Kerala High Court
N.T.Sebastian vs P.M.Pradeep on 4 March, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 14TH DAY OF FEBRUARY 2014/25TH MAGHA, 1935
OP(LC).No. 91 of 2010 (O)
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(AWARD IN ID 53/2006 of INDUSTRIAL TRIBUNAL, IDUKKI DATED 4.3.2010)
PETITIONER:
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N.T.SEBASTIAN,
ST.MARY'S CEMENT CENTRE, ETTUMANOOR PO, KOTTAYAM.
BY ADV. SRI.MATHEW PHILIP EDAPPALLIL
RESPONDENT:
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P.M.PRADEEP, PARAYIL
PERUMPAYIKKADU PO, SANKRANTHI, KOTTAYAM.
R,R BY ADV. SRI.A.X.VARGHESE
THIS OP (LABOUR COURT) HAVING BEEN FINALLY HEARD ON
14-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SCL.
K.HARILAL, J.
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O.P.(LC) No.91 of 2010
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Dated this the 11th day of March, 2014
JUDGMENT
The petitioner is the management in Industrial Dispute No.53/2006 on the files of the Industrial Dispute, Idukki. He is running a commercial establishment by name, St.Mary's Cement Centre at Ettumanoor. The respondent herein is a workman under the petitioner working as sales representative. According to the workman, he was a permanent employee of the petitioner and he was drawing a monthly salary of `2,500/- per month. He had completed more than 240 days continuous service in every year of his long service. He worked as a permanent employee under the petitioner from March, 2002 to 13.7.2005. On 13.7.2005 he met with a road traffic accident while riding on the motor cycle provided by the management during the course of his employment. After the accident, the workman OP(LC).No.91 of 2010 2 returned for duty on 26.12.2005. But the management abruptly denied his employment without assigning any reason whatsoever. According to the workman, the denial of his employment is illegal and he is eligible to be reinstated in service with all benefits. In the above circumstances, he filed a petition under Section 12 of the Industrial Disputes Act before the District Labour Officer, Kottayam on 21.1.2006. Since the reconciliation talks ended in failure, the matter was referred to Government as an industrial dispute and the Government of Kerala, as per G.O(Rt.)No.1863/2006/LBR dtd.8.8.2006 referred this industrial dispute for adjudication to the Industrial Tribunal, Idukki. Before the Industrial Tribunal, M.Ws.1 and 2 were examined and Exts.M1 to M7 were marked for the management and the workman was examined as W.W.1. After considering the evidence on record, the Tribunal passed an award directing the management to reinstate the workman in service with 50% back wages. The legality and propriety of the said award are under challenge in this OP(LC).No.91 of 2010 3 Original Petition.
2. Heard both sides. The learned counsel for the petitioner advanced arguments assailing the findings in the award. According to the counsel for the petitioner, the court below went wrong in finding defects in the muster roll. The management has a case that the workman is having a service of less than 5 months and he was paid a daily allowance of Rs.100/- only. There was no evidence from the part of the workman to show that he was a permanent employee of the petitioner and worked for a period from March 2002 to July, 2005 under the petitioner. No proof of salary or wages or any records or order were produced to substantiate the claim that he was a permanent employee of the petitioner.
3. Per contra, the learned counsel for the respondent advanced arguments to justify the impugned award under challenge. According to him, the management purposefully concealed the wages register and though, the muster roll was produced in evidence, the court below found that the OP(LC).No.91 of 2010 4 same is defective and no reliance can be placed on the muster roll produced by the management. According to the learned counsel, the management failed to produce sufficient evidence to show that the workman had worked only for 5 months. At all points, the impugned award passed by the Tribunal is justifiable.
4. In view of the rival contentions, the short question that arises for consideration in this petition is, whether there is any material illegality or impropriety in any of the findings in the award. Put it differently, whether the denial of employment is justifiable. Going by the impugned award, it is seen that the Government has referred the issue "whether the denial of employment to Sri.P.M.Pradeep, field representative of St.Mary's Cement Center, Ettumanoor by the employer is justifiable? If not, what relief the workman is entitled to ?".
5. According to the workman, he had completed more than 240 days continuous service in every year of his long service and he worked as a sales representative under the OP(LC).No.91 of 2010 5 petitioner from March, 2002 to July, 2005. During the course of his employment under the petitioner on 13/07/2005 he met with a road traffic accident while riding on the motor cycle provided by the management during the course of his employment. The said incident is admitted by the management also. The matter in dispute is that, according to the workman, when he returned for duty on 26/12/2005 after the accident, the management had denied him employment. But, according to the management, since he was not a permanent employee and he was a worker receiving only Rs.100/- per day as daily wages; he is not entitled to claim reinstatement. Going by the impugned award, it could be seen that, to substantiate the contention that the workman had worked for 5 months only, the management had produced Ext.M6 muster roll. But, after evaluating the said document, the Tribunal found that no reliance can be placed on Ext.M6 muster roll as a signature of any of the employee do not find a place in Ext.M6 muster roll. But, at the same time, it is pertinent to note that the OP(LC).No.91 of 2010 6 management has not produced wages register as rightly found by the court below. To prove an employer-employee relationship, wages register is a reliable document and no explanation was forthcoming from the management as regards the non-production of the wages register. Certainly, an adverse inference also can be drawn against the management for the non-production of wages register before the Tribunal.
6. The learned counsel for the petitioner drew my attention to Ext.P3 lawyer's notice issued under the instruction of workman and contended that, even, in that notice, he has not claimed reinstatement; but he claimed compensation of Rs.1 lakh only. Similarly, he owns an Ape goods autorikshaw and he is earning by rendering the service of said autorikshaw. Thus, he does not want employment. The petition was really intended to get compensation only.
7. But, going by Ext.P5 order passed by the Government referring the matter to Industrial Tribunal as OP(LC).No.91 of 2010 7 an industrial dispute, it is seen that the denial of employment was brought to the notice of the District Labour Officer as early on 21/01/2006 and when the conciliation efforts ended in futility, the District Labour Officer referred the matter to Government seeking reference to industrial Tribunal for adjudication. Therefore, even before, the issuance of Ext.P3 lawyer's notice he has claimed the reinstatement invoking the provisions under Industrial Disputes Act. Therefore, Ext.P3 cannot be taken as a material to show that he did not claim reinstatement. Similarly, merely on the reason that he owns an Ape goods authorikshaw, it cannot be held that he does not want reinstatement and he has other sources of earning. Even if, he has other sources of earning if his dismissal from service was not in accordance with law, certainly, he can claim reinstatement of employment. Taking into account the totality of evidence available on record, I find that there is no illegality or impropriety in any of the findings in the award and so also I do not find any kind of perversity in the OP(LC).No.91 of 2010 8 appreciation of both oral and documentary evidence.
8. Coming to back wages, it is seen that the tribunal granted 50% back wages, but the tribunal didn't specify the date from which he is entitled to get 50% back wages. It has come out in evidence that he owns an autorickshaw, and as rightly held by the tribunal that it is not possible to believe that he was not doing any work. It is made clear that he is entitled to get 50% back wages from the date of award only.
This original petition is devoid of merits and dismissed accordingly.
K.HARILAL, JUDGE.
Okb/stu //True copy// P.A to Judge