KUNJUMOHAMMED Vs. CHAIRMAN
HIGH COURT OF KERALA
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(1.)Stranger to O.P.2882/1990, who is affected by the decision therein, is the appellant. He challenges the decision of the learned Single Judge allowing the said Original Petition.
(2.)Material facts necessary for the disposal of this writ appeal are as follows.- Watchmen in Cochin Port Trust were engaged by various Steamer Watchmen Contractors. With a view to get equitable allocation of work to the watchmen, Cochin Steamer Watchmens Employment Regulation Scheme, 1983 was introduced by virtue of a conciliation settlement entered into between the representatives of trade unions of watchmen and employers. As per that settlement dated 18-3-1983, the retirement age of watchmen was fixed at 58 years. As a concession to those who have attained the age of 58 years, it was agreed upon to allow them to continue to work for a further period of three more years from the date of commencement of the scheme. 32 watchmen were brought within the purview of this scheme. The 32 watchmen thus retained were to be in employment till 15-5-1987, i.e. three years from 16-5-1984, the date on which the pool came into existence. Governing Body of the Cochin Steamer Watchmen Scheme issued notices on 17-2-1987 and 13-5-1987 informing them that they are due to retire on 15-5-1987. The 32 watchmen, who were thus superannuated with effect from 15-5-1987, submitted representations before the Assistant Labour Commissioner (Central) claiming benefits under the Industrial Disputes Act. Government of India referred the dispute for adjudication to the first respondent, Industrial Tribunal, Alleppey, where it was entertained as I.D.62/1989, Second respondent passed an award in the following terms:-
After the formation of scheme, there was no change in the nature of their work. The change effected was in the assignment of work to them, on an equitable basis. Instead of several contractors, an association of them wore the mantle of the employer. The only radical change which was effected after the formation of the scheme was the fixing of retirement age at 58 years. But as a favour to these workmen, despite their attaining of 58 years on the date of formation of scheme or later, they were allowed to work till 15-7-1987 (the correct date is 15-5-1987). But at the time of termination of their service, they were given only a consolidated sum as compensation instead of calculating the retrenchment compensation as provided under the I.D. Act. That is illegal. There is no clause in any of the conciliation settlements that these workmen are precluded from raising any demand for compensation in terms of S.25F of the I.D. Act. Hence the workmen concerned are entitled to get compensation taking into account the total service they had rendered both under the individual watchmen contractors and the governing body of the scheme. But I will make it clear that the Cochin Steamer Association will not be liable for the payment of compensation for the period prior to 1983 and that is in view of the specific provision in the conciliation settlement dated 18-3-1983. The liability for the period prior to the scheme will vest on the individual watchmen contractors. Since those individual contractors are not before me in this dispute, I cannot fix up the extent of that liability in these proceedings. Since the status of the workmen is admitted and the service rendered by them prior to 1983 is also admitted, the proper course for the workmen herein is to file application before the competent Labour Court by invoking S.33C(2) of the Industrial Disputes Act. They are entitled to claim retrenchment compensation and other benefits from the individual compensation and other benefits from the individual contractors who were their one time employers with reference to the length of service they had rendered under each of them.
(3.)The Chairman, Governing Body of the Cochin Steamer Watchmen Scheme challenged the above award in O.P.2882/1990 in so far as the Governing Body was made liable for compensation under the Industrial Disputes Act in relation to the watchmen who were superannuated with effect from 15-5-1987. In other words, in O.P.2882/1990 the petitioner challenged the award directing it to pay retrenchment compensation to 32 workmen for the period from 16-5-1984 to 15-5-1987. Individual Steamer Watchmen Contractors, who were made liable to pay retrenchment compensation to the 32 workmen, who were alleged to have been retrenched on 15-5-1984 as per the award, challenged the same by filing O.P.4698/1990. While disposing that Original Petition the learned Single Judge set aside the direction given in the award making the individual contractors liable, holding:-
The declaration that petitioners in O.P.4698/90 would be liable to pay retrenchment compensation cannot be sustained. For one thing, they continued in service till the date of superannuation and therefore there was no question of retrenchment as far as former employers were concerned. For another thing, they were not parties and the tribunal could not have made a declaration adverse to them. Yet for a third thing, the observation that S.33C(2) could be invoked runs contra to settled law, for, S.33C(2) could be invoked only when there is an existing right adjudicated upon, or indisputable. Virtually the Tribunal permitted unascertained workmen to enforce claims against unascertained employers. No one knew - certainly not the Tribunal - which workmen, was employed by which employer.
The decision in O.P.4698/1990 has become final, since no appeal has been filed against the same.
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