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Hydrose Haji Vs. K.M. Bava and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1978)ILLJ524Ker
AppellantHydrose Haji
RespondentK.M. Bava and ors.
Cases ReferredWorkmen of Uttar Pradesh State Electricity Board and Anr. v. Upper Ganges Valley Electricity Supply Co. and Ors.
Excerpt:
- - 3. in this appeal, counsel for the appellant has raised an interesting point he invited our attention to section 18, clauses 2, 3 and 4 of the kerala shops and commercial establishments act, which read as follows:.....of the case. in this particular case, the tribunal did not dismiss the appeal nor did it direct reinstatement. the appellant's contention therefore, is that under the 3rd of the alternatives, on the language of the clause, it was open to him only to direct payment of compensation without reinstatement. it could not, it was contended, direct payment of back wages and also couple it with an award of compensation. on the language of the clause, as it stands now, the argument is not without force. but, we feel, that while directing the award of compensation under the 3rd alternative provided, it is possible and permissible for the tribunal to take into account the back wages lost by the employee as a result of the wrongful termination, as an element in the compensation. on.....
Judgment:

V.P.Gopalan Nambiyar, Acting C.J.

1. The appeal is against the judgment of a learned Judge who dismissed the appellant's writ petition to quash the order Ext P3 of the appellate authority under the Kerala Shops and Commercial Establishments Act, 1960, (the Additional Deputy Labour Commissioner, Ernakulam). That authority had found that the termination of service ordered by the appellant of the 1st respondent was unjustified. Having come to that conclusion, the authority found that there was no ground to order reinstatement as the relationship between the employer and the employee was rather strained, and reinstatement might only have the result of developing further disharmony with the employee. It, therefore, directed the appellant to pay the 1st respondent, a sum of Rs. 5,740 towards back wages for the period from 13-12-1969 (the date of termination) to 14-5-1973 (the date of the order at Rs. 140 per mensem. It also found that the 1st respondent was entitled to a further sum of Rs 2,000 towards compensation in lieu of reinstatement, and directed the appellant to pay the same to the 1st respondent. In the result, the appellant was directed to pay a total amount of Rs. 7,740 within thirty days of the date of the order.

2. The learned single Judge sustained the decision and dismissed the writ petition.

3. In this appeal, counsel for the appellant has raised an interesting point He invited our attention to Section 18, Clauses 2, 3 and 4 of the Kerala shops and Commercial Establishments Act, which read as follows:

18. Notice of dismissal.--

xx xx xx(2) Any employee whose services are dispensed with may appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer.

(3) The appellate authority may, after giving notice in the prescribed manner to the employer and the employee, dismiss the appeal or direct the reinstatement of the employee with or without wages for the period he was kept out of employment or direct payment of compensation without reinstatement or grant such other relief as it seems fit in the circumstances of the ease.

(4) In directing the reinstatement of an employee the appellate authority shall also direct the payment of such amount of compensation as may be specified by him in case the employer fails to reinstate the employee in accordance with the directions.xx xx xx

It was argued that the four reliefs mentioned in Clause 3 are alternative and not cumulative, and that authority to that effect is to be found in an earlier decision by one of us in Cranganore Town Co-operative Bank Ltd. v. Sankara Velichapad and Anr. 1967-II L.L.J. 116. The clause empowers the appellate authority to (1) dismiss the appeal or (2) direct the reinstatement of the employee with or without wages for the period he was kept out of employment or (3) direct payment of compensation without reinstatement or (4) grant such other relief as it deems fit in the circumstances of the case. In this particular case, the Tribunal did not dismiss the appeal nor did it direct reinstatement. The appellant's contention therefore, is that under the 3rd of the alternatives, on the language of the clause, it was open to him only to direct payment of compensation without reinstatement. It could not, it was contended, direct payment of back wages and also couple it with an award of compensation. On the language of the clause, as it stands now, the argument is not without force. But, we feel, that while directing the award of compensation under the 3rd alternative provided, it is possible and permissible for the Tribunal to take into account the back wages lost by the employee as a result of the wrongful termination, as an element in the compensation. On principle, there seems to us to be no reason why this should not be so; although, on the language of the clause there is some difficulty in coupling an award of back wages along with compensation, as done by the Tribunal. We are not, however, prepared to hold that the order is wholly without jurisdiction, or disclose any patent error of law. And the interests of justice certainly do not warrant interference with the order. We would, however, draw the attention of the authorities to the need for a suitable amendment of Clause (3) of Section 18 so as to clarify the position that even where only compensation is granted, back wages may still be included as an element in the compensation.

4. Counsel for the respondents drew our attention to a pronouncement of the Supreme Court in Workmen of Uttar Pradesh State Electricity Board and Anr. v. Upper Ganges Valley Electricity Supply Co. and Ors. 1966--I L.L.J. 730, where the Supreme Court had awarded both back wages and also compensation, without of course, any independent consideration or discussion as to whether these two could really be awarded as separate and independent items of claim.

5. We do not think that interests of justice warrant interference. We dismiss this appeal with no order as to costs.


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