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S. Kumaraswamy (ex-licensee, Nagercoil Electric Supply Corporation) Vs. South-Travancore Electric Workers' Union and Ors. (22.02.1956 - KERHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1957)ILLJ512Ker
AppellantS. Kumaraswamy (ex-licensee, Nagercoil Electric Supply Corporation)
RespondentSouth-Travancore Electric Workers' Union and Ors.
Excerpt:
.....untenable as sub-section (5) of section 19 provides: 7. my attention was invited to sub-sections (6) and (7) of section 19 as well, but these sub-sections also have no application to the case before me because a bare reading of those provisions is sufficient to show that their application is only to awards to which sub-section (3) applies and not to awards to which that sub-section does not apply, or in other words, to awards coming within the purview of sub-section (3). 8. in the light of what is stated above the operation of ex. b and e are not liable to be quashed and that this petition must fail......tribunal) act, 1950, states the effect of such modification as follows:where on appeal from any award or decision of an industrial tribunal the appellate tribunal modifies in any manner whatsoever that award or decision, the decision of the appellate tribunal shall, when it becomes enforceable under section 15, be deemed to be substituted for that award or decision of the industrial tribunal and shall have effect for all purposes in the same manner and in accordance with the same law under which the award or decision of the industrial tribunal was made as if the industrial tribunal made the award or decision as modified by the decision of the appellate tribunal.and in the light of section 16 there can be no doubt that the award that subsists is ex. b and not ex. a.5. another.....
Judgment:

M.S. Menon, J.

1. The prayer in the petition is curiously worded:

For the reasons stated in the accompanying affidavit herewith submitted it is prayed that the Hon'ble Court he pleased to issue a writ of certiorari or other appropriate writ or direction calling upon the award, dated 27 December 1951, of the industrial tribunal, Trivandrum, and the award, dated 26 August 1954, of the Labour Appellate Tribunal and the demand notice bearing date served on the petitioner on 28 September 1955 by the third respondent.

There is no specific prayer to quash either the two awards, Exs. A and B, or Ex. E, the demand notice, issued to the petitioner.

2. The petitioner described himself as the 'ex-licensee Nagercoil Electric Supply Corporation, Nagercoil.' The first respondent is 'The South Travancore Electrical Workers' 'Union, represented by the president Sri R.K. Ram, residing at Rajackamangalam, Nagercoil,' the second 'the State of Travancore-Cochin represented by the Chief Secretary to Government, Trivandrum' and the third 'the Tahsildar, Agastheeswaram taluk at Nagercoil.' Exhibit A is The interim award of the industrial dispute No. 13 of 1951. The award was modified by the Labour Appellate Tribunal of India, III Bench, on an appeal filed by the petitioner, appeal No. III-526 of 1953. Exhibit B is the appellate award and it reads as follows:

This is an appeal against an interim award. There was a delay in the filing of the appeal. The application under Section 10 of the Industrial Disputes (Appellate Tribunal) Act has been made for condonation of the delay. There is an affidavit in support of the application. There is no counter-affidavit. After hearing the learned Counsel for the parties we are satisfied that sufficient cause has been shown for the condonation of the delay. We order accordingly. Parties have arrived at a settlement. The appeal is decided in terms thereof. The settlement shall form part of the order.

Agreement

After the case had been argued at some length by Sri P. Govindan Nair accompanied by Sri C.V. Kumaraswami Pillai, representatives of the appellant, and Sri Ramanatha Pillai, accompanied by Sri R.K. Ram, President of the South Travancore Workers' Union, they stated that the parties have arrived at a settlement as follows and the appeal may be decided in accordance with it:

(i) Having regard to the fact that the concern was taken over by the Government from the appellant on 1 December 1952 it is agreed that the appellant shall be liable to pay the wages hereinafter mentioned up to 30 November 1952 only.

(ii) The appellant shall pay one-half of the wages of the 14 retrenched workmen and one-fourth of the wages of the 14 dismissed workmen up to 30 November 1952 and thus will absolve him from all liability under the interim award. The appellant will not be liable for any payment of wages to any of the 28 workmen aforesaid in respect of the period ending 30 November 1952 or any period thereafter.

(iii) Parties will bear their costs. (Sd.) P. Govindan Nair,Advocate for the appellant,26.8.54.(Sd.) M. Ramanatha Pillai,Advocate for the respondent,26.8.54.

3. In Para. 12 of the petitioner's affidavit he has stated:

The Hon'ble Labour Appellate Tribunal is said to have passed on 26 August 1954 an award based on an agreement said to have been entered between the first respondent and the petitioner's advocate in his absence and without his knowledge and consent.

This contention was reiterated before me but I am unable to understand how the petitioner can possibly escape liability under Ex. B so long as it is in force and has not been vacated by appropriate proceedings.

4. The learned Counsel for the petitioner seemed to suggest that Ex. A should be considered as still in force and that it is Ex. A and not Ex. B that is capable of enforcement even if his other contention which I shall deal with presently are not accepted by me. Exhibit A has been modified by Ex. B and Section 16 of the Industrial Disputes (Appellate Tribunal) Act, 1950, states the effect of such modification as follows:

Where on appeal from any award or decision of an industrial tribunal the Appellate Tribunal modifies in any manner whatsoever that award or decision, the decision of the Appellate Tribunal shall, when it becomes enforceable under Section 15, be deemed to be substituted for that award or decision of the industrial tribunal and shall have effect for all purposes in the same manner and in accordance with the same law under which the award or decision of the industrial tribunal was made as if the industrial tribunal made the award or decision as modified by the decision of the Appellate Tribunal.

and in the light of Section 16 there can be no doubt that the award that subsists is Ex. B and not Ex. A.

5. Another suggestion made at the bar was that the liability under Ex. B should be construed as that of the State and Ex. E which is issued by the State should be avoided on that ground. This suggestion also cannot be accepted. It is clear from the files that the Government took over the Nagercoil Electric Supply System on 1 December 1952 and in spite of that the petitioner did not seek to bring the Government on record in his appeal before the Labour Appellate Tribunal of India and contend that the liability, if any, was not his but that of the State.

6. Exhibit E is the demand notice issued by the third respondent and the only question that remains to be considered is whether that notice is bad for all or any of the reasons urged by the petitioner. Exhibit B was passed as already stated on 26 August 1954 and Ex. B was issued only on 26 September 1955, i.e., after the lapse of a period of one year from the date of the award. The petitioner's contention is that it is hence not capable of execution in view of the provisions of Section 19(3) of the Industrial Disputes Act, 1947, which omitting the two provisos which are not material to this case reads as follows:

An award shall, subject to the provisions of this section, remain in operation for a period of one year.

This argument is clearly untenable as Sub-section (5) of Section 19 provides:

Nothing contained in Sub-section (3) shall apply to any award which by its nature, terms or other circumstances does not impose, after it has been given effect to, any continuing obligation on the parties, bound by the award.

and the terms of Ex. B, the award of specific sums of money to the 28 workmen concerned, bring it within the ambit of that sub-sections.

7. My attention was invited to Sub-sections (6) and (7) of Section 19 as well, but these sub-sections also have no application to the case before me because a bare reading of those provisions is sufficient to show that their application is only to awards to which Sub-section (3) applies and not to awards to which that sub-section does not apply, or in other words, to awards coming within the purview of Sub-section (3).

8. In the light of what is stated above the operation of Ex. B cannot be considered as barred under the provisions of Section 19 of the Industrial Disputes Act, 1947, and as no other provision of law has been invoked to substantiate the contention that it has ceased to be enforceable by efflux of time I must hold that Ex. B is capable of execution and can be executed under the provisions of Section 20(1) of the Industrial Disputes (Appellate Tribunal) Act, 1950, which reads as follows:

Any money due from an employer under any award or decision of an industrial tribunal may be recovered as arrears of revenue or as a public demand by the appropriate Government on an application made to it by the person entitled to the money under that award or decision.

9. According to the counsel for the petitioner Ex. E is defective because it was issued in pursuance of a request by respondent 1 and not by 28 persons concerned. The files produced before me merely show that all the 28 persons entitled to receive payment under Ex. B have moved in the matter and filed petitions before the Labour Commissioner, Trivandrum stating the number of the award, the amount due and praying that 'the above amount may be realized under Section 20 of the Industrial Disputes (Appellate Tribunal), Act 1950.' When the learned Government Pleader drew attention to the existence of the 28 petitions, the argument was changed and the new submission was that as the petitions were addressed to the Labour Commissioner and not to the Government, the notice 'Ex. E' issued in pursuance of those petitions should still be construe as defective. I see no force in this contention. Petitions to the head of the department directly concerned with labour matters and forwarded by him to the Government for 'necessary action should be deemed to be petitions to the Government themselves and as sufficiently complying with the provisions of Section 20(1) of the Industrial Disputes (Appellate Tribunal) Act, 1950. I also see no force in the contention that 28 separate notices were not issued under the Travancore-Cochin Revenue Recovery Act, 1951, but only Ex. E demanding the total amount due under Ex. B.

10. No other contention was urged before mo or arises for consideration and in view of what is stated above I must hold that Exs. B and E are not liable to be quashed and that this petition must fail.

11. The petition is hereby dismissed with costs, advocate's fee Rs. 100 to respondent 1 and a like amount to respondent 2.


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