Kerala High Court
S.Thankomony vs The Presiding Officer on 15 January, 2025
1
W.P.(C) No.14418 of 2019
2025:KER:2739
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
WEDNESDAY, THE 15TH DAY OF JANUARY 2025 / 25TH POUSHA, 1946
WP(C) NO. 14418 OF 2019
PETITIONER:
S.THANKOMONY,
AGED 57 YEARS, WIFE OF MAHESH R.,
G.M.NIVAS, THURUTHIYIL, THURUVIKKAL P.O.,
THIRUVANANTHAPURAM - 695 011.
BY ADVS.
B.ASHOK SHENOY
SRI.K.V.GEORGE
SRI.P.N.RAJAGOPALAN NAIR
SRI.P.S.GIREESH
SRI.RIYAL DEVASSY
RESPONDENTS:
1 THE PRESIDING OFFICER,
LABOUR COURT, KOLLAM - 691 013.
2 SREE UTHRADAM THIRUNAL HOSPITAL,
REPRESENTED BY ITS MANAGING DIRECTOR,
PATTOM, THIRUVANANTHAPURAM - 695 004.
BY ADVS.
SRI.P.RAMAKRISHNAN
SMT.PREETHI RAMAKRISHNAN (P-212)
SMT.ASHA K.SHENOY
SRI.PRATAP ABRAHAM VARGHESE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
15.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
W.P.(C) No.14418 of 2019
2025:KER:2739
HARISANKAR V. MENON, J.
------------------------------
W.P.(C) No.14418 of 2019
------------------------------
Dated this the 15th day of January, 2025
JUDGMENT
The petitioner was working as a cleaner with the 2 nd
respondent from 1991. An industrial dispute is raised, since the
2nd respondent allegedly denied employment to the petitioner
from 1994. The industrial dispute was registered as I.D. No.16 of
1995, and Ext.P1 is the Award passed by the Labour Court,
Kollam. In Ext.P1, the reference was answered by holding that the
denial of employment as claimed by the petitioner was illegal and
that she should be reinstated with "full backwages and attendant
benefits in one month". Ext.P1 is dated 30.12.2004, and the same
is stated to have been pronounced by the Labour Court on
07.02.2005.
2. The petitioner later states that she had submitted
Ext.P2 communication dated 30.06.2006, seeking reinstatement
in service on the basis of the Award at Ext.P1. The petitioner
further claims that Ext.P2 was not acted upon, and hence on
31.12.2010, she lodged Ext.P4 claim petition under Section
33C(2) of the Industrial Disputes Act, 1947, before the Labour
2025:KER:2739
Court, Kollam, seeking the backwages for the period from March,
1994, till November, 2010. The management filed Ext.P5 written
statement. Ext.P6 is the order of adjudication as regards the claim
filed by the petitioner as above. The Labour Court rejected the
claim essentially on two reasons. Firstly, it was found that as
regards the present claim, the provisions of Section 33C would not
apply. Secondly, it was found that the claim, even if entertainable,
was highly belated and therefore cannot be entertained.
3. It is challenging the findings contained as above in
Ext.P6 that the captioned writ petition is filed by the petitioner.
4. I have heard Sri.B.Ashok Shenoy, the learned counsel
for the petitioner and Sri.P.Ramakrishnan, the learned counsel for
the 2nd respondent herein.
5. The sustainability or otherwise of the findings
contained in Ext.P6 is the sole issue arising for consideration in
this writ petition.
6. Sri.Ashok Shenoy, the learned counsel for the
petitioner, would rely on the provisions of Section 33C(2) as well
as Section 19(3) and (6) and would contend that the findings of
the Labour Court as regards the limitation cannot be sustained.
He would also rely on the judgment of this Court in G4S Security
2025:KER:2739
Services (India) Pvt. Ltd. v. Satheeshkumar K. and Others
[2010 (1) KLT 463] in support of the contention that a claim
under 33C(2) is maintainable. He also relied on the judgment of
the Apex Court in Ajaib Singh v. Sirhind Cooperative
Marketing-Cum-Processing Service Society Limited and
Another [(1999) 6 SCC 82] to contend that the findings as
regards the limitation were not correct or legal.
7. Per contra, Sri.Ramakrishnan, the learned counsel on
behalf of the 2nd respondent, relied on the provisions of the statute
referred to above as also the factual position that the petitioner
did not make any claim for reinstatement on the basis of Ext.P1
Award within a reasonable time and hence the claim at Ext.P4 was
highly belated.
8. I have considered the rival submissions.
9. The first question to be considered is as to whether the
claim with respect to the provisions of Section 33C(2) can be
entertained with respect to the case at hand.
10. Section 33C(2) reads as under;
"(2) Where any workman is entitled to receive from the
employer any money or any benefit which is capable of being
computed in terms of money and if any question arises as to
the amount of money due or as to the amount at which such
2025:KER:2739
benefit should be computed, then the question may, subject
to any rules that may be made under this Act, be decided by
such Labour Court as may be specified in this behalf by the
appropriate Government within a period not exceeding three
months.
Provided that where the presiding officer of a Labour Court
considers it necessary or expedient so to do, he may, for
reasons to be recorded in writing, extend such period by such
further period as he may think fit."
11. In the light of the afore, I am of the opinion that the
present claim lodged by the petitioner is essentially for
implementing the findings contained in Ext.P1 which was
maintainable under law.
12. However, the same claim ought to have been raised
within a reasonable period of time. In the case at hand, Ext.P1
admittedly was dated 30.12.2004 and was pronounced on
07.02.2005. Section 19(3) of the statute relied on by the learned
counsel for the petitioner, true, says that the Award will be in
operation only for a period of one year from the date on which the
same was passed. Therefore, applying the provisions of Section
19(3), the period of application as regards Ext.P1 would have
already come to an end by the time the claim was lodged by the
petitioner. At the same time, Section 19(6) provides for the
continued application of the Award with respect to the provisions
2025:KER:2739
contained therein, whereby either of the parties has to exercise
an option to terminate the benefits/ findings contained in the
Award. Therefore, on the basis of the afore, Sri.Ashok Shenoy,
would contend that the petitioner was justified in having raised
the claim on the basis of the afore provision.
13. But, in my opinion, the question to be considered is not
with reference to the provisions of Section 19(3) or (6). Here, as
already found, the petitioner had raised a claim for reinstatement
on the basis of Ext.P1 only on 30.06.2006, as seen from Ext.P2.
The 2nd respondent, in the written statement filed before the
Labour Court, has taken up a contention that they have issued a
communication dated 05.07.2005 to the effect that the petitioner
should join for duty. However, apart from making such a
contention in Ext.P5, true, the 2nd respondent has not entered the
box. But even on the face of the afore, this Court notices that the
petitioner has not disputed the contention raised by the 2nd
respondent with respect to the receipt or otherwise of a
communication as above. Furthermore, the subsequent claim at
Ext.P4 is seen filed before the Labour Court only on 31.12.2010.
14. I also take note of the Division Bench judgment of this
Court in Annamma Thomas v. T.Joseph [1984 KLT 545],
2025:KER:2739
wherein, with reference to the provisions of Section 33C(2), read
with the provisions of Section 19(3), this Court had categorically
found as under;
"10. As per the Award of the Industrial Tribunal dated 21-12-
1974 in I.D.No. 118 of 1964 the discharge of the employee
from service of the petitioner has been found to be invalid
and he is directed to be reinstated in service with backwages.
The consequence of such a declaration as is contained in the
award is that the employee continues to be in service of the
petitioner with all consequential benefits. An employee in
service is not however entitled to wages unless he is prepared
to work and offers his services to the employer. Once the
termination of service has been set aside, the employee
should report for duty and offer his services within a
reasonable time after the award has been passed in his
favour. If he fails to report for duty within a reasonable time,
he should be deemed to have abandoned his claim for
reinstatement and the employer will no longer be bound to
provide employment for him. The employee will also be
entitled to wages only, from the date on which he has
intimated his willingness to work to the employer and is
prepared to make his services available to him."
(underline supplied)
In the light of the afore, there cannot be any doubt to the effect
that, even on the face of an Award, it is for the employee
concerned to make a claim before the employer (within a
reasonable period of time), for the benefits pursuant to the Award
2025:KER:2739
issued. As already noticed, the Award was dated 30.12.2004 and
the claim has been filed by the petitioner as seen at Ext.P2 only
after the expiry of almost 18 months. In such circumstances, I am
of the opinion that the findings contained in Ext.P6 as regards the
question of limitation cannot be found fault with. The judgment of
the Apex Court in Ajaib Singh (Supra), relied on by the
petitioner was not with respect to a claim lodged under Section
33C(2) and hence would not apply.
For the afore reasons, I am of the opinion that the petitioner
is not entitled for the reliefs as prayed for in this writ petition, and
the same is dismissed.
Sd/-
HARISANKAR V. MENON
JUDGE
anm
2025:KER:2739
APPENDIX OF WP(C) 14418/2019
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF AWARD DATED 30/12/2004 IN
I.D.NO.16 OF 1995 PASSED BY 1ST
RESPONDENT.
EXHIBIT P2 TRUE COPY OF LETTER DATED 30/6/2006
ISSUED BY PETITIONER TO 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF POSTAL ACKNOWLEDGMENT SIGNED
BY 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF CLAIM PETITION DATED
31/12/2010 IN C.P.NO.2 OF 2011 BEFORE THE
1ST RESPONDENT FILED BY PETITIONER.
EXHIBIT P5 TRUE COPY OF WRITTEN STATEMENT DATED
5/12/2013 IN C.P.NO.2 OF 2011 BEFORE THE
1ST RESPONDENT FILED BY 2ND RESPONDENT.
EXHIBIT P6 TRUE COPY OF ORDER DATED 2/8/2018 IN
C.P.NO.2 OF 2011 PASSED BY 1ST
RESPONDENT.
