IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WP(C).No. 175 of 2004(U) ------------------------ PETITIONER(S): --------------- SMT.SANCY JOHN, PROPREITORIX, A-ONE POLYMERS MURIYAD P.O., THRISSUR DISTRICT. BY ADV. SRI.K.I.ABDUL RASHEED SRI.K.A.SHAMSUDEEN RESPONDENT(S): --------------- 1. SRI.K.V.JAISON S/O. VAREETH, KALLIYATHUPARAMBIL HOUSE, KUTTICHIRA P.O., THRISSUR DISTRICT. 2. SRI.M.RAVI, S/O. NARAYANA MENON, KANAKKASSERRY HOUSE, KODAKARA P.O., THRISSUR DISTRICT. 3. C.G.ANTO GEORGE S/O. GEORGE, CHONADAN HOUSE, PERAMBRA P.O., THRISSUR DISTRICT. 4. THE INDUSTRIAL TRIBUNAL, PALAKKAD. ADV. SRI.P.RAMAKRISHNAN FOR R1TO3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF DISPUTE SUBMITTED BY R1 BEFORE THE DISTRICT LABOUR OFFICER, THRISSUR DT.3.11.99. P2: DISPUTE FILED BY RESPONDENTS 2&3 BEFORE .DO. P3: CLAIM STATEMENT SUBMITTED ON BEHALF OF RESPONDENTS 1 TO 3 DT.3.12.01. P4: COPY OF WRITTEN STATEMENT FILED BY PETITIONER DT.21.1.2002. P5: COPY OF AWARD OF R4 TRIBUNAL IN I.D. 60/2001 DT.8.10.2003. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.175 of 2004 .................................................................... Dated this the 16th day of July, 2009. JUDGMENT W.P. is filed by the petitioner challenging Ext.P5 award whereunder the Industrial Tribunal has after finding that respondents 1 to 3 are employees of the petitioner ordered reinstatement with 50% backwages. After hearing the argument of the petitioner and that of counsel for respondents 1 to 3 and on going through the award, I am not convinced that there was any material for the Industrial Tribunal to hold that these respondents are workers employed by the management. No document is seen produced by the workers towards proof of their employment with the petitioner. On the other hand, petitioner has produced certain documents which prove that respondents were working as sales agents on commission basis. Unless respondents 1 to 3 were exclusively engaged by the petitioner as employees, whether in sales or otherwise, they are not entitled to reinstatement. The case of the petitioner is that on account of some financial fraud by the first respondent, all three stopped the work of the petitioner and they are stated to have taken up sales business for other competitors in the pipe industry. Even though Industrial Tribunal's finding 2 on the legal position that commission also may constitute wages and continuous supervision and control may not be required for constituting employment under the management are correct, I feel the award cannot be sustained because no material was available with the Labour Court to hold that respondents 1 to 3 were in the employment of the petitioner. The petitioner is stated to be covered by the ESI scheme and if that be so, I see no reason why respondents 1 to 3 were not covered. Further, for Provident Fund coverage also names of respondents 1 to 3 should be in the record of the company. Strangely respondents 1 to 3 have not produced any document about receipt of salary or other benefit from the petitioner. According to the petitioner, neither the Muster Roll nor the Wage Register contain the names of respondents 1 to 3. In these circumstances, Ext.P5 award is vacated. However, I give freedom to respondents 1 to 3 to produce any convincing documentary evidence before the Industrial Tribunal, if they so desire and if any such document is produced, the Industrial Tribunal will reconsider the matter after issuing notice to the petitioner and after hearing the petitioner. However, if no documents are produced by respondents 1 to 3, the matter shall be treated as concluded by the above finding. C.N.RAMACHANDRAN NAIR Judge pms