Kerala High Court
Aruna Tourist Home vs Industrial Tribunal on 10 June, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 26TH DAY OF FEBRUARY 2014/7TH PHALGUNA, 1935
WP(C).No. 35980 of 2010 (V)
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I.D.NO. 11/2006 OF INDUSTRIAL TRIBUNAL COURT, ALAPPUZHA, DATED 10-06-2010.
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PETITIONER:
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ARUNA TOURIST HOME, A.M ROAD,
PERUMBAVOOR - 683 542, REPRESENTED BY ITS
MANAGING PARTNER T.N. ASOK KUMAR.
BY ADVS.SRI.A.JAYASANKAR
SRI.MANU GOVIND
RESPONDENTS:
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1. INDUSTRIAL TRIBUNAL, ALAPPUZHA-688 001.
2. PERUMBAVOOR RANGE MADHYA VYAVASAYA
THOZHILALI UNION (CITU), PERUMBAVOOR - 683 542,
REPRESENTED BY ITS SECRETARY.
R1 BY SENIOR GOVERNMENT PLEADER SRI.P.I.DAVIS
R2 BY ADV. SRI.RAJESH NAIR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-02-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Msd.
WP(C).No. 35980 of 2010 (V)
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APPENDIX
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PETITIONER(S)' EXHIBITS & ANNEXURES:
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EXHIBIT P1: TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE
PETITIONER ESTABLISHMENT UNDER THE KERALA SHOPS AND
ESTABLISHMENTS ACT 1960.
EXHIBIT P2: TRUE COPY OF THE NOTICE DATED 09.05.2005 PUBLISHED BY THE
2ND RESPONDENT.
EXHIBIT P3: TRUE COPY OF NOTICE PUBLISHED BY THE 2ND RESPONDENT ON
25.06.2005.
EXHIBIT P4: COPIES OF PHOTOGRAPHS SHOWING THE AGITATION OF THE
2ND RESPONDENT.
EXHIBIT P5: TRUE COPY OF THE ORDER DATED 07.07.2005 IN WP(C) 19637/2005.
EXHIBIT P6: TRUE COPY OF THE ORDER DATED 09.09.2005 IN WP(C) 19637/2005.
EXHIBIT P7: TRUE COPY OF THE JUDGMENT DATED 09.09.2005 IN
WP(C) 19637/2005.
EXHIBIT P8: TRUE COPY OF THE NOTICE PUBLISHED BY THE 2ND RESPONDENT
ON 13.10.2005.
EXHIBIT P9: TRUE COPIES OF PHOTOGRAPHS OF THE POPULAR MARCH ON
24.11.2005.
EXHIBIT 10: TRUE COPY OF THE NOTICE PUBLISHED BY THE 2ND RESPONDENT
ON 24.11.2005.
EXHIBIT P11: TRUE COPY OF NOTICE OF KAIRALI FAMILY RESTAURANT ON
10.02.2006.
EXHIBIT P12: TRUE COPY OF THE NOTICE REGARDING THE OPENING OF VESTA
ICE CREAM PARLOUR.
EXHIBIT P13: TRUE COPY OF THE NEWS ITEM PUBLISHED BY MALAYALA
MANORAMA ON 14.02.2006.
EXHIBIT P14: TRUE COPY OF NEWS ITEM PUBLISHED BY MATHRUBHOOMI ON
14.02.2006.
EXHIBIT P15: TRUE COPY OF THE REFERENCE ORDER DATED 17.07.2006 ISSUED
BY THE GOVERNMENT.
EXHIBIT P15(A): TRUE COPY OF THE COMPLAINT OF THE 2ND RESPONDENT
DATED 15.08.2005.
Msd.
WP(C).NO. 35980 OF 2010 (V)
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EXHIBIT P16: TRUE COPY OF CLAIM STATEMENT DATED 11.01.2006 FILED BY THE
2ND RESPONDENT.
EXHIBIT P17: TRUE COPY OF THE WRITTEN STATEMENT 02.05.2007 FILED BY THE
PETITIONER.
EXHIBIT P18: TRUE COPY OF THE REJOINDER FILED BY THE 2ND RESPONDENT
UNION.
EXHIBIT P19: TRUE COPY OF THE AWARD DATED 10.06.2010 PASSED BY THE
1ST RESPONDENT IN ID 11/2006.
ANNEXURE 1: PHOTOCOPY OF THE REPRESENTATION SUBMITTED Y THE
PETITIONER IN I.A. BEFORE 1ST RESPONDENT ON 14.08.2010.
ANNEXURE 2: POSTAL ACKNOWLDGMENT OF ANN.2 PETITION FILED UNDER
RULE 150 OF THE KERALA HIGH COURT RULES FOR
ACCEPTING THE ABOVE ADDITIONAL AFFIDAVIT ON THE FILE
OF THIS HON'BLE COURT.
RESPONDENT(S)' EXHIBITS:
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EXHIBIT R1(A): TRUE COPY OF LETTER SENT BY VIJU M.K. ADDRESSED TO
THE FIRST RESPONDENT.
EXHIBIT R1(B): TRUE COPY OF THE ACKNOWLEDGMENT CARD OF EXT.R1(A)
LETTER.
//TRUE COPY//
P.A.TO JUDGE.
Msd.
A.M.SHAFFIQUE, J
* * * * * * * * * * * * *
W.P.C.No.35980 of 2010
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Dated this the 26th day of February 2014
J U D G M E N T
Petitioner challenges Ext.P19 award passed by the Industrial Tribunal, Alappuzha in I.D.No.11 of 2006. The issue involved in the industrial dispute was regarding denial of employment to eight workers.
2. The management establishment is a Bar-attached- Hotel. The second respondent Union made a demand stating that eight workers engaged by the management were denied employment. Though conciliation proceedings were held, it did not result in any settlement and subsequently the Government referred the industrial dispute to the Industrial Tribunal for adjudication. Ext.P16 is the claim statement submitted by the Union representing the workers. It is inter alia stated that the workmen were all having continuous and uninterrupted service in the management establishment. Further it is stated that the W.P.C.No.35980/2010 2 employer was not maintaining proper wage roll of the workmen. No appointment orders were issued. Wage slips were not being issued. The workers had to work overtime even during holidays, they were not given proper benefits and were denied minimum wages. Hence a Union was formed by the workers which resulted in the victimization of workers, and as a result several of them were sent away without assigning any reasons. It is further contended that all of a sudden the management denied employment to the workers mentioned in the reference order. It is further contended that they were working in the management establishment for a long period, there was no misconduct alleged, no enquiry was conducted and they were denied employment suddenly. Therefore the contention of the Union was that in so far as they were illegally terminated, they should be reinstated with full back wages and all other consequential benefits.
W.P.C.No.35980/2010 3
3. The petitioner establishment had filed a statement denying the facts as stated in the claim statement. According to them, they were maintaining all statutory records which were being verified and countersigned by the concerned officers. They have also denied the other factual claims made by the Union. According to the Management, workers mentioned in the reference were not working with them, as alleged. It is inter alia stated that all of those workers were temporary/casual employees who were working for less than 240 days. It is specifically stated that K.K.Venu joined service on 01/04/1998 and continued up to 07/03/2005. He left service on 21/03/2005 and there was no denial of employment. Sri.P.P.Sabu worked from 01/08/2004 to 07/03/2005, Sri.Benny Grigory worked from 12/10/2004 to 07/03/2005, Sri.M.K.Biju worked from 01/10/2004 to 16/3/2005, Sri.Biju Mathew worked from 01/04/2004 to 06/09/2004, Sri.Santhosh C.K from 01/04/2004 to 06/09/2004, Sri.E.M.Prakash from 01/09/2004 to 12/11/2004 W.P.C.No.35980/2010 4 and G.M.Vasudevan was only a casual employee who worked only for a few days. According to the management, they have not denied employment to any person. It is further indicated that the Union has taken up the issue knowing fully well that the said workmen had no legal right to continue in service. The Union published notice on 25/06/2005 and started agitation which became violent on 26/06/2005 and the remaining workers were not in a position to carry on with their work. Petitioner had to obtain an order of police protection. Thereafter, the customers were obstructed. The Union held a popular march on 21/10/2005. Some of the workers started a restaurant under the name and style `Kairali Family restaurant' in Perumbavoor in February 2006. K.K.Venu was employed as a cleaner in a national permit lorry and the others are employed in different establishments. Therefore, it is contended that they are not entitled for reinstatement in service. W.P.C.No.35980/2010 5
4. Before the Tribunal, evidence was adduced consisting of oral evidence of 7 witnesses on behalf of the workmen and one witness on behalf of the management. The workmen relied upon W1 to W5 documents and the management relied upon Exts.M1 to M15. On an evaluation of the oral evidence and the documents relied upon by either parties, the Tribunal formed an opinion that the workman concerned had joined service in the said establishment on the dates stated by them and the oral evidence of WW2 to WW7 of the concerned workman were not controverted in any manner. On the basis of the said oral evidence, the Tribunal found that six of the workmen who were examined before the Tribunal were continuously working for long periods in the said establishments and they were wrongfully denied employment for joining Trade Union. Since two of the workmen did not appear before court to give evidence, it was found that they are not entitled for any relief. The Tribunal thereafter proceeded to consider the W.P.C.No.35980/2010 6 respective arguments of the parties.
5. Though it was contended by the management that most of the workers were only working for a limited period and they left the establishment on their volition, the said contention was found against. The Tribunal found that since the termination of the workmen from employment was not in respect of any misconduct, the termination is abinitio void. It is further found that the workmen were not gainfully employed and hence an award has been passed declaring that six of the workers were working with the management for certain period and they were wrongfully terminated from employment. Hence direction was issued to reinstate them in service with continuity in service, back wages and other benefits. It is also found that two of the workmen namely Sri.C.K.Santhosh and Sri.Biju Mathew will not be eligible for back wages since they were having alternate employment.
6. The management impugns the above award inter alia contending that the appreciation of evidence by the W.P.C.No.35980/2010 7 Industrial Tribunal is highly perverse. According to them, neither in Ext.P15(a), the complaint submitted before the District Labour Officer, the claim statement nor the rejoinder provides the length of service, each employee had in the establishment. Even the proof affidavits filed by the workers did not contain any such particulars. In the absence of any such particulars made available, the contention is that the finding of the Tribunal purely based on the oral testimony of the witnesses was absolutely perverse. Still further, it is contended that the petitioner was maintaining the statutory records for a long period and the muster roll and register of wages for the period from 2001 to 2005 were produced as Exts.M8 and M9 series. Since the authenticity of the documents were disputed by the Union and the workers had identified their signatures during cross examination, there was no reason for the Tribunal to disbelieve the same. Therefore, it is contended that relevant matters were not considered by the Tribunal while arriving at the said W.P.C.No.35980/2010 8 conclusion. It is further contended that the documents relied upon by the Management clearly establishes the fact that some of these workers were employed only for a limited period and they were not entitled for any retrenchment compensation or notice pay.
7. Learned counsel for the 2nd respondent, however, contended that the Tribunal has arrived at the findings regarding the employment of workmen and their illegal termination based on evidence adduced during trial. In so far as the finding of fact had been arrived at on appreciation of evidence, the scope of judicial review is very limited. The petitioner is unable to show that the findings are either perverse or based on irrelevant consideration. Therefore, the petitioner cannot seek interference with the award passed by the Tribunal. He also relied upon Devinder Singh v. Municipal Council Sanaur [2011 (6) SCC 584], B.Rajagopal v. Jomy Xavier and another [2010(2) KLJ 191(DB)]. Jai Singh and others v. Municipal W.P.C.No.35980/2010 9 Corporation of Delhi and another [(2010) 9 SCC 385] and Shalini Shyam Shetty and another v. Rajendra Shankar Patil and another [(2010) 8 SCC 329] to contend that finding of fact will not be interfered with by the court while exercising the power of judicial review under Article 226 of the Constitution of India. This proposition is, of course, undoubted.
8. The learned counsel for respondent also relied upon Management of Madurantakam Coop. Sugar Mills Ltd. v. S.Viswanathan [(2005) 3 SCC 193] to contend that if two views are possible, the view expressed by the Tribunal has to be accepted. Learned counsel also argued that the burden of proof is upon the management to show that the workmen were employed only for a limited period and in so far as no records are produced with reference to the period during which the workmen were actually employed, that by itself would indicate that the management had thoroughly failed to prove their contentions. He also relied upon the W.P.C.No.35980/2010 10 judgments in S.M.Nilajkar and Others v. Telecom District Manager, Karnataka [(2003) 4 SCC 27] and Davinder Singh (Supra) in support of the said contention.
9. It is further contended that since Tribunal who is a competent agency to consider the rights of workmen has already come to a definite finding by taking into consideration the labour legislations, this Court should be slow in interfering with such findings. Reference is also made to Harjinder singh v. Punjab Warehousing Corporation [AIR 2010 SCC 1116].
10. Having regard to the contentions urged on behalf of the petitioner as well as the respondents, the short issue to be considered is whether the findings made by the Tribunal in regard to the denial of employment of the workers of the Union is in any way perverse and whether the Tribunal is justified in directing reinstatement with back wages.
W.P.C.No.35980/2010 11
11. First of all it will be better to consider the evidence adduced by the Union. WW1 is a member of the Union who may not have any direct connection regarding the employment of the workers. Six of the workers had given oral evidence. They were examined as WW2 to WW7. All of these witnesses had stated in the proof affidavit that they have joined the establishment in a particular month of a year and they have also indicated that they have been denied the employment subsequently. Of course, none of the witnesses have stated the date on which they started working in the said establishment. Ext.W1 is a certificate dated 10/06/1991 indicating that P.P.Sabu was working as a ward boy in the tourist home from September 1988 to May 1991. This document apparently will not prove the allegation raised in the case. Other documents produced are photostat copies and apparently having no relevance. Ext.W4 is another award with respect to another workman of the establishment. Therefore, the Tribunal has come to a W.P.C.No.35980/2010 12 finding regarding employment of the workmen only based on the oral testimony of those workmen. The Tribunal formed an opinion that in so far as the evidence of the workmen is not controverted either in cross examination or by producing sufficient material or other evidence, the same can be believed. On the other hand, it is argued by the learned counsel for the Management that they have produced sufficient documents to prove that these persons were never employed in the establishment during the relevant time. Ext.M9 series are the register of wages for the period 2001-2002 to 2004-2005 and Ext.M8 series are the muster rolls for the period from 2001-2002 to 2004- 2005. The main argument of the learned counsel for the petitioner is that when these documents are produced and it is evident from these documents that some of the workers had worked only for a few days in a year as contended by the petitioner, the Tribunal cannot ignore such documents and then rely upon the oral testimony of the workmen and W.P.C.No.35980/2010 13 come to a finding regarding their employment in the petitioner's establishment. It is also contended that most of the workers had admitted in evidence that they have signed the muster roll as well as the wage register.
12. It is therefore necessary to consider as to how the Tribunal has dealt with the documents relied upon by the Management. The Tribunal proceeds to find in paragraph 53 of the award that the Management was discriminating between the Union worker and the non-Union worker and the management was not in the habit of observing statutory principles and making statutory payments in regard to workers who are not members of the Trade Union. The Tribunal also observed that the Management was not welcoming strengthening of the Trade Union and more workers joining in the said Trade Union. Further, the Tribunal, while evaluating the evidence of Management witness formed an opinion that service records were not maintained in respect of casual workers and it was W.P.C.No.35980/2010 14 maintained only with respect to Union workers. Further it is found that the Management was not in the habit of issuing appointment orders to their workers. This is based on the evidence of the Management witness. The Tribunal further found that Ext.M8(1) series is the muster roll relating to the Tourist Home Bar and Restaurant relating to the period 2001-02. This document is not verified by the Enforcement Officer under the Kerala Shops and Commercial Establishment Act or the Minimum Wages Act or any other enactments. It is recorded that the registers were seen by the Insurance Inspector, ESI corporation on 20/06/2007 but has not certified the correctness regarding the contents of the register. It was stated that the same is signed by somebody else whose identity is not known. It was observed that the Assistant Labour Officer, Perumbavoor has seen Ext.M8(3) series and signed it. Sri.Shibu.C.K. is shown to have joined service from 01/04/2000 and Sri.Biju Mathew from 14/1/2001. It is stated that their names are shown in W.P.C.No.35980/2010 15 the muster roll relating to previous periods. Ext.M8 (4) series only contains the name of Sri.K.K.Venu and the said register is not seen by any statutory authority. With reference to Ext.M9 series of register the Tribunal observes that 2001- 2002 and 2003-2004 registers is seen by the ESI inspector. Ext.M9(4) register is seen by the Assistant Labour Officer and so is Ext.M9(5). However it is observed by the Tribunal that those documents are written up at a stretch and it cannot be concluded that they are being made contemporaneously and hence it is not reasonable to rely upon the registers and decide the controversy involved in the case. It is observed that the documents are brought into existence to support the case of the Management and therefore they are not true and genuine and the same is rejected.
13. Learned counsel for the petitioner vehemently objects to the aforesaid finding of fact and contends that when the registers are properly maintained and they are W.P.C.No.35980/2010 16 verified by statutory authorities as and when produced at the time of verification, there is no reason for the Tribunal to have rejected the said documents as being not genuine. That apart, the document also contains the signatures of the workmen and they have accepted the same. More over, the Tribunal has only relied upon the oral testimony of the witnesses without caring to rely upon the documentary evidence relied upon by the Management.
14. Of course, this is not a case in which the Management has disputed the employment of any of the workers. According to the management, the workmen were employed for a period less than 240 days and they left the establishment on their own. Therefore, it is for the Management to show that they were employed on a particular date and they abandoned their job. In other words, the management has to prove the said fact by producing sufficient materials valid enough to justify their contention. The question is whether the muster roll and W.P.C.No.35980/2010 17 wage registers now produced give any such indications. The Tribunal did not attach much relevance to these documents on the premise that it is not genuine. But, it is a fact that even some of the witnesses had signed the said register. They do not have a case that their signatures are forged by anyone. Whereas it is stated that the signatures look like their signatures. Most of these documents are seen verified by statutory authorities at the time of inspection. Therefore it may not be proper to say, in the absence of any other evidence, that the muster roll and wage registers are not genuine. What would happen to the factual situation if the contents of the muster roll and wage register are considered should be the issue. Apparently, the Tribunal has not considered the said fact whereas it has brushed aside the documentary evidence adduced by the management by finding that it is not genuine. This, according to me, was not the correct approach the Tribunal should have taken. When there is evidence to show that statutory authorities W.P.C.No.35980/2010 18 had verified the said documents, merely for the reason that they have not further attested it's correctness is not reason enough to reject the same. It is all the more so, since the evidence on the side of the workmen were only based on their own oral testimony. Of course, the workmen have a case that they were not given any documents. But, can it be believed that the workmen will be deprived of any document if they were employed in an establishment for 17 or 18 years. No independent witnesses had come forward to support their case other than the representative of the union MW1. It is in the said background, that it has to considered as to whether there is any other independent evidence to arrive at the conclusion regarding the employment particulars of the workmen. The Tribunal will have to consider whether the workmen was in continuous employment in the establishment in which they were working. Therefore it was incumbent on the Tribunal to have further verified the muster roll as well as the wage register W.P.C.No.35980/2010 19 to consider whether the contention of the management can be believed or not.
15. The proposition of law relied upon by the Learned counsel for the respondent is well accepted. But the application of such proposition depends upon the facts and circumstances of each case.
16. In the case on hand, when the Tribunal is relying purely upon the oral testimony of the workmen involved in the dispute, the Tribunal also should have verified the nature of evidence adduced by the management. Since statutory authorities have verified and inspected the documents at some point of time, it cannot be brushed aside by stating that the same was prepared at a stretch and therefore not genuine. In the said circumstances I am of the view that relevant materials especially the wage register and muster rolls were not properly considered and appreciated by the Tribunal which also has to be considered before arriving at a proper conclusion regarding the W.P.C.No.35980/2010 20 contentions urged by either parties.
In the result, this writ petition is allowed setting aside Ext.P19 award and remitting the matter back to the Industrial Tribunal for considering the matter afresh after giving an opportunity to the parties to adduce evidence. The parties shall appear before the Tribunal on 27/03/2014. The registry shall sent back the records to the Tribunal forthwith.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr