MAHALINGAM & COMPANY Vs. SANTHOSH KUMAR

JUDGEMENT

(1.) IS an employer obliged under S. 17B of the Industrial Disputes Act, 1947, to pay the last drawn wages to the workman even after the closure of the establishment, is the issue referred for decision by the Full Bench. A short summary of the facts needs to be mentioned for a proper understanding of the issue. The appellant was an agent of M/s. Bajaj Tempo Limited for sale of their products at Pathanamthitta and Thiruvananthapuram. The first respondent was a Mechanical Assistant in the establishment of the appellant. His service was terminated from 19.6.1995. An industrial dispute was raised by the first respondent in connection with the termination of his service and the said dispute was referred by the Government to the Labour Court for adjudication. The Labour Court answered the reference, holding that the termination of the service of the first respondent was unjustifiable and passed an award directing reinstatement of the first respondent in service. The award of the Labour Court is challenged by the appellant in W.P.(C) No. 22563 of 2006. One of the grounds raised by the appellant in the Writ Petition is that during the pendency of the proceedings before the Labour Court, the establishment of the appellant was closed down and therefore, an order of reinstatement could not have been issued by the Labour Court. It is stated in the Writ Petition that though the factum of closure was brought to the notice of their counsel by the appellant, it was omitted to be pointed out to the Labour Court and the award happened to be passed, in the circumstances, without taking note of the closure of the establishment.

(2.) THE first respondent filed I.A. No. 16572 of 2007 in the Writ Petition, seeking orders directing the appellant to pay the last drawn wages, invoking section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act' for short). A counter affidavit was filed by the appellant in I.A. No. 16572 of 2000, contending that since the establishment of the appellant does not exist, the first respondent is not entitled to the wages as provided for under section 17B of the Act. Even though a reply was filed by the first respondent to the counter affidavit, the averment in the counter affidavit as to the closure of the establishment is not disputed. Instead, the stand taken in the reply is that the closure of the establishment is irrelevant in the context of section 17B of the Act. The learned Single Judge allowed I.A. No. 16572 of 2007, holding that in view the decision of this Court in Bhaskaran v. Janardhanan Pillai, : 1988 (2) KLT 695, the closure of the establishment is irrelevant in the context of an application under section 17B of the Act. The said order of the learned Single Judge is under challenge in this appeal.

(3.) HEARD senior counsel Sri. E.K. Nandakumar for the appellant and Adv. Sri. Thaliyil R. Gopakumar, for the first respondent.