Kerala High Court
Cochin Devaswom Board vs Biji Pradeep on 18 February, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
WA NO. 1528 OF 2023
& WA NO.1540 OF 2023 1 2025:KER:15105
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
WA NO. 1528 OF 2023
AGAINST THE ORDER DATED 31.07.2023 IN I.A.NO.1 OF 2022 IN
WP(C) NO.38124 OF 2022 OF HIGH COURT OF KERALA
APPELLANT/1ST RESPONDENT IN IA/PETITINOER IN WP(C):
COCHIN DEVASWOM BOARD,
REPRESENTED BY ITS SECRETARY, COCHIN DEVSAWOM BOARD
OFFICE, ROUND NORTH, THRISSUR, PIN - 680001.
BY ADV K.P.SUDHEER, SC, CDB
RESPONDENTS/PETITIONER & RESPONDENTS 2 TO 4 IN IA/RESPONDENTS IN
WP(C):
1 SATHY RAJENDRAN,
THEMBILLIL HOUSE, IDAKKATTUVAYAL P.O., ARAKKUNNAM,
ERNAKULAM DISTRICT, PIN - 682315.
2 THE GENERAL SECRETARY,
KERALA URAYMA DEVASWOM BOARD, THIRUMARARIKULAM SREE
MAHADEVAKSHETRAM DEVASWOM, VADUTHALA,
KOCHI, PIN - 682023.
3 SRI R.V RANJITH,
MANAGER, THIRUMARAIKULAM DEVASWOM,
RAJESH BHAVAN (MUDAPPANAMYALIL), CHEETHIKKODE P.O.,
ERNAKULAM, PIN - 682315.
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& WA NO.1540 OF 2023 2 2025:KER:15105
4 THE MANAGING TRUSTEE,
THIRUMARARIKULAM MAHADEVAKSHETRAM SAMRAKSHNA TRUST,
CHETTIKODE P.O., KANJIRAMATTOM, ERNAKULAM DISTRICT,
PIN - 682315.
BY ADVS.
Ashok Shenoy B
P.S.GIREESH(K/341/2013)
SALIH P.A.(K/422/2020)
ARJUN R NAIK(K/001044/2020)
THEJALAKSHMI R.S.(K/001390/2022)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2025,
ALONG WITH WA.1540/2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WA NO. 1528 OF 2023
& WA NO.1540 OF 2023 3 2025:KER:15105
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
WA NO. 1540 OF 2023
AGAINST THE ORDER DATED 31.07.2023 IN I.A.NO.1 OF 2022 IN
WP(C) NO.38137 OF 2022 OF HIGH COURT OF KERALA
APPELLANT/1ST RESPONDENT IN IA/PETITIONER IN WP(C):
COCHIN DEVASWOM BOARD,
REPRESENTED BY ITS SECRETARY, COCHIN DEVSAWOM BOARD
OFFICE, ROUND NORTH, THRISSUR, PIN - 680001.
BY ADV K.P.SUDHEER,SC, CDB
RESPONDENTS/PETITIONER & RESPONDENTS 2 TO 4 IN IA/RESPONDENTS IN
WP(C):
1 BIJI PRADEEP,
W/O. PRADEEP, RESIDING AT PARAYIL VEEDU, PAZHAGATTU,
CHETHIKKOD P.O., KANJIRAMATTOM,
ERNAKULAM, PIN - 682315.
2 THE GENERAL SECRETARY,
KERALA URAYMA DEVASWOM BOARD, THIRUMARARIKULAM SREE
MAHADEVAKSHETRAM DEVASWOM, VADUTHALA,
KOCHI, PIN - 682023.
3 SRI R V RANJITH (WRONGLY TYPED IN THE IMPUGNED ORDER
AS "R.V.RAJANITH")
MANAGER, THIRUMARAIKULAM DEVASWOM, RAJESH BHAVAN
(MUDAPPANAMYALIL) CHETHIKKODE P.O. ERNAKULAM,
WA NO. 1528 OF 2023
& WA NO.1540 OF 2023 4 2025:KER:15105
PIN - 682315.
4 THE MANAGING TRUSTEE,
THIRUMARARIKULAM MAHADEVAKSHETRAM SAMRAKSHNA TRUST,
CHETTIKODE P.O., KANJIRAMATTOM, ERNAKULAM DISTRICT,
PIN - 682315.
BY ADVS.
Ashok Shenoy B
P.S.GIREESH(K/341/2013)
SALIH P.A.(K/422/2020)
ARJUN R NAIK(K/001044/2020)
THEJALAKSHMI R.S.(K/001390/2022)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2025,
ALONG WITH WA.1528/2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WA NO. 1528 OF 2023
& WA NO.1540 OF 2023 5 2025:KER:15105
COMMON JUDGMENT
Muralee Krishna, J.
These writ appeals are filed under Section 5(i) of the Kerala
High Court Act, 1958, by the petitioner-Cochin Devaswom Board
(the 'Board' in short) in W.P.(C) No.38124 of 2022 and 38137 of
2022 respectively. The writ petitions were filed by the appellant-
Board under Article 227 of the Constitution of India, to issue a writ
of certiorari to quash the respective awards dated 28.07.2021
passed by the Labour Court, Ernakulam, in Industrial Disputes
Nos.7 and 8 of 2017, directing the appellant Board to reinstate the
workers in the respective Industrial Disputes with full back wages,
continuity in service and all other attendant benefits. In the writ
petitions, the respective 1st respondent workmen filed
interlocutory applications under Section 17B of the Industrial
Disputes Act, 1947 ( 'the Act' in short), for payment of full wages
last drawn by them pending the writ petitions. As per the
impugned orders dated 31.07.2023 passed in the writ petitions,
the learned Single Judge allowed the Interlocutory Applications
and directed the appellant to pay the workmen full wages last
drawn by them, at the rate of Rs.3,500/- and Rs.5,000/-
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respectively, per month from 24.11.2022 onwards until further
orders. Being aggrieved, the appellant Board filed the above writ
appeals.
2. The 1st respondent workmen in these writ appeals claimed
before the Labour Court that they are the employees of
Thirumaraikulam Sree Mahadevakshethram at Chethikode. The
appellant Board contended before the Labour Court that the
temple in question is a controlled institution and the appellant has
no right to interfere in the day-to-day administration of the
temple. The entrustment of the temple to the appellant by the
trust which at present manages the temple is under challenge in
W.P.(C) No.30161 of 2016 pending before this Court and hence
the appellant has no right to interfere in the administration of the
temple and there is no employer and employee relationship
between the appellant Board and the 1st respondent workmen.
However, as per Ext.P8 award passed in the respective Industrial
Disputes, the Labour Court directed the appellant to reinstate the
1st respondent in the writ appeals with full back wages and all
other attendant benefits. Challenging these awards, the appellant
preferred W.P.(C)Nos.38124 of 2022 and 38137 of 2022
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respectively, wherein the impugned interlocutory orders were
passed by the learned Single Judge, without noting this crucial
aspect.
3. Heard the learned standing counsel for the appellant-
Board and the learned counsel for the 1st respondent workmen in
the writ appeals.
4. The learned standing counsel for the appellants submitted
that it is true that as per Section 17B of the Industrial Disputes
Act 1947, the employer shall be liable to pay the workmen during
the pendency of any proceedings against the award of the Labour
Court directing reinstatement of the workmen with full wages last
drawn by him. The same is not applicable in the case of the
appellant Board since there is no employer and employee
relationship between the appellant and the 1st respondent. The
learned standing counsel brought the attention of this Court to the
order dated 09.09.2016 passed by this Court in W.P.(C)No.30161
of 2016, whereby the enforcement of Ext.P14 decision in that writ
petition to take over Thirumaraikulam Sree Mahadeva temple by
the appellant Board was stayed by this Court. Subsequently that
interim order has extended until further orders as per the order
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dated 16.10.2017.
5. On the other hand, the learned counsel for the 1st
respondent workmen supported the interlocutory orders passed
by the learned Single Judge.
6. The impugned orders dated 31.7.2023 were passed by
the learned Single Judge on the application of the 1st respondent
workmen under Section 17B of the Act. The said Section reads
thus:
"17B. Payment of full wages to workman pending
proceedings in higher Courts
- Where in any case, a Labour Court, Tribunal or National
Tribunal by its award directs reinstatement of any workman
and the employer prefers any proceedings against such
award in a High Court or the Supreme Court, the employer
shall be liable to pay such workman, during the period of
pendency of such proceedings in the High Court or the
Supreme Court, full wages last drawn by him, inclusive of
any maintenance allowance admissible to him under any
rule if the workman had not been employed in any
establishment during such period and an affidavit by such
workman had been filed to that effect in such Court:
Provided that where it is proved to the satisfaction of the
High Court or the Supreme Court that such workman had
been employed and had been receiving adequate
remuneration during any such period or part thereof, the
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Court shall order that no wages shall be payable under this
section for such period or part, as the case may be."
7. In Commandant, Defence Security v. Secretary,
NCCGUE Assn. [2001 (2) KLT 104] this Court considered the
scope of Section 17B of the Act and held thus:
"Before we conclude and answer the reference, we feel
constrained to observe that any challenge to the award on
the ground that it is without jurisdiction or is otherwise a
nullity alone will not be sufficient to suspend the operation
of S.17B of the Act. The final adjudication in a case where
the award is without jurisdiction or is otherwise a nullity
shall ordinarily meet the ends of justice. The workman who
shall be waiting for the implementation of the award during
the pendency of the proceedings, however, shall receive
only the wages at the rate last paid for the period of the
pendency of the proceedings in the Court. It is not a burden
of any serious consequence upon the employer, but will be
a deprivation of a sort which may cause havoc to the
workman and his family. If we proceed on the footing that
the Court's power to make the final order includes the power
to make an interim order, then we may say, the power will
extend to suspending the liability of the employer under
S.17B of the Act and accordingly the right of the workman
to receive wages pendente lite. But, this will be possible in
the rarest of the rare cases. Otherwise, it will defeat the very
purpose for which this section has been introduced in the
Act. There shall be any number of employers /
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managements, who shall successfully contrive petitions and
proceedings challenging the award on some such grounds
as the award being without jurisdiction or a nullity. Courts
cannot afford to be manipulated and allow the management
/ employer to use the interim order as a weapon to avoid
such a statutory liability. Some error of fact or even some
error of law alone will not thus be enough to issue any
interim order. If, however, the error is such that goes to the
root of the jurisdiction of the Tribunal and the Court has got
sufficient materials to ignore the effect of S.17B of the Act,
the Court may decline to order payment of the wages
pendente lite." [emphasis supplied]
8. In Sasikala Kumari v. Piravathoor Service
Cooperative Bank Ltd. [2005 (3) KLT 585] while considering
an application under Section 17B of the Act this Court held thus:
"S.17B has been enacted by Parliament with a view to give
relief to a workman, who has been ordered to be reinstated
under the award of a Labour Court or the Industrial Tribunal,
during the pendency of proceedings in which the said award
is under challenge before the High Court or the Supreme
Court. The object underlying the provision is to relieve, to a
certain extent, the hardship that is caused to the workman
due to delay in the implementation of the award. The
payment that is required to be made by the employer to the
workman is in the nature of subsistence allowance, which
would not be refundable or recoverable from the workman
even if the High Court or the Apex Court sets the award
WA NO. 1528 OF 2023
& WA NO.1540 OF 2023 11 2025:KER:15105
aside. (See Dena Bank v. Kiritikumar T. Patel, 1999 (2) SCC
106)." [emphasis supplied]
9. The Apex Court in Uttar Pradesh State Electricity
Board v. Sone Lal [(2009) 16 SCC 301] while considering the
question whether reinstatement is necessary to claim benefit of
Section 17B held thus:
"The writ petition out of which this matter has arisen is
pending in the High Court. While dealing with this
aspect of interim order, on 4-2-2002 statement of
counsel for the appellant was noticed by the High Court
that provisions of S.17B of the Industrial Disputes Act
have been complied with. That order states that if it has
been complied with and the workman has been
reinstated and paid his current salary from the date of
the award, the interim order passed by the Court shall
continue otherwise it shall stand automatically vacated.
The appellant moved an application seeking
modification of the order dated 4-2-2002 on the ground
that under some misconception counsel for the
appellant stated that the aforesaid provisions have
been complied with. Learned counsel for the appellant
submits that even if the provisions of S.17B of the
Industrial Disputes Act were to be complied, it was not
obligatory to reinstate the employee viz. Respondent 1.
That application has been dismissed by the impugned
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order observing, inter alia, that it is the statutory
responsibility of the employer to comply with the
aforesaid provisions. The impugned order read with
order dated 4-2-2002 presumes that reinstatement is
necessary under S.17B. It cannot be disputed and has
fairly been not disputed by the learned counsel for
Respondent 1 that in terms of S.17 - B reinstatement
is not necessary so long as the provisions of S.17B are
complied with and full payment in terms thereof is
made to the employee by the employer."
[emphasis supplied]
10. In Suresh Kumar K v. Ganesh [2015 (2) KHC 254]
while considering the entitlement of the workman to claim back
wages retrospectively under Section 17B of the Act this Court held
thus:
"12. The learned counsel appearing for the management
vehemently submitted that the award itself was obtained by
the workman by playing fraud on the Court namely, the
Labour Court and therefore, the management was
incapacitated to raise the contention that he is not a person
coming under the definition of S.2(s) and thus the 1st
respondent being not a workman, is not entitled to invoke
S.17B of the ID Act. The above contentions, according to us,
are devoid of any merit. The High Court or the Supreme
Court, as the case may be, if the challenge is at the instance
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of the management against the award or judgment,
whereby it is directed the management to reinstate the
workman, the appropriate Court can pass an order under
S.17B of the ID Act, on its satisfaction of the twin conditions
envisaged by S.17B of the ID Act. So, at the time of
consideration of the application under S.17B of the ID Act,
what is to be considered is, whether there is a direction in
the award under challenge to reinstate the workman and
further, whether the workman has been employed in any
establishment during such period. The very title of S.17B
itself reads as 'payment of full wages to workman pending
proceedings in higher Courts.' The above title of the Section
serves as a Keynote to the substance of the Section. On a
close reading of S.17B would further reveals that, in case
the workman, who is ordered to be reinstated by the Labour
Court or the Tribunal or National Tribunal by its award
against the employer, preferred any proceedings in a High
Court or the Supreme Court, on an application of such
workman, the employer or the management shall be liable
to pay such workman, during the period of pendency of such
proceedings in the High Court or the Supreme Court, full
wages last drawn by him. At this juncture, it is also relevant
to note that S.17B is one of the welfare measures,
incorporated in the ID Act to financially save the workers,
who are undergoing victimization or harassment from the
part of the management by denying employment and
wages, even after an order in favour of the workman from
a competent fact finding Court or Authority. It is also clear
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from the above provision that duty to pay backwages in such
a situation is independent of the outcome of the challenge
before the higher Courts and irrespective of the merit of the
challenge or contention raised by the management. That
means, even if ultimately in such a proceedings, it is found
that the order of the Labour Court or the Tribunal or National
Tribunal is incorrect or illegal, the backwages paid under
S.17B of the ID Act could not be recovered by the
management, as the said welfare measure is the outcome
of the special provision incorporated by the Legislature to
save the interest of the workmen especially in the absence
of any clause in the said Section to that effect. So, the
contention of the learned counsel appearing for the
management that if the backwages as ordered by the
impugned order are paid and finally the appeal is allowed in
favour of the management, the said amount could not be
recovered, is without any basis and therefore, we do not find
any merit on such contention. In the present case also, the
learned Single Judge has found that the workman is entitled
to get the backwages."
11. Again, in Lourdes Hospital v Station of Kerala [2022
(2) KHC 185] this Court considered the conditions that should be
mandatorily fulfilled to enable the workman to claim wages in
terms of Section 17B of the Act and held thus:
"10. It is by now well-established by a catena of rulings of
the Apex Court and various High Courts, including this Court
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that the following conditions should be mandatorily fulfilled
to enable the workman to claim wages in terms of Sec.17-
B of the ID Act during the pendency of writ proceedings to
challenge the Labour Court award either before the High
Court or before the Apex Court and the said conditions are
as follows:
"(i) there must be an award by the Labour Court or the
Industrial Tribunal directing the re-instatement of the
workman concerned.
(ii) the challenge against the award should be pending
before the High Court or the Apex Court.
(iii) the workman had not been gainfully employed in any
establishment during the pendency of the litigative
proceedings before the High Court or the Apex Court, as the
case may be.
(iv) an affidavit shall be sworn by the workman concerned
that he is not employed in any establishment receiving
adequate remuneration during the pendency of the matter
before the High Court or the Apex Court, as the case may
be."
12. A reading of Section 17B of the Act and the judgments
on the point referred to above would make it clear that it is
mandatory for the High Court or the Supreme Court to pass orders
in favour of the workman under Section 17B of the Act, if other
statutory conditions laid down in the Section are satisfied, except
in the rarest of rare cases, such as error that goes to the root of
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the jurisdiction of the Tribunal. Such a payment made as per the
direction of the Court would not be refundable or recoverable from
the workman even if the High Court or the Apex Court sets the
award aside.
13. But in the instant case from the materials on record
and the submissions made at the Bar, we notice that the decision
of the appellant-Board to take over the management of
Thirumaraikulam Sree Mahadeva temple, Chethikode was stayed
by this Court as per the order dated 16.10.2017 in W.P.(C)
No.30161 of 2016. In such circumstances, the appellant Board
cannot be treated as the employer of the 1st respondent workmen
in these writ appeals, who claim as the employees of that temple.
In such circumstances, the appellant Board cannot be directed to
pay full wages to the 1st respondent in the respective writ appeals
under Section 17B of the Act since there is no master and servant
relationship between the appellant and the 1st respondent. The
impugned orders passed by the learned Single Judge are therefore
liable to be set aside. For the very same reason the non
entitlement of the employer to recover any amount paid under
Section 17B of the Act to the workman is not applicable to the
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facts of this case, since the appellant is not the employer of the
1st respondent.
In the result, these writ appeals are allowed by setting aside
the impugned orders dated 31.07.2023 in IA Nos.1 of 2022 in
W.P.(C) Nos. 38124 2022 and 38137 of 2022 respectively. It is
made clear that the appellant Board is entitled to recover the
wages if any paid to the 1st respondent workmen on the strength
of the interim orders passed by the learned Single Judge, from the
3rd respondent Devaswom, by initiating appropriate proceedings,
including Revenue Recovery Proceedings on the strength of the
notification issued by the Government under Section 71 of the
Kerala Revenue Recovery Act,1968.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
DSV/- MURALEE KRISHNA S., JUDGE
