the judgment
and pass a speaking order. An identical issue raised in W.A. No. 460
of 2025, the coordinate bench has disposed of the writ appeal with a
similar direction herein above, in respect of the same appellant
against different set of employees.
The writ appeal is disposed of finally with the aforesaid
observations and directions.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
NJ
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PETITIONER EXHIBITS
English translation
TRUE ENGLISH TRANSLATION OF EXHIBIT P-4(A)
of Exhibit P-4(a)
English translation TRUE ENGLISH TRANSLATION OF EXHIBIT P-7 IN WP
of Exhibit P-7 (C) 859 OF 2014.
English translation TRUE ENGLISH TRANSLATION OF EXHIBIT P-11 IN
of Exhibit P-11 WP (C) 859 OF 2014.
Legible copy of
TRUE LEGIBLE COPY OF EXHIBIT R-4(A)
Exhibit R-4(a)
Legible copy of
TRUE LEGIBLE COPY OF EXHIBIT R-4(B)
Exhibit R-4(b)
