Kerala High Court
P.P.John vs R.Muraleedhara Menon on 4 July, 2017
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY,THE 4TH DAY OF JULY 2017/13TH ASHADHA, 1939
SA.No. 203 of 2003 (G)
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AGAINST THE JUDGMENT IN OS 735/1997 of PRINCIPAL MUNSIFF COURT,KOCHI
AGAINST THE JUDGMENT IN AS 55/2000 of PRINCIPAL SUB COURT, KOCHI
APPELLANTS/APPELLANTS/DEFENDANTS:
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1. P.P.JOHN, MANAGING DIRECTOR,
RATNAVILAS, AYURVEDA OUSHADASALA (P) LTD., EDAKOCHI, KOCHI-6
2. MRS. ANNIE JOHN, DIRECTOR,
RATNAVILAS AYURVEDA OUSHADA SALA (P) LTD., EDACOCHI, KOCHI-6
3. M/S RATNAVILAS AYURVEDA OUSHADA SALA (P) LTD., EDACOCHI, KOCHI-6,
REPRESENTED BY ITS, DIRECTOR MRS. ANNIE JOHN, RATNAVILAS
AYURVEDA, OUSHADA SALA (P) LTD., EDAKOCHI, KOCHI-6
BY ADVS.SRI.SAJAN MANNALI
SRI.M.P.JAYAKUMAR
SMT.T.K.PRASEEDA
RESPONDENT(S)/RESPONDENT/PLAINTIFF:
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R.MURALEEDHARA MENON, S/O. LATE CAPT.
MADHAVAN NAIR, 16/668, T AND R CROSS ROAD, THOPPUMPADY, KOCHI-5
R BY ADV. SRI.S.EASWARAN
SRI.P.MURALEEDHARAN (IRIMPANAM)
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-07-2017, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
sab
K. RAMAKRISHNAN, J.
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S.A.No.203 of 2003
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Dated this the 4th day of July, 2017
J U D G M E N T
Dissatisfied defendants in O.S No.735/1997 on the file of the Principal Munsiff Court, Kochi are the appellants herein. The suit was one filed by the respondent herein for damages to the tune of Rs.32,000/- being the salary loss for denial of employment on the basis of contract. It is alleged in the plaint that he was appointed as Manager for a period of one year @ Rs.4,000/- per month from 1.9.1996. But after 4 months when the ESI Inspector inspected the concern, it was found that the plaintiff was not registered as an employee under the Employees State Insurance Scheme and since there was some dispute regarding such aspect and after December 1996, he was asked to keep away for sometime till the dispute is over and told that he need come only after informed by them. But when he went during January and February, 1997, they did not permit him to join the employment. So he approached the Labour Officer S.A.No.203 of 2003 2 and Labour Officer told that his remedy is to file a suit as he is in the managerial capacity, as he was appointed as a Manager and no labour dispute can be entertained. That prompted him to file the suit for recovery of Rs.32,000/- as damages for unpaid salary for the remaining period of 8 months, during which he was denied employment.
2. The defendants entered appearance and admitted that he was worked as Manager in their concern for 4 months and he was appointed only for a period of 4 months and for the period of 4 months, he was paid salary as well. Thereafter since he was not suitable for the post, his employment was terminated and there was no appointment order appointing him for one year as claimed by him and they have not committed any breach of contract as claimed. So they are not liable to pay any amount. They prayed for the dismissal of the suit.
3. On the basis of the pleadings following issues were framed by the court below:
i. whether the plaintiff is entitled to get the plaint amount as prayed for.
ii. relief and costs.
4. The plaintiff himself was examined as PW1 and S.A.No.203 of 2003 3 Exts.A1 to A2 were marked on his side. The 2nd defendant was examined as DW1 and no documents were marked on their side. After considering the evidence on record, the trial court found that the plaintiff was appointed for a period of one year and he is entitled to get the salary for remaining eight months and decreed the suit as prayed for.
5. Aggrieved by the same, the defendants filed A.S. No.55/2000 before the Sub Court, Kochi and the learned Sub Judge by the impugned judgment dismissed the appeal confirming the decree and judgment passed by the court below. Dissatisfied with the same, the second appeal has been preferred by the appellants/defendants before the court below. At the time of admission of the appeal, following question of law has been raised by this Court as to "whether the courts below were justified in law and in finding that the plaintiff was appointed for one year in the absence of any acceptable evidence?".
6. During the course of argument, this Court felt that one more substantial question of law also arises for consideration regarding the quantum of damages payable namely "whether the courts below were justified in not considering the mitigating circumstances of availability of any S.A.No.203 of 2003 4 other employment for the plaintiff in fixing quantum of compensation" and this was also formulated and heard on this aspect as well.
7. Heard Sri.Sajan Mannali, learned counsel appearing for the appellants and Sri.S.Easwaran, counsel appearing for the respondent.
8. Counsel for the appellants submitted that the plaintiff has not produced any document to show that the appointment was for a period of one year and without the basic document being produced, the courts below were not justified in arriving at a conclusion that the period of appointment was one year and as such he is entitled to get the damages for a period of 8 months. He had also argued that the courts below have wrongly relied on the contents of the unmarked document for the purpose of arriving such a conclusion. He had also contended that the plaintiff is not entitled to get compensation for the entire 8 months as he had not worked in the concern during that period.
9. On the other hand the learned counsel appearing for the respondent submitted that when the copy of the appointment order that was available with the plaintiff was attempted to be marked, that was objected by them on the S.A.No.203 of 2003 5 ground that it was a Photostat copy and they did not produce the best evidence available with them. Further in the written statement, they have contended that there was no appointment order given to him appointing him for a period of one year. That shows that the appointment was presupposed by an appointment order. If really the appointment order is only for a period of four months as claimed, they could have produced the best evidence before the court. He had also argued that the question of compensation has been correctly appreciated by the court below and rightly decreed the suit as prayed for as there was no valid termination of the appointment. There is no substantial question of law arises for consideration and it is a concurrent finding on facts which need not be interfered with by this Court.
10. The case of the plaintiff in the plaint was that he was appointed as Manger of M/s Ratnavilas Ayurveda Oushadhasala of which the appellants were the Directors for a period of one year from 1.9.1996 on a monthly salary of Rs.4,000/-. According to him, he was paid salary for 4 months at that rate and during December, when the ESI Inspector inspected the concern, he found that he was not registered employee and that the management was directed to register S.A.No.203 of 2003 6 him under the scheme as an employee. At that time the defendants told him to stay away from the work and after the dispute is over, he would be called for the employment but they did not call. That compelled him to file a complaint before the Labour Officer which resulted in Ext.A2 meeting in which it was directed by the Labour Officer that his remedy was to file a suit as he was appointed as a Manager and he would not come under the purview of the Industrial Dispute Act. That prompted him to file the suit. But according to the defendants the appointment is only for a period of 4 months and since his performance was not satisfactory, he was terminated after 4 months and he is not entitled to get any amount.
11. It is true that there was no document produced by the plaintiff to prove that the appointment was one year but he had produced the Photostat copy of the appointment order which he wanted to mark but the same was objected by the other side on the ground that it was a Photostat copy and it was not marked. But in the written statement, it was specifically mentioned as follows: "These defendants never stated anywhere in the appointment order that the service of the plaintiff would cease on 31.8.1997." This admission in the S.A.No.203 of 2003 7 written statement presupposes that at the time of appointment of the plaintiff, an appointment order was given showing the terms and conditions of the appointment. But then DW1 was examined, she had totally denied these aspects and according to her, it was only an oral appointment. So the courts below were justified in coming to the conclusion that the best evidence available with the defendants had not been produced and the court below rightly believed the evidence of PW1 and came to the conclusion that the period of appointment was for one year and the monthly salary payable was agreed between the parties as Rs. 4,000/- per month and the concurrent finding of the courts below on appreciation of facts do not call for any interference.
12. There is no dispute regarding the fact that after 1.12.1996, plaintiff did not go for employment. It is also come out in evidence that during February 1997 itself he came to understand that there was no possibility of being taken for employment and that compelled him to file a complaint before the Labour Officer during March 1997 itself and it was also seen from Ext.A2 intimation from the Labour Office that they were asked to appear before the Labour Officer for conciliation on 29.4.1997 at 11.30 a.m. According to the S.A.No.203 of 2003 8 plaintiff, it was on that day, that the Labour Officer closed the complaint advising the plaintiff to go to civil court for appropriate remedy since he was appointed as a Manager in the managerial capacity and no industrial dispute would lie. It was on that basis that he filed the suit. So it is clear from this letter itself that there was a dispute between the parties and there was no possibility for the plaintiff to get employment under the defendants' concern after that.
13. There is no evidence adduced on the side of the plaintiff to prove that he made any attempt for getting an employment and he did not succeed in that attempte. It is not a case where the plaintiff was asking for arrears of salary payable for the work done by him. He only claims damages for denial of employment in breach of the contract. So the courts below ought to have taken into consideration the mitigating circumstances as to whether there was any possibility of plaintiff getting any employment and he attempted for that and failed whereby he is entitled to get damages for the entire period of remaining 8 months. Such an exercise has not been done by the court below.
14. Further plaintiff when examined as PW1 also did not adduce any evidence to prove that he had made an S.A.No.203 of 2003 9 attempt for that purpose but he did not succeed in that attempt. Further he filed the suit only in December 1997. He did not come to court immediately after rejection of the complaint by the Labour Officer so that the damages could have been restricted to that extent and that has not been done. Considering these aspects, this Court feels that the courts below were not justified in awarding compensation for the entire remaining 8 months @ Rs.4,000/- per month.
Considering the fact that the dispute raised before the Labour Officer culminated on 29.4.1997 and for reasonable period he could not have obtained any employment which this Court can fix as 6 months for which the appellants are liable to compensate the respondents @ Rs.4000/- per month. So the plaintiff is entitled to get damages only for a period of 6 months @ Rs.4,000/- per month which the defendants are liable to pay with 6% interest from the date of suit till payment and the plaintiff is also entitled to get proportionate cost from the respondent throughout. So the substantial question of law raised by this Court are answered accordingly and the appeal is allowed in part reducing the amount payable to Rs.24,000/- from Rs.32,000/- awarded by the courts below which the defendants are liable to pay to the plaintiff with 6% interest S.A.No.203 of 2003 10 till payment. The plaintiff is also entitled to get proportionate cost throughout excluding the proceedings in this court.
With the above directions, observations and modifications the 2nd appeal is allowed in part and disposed of accordingly.
Sd/-
K. RAMAKRISHNAN,
sab JUDGE