The petitioner is aggrieved with the order of the Labour Court, Ext.P3 under Section 33(C)(2) of the Industrial Disputes Act, 1947 (for brevity, 'the I.D Act'). The application of the respondent under Section 33(C)(2) was for realisation of back wages; which has been granted by Ext.R1, judgment of this Court. 2. The brief facts necessary for the disposal of the writ petition is that the 1st respondent an employee of the petitioner was dismissed on 12.05.1978. The Labour Court in a dispute raised by the 1st respondent directed reinstatement and the punishment was interfered with under Section 11-A of the ID Act imposing a punishment of barring of two increments. Writ petitions were filed by both the management and the workman. The workman's writ petition was allowed and the management's dismissed. The management took the matter before the Division Bench, in appeal. The Division Bench remanded the matter. The Labour Court on remand reiterated the earlier punishment of barring of two increments.
3. The 1st respondent was before this Court in O.P. No.1951/1995. In the intervening period, in 1998, the workman was reinstated in service and the workman retired in 1990. Hence, the reinstatement was not challenged before this Court. By Ext.R1, the original petition filed by the workman was partly allowed. Further modification was made to the punishment. The workman was granted 50% of the entire back wages and all other attendant benefits due to a workman. This was stated to be the punishment; which indicates that the punishment awarded was, in fact the denial of 50% of back wages. The benefits granted were directed to be paid within a period of three months. The management was also given the liberty to realise any legally realisable debt from the workman.
4. The petitioner claims that a suit was filed against the workman in the year 1979 and decreed as against the workman and one another. The decree of the suit, is produced by the 1st respondent, as Ext.R2. O.S. No.161 of 1979 filed by the petitioner, was decreed granting Rs.28,585/- with interest on the principal amounts at 12% from 09.10.1979. An appeal was filed from the decree, which was unsuccessfully challenged in A.S. 65 of 1985 and A.F.A No.45 of 1995. The judgment in A.F.A is produced by the learned Counsel for the workman across the bar, which is seen dated 01.09.1995.
5. The petitioner, on the basis of the decree claim, issued a communication to the respondent computing benefits payable including 50% back wages and setting-off the amounts as per the decree with interest. Eventually, on the computation made by the petitioner, there were remaining amounts, to be paid by the workman to the petitioner/management. It was hence that the petitioner approached the Labour Court under Section 33(C)(2). The Labour Court declined to consider the set-off claimed, on the ground that there is no legally realisable debt.
6. The learned Senior Counsel appearing for the petitioner would contend that limitation only bars the remedy of recovery and it cannot at all be said that the amounts as per the decree is not legally due to the petitioner. To deviate the issue, the interpretation of the words employed in Ext.R1 judgment would be relevant. This Court in Ext.R1 carefully observed that the management would be entitled to recover any legally realisable debt. A legally due debt and legally realisable debt, are two different concepts, the former indicating the liability alone but the latter indicating the existence of legal remedies for realising the debt. Admittedly an appeal and second appeal were filed by the workman but the management does not have a contention that there was a stay of recovery, which prevented them from resorting to measures for realisation of the debt, within the period of limitation.
7. The learned Senior Counsel would place reliance on a decision of this Court in Harikumaran Nair v. Kerala State Financial Enterprises [1993(2) KLT 463]. The said decision, went on the premise that if the borrower therein had mortgaged properties to secure the transaction, then the limitation would be 12 years. There was in fact no mortgage claimed. The opinion of a Division Bench in A.K. Nanu and Others v. State of Kerala and others [1987 (2) KLT 921]; which was dissented from has been upheld by the Hon'ble Supreme Court. State of Kerala v. V.R. Kalliyanikutty [1999(2)KLT 146(SC)]. Kalliyanikutty (supra) puts the issue beyond any pale of doubt. While it was held that 'amount due' includes time barred debt it was unequivocally declared that limitation would not be wiped of and the Revenue Recovery Act could be applied only against a 'legally recoverable debt'.
8. Apposite also would be a reference to the extract from Halsbury's Laws of England 3rd Edition Vol.124 at pate 205: referred to by the learned Single Judge in Harikumaran Nair (supra) extracted hereunder:
“Expect in the cases previously mentioned, the Limitation Act, 1939 only takes away the remedies by action or set off, it leaves the right otherwise untouched and if a creditor whose debt is statute - barred has any means of enforcing his claim other than by action or set off, this Act does not prevent him from recovering by those means ”
Set-off is what is claimed by the management/petitioner, which would also be barred by limitation. To sum up the amounts awarded as per the decree cannot be said to be a legally realisable debt.
Hence, the writ petition stands dismissed.
Sd/-
K. VINOD CHANDRAN, JUDGE SB // true copy // P.A To Judge.