Kerala High Court
G.Sambath vs Sri.N.Viswanathan on 15 June, 2006
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
FRIDAY, THE 10TH DAY OF FEBRUARY 2012/21ST MAGHA 1933
WP(C).No. 14586 of 2008 (J)
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ID.6/2006 of LABOUR COURT, KOLLAM
PETITIONER:
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G.SAMBATH,MANAGING PARTNER,
KAIRALI OIL INDUSTRIES, DEEPA NIVAS,MUKKAVALA
KAYAMKULAM.
BY ADV. SRI.P.RAMAKRISHNAN
RESPONDENTS:
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1. SRI.N.VISWANATHAN,SECRETARY,
KAIRALI OIL MILL WORKERS UNION (CITU), KUTTIYIL
VADAKKETHIL,KARAZHMA EAST, VALIYAKULANGARA P.O.
MAVELIKKARA.
2. SRI.K.R.KRISHNANKUTTY NAIR,
GENERAL SECRETARY,KAIRALI OIL MILL WORKERS
CONGRESS (INTUC),KUTTIYIL,VADAKKETHIL
KARAZHMA EAST,VALIYAKULANGARA P.O., MAVELIKKARA.
3. LABOUR COURT,
KOLLAM.
R1 BY SRIR.AZAD BABU
R2 BY SRI.R.KRISHNA RAJ
BY GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 14586 of 2008 (J)
APPENDIX
PETITIONER'S EXHIBITS:
EXT. P1 : COPY OF CLAIM STATEMENT DATED 15.06.2006 FILED BY THE
RESPONDENTS BEFORE THE 3RD RESPONDENT.
EXT. P2 : COPY OF WRITTEN STATEMENT FILED BY THE PETITIONER.
EXT. P3 : COPY OF REJOINDER-DATED 23.12.2006 FILED BY THE RESPONDENTS
1 AND 2.
EXT. P4 : COPY OF AFFIDAVIT AND PETITION DATED 25.07.2007 FILED BY THE
PETITIONER.
EXT. P5 : COPY OF AWARD DATED 09.10.2007 PASSED BY THE 3RD RESPONDENT.
RESPONDENTS EXHIBITS: NIL
//TRUE COPY//
P.A. TO JUDGE.
dlk
S.SIRI JAGAN
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WP(C). No.14586 of 2008
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Dated this the 10th day of February, 2012
JUDGMENT
The petitioner is the management in I.D.No.6 of 2006 before the Labour Court, Kollam. He is challenging Ext.P5 award passed by the Labour Court in that I.D. The issue referred for adjudication was:
"whether the management of M/s Kairali Oil Mill, Mavelikara has denied employment to the workmen of the establishment by stoppage of work without paying benefits to 17 workmen namely, 1) N.Viswanathan. 2) T.Sasikumar. 3) Philip Varghese. 4) M.Vijaya kumar. 5) K.Krishnan. 6) N.Viswanathan. 7) A.Remani. 8) Devaki. 9) S.Knjamma. 10) M.Devabala. 11) R.Ramachandran Nair. 12) R. Dasan. 13) R.Rajappan. 14) K.Kuttappan Nair. 15) G.Venugopal. 16) R.Sasikumar. 17) Chellappan (List attached) is justifiable? If Not what benefits and reliefs entitled to those 17 workmen? "
The contention of the Union before the Labour Court was that they were willing to work, the management did not provide them with work and therefore, they are entitled to salary for the period during which they were kept out of work. The contention of the management was that for circumstances beyond the control of the management since WP(C). No.14586 of 2008 2 the establishment was closed with effect from 15.9.2003 and the management paid all statutory dues of the workmen. The Union examined one witness on their part. The management did not cross-examine that witness. The management did not adduce any evidence also in support of his contentions. Therefore, in Ext.P5 award in that I.D.,the Labour Court held that the closure of the petitioner establishment without complying with the legal formalities was unjustified and therefore, the 17 workmen involved in the reference are entitled to one month's wages in lieu of notice of closure and compensation as specified in Section 25 F of the Industrial Disputes Act, treating the mill as closed with effect from 15.9.2003 and all of them as in continuous service from 1996 till the date of closure with interest @ 9 % per annum from 15.9.2003 on the amounts due till it paid. The petitioner is challenging the said award. The petitioner's contention is that petitioner had not been given an effective opportunity to cross-examine the witness of the union and to adduce evidence. It is submitted that on WP(C). No.14586 of 2008 3 the date when the matter was posted for evidence, the petitioner's counsel was not present in Court and he filed an application for adjournment which was not granted and the witness was examined. It is further submitted that the management could not produce any document in support of his contentions, since in the meantime, as per orders of the Debts Recovery Tribunal the unit was closed and the petitioner could not obtain the documents which were inside the factory premises. Petitioner, therefore, submits that since the award has been passed without giving the petitioner an effective opportunity to put forward his case Ext.P5 award should be quashed and the matter should be remanded for fresh consideration, after giving an opportunity to the petitioner to put forward his case.
2. The learned counsel for the Union would contend that there is no merit in the contentions of the petitioner. According to the learned counsel, the petitioner was given sufficient opportunity and the petitioner did not avail of that opportunity to adduce evidence. Therefore, the writ petition WP(C). No.14586 of 2008 4 should be dismissed is the contention raised.
I have considered the rival contentions in detail. The closure is no more in dispute. The question is as to whether the petitioner has complied with the statutory formalities for such closure. I cannot accept the contentions of the petitioner that he was not given an effective opportunity. Admittedly when the matter was posted for evidence, the witness of the union was present. It is not as if the evidence was taken on the next day after completing pleadings. The adjudication of the industrial dispute started in the first half of 2006 and it ended in the Award only on 9.10.2007. There is no automatic right of adjournment for the petitioner. Petitioner applied for adjournment and it was rejected, rightly also. Even assuming that the petitioner could not cross-examine the witness of the Union, the petitioner could very well have adduced evidence on his behalf. But the petitioner did not choose do that also. The petitioner did not produce any document also. The explanation offered by the petitioner does not appeal to me. WP(C). No.14586 of 2008 5 The petitioner has not been able to satisfy me that he had made any efforts to get any effort to take the documents through the D.R.T. It is easy for the petitioner to seek remand of the case to the Labour Court and have the luxury of another protracted litigation, which the union cannot. Therefore, I am of the opinion that petitioner has been given sufficient opportunity and he is not entitled to any further opportunity in the matter. In the absence of any evidence to controvert the evidence of the Union, the petitioner cannot challenge the award on merit also. Therefore, there is no merit in this writ petition. Accordingly, the writ petition is dismissed.
Sd/-
S.SIRI JAGAN JUDGE /TRUE COPY/ P.A. To JUDGE VPV