IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 OP.No. 33468 of 2001(H) ----------------------- PETITIONER: --------------- C.P.DHANESH, MANAGING DIRECTOR, HOTEL INDRAPRASTA, PALAKKAD. BY MR.K.RAMESH, ADVOCATE RESPONDENTS: ------------------ 1. ALBERT FREDDY, SKYDER HOUSE, LITTY NAGAR, THIRUNELLAI, PALAKKAD. 2. THE INDUSTRIAL TRIBUNAL, PALAKKAD. 3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, TRIVANDRUM. BY MR.JIJO PAUL, ADVOCATE FOR R1 MR. DILIP MOHAN, GOVERNMENT PLEADER THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No.33468/2001 2 C.M.P.NO.54668/2001 IN O.P.NO.33468/2001 CLOSED. Sd/- S.SIRI JAGAN, JUDGE 12.01.2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE AWARD PASSED BY THE 2ND RESPONDENT. TRUE COPY P.A.TO JUDGE S.SIRI JAGAN,J ========================= O.P.No.33468 of 2001 ========================= Dated this the 12th day of January, 2010 JUDGMENT In this original petition the management in I.D No.96/99 before the Industrial Tribunal, Palakkad is challenging Ext.P1 award passed by the Tribunal in that I.D. The issue referred for adjudication was as follows: “ whether the denial of employment to Sri.Albert Freddy, an employee of Hotel Indraprastha, Palakkad is justifiable; if not what relief he is entitled to?” 2. The management is a three star hotel. The workman raised the contention that he was being engaged as an upholstery worker on a monthly salary of Rs.2,700/- with free food since June, 1989 and he was denied employment on 20.11.1998, which was according to him unjustified. The management took the contention that the workman was not a regular employee of the workman of the management but he was being engaged for furniture repair work along with others on piece rate basis as and when there were repair works. After appreciating the evidence adduced by both sides the Tribunal came to the conclusion that the workman was denied O.P.No.33468/2001 2 employment unjustly and directed the management to re-engage the workman for upholstery works as and when such works are available and to pay him Rs.10,000/- towards compensation and backwages, with a rider that if the management is not satisfied with his work the management shall be free to stop his further engagement after giving him to an opportunity to be heard. That award is under challenged at the instance of the management on the ground that the findings in Ext.P1 award are totally perverse. According to the management, the workman was engaged on contract basis on piece rate, for doing upholstery work of damaged furniture of the hotel and the workman was being engaged only as and when there was repair works. According to the management that would clearly amount to a contract employment and relief of a workman on completion of the contract period is clearly excluded from the purview of the scope of the retrenchment under Section 2 (oo). Therefore, the management would contend that the finding of the Tribunal that the workman was a regular workman of the management is clearly vitiated. They would further contend that it was for the O.P.No.33468/2001 3 workman to prove that he had worked for 240 days within a period of one year which burden has not been discharged by the workman by adducing sufficient evidence. It is further contended that after accepting MW1 as an independent and trustworthy witness, the Tribunal discarded his evidence to the effect that the workman had done upholstery work on piece rate contract as and when required, which would prove the case of the management completely. 3. On the other hand, the learned counsel for the workman would strenuously contend that there is nothing perverse in the findings in Ext.P1 award. It is submitted that the workman had clearly proved that he was being engaged by the management as an upholstery worker and he had put in 240 days continuous service in one year and therefore he could not have been retrenched from service without complying with the procedure prescribed in the Industrial Disputes Act. The management having not done so cannot now contend that the workman is not entitled to the relief granted by the Industrial Tribunal is the contention of the counsel for the workman. O.P.No.33468/2001 4 4. I have considered the rival contentions in detail. At the outset I must state that I am unable to countenance the finding in Ext.P1 that upholstery work in a hotel would be regular in nature. It is not as if every day in a hotel the upholstery of furniture would get damaged for repairing which the service of a regular upholstery worker would be essential. No prudent hotel management would engage the service of an upholstery worker on a regular basis. It is only natural to assume that the management of a hotel would get repair of upholstery done only once in a while, after ensuring that there is sufficient upholstery work available for a workman to do it within a few continuous days. In this case the Tribunal himself has accepted the evidence of MW1 as independent evidence. That being so, after accepting his statement that “the workman has done upholstery work on piece rate contract as and when required”, I fail to understand how the Tribunal could hold that the workman in question was a regular employee entitled to the benefits of the Industrial Disputes Act. In fact, the Tribunal himself had concluded that “the workman was not employed O.P.No.33468/2001 5 regularly on a monthly salary of Rs.2,700/- as claimed by him and that it can be safely concluded that the workman employed on a piece wage system as and when required.” In fact, that finding would support the contention of the management and not that of the workman. 5. Apart from that, I am satisfied that the workman has not proved that he had put in 240 days of service in an year. Ext.M1 series of vouchers produced by the management have been accepted by the Tribunal to hold that these vouchers would not help the workman to prove that he was employed continuously. If that be so, there should have been some other evidence to show that the workman had in fact put in 240 days of service in an year. Apart from the interested testimony of the workman there was no other evidence to prove the same. In fact, the Tribunal himself had found in the award that the workman had not taken any steps for the production of records of the management to prove the same. It is settled law that the initial burden of proving that the workman had put in 240 days within a year rests with the workman. Of course MW1 had O.P.No.33468/2001 6 stated that Ext.W1 certificate dated 16.5.98 was issued to the workman by him in which it is stated that he had three years of service. But admittedly it is not stated that he had three years of continuous service. At the same time he has also stated that the workman had done the upholstery work on piece rate contract as and when required. That being so, the evidence of the MW3 cannot also be sufficient to prove that the workman had put in 240 days of service in an year. I am of opinion that the evidence available is sufficient to hold that the workman was being engaged only as a contractor on piece rate basis as and when repair work of upholstery was available in the hotel. It is common knowledge that for such work no person would engage the service of a regular workman. Normally such work would be entrusted only to an independent contractor who is an expert in such work. As such, I am of opinion that the finding that the workman was a regular workman of the management is clearly perverse. On the other hand, the evidence available as noted in Ext.P1 award would suggest the other way. Hence, the findings in Ext.P1 is against the evidence in the case and clearly O.P.No.33468/2001 7 perverse. Accordingly, Ext.P1 award is set aside. It is declared that the workman is only an independent contractor engaged by the management for doing repair works of upholstery on piece rate basis and was not a workman as defined under the Industrial Disputes Act entitled to the benefits of the provisions of the Act. As such, the workman is not entitled to any relief in the I.D. The original petition is allowed as above. S.SIRI JAGAN, JUDGE dvs