IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 OP.No. 4536 of 1999(M) ---------------------- PETITIONER(S): --------------- M/S. BALANOOR PLANTATION & INDUSTRIES LTD., BALANOOR RUBBER ESTATE, PERINTHALMANNA, MALAPPURAM DT., REP. BY ITS ESTATE MANAGER SRI. ABRAHAM MATHEW. BY ADV. SRI.B.S.KRISHNAN, SENIOR ADVOCATE SRI.P.R.RAMAN RESPONDENT(S): --------------- 1. THE SECRETARY, PLANTATION LABOUR UNION (CITU), PERINTHALMANNA. 2. THE SECRETARY, MALAPPURAM DISTRICT ESTATE LABOUR CONGRESS (INTUC), PERINTHALMANNA, MALAPPURAM DT. 3. THE SECRETARY, PERINTHALMANNA TALUK SWATHANTHRA TOZHILALI UNION (STU), PERINTHALMANNA. 4. LABOUR COURT, KOZHIKODE. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 13/03/2009, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO.4536/1999. --------------------------------------------------------------- EXT.P1 TRUE COPY OF RETRENCHMENT NOTICE DT.28-6-1993. EXT.P2 DO. DT. 28-6-1993. EXT.P3 SENIORITY LIST. EXT.P4 RETRENCMENT ORDER DT. 27-7-1993. EXT.P5 LETTER DT. 27-7-1993. EXT.P6 CLAIM STATEMENT DT 20-1-95. EXT.P7 DO. DT. 20-1-1995. EXT.P8 WRITTEN STATEMENT DT. 10-2-1995. EXT.P9 STATEMENT DT. 7-7-1995. EXT.P10 WRITTEN STATEMENT DT. 2-8-1995. EXT.P11 AWARD IN I.D.NO. 79/94. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 4536 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 13th March, 2009. J U D G M E N T In this original petition, the management in I.D.No. 79/1994 before the Labour Court, Kozhikode is challenging Ext. P11 award passed by the Labour Court in that I.D. The issue referred for adjudication was the justifiability of retrenchment of 15 workers. The workers were retrenched on the ground that on account of re- plantation of the rubber estate in which the workers were working, there was reduction in work as a result of which the workers have been retrenched. According to workers, there was no reduction of work despite the re-plantation. The Labour Court considered the issue and found that the retrenchment was unjustifiable and directed reinstatement of the workers without backwages, but with compensation of Rs. 2000/- to each worker. That award is under challenge before me. 2. Counsel for the petitioner would contend that the Labour Court, after coming to the finding that as per the permits issued by the Rubber Board, the management had obtained permit for re- planting 38.16 hectares of land, which would come to around 100 acres, went wrong in not deciding the question as to whether on account of re-planting of that 100 acres, the proportionate retrenchment was valid or not. It is also contended before me that the fixation of labour strength is a prerogative of the management and the Labour Court does not have jurisdiction to decide as to whether the management was justified in reducing the labour strength. It is further contended that after finding that the workers are not entitled to any backwages, it was not proper on the part of the Labour Court to award compensation which can be done only in lieu of reinstatement. 3. I have considered the contentions of the counsel for the O.P. No. 4536/99 -: 2 :- management. 4. At the outset, I must remind myself that my jurisdiction in interfering with awards of the Labour Court, wherein decisions on questions of facts are the basis of the award, is limited to ascertaining whether the findings of those questions of fact are perverse or not. I cannot, in exercise of my jurisdiction under Article 226 of the Constitution of India, re-appreciate the evidence to come to a different conclusion from what has been arrived at by the Labour Court unless such conclusions are totally perverse. The fact that another view is also possible on the same evidence is no reason to interfere with such awards. 5. I shall now consider the contentions of the management in the light of that legal position. 6. The Labour Court has decided the question as follows: “The main question for consideration is whether the retrenchment of the workers by the management is justified. In other words, the question is whether the workers have become surplus on account of replanting of the rubber trees by the management which resulted in the reduction in labour. For the following reasons, I am inclined to hold that the management failed to justify the retrenchment of the workers on the ground of surplusage of workers. Firstly, the version of MW1, the Manager of the management estate that one of 260 acres of rubber plantation replanting was done in 220 acres in 1993 appears to be not true. The management produced Exts. M14 to M16 the copies of the permits issued from the Rubber Board for replanting rubber trees in the management estate. Ext. M14 is dated December 31, 1992 which shows that the permission for replanting was given for 15.20 hectres. Ex ts M15 and M16 dated February 6, 1996 are the permits granted for replanting in 22.96 hectres. It is clear from these that the case of the management that replanting was done in 220 acres out of 260 acres prior to the retrenchment of the workers is not true. 8. Secondly, it is the admitted case of the management that even on prior occasions replanting was done in the estate and that on those occasions none of the workers were retrenched from service. MW1, the Manager of the estate is not able to explain only now there is reduction on labour due to replanting. All these O.P. No. 4536/99 -: 3 :- probabilities the case of the unions that replanting is usually done in 25 acres at a time which will not result in reduction in labour. 9. Lastly, the case of the unions that replanting in the rubber estate is a routine work which will not result in the reduction in labour appears to be true. WW1, the Secretary of the union No. 7 and WW2 one of the workers have testified convincingly on this aspect. Nothing was brought out during their cross-examination to show that there was reduction in labour due to replanting of the rubber trees in the estate. Having regard to all these, the case of the management that due to replanting of rubber trees there was reduction in labour, that therefore the workers have become surplus and hence they are retrenched from service cannot be accepted. It follows that the retrenchment of the workers from service by the management is not justified, and that the same is illegal and is liable to be set aside. 10. Point No.3:- It is contended by the unions that the management estate i.e. Balanoor Plantations and Industries Ltd. is a part of M/s. Young India Group Estates, which is disputed by the management. In my view, the question whether the above mentioned 4 estates are separate estates or part of M/s. Young India Group Estates is outside the scope of this reference. In this reference the management is shown as Balanoor Plantations and the Workers are retrenched from service by the management as seen from Ext.M10 series, copy of the order of retrenchment issued to the workers by the management. Therefore, the question whether the management estate is a part of Young India Group Estates or a separate estate is left open being outside the scope of this reference. 11. Point No.4:- As I have found that the retrenchment is not justified the workers are entitled to be reinstated in service with continuity of service and other attendant benefits. If the tapping work is not available the workers should be given general work, as the workers have expressed their willingness to do general work if tapping work is not available. As regards backwages it is admitted by the workers that they were getting wages only when the taping work is available. Therefore, I hold that the workers are not entitled to any backwages. But the management has terminated their service illegally for which they will be entitled to a compensation of Rs.2000/- each. 12. In the result, an award is passed holding that retrenchment of the workers from service by the management is not justified. The management is directed to reinstate them in service with continuity of service and other attendant benefits. For the reasons stated above the workers are not entitled to backwages, but towards illegal termination of their service they are entitled to a compensation of Rs.2000/- each. The management shall pay the amount within one month from the date of publication O.P. No. 4536/99 -: 4 :- of this award in the official gazette failing which the workers will be entitled to interest at the rate 12% per annum from this date till realisation.” The contention of the petitioner-management is that after finding that 38.16 hectares of land had been re-planted, the Labour Court ought to have held that there was proportionate reduction in requirement of labour. I am unable to agree. The management was in possession of all documents necessary to prove their contention. In their written statement, they took the definite contention that 200 acres out of 260 acres have been re-planted. When they were in possession of permits from the Rubber Board, which is a statutory requirement for re-planting, they were very much in the know of the exact area which they have re-planted. They did not choose to make a clean breast of the same before the Labour Court. Instead, in order to lend credence to their case of retrenchment, they gave an exaggerated figure. I am of opinion that such a management cannot be believed. Therefore, the Labour Court cannot be expected to consider that part of the area of re-plantation, which was proved by them for the purpose of deciding whether the retrenchment of a lesser number of workmen were justified. Further, the Labour Court entered a finding that even if there was re-planting, it was not necessary to retrench workmen for which a plausible reasoning has also been given. That cannot be termed to be perverse by any stretch of imagination. In the absence of any perversity, I cannot interfere with such finding, even if another view is also possible on the same set of evidence. 7. The Labour Court denied backwages on the ground that it was admitted by the workers that they were getting wages only when the tapping work is available. But, the management was directed to pay compensation of Rs.2000/- each for illegal termination of service. I am not satisfied that the reason for denying backwages is correct. O.P. No. 4536/99 -: 5 :- Admittedly, the workers were kept out of employment for quite some time. It cannot be assumed that there was no tapping work in the estate during that time. It was for the management to prove that there was no tapping work. No attempt has been made by the management in that regard. That being so, the direction to pay compensation of Rs.2000/- each to the workmen cannot be termed to be perverse, unreasonable or unjust. Therefore, I do not find any merit in the challenge against the award. Accordingly, the original petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/