IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 OP.No. 10502 of 2000(A) ----------------------- PETITIONER(S): --------------- THE MANAGER, WARIYAT COFFEE ESTATE, CHEMPRA PEAK ESTATE LTD., P.O. MUTTIL, WAYNAD DIST. BY ADV. SRI.U.K.RAMAKRISHNAN (SR.) SRI.E.K.MADHAVAN SRI.P.V.LOHITHAKSHAN SRI.V.KRISHNA MENON RESPONDENT(S): --------------- 1. THE LABOUR COURT, KANNUR. 2. THE GENERAL SECRETARY, WYNAD JILLA THOTTAM THOZHILALI UNION, KALPETTA, MEPPADI POST. 3. THE GENERAL SECRETARY, WYNAD ESTATE LABOUR UNION (CITU), MEPPADI POST. 4. P.J. ABRAHAM, PUNNATHANATH HOUSE, MANDADU P.O. KALPETTA NORTH. THE ADDL. R4 IS IMPLEADED AS PER ORDER IN I.A.NO. 992/2008 DATED 13-6-2008. ADV. SRI.PHILIP MATHEW SRI.G.G.MANOJ SRI.K.B.GANGESH FOR ADDL.R4 SMT.SMITHA CHATHANARAMBATH FOR ADDL.R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 10502/2000. ---------------------------------------------------------------- EXT.P1 TRUE COPY OF AWARD DT. 10-7-1998 IN I.D.NO. 49/1996 OF R1. EXT.P2 RELEVANT PAGES OF CASUAL LABOUR MEMOS. EXT.P3 RELEVANT PAGES OF CASUAL LABOUR MEMO. EXT.P4 DO. DO. EXT.P5 RELEVANT PAGES OF CASUAL SUPERVISORS' BONUS MEMO. EXT.P6 CASH PAYMENT RECEIPT. EXT.P7 RELEVANT PAGES OF CHECK ROLL. RESPONDENTS' EXHIBITS: --------------------------------------- EXT.R2(1) LETTER DT. 22-11-1984. EXT.R2(2) APPOINTMENT LETTER DT. 25-11-1984. EXT.R2(3) APPOINTMENT ORDER DT. 18-11-1984. EXT.R2(4) CASUAL LABOUR MEMO. EXT.R2(5) NOTICE DT. 23-2-2000. EXT.R2(6) REPLY DT. 29-3-2000. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 10502 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 25th September, 2008. J U D G M E N T The petitioner is the management in I.D.No. 49/1996 before the Labour Court, Kannur. The Labour Court passed Ext. P1 award in that I.D, which is under challenge in this original petition. The issues referred for adjudication were: “(1) Whether the action of the management of Varyattu Estate, Wayanad in not making Sri. P.J. Abraham, temporary supervisory as permanent is justifiable? (2) If not, the relief to which he is entitled?” The contentions of the petitioner are as follows: The additional 4th respondent herein was appointed as a casual supervisor in the management's estate initially for a period of two months from 21-11-1984 to 29-2-1985. Thereafter, he was engaged intermittently as a casual supervisor up to 31-12-1994. According to the petitioner, in the estate of the petitioner, there are three types of employees, namely, casual, temporary and permanent. Casual employees are made temporary depending on the seniority determined on the basis of the actual number of days of work put in by each casual employee. Likewise, temporary employees are made permanent based on the seniority determined on the basis of the actual number of days worked by such employees. In 1994, there were four casual supervisors including the additional 4th respondent. They were made temporary supervisors with effect from 1-1-1995. In January, 1996, one permanent post of supervisor arose. In order to make appointment to that post, the management prepared a seniority list of four temporary supervisors appointed with effect from 1-1- 1995. In that list, the additional 4th respondent was ranked as second, below one Sri. Mohammed. At that time, the Union representing the additional 4th respondent raised an industrial O.P. No. 10502/2000 -: 2 :- dispute claiming that the 4th respondent is entitled to be made permanent. Pursuant thereto, the abovesaid issue was referred for adjudication before the Labour Court, who passed Ext. P1 award, which is under challenge before me. 2. The contention raised by the petitioner is that the appreciation of evidence by the Labour Court is clearly perverse. The main thrust of the reasoning in Ext. P1 award is that the Union has abundantly proved that Exts. W1 and W2, (which are Exts. R1(1) and R2(2) produced along with the counter affidavit filed by the 2nd respondent ) sufficiently show that the additional 4th respondent was appointed as a temporary supervisor with effect from 26-11-1994 and that the management has not produced any evidence to show otherwise. According to the petitioner-management, this is clearly perverse in so far as neither does Ext. W2 prove that the additional 4th respondent was appointed as a temporary supervisor nor has the Labour Court considered Exts. M1 to M6, which are produced as Exts.P 2 to P7 along with the reply affidavit dated 11-3-2005 filed by the petitioner in this original petition. The petitioner, therefore, contends that the appreciation of evidence is clearly perverse and hence the award is not sustainable. They would also point out that as stated in paragraph 4 of the award, the Union representing the 4th respondent themselves have categorically admitted that Sri. Mohammed was not appointed as a permanent supervisor since the dispute was raised by the Union. Therefore, according to the petitioner, since nobody was appointed as permanent supervisor, the question of making the 4th respondent a permanent supervisor does not arise. They would also submit that in view of the financial crisis in the management's estate, the work force in the estate has drastically come down from 89 to 59 and for supervising the 59 workers, the existing permanent supervisors are more than sufficient. O.P. No. 10502/2000 -: 3 :- 3. The additional 4th respondent got himself impleaded apparently in view of the fact that the Union representing him was not properly prosecuting the original petition. He would controvert the contentions raised by the petitioner. According to to him, the Labour Court has appreciated the evidence in the correct perspective and found that in answer to Exts. W1 and W2, the management has not produced any reliable evidence to offset the probative value of Exts. W1 and W2. Since Exts. W1 and W2 categorically proved that the additional 4th respondent was appointed as a temporary supervisor with effect from 21-11-1984, the management cannot now contend that the finding arrived at by the Labour Court is perverse, is the contention raised by counsel for the additional 4th respondent. He would also submit that in so far as the additional 4th respondent has worked more days than Sri. Mohammed, the additional 4th respondent was eligible to be appointed permanent first, in preference to the said Mohammed and therefore even if the said Mohammed was not made permanent, in view of the admitted fact that there was a permanent vacancy and the additional 4th respondent was the senior most among the temporary workers available, the additional 4th respondent should have been made permanent in that post. 4. Counsel for the petitioner-management would dispute that the additional 4th respondent had put in more days of work than Sri. Mohammed. According to them, Sri. Mohammed had put in more number of days of work than the additional 4th respondent. The petitioner would also submit that the Union representing the additional 4th respondent has not adduced sufficient evidence to prove otherwise. 5. I have considered the rival contentions in detail. 6. From a reading of the award as a whole, I find that the O.P. No. 10502/2000 -: 4 :- Labour Court proceeded on the premise that Exts. W1 and W2 categorically prove that the additional 4th respondent was appointed as a temporary supervisor with effect from 26-11-1984 and the management has not produced any evidence to disprove the same. This appears to be totally wrong and perverse. Exts. W1 and W2 have been produced before me by the 2nd respondent Union as Exts.R2(1) and R2(2). Ext. R2(2) is the appointment order issued to the additional 4th respondent. It starts with the heading “Appointment order for casual supervisory post”, followed by the sentence: “With reference to your application dated 9.11.1984 and personal interview held on 25-11-1984, I am pleased to offer you the post of casual/temporary supervisor with effect from 21-11-84 to 29-2- 85 for 2 months under the following terms and conditions.” Of course, in that sentence, the word “casual” has not been scored off. But, from the caption of the appointment order, it is abundantly clear that the appointment is as a casual supervisor and that it is for a specific period from 21-11-84 to 29-2-85. Of course, Ext. R2(1) shows that the additional 4th respondent has been selected for the temporary supervisor's post and it also states that detailed appointment order will be given to him at the time of joining. It is not disputed before me that Exts. R2(1) and R2(2) have been issued for the same appointment. When the appointment is as a casual supervisor, the Labour Court could not have with any amount of certainty held that Exts. W1 and W2 categorically prove that the additional 4th respondent was appointed as a temporary supervisor. 7. Coming to the finding that the management had not produced any evidence to disprove the fact that the additional 4th respondent was appointed as a temporary supervisor in 1984, I am afraid that in view of Exts.P2 to P7, which are Exts. M1 to M6 produced before the Labour Court , the said finding is also perverse. Ext. P2 is the casual labour memo of the petitioner's estate for the O.P. No. 10502/2000 -: 5 :- week ending 10-12-1994. In the same, the additional 4th respondent's name is shown among casual supervisors. The additional 4th respondent has signed the same also. Ext. P3 is the casual labour memo for the week ending 22-3-1986, wherein also the 4th respondent has been shown as casual supervisor and he had signed the same. Ext. P4 is the casual labour memo for the week ending 13-1-1990, wherein also the additional 4th respondent is shown as casual supervisor and he had signed the same. Ext. P5 is the casual supervisors' bonus memo for the year 1989-90. In that, the additional 4th respondent's name finds a place and he has signed the same as having received Rs. 2600/- as bonus. Ext. P6 is another cash payment receipt for casual supervisors, in which also the additional 4th respondent has signed as having received Rs. 4239/-. When it is admitted before me that these documents have been produced and proved by the management before the Labour Court, the finding in Ext. P1 award that the management had not produced any evidence to prove that the additional 4th respondent was not appointed as a temporary supervisor with effect from 26-11-1984 is clearly perverse and wrong. On the other hand, those documents prove that for the periods covered by those documents, the 4th respondent was only a casual supervisor and not a temporary supervisor. 8. Of course, the additional 4th respondent would raise a claim that in so far as there was a post of permanent supervisor in the year 1996 and the additional 4th respondent was senior-most among the casual supervisors, admittedly, he should have been made permanent instead of Mohammed. Regarding that contention, I do not find any evidence adduced by parties. If the additional 4th respondent had such a contention, it was for him to plead and prove that fact, which he has not done. Even otherwise, the seniority between Sri. Mohammed and the additional 4th respondent was never raised as an O.P. No. 10502/2000 -: 6 :- issue and was not referred for adjudication as an issue. Further, in the reference order also, nobody representing Sri. Mohammed was made a party. Of course, subsequently, a Union espousing the cause of Sri. Mohammed had impleaded themselves in the industrial dispute and taken up the cause of Sri. Mohammed taking up the contention that Sri. Mohammed has more number of days of work than the additional 4th respondent. The relative seniority between the said Mohammed and the 4th respondent does not appear to have been proved with adequate materials on record. In such circumstances, I have no hesitation to hold that the findings of facts arrived at by the Labour Court are clearly perverse and based on wrong appreciation of facts and evidence. For that reason alone, Ext. P1 is liable to be set aside. Accordingly, Ext. P1 is set aside and the matter is remanded to the Labour Court for fresh consideration in accordance with the findings as above. In view of the fact that this is a very old matter, the Labour Court shall finally pass fresh award within a period of four months from the date of receipt of a copy of this judgment or from the date when a new presiding officer of the Labour Court takes charge, whichever is later. . The parties, if so desire, may be given an opportunity to adduce fresh evidence in support of their respective case. The original petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/ O.P. No. 10502/2000 -: 7 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 10502 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= J U D G M E N T 25th September, 2008.