Kerala High Court
The Principal vs T.K. Ashokan on 24 January, 2014
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938
WA.No. 903 of 2014 IN OP.37436/2002
AGAINST THE JUDGMENT IN OP 37436/2002 of HIGH COURT OF KERALA DATED 24-01-2014
APPELLANTS/RESPONDENTS 1 AND 3 IN OP:
1. THE PRINCIPAL, REGIONAL ENGINEERING COLLEGE
REC P.O., KOZHIKODE-673 601.
2. THE CHIEF WARDEN, REGIONAL ENGINEERING COLLEGE HOSTEL,
REC P.O., KOZHIKODE-673 601.
BY ADVS.SMT.SUMATHY DANDAPANI (SR.)
SRI.MILLU DANDAPANI
RESPONDENTS/PETITIONERS IN O.P. AND RESPONDENTS 2 & 4 IN OP:
1.T.K. ASHOKAN
S/O.K.K.KORU, THOTTIKKATTIL VEEDU, MANASERY P.O.,
MUKKOM VIA., KOZHIKODE-673 602.
2.P.P.CHANDRAN,
S/O.P.P.APPU, PADINJAREPERINGATTE VEEDU, POOLAKKODE,
NAYARKUZHI P.O., REC VIA., KOZHIKODE-673 601.
3.K.VASUNNI,
S/O.O.NARAYANAN NAIR, KOTHANGAL VEEDU, POOLAKKODE,
NAYARKUZHI P.O., KOZHIKODE-673 601.
4.A.K.RAMAN,
S/O.KUTTAN, CHENNARAKASSERY VEEDU, REC P.O.,
VIA REC, KOZHIKODE-673 601.
5.E.ANIL,
S/O.E.THAMUKUTTY, ELAYADATH VEEDU,
CHATHAMANGALAM P.O., REC, KOZHIKODE-673 601.
6.A.JAYAPRAKASAN,
S/O.MADHAVAN NAIR, AZHINJALATHU VEEDU,
CHATHAMANGALAM P.O., REC, KOZHIKODE-673 601.
7.K.V.SUPINGALAN,
S/O.K.VELAYUDHAN NAIR, KUZHIPPALLITHODIKAYIL VEEDU,
NEELASWARAM P.O., KODUVALLY VIA., KOZHIKODE-673 572.
8. P.SHAJU,
S/O.KUNJAPPU, PALOLI VEEDU, CHULUR P.O.,
REC VIA., KOZHIKODE-673 601.
9.P.DINESAN,
S/P.P.RAMAN, PALARAMMAL VEEDU, BILLASSERI P.O.,
KUNNAMANGALAM (VIA), KOZHIKODE-673 601.
W.A.No.903/14 IN OP.37436/2002
:: 2 ::
10.C.GIRISHKUMAR,
S/O.C.VELUKUTTY, CHENOTHE VEEDU, REC PO,
KOZHIKODE-673 601.
11.P.K.JAYACHANDRAN,
S/O.P.K.KUNNJAMMAN, PADINJAREKOTHANGAL VEEDU,
NAYARKUZHI P.O., REC, KOZHIKODE-673 601.
12.N.K.UNNIKRISHNAN,
S/O.E.NARAYANAN NAIR, NAGATHANKANDIYIL VEEDU,
NAYARKUZHI P.O., REC, KOZHIKODE-673 601.
13.LABOUR COURT, KOZHIKODE-673 001.
14.UNION OF INDIA, REPRESENTED BY THE SECRETARY,
MINISTRY OF HUMAN RESOURCE DEVELOPMENT,
DEPARTMENT OF HIGHER SECONDARY AND HIGHER EDUCATION,
NEW DELHI-110 001.
R1-R12 BY ADV. SRI.THOMAS ANTONY
R1-R12 BY ADV. SRI.M.P.PRAKASH
R14 BY ADV.SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R BY GOVERNMENT PLEADER SRI.P.N.SANTHOSH
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25-11-2016,
ALONG WITH WA. 1113/2015, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
ANTONY DOMINIC & SHIRCY.V, JJ.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Writ Appeal Nos.903, 904 of 2014 &
1113 of 2015
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 25th day of November,2016
JUDGMENT
Antony Dominic, J.
W.A.Nos.903/14 and 1113/15 arise from the judgment of the learned Single Judge in O.P.37436/02 and W.A.904/14 arise from the judgment in W.P.(C)33260/05.
2. The issue raised in the original petition filed by the workmen was the legality of the award passed by the Labour Court, Kozhikode in I.D.No.59/95 and the order passed by the said court in C.P.No.6/94. On the other hand, in W.P.(C)33260/05 filed by the Union, the challenge was against the award rendered by the Labour Court, Kozhikode in I.D.3/03. In I.D.No.59/95, the dispute referred for adjudication was the justifiability of denial of employment to 12 workers in the Regional Engineering College Hostel and the benefits entitled to them, the issue that was the subject matter of I.D.3/03 was the justifiability of the claim of 54 mess workers working in the W.As.903, 904/14 & 1113/15 : 2 : Regional Engineering College Hostel for permanency of employment and other benefits in parity with that of the regular employees.
3. These two disputes involved totally different questions and different set of employees and, were adjudicated separately. However, the original petition and writ petition were clubbed together and were disposed of by the common judgment under appeal. In our considered view, having regard to the differences in the issues referred for adjudication, the questions that were raised and the evidence that was adduced, these cases should have been separately considered. For that reason, we are proceeding to consider these appeals separately.
W.A.Nos.903/14 & 1113/15:
4. Writ Appeal 903/14 has been filed by the Principal, Regional Engineering College, Kozhikode and the Chief Warden, Regional Engineering College Hostel. They are aggrieved by the judgment of the learned Single Judge in O.P.37436/02 whereby the original petition filed by the workmen was allowed and the reference in W.As.903, 904/14 & 1113/15 : 3 : I.D.59/95 was answered holding that the appellants are the Principal employer of the employees in the hostel. Insofar as W.A.1113/15 is concerned, the workmen involved in I.D.No.59/95, who were the petitioners in the original petition, themselves sought to review of the judgment by filing R.P.179/14 contending that although the reference was answered in their favour, consequential reliefs dissecting reinstatement and back wages were not granted. Review petition was heard and was disposed of by order dated 26th February 2015 whereby the learned Single Judge remitted the matter to the Labour Court to consider afresh the relief entitled to the workmen. Unsatisfied with the order passed in the Review Petition, the workmen themselves filed W.A.1113/15.
5. Insofar as these appeals which arise from the judgment in O.P.No.37436/02, we may at the outset state that in the original petition filed by the workmen, they challenged the order passed by the Labour Court, Kozhikode in C.P.6/94 and the award in I.D.59/95. Insofar as the order in C.P.6/94 is concerned, the said claim petition W.As.903, 904/14 & 1113/15 : 4 :
was filed by the workmen under Section 33C(2) of the Industrial Disputes Act seeking to recover from the Principal, Regional Engineering College (REC) minimum wages that were due to them, they being the employees in the mess attached to the hostels in the Regional Engineering College. Accepting the contention of the Principal that he was not the employer, the Labour Court dismissed the application. It was this order, which was under challenge.
6. In the judgment under appeal, the learned Single Judge did not grant any relief in respect of the order passed of the Labour Court dismissing C.P.No.6/94. The workmen neither sought review of the judgment in this respect nor have they raised any ground in W.A.1113/15 questioning the denial of relief insofar as order in C.P.6/94 is concerned. Since where relief is not granted, it is deemed to be denied and as the workmen have not challenged the denial of relief in respect of Ext.P1 order in C.P.6/94, we are not considering the legality of Ext.P1 order of the Labour Court. W.As.903, 904/14 & 1113/15 : 5 :
7. Insofar as I.D.59/95 is concerned, the basic facts that are required to be noticed are that the dispute was raised by 12 workmen contending that they were working in the mess attached to the hostels of the Regional Engineering College, Kozhikode. According to them, they were initially engaged on temporary basis in the hostels and after having worked for 3 to 6 months their services were regularised. Thereafter, they were working continuously and uninterruptedly and that by the 10th and 11th of December 1993, they were terminated from service since they demanded more wages, rather minimum wages. It was complaining of denial of employment that they raised a dispute before the Conciliation Officer and on failure of conciliation, justifiability of denial of employment to 12 workers in the Regional Engineering College Hostel and the benefits entitled to them was the issue referred by the State Government under Section 10(1)(c) of the Industrial Disputes Act to the Labour Court for adjudication.
W.As.903, 904/14 & 1113/15 : 6 :
8. Before the Labour Court, the respondents/the appellants herein contended that they had never engaged the workmen and that there was no employer-employee relationship between the appellants and the workmen in the dispute. Before the Labour Court, on behalf of the management MW1 to MW3 were examined and Exts.M1 to M16 were marked. On the other hand, on behalf of the workmen WW1 and WW2 were examined and Exts.W1 to W9 were marked. We also find from the award that the Ext.X1, files summoned from the Provident Fund Office was also marked.
9. It was considering the evidence on record, the Labour Court rendered Ext.P2 award, holding that the 12 alleged workers in the dispute were not employees of the appellants and that, therefore, there was no denial of employment by the management. It was this award, which was challenged by the workmen. Judgment under appeal show that, after referring to the facts pleaded and also the precedents that were cited, the learned Single Judge concluded that the Chief Warden of the hostel is in the helm of affairs with regard to W.As.903, 904/14 & 1113/15 : 7 : the affairs of the employees working in the hostel and that W6, Hostel Rules were framed by the Regional Engineering College provide that hostel and mess will be under the control of the Chief Warden, who will be responsible to the Principal. The learned Judge also held that from the facts narrated, the twin tests that were required for reaching the conclusion that there is implicit obligation overall control and supervision of the REC/NIT management over the functioning of the employees in the hostel are satisfied. On that basis, the learned Single Judge held that the first appellant is the principal employer of the employees in the hostel and answered the reference in favour of the workmen. It is this judgment, which is challenged before us.
10. We heard the Senior Counsel appearing for the appellants, learned counsel appearing for the workmen, the Government Pleader and the Standing Counsel appearing for the Central Government.
11. The contentions raised by the learned counsel for the appellants was that the issue referred for adjudication was the W.As.903, 904/14 & 1113/15 : 8 : justifiability of the alleged denial of employment to the workers. It was contended that this claim of the workmen was denied by the management contending that there was no employer-employee relationship. It is stated that when absence of employer-employee relationship is raised on behalf of the management, it was the burden of the workmen to prove the employer-employee relationship. According to the counsel, the workmen could not establish employer- employee relationship between the management and the workmen and therefore, the Labour Court concluded that there was no master and servant relationship. Such a factual finding should not have been upset by this court in a proceeding under Article 226 of the Constitution of India.
12. On the other hand, the learned counsel for the workmen contended that running of hostel is a statutory obligation of the appellants both under the Calicut University Act and the Statutes framed thereunder and National Institute of Technology Act, 2007 and the statutes framed thereunder. It was stated that when the W.As.903, 904/14 & 1113/15 : 9 :
hostel was established in discharge of the statutory obligation, the canteen which is an inevitable part of it is also the statutory obligation of the management. When admittedly the workmen were working in the canteen, the management could wriggle out of its statutory obligation by contending that the running of the canteen is entrusted to an agency of students representatives. In support of this plea, reliance was placed by the counsel for the workmen on the principles laid down by the Apex Court in G.B.Pant University of Agriculture and Technology, Pantnagar, Nainital v. State of U.P. and Others [2000 (7) SCC 109] and to certain other judgments of the Apex Court and this court, which will be referred to in the course of this judgment. Counsel also contended that the learned Single Judge having answered the reference in favour of the workmen, should have granted the consequential relief of reinstatement with full back wages.
13. We have considered the submissions made. As we have already stated, the dispute that was referred for adjudication to the W.As.903, 904/14 & 1113/15 : 10 : Labour Court in I.D.59/95, under Section 10(1)(c) of the Industrial Disputes Act was the justifiability of denial of employment of 12 employees in Regional Engineering College Hostel and the benefits entitled to them. When a dispute is referred under Section 10(1)(c) of the Industrial Disputes Act, Section 10(4) requires that where in an order referring an industrial dispute to a Labour Court, under Section 10(1)(c) or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court shall confine its adjudication to those points and matters incidental thereto. When the scope of adjudication of disputes are thus statutorily confined to the points of dispute that are specified by the appropriate Government and matters incidental thereto, the Labour Court is bound to confine its adjudication within the scope of the dispute referred. Otherwise, the award will be vitiated on the ground that the Labour Court has travelled beyond the scope of reference.
14. Insofar as this case is concerned, it was the specific case of the workmen, that they were initially engaged on temporary basis in W.As.903, 904/14 & 1113/15 : 11 : the hostels on various dates, which are shown in the rejoinder filed by them, that thereafter they were regularised in service and that they were working continuously and uninterruptedly. According to them, by 10th and 11th of December 1993, when they demanded minimum wages they were terminated from the service. In other words, it was the specific case of the workmen that they were regular employees in the hostel and that when they demanded minimum wages, their services were terminated on the 10th and 11th of December 1993. This claim of the workmen was resisted by the management contending that they had different hostels in the campus and that the hostels are having canteens of its own. According to the management, running of the canteen was the responsibility of the mess committee of students, who are periodically elected for that purpose. The overall supervision of the mess committee was also entrusted to a Chief Warden, a Professor in the College, who is responsible to the Principal. It was the specific case of the management that they never appointed these workmen or anybody in W.As.903, 904/14 & 1113/15 : 12 : the canteen and that there was no employer-employee relationship between the workers and the management. Considering the nature of this dispute, where the workmen asserted employer-employee relationship and the management denied the same, the Labour Court considered the question whether the 12 workmen involved in the dispute were employees of the management. While examining this question, Labour Court made reference to the oral and documentary evidence adduced by the management and the workmen.
15. Reading of the award shows that despite the assertion made, the workmen could not produce any piece of evidence, indicating the employer-employee relationship between them and the management. This aspect has been discussed by the Labour Court in paragraphs 6 to 16 of the award. The Labour Court has held that there was nothing to hold that these workmen were appointed by the management and that, not even a scrap of paper issued by the management appointing the workmen has been produced. Similarly, Labour Court has found that no scrap of paper was placed on record W.As.903, 904/14 & 1113/15 : 13 : to support the claim of the workmen that they were regularised in service of the management and that they were working continuously and uninterruptedly as claimed by the workmen. The Labour Court has also found fault with the workmen that despite their assertion that while paying salary, signature was obtained in the register and that there was an attendance register, no steps were taken to produce these documents before the Labour Court. The Labour Court further found that WW1, the first witness examined on behalf of the workmen, without any hesitation admitted that there was no record to show that they have demanded more or minimum wages. The Labour Court further found that WW1 and WW2, who were examined on behalf of the workmen and the documents that were produced in relation to these two persons, have no relevance to the dispute, as they even otherwise were regular employees. Labour Court finally concluded that consideration of evidence of WW1 did not in any way reveal anything to conclude that the workmen were employed by the management or that they were working under the management or W.As.903, 904/14 & 1113/15 : 14 : that there was an employer-employee relationship between the management and the 12 persons.
16. Similarly, detailed reference has been made to the evidence of WW2 and from his evidence, the Labour Court has found that he has admitted that there was a mess committee and the mess committee is elected by the students of the hostel. His admission is that the expenses in the mess were met from the contributions of the inmates and it is on sharing basis that the mess was running. He had also admitted that allocation of work in the mess was also on the basis of the decision of the mess committee. After appreciating his evidence also, the Labour Court found that the theory canvassed by the workmen cannot at all be believed. Thereafter, Labour Court referred to the evidences of MW1, MW2 and MW3. From their evidence, it was shown that the canteen was being run without any connection with the college administration and that the college management was not spending any amount from its budget for the running of the canteen. The evidence of MW3 was to the effect that W.As.903, 904/14 & 1113/15 : 15 : the establishment of the college did not include the mess in the hostel. The further evidence adduced by MW1 to 3, who were the Manager of the hostel, Deputy Registrar of the college and the Financial Assistant in the college, clearly indicated that the canteens were run by the mess committee of the students whose activities were supervised by the Chief Warden nominated by the Principal. It is on the basis of these evidences that the Labour Court came to the conclusion that there did not exist any employer-employee relationship. According to us, the absence of employer-employee relationship found by the Labour Court is consistent with the evidence that was available before it and such a well reasoned factual finding arrived at by the Labour Court should not have been interfered with by this court.
17. The learned counsel for the workmen, relied on the judgment in G.B.Pant University of Agriculture and Technology, Pantnagar, Nainital v. State of U.P. and Others (2000) 7 SCC 109. A reading of the above judgment shows that the case arose out of a W.As.903, 904/14 & 1113/15 : 16 :
dispute raised by the workman in the canteen of the G.B.Pant University for regularisation and that the said claim was sustained by the Labour Court which ultimately was affirmed by the Apex Court finding control and supervision of the University over the workman in question. According to us, the principles laid down in that case being one in the context of a claim for regularisation are of no assistance to the workmen in this case since the dispute referred for adjudication was in respect of justifiability of denial of employment.
18. Counsel also placed reliance on Principal, Trichur Engg. College v. Sreenivasan [1993 (1) KLT 364]. That was a case which arose out of an application made by the employees of the canteen of the Trichur Engineering College under Section 3 of the Minimum Wages Act claiming minimum wages. The Labour Court upheld the claim. In the writ petition filed by the management, this court affirmed the order applying principles of Article 23 of the Constitution of India. This judgment, to say the least, cannot be of any assistance to the case of the workmen in this case for the reason that W.As.903, 904/14 & 1113/15 : 17 : the present appeal arises from out of an award passed by the Industrial Disputes Act pursuant to a reference under Section 10(1)
(c) of the ID Act.
19. Counsel also placed reliance on the judgment of the Apex Court in Deepaligundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and another [(2013) 10 SCC 324] and Raj Kumar v. Director of Education and others [(2016) 6 SCC 541]. Both these judgments involved illegal termination and illegal retrenchment and laid down the principles governing grant of consequential benefits. According to us, in a case where employer- employee relationship is found against the workmen, the principles regarding granting consequential benefits following the finding of illegal termination and illegal retrenchment, can be of no assistance to the workmen.
20. Now, turning to the judgment under appeal, as we have already stated, the learned Single judge held that twin test that are required to be satisfied are implicit obligation and over all control W.As.903, 904/14 & 1113/15 : 18 : and supervision of the management over the functioning of the employees of the hostel. In our view, the twin tests that are referred to by the learned Single Judge are relevant only in a case where regularisation is claimed by the employees of the canteen and not in a case where the justifiability of the termination is the issue for adjudication.
21. Insofar as the argument of the learned counsel that under the University Act, the NIT Act and the Statutes, it was the obligation of the management to run the canteen and that, therefore, the management should be treated as the principal employer of the employees is concerned, we may say that so long as the issue raised for adjudication is the justifiability of termination and which was raised with the specific case that the services of the workmen were already regularised by the management, these arguments and statutory provisions relied on are not of much relevance. W.As.903, 904/14 & 1113/15 : 19 :
22. For all these reasons, we are satisfied that the learned Single Judge was not justified in upsetting the award of the Labour Court, Kozhikode in I.D.59/95.
23. Insofar as W.A.903/14 is concerned, as we have already stated the complaint of the workmen was that having answered the issue in their favour, the learned Single Judge ought to have passed orders granting them consequential benefits of reinstatement with back wages. Since we have already upheld the findings of the Labour Court that there was no employer-employee relationship, this contention does not survive any longer for consideration. Therefore, these appeal merits only to be dismissed.
24. For the aforesaid reasons, W.A.903/14 will stand allowed and the judgment of the learned Single Judge in O.P.37436/02 will stand set aside. W.A.1113/15 will stand dismissed. W.A. No.904 of 2014
25. This appeal is filed by the Principal of Regional Engineering College (renamed as Director, National Institute of Technology), W.As.903, 904/14 & 1113/15 : 20 : Kozhikode, challenging the judgment of the learned single Judge in W.P.(C) No.33260 of 2005. The writ petition was filed by the first respondent herein, questioning the award of the Labour Court, Kozhikode in I.D. No.3 of 2002. The said industrial dispute was registered pursuant to a reference made by the Government of Kerala in exercise of its powers under Section 10(1)(c) of the Industrial Disputes Act to adjudicate the justifiability of the claim of 54 mess workers working in the mess of the appellant's college for permanency of employment and other benefits in parity with that of regular employees.
26. Before the Labour Court, pleadings were completed and on behalf of the management, MWs.1 to 3 were examined and Exts.M1 to M19 were also marked in evidence. On behalf of the workmen WW1 was examined and W1 and W2 were marked. After considering the evidence on record, the Labour Court answered the reference by Ext.P7 award holding that the employees named in the list appended to the reference order are not entitled to regularization in the service W.As.903, 904/14 & 1113/15 : 21 : of the management or parity in service benefits with regular employees. It was this award which was challenged by the Union. The writ petition was disposed of by the judgment under appeal where the learned single Judge held that the twin tests that are required for coming to the conclusion that the appellant is the principal employer of the employees, is that there should be implicit obligation and overall control and supervision of the management over the functioning of the employees of the hostel. On the basis that the twin tests are satisfied in this case, the learned single Judge held that the appellant is the principal employer of the employees in the hostel and answered the reference in favour of the workmen. It is this judgment which is challenged before us.
27. We heard the learned senior counsel appearing for the appellant, learned counsel appearing for the first respondent, learned Government Pleader appearing for respondents 2 and 3 and the learned Standing Counsel appearing for the fourth respondent. W.As.903, 904/14 & 1113/15 : 22 :
28. According to the learned senior counsel, this is a case where the appellant had denied employer-employee relationship and that in such case when the Union had failed to prove that the workmen in question were the employees of the appellant, the Labour Court was fully justified in its conclusions and that the learned single Judge exceeded his jurisdiction in re-appreciating the evidence and interfering with the factual conclusions and upsetting the award rendered by the Labour Court.
29. On the other hand, learned counsel for the Union contended that having regard to the provisions of the Calicut University Act, statutes framed thereunder and the National Institute of Technology Act, 2007, and the statutes framed thereunder, it was the statutory obligation of the appellant to run canteens in each of its hostels. According to him, Exts.P2 to P5, P9, P12, P16 and P14 produced in the writ petition clearly proved that there existed employer-employee relationship between the management and the workmen. Therefore, according to him, the presence of an intermediary with the name W.As.903, 904/14 & 1113/15 : 23 : "Mess Committee" is of no consequence and that the learned single Judge was fully justified in setting aside the perverse findings of the Labour Court. Counsel also placed reliance on the judgment of the Apex Court in G.B. Pant University of Agriculture & Technology v. State of U.P. [(2000) 7 SCC 109], Mohan Singh v. Railway Board [(2015) 10 SCC 759] and the judgment of the Madras High Court in W.A. No.875 of 2010.
30. The short question that we are called upon to decide is whether the learned single Judge was justified in setting aside the award rendered by the Labour Court. As we have already stated, the issue that was referred for adjudication was the justifiability of the claim of 54 mess workers working in the hostel of the appellant for permanency of employment and other benefits on a par with the regular employees. While the Union contended that the 54 employees were directly employed by the appellant, this claim was denied by the appellant by contending that the canteens in their campus were not part of the establishment of the college and that the canteens in the W.As.903, 904/14 & 1113/15 : 24 : hostels are run by Mess Committee, consisting of representatives of students elected periodically. According to them, the activities of the Mess Committee were supervised by the Chief Warden, a Professor nominated by the Principal.
31. When such is the controversy that was raised before the Labour Court, the existence of employer-employee relationship, being a question that is incidental to the main issue referred for adjudication by the Government, necessarily arose for consideration. In its attempt to prove the employer-employee relationship, the Union examined one witness. However,a reading of the evidence and the award itself would show that the workmen could not adduce any satisfactory evidence proving the claim of employment under the management. On the other hand, the evidence adduced by MWs.1 to 3 and Exs.M1 to M19 prove that the management had nothing to do with the canteen and also indicated that they had no obligation to run the canteen as part of its establishment. In the light of the above materials which were available before the Labour Court, we cannot W.As.903, 904/14 & 1113/15 : 25 : find that the Labour Court had erred in its conclusions. Even the statutory provisions relied on before us, also do not indicate that the management had the obligation to run canteen in hostels that are provided.
32. However, at the same time, before this Court the Union has produced Exts.P2 to P5 and Exts.P9 to P14. Ext.P2 is an order passed by the Control Authority under the Payment of Gratuity Act, directing the management to pay gratuity to a canteen employee who, according to the Union, is similarly placed as that of the 54 employees represented by them. Ext.P3 is the Memo issued to one employee in the canteen. Ext.P4 is the letter issued by the Chief Warden to the Branch Manager of the LIC enclosing the claim for gratuity of a canteen employee. Ext.P5 is the Notification issued by the Regional Engineering College where age relaxation is allowed to the employees of the canteen. Ext.P9, is the Government Order, approving the proposal of the Principal of the Regional Engineering College to the Government to share one third of the additional expenses in order to W.As.903, 904/14 & 1113/15 : 26 : implement memo of charges to the mess employees of the Regional Engineering College. Ext.P12 is also the proceedings of the Chief Warden enhancing the retirement age of three hostel and mess employees from 58 to 60. Ext.P14 is the notice issued by the hostel manager announcing the re-opening of the different messes in the hostels. Ext.P16 is the proceedings of the Principal of the college, stating that the mess employees working in the college hostels are allowed five years relaxation in upper age limit for applying to posts mentioned for open quota candidates.
33. Relying on the aforesaid documents, learned counsel for the Union contended that these documents clearly proved employer- employee relationship between the management and the workmen and that therefore, the conclusion of the learned single Judge that the appellant was the principal employer of the employees cannot be faulted. We have considered this contention. Even the Union has no case that any of these documents were produced before the Labour Court. When an award of the Labour Court is challenged before this W.As.903, 904/14 & 1113/15 : 27 : Court what falls for consideration is whether on the basis of the materials available before it, the Labour Court was justified in arriving at its conclusions. If not the finding would be rejected as perverse. When such is the scope of examination by this Court, this Court cannot appreciate the correctness or otherwise of an award rendered by the Labour Court on the basis of the documents which were not produced or relied on by the parties to the adjudication. If that be the standard, necessarily, we have to eschew from our consideration the documents now produced before us.
34. At the same time, we cannot also lose sight of the fact that the ultimate purpose of adjudication is to arrive at a conclusion which is factually correct. Having gone through the documents that are before this Court, prima facie, we feel that these documents were also relevant to the issue in adjudication. Therefore, having regard to the fact that the labour legislations are for the welfare of the workmen and that for non-availability of these documents, the workmen should not be deprived of an opportunity to agitate their claims in an W.As.903, 904/14 & 1113/15 : 28 : adjudication under Section 10 of the Industrial Disputes Act, we are inclined to think that the matter needs a fresh look by the Labour Court. With that in mind, we set aside the judgment under appeal.
Accordingly, W.A. No.904 of 2014 is allowed. The judgment under appeal and the award in I.D. No.3 of 2002 on the file of the Labour Court, Kozhikode, will stand set aside. The dispute is remitted to the Labour Court, Kozhikode. The Labour Court will afford both sides an opportunity to produce documents and adduce fresh evidence in the matter and will pass a fresh award. This the Labour Court shall do as expeditiously as possible.
Sd/-
ANTONY DOMINIC JUDGE Sd/-
SHIRCY.V JUDGE jes/kns // True copy // P.A.to Judge