IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 WP(C).No. 4042 of 2006(F) ------- ------------------------- PETITIONER: ------------------ T.K.RUGMINIAMMA, AGED 75, W/O.BALAKRISHNAN NAIR, GURUVAYOOR AMSOM DESOM, GURUVAYOOR VILLAGE, CHAVAKKAD TALUK, MANAGING PARTNER, JAYASREE THEATER, GURUVAYOOR. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): ---------------------- 1. THE DEPUTY LABOUR COMMISSIONER, THRISSUR, APPELLATE AUTHORITY, UNDER THE KERALA SHOPS AND COMMERCIAL ESTABLISHMENTS ACT. 2. K.K.UNNIKRISHNAN, S/O.K.P.KRISHNANKUTTY NAIR, KOTTIL PADINJAROOT HOUSE, P.O.GURUVAYOOR, MAMMIYOOR, THRISSUR DISTRICT. R1 BY GOVT. PLEADER SRI.NOBLE MATEHW R2 BY ADV. SRI.P.RAMAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/12/2011, THE COURT ON THE SAME DATE DELIVERED THE FOLLOWING: WP(C).No. 4042 of 2006(F) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF THE APPEAL SUBMITTED BY THE 2ND RESPONDENT AS S.A.2/95 DATED 11/02/1995 BEFORE THE FIRST RESPONDENT. P2 : COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 12/06/1995 P3 : COPY OF THE REJOINDER FILED BY THE SECOND RESPONDENT DATED 11/08/1995. P4 : COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DATED 30/10/2005 P5 : COPY OF THE COMMUNICATION BY THE SR.SUPERINTENDENT OF POSTS OFFICES, THRISSUR DIVISION DATED NIL. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.A TO JUDGE. STU S.SIRI JAGAN - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)NO.4042 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of December 2011 --------------------------------------------------- JUDGMENT The petitioner is the employer-opposite party in S.A No.2 of 1995 before the appellate authority under the Kerala Shops and Commercial Establishments Act, 1960, Thrissur. The second respondent herein filed the said shop appeal contending that he was a permanent employee of the theatre run by the petitioner and was denied employment from 05.01.1995 onwards without assigning any reason. The matter was enquired into by the first respondent appellate authority, who came to the conclusion that the second respondent was an employee of the petitioner and that he was denied employment with effect from 01.05.1995 without any reason. Consequently, the appellate authority directed the petitioner to reinstate the second respondent with all back wages and other benefits along with continuity of service for the period the appellant was kept out of employment. In the alternative, the petitioner was directed to pay a sum of Rs. 96,750/- as compensation in lien of reinstatement and backwages. Ext.P4 is the said order. The petitioner is challenging Ext.P4 order. The petitioner raises three contentions. The first is that the second respondent was employed as an extra departmental delivery agent in the postal department and therefore, he is not a person principally employed by the petitioner and consequently he is not an W.P.(C)NO.4042 OF 2006 2 employee as defined under the Kerala Shops and Commercial Establishments Act. The second contention is that for engaging in such employment, the second respondent had not obtained consent from the petitioner and therefore, he has violated the terms and conditions of employment under the petitioner. Thirdly, he would contend that the second respondent had abandoned employment and the petitioner did not deny employment to the second respondent. 2. I have heard the parties. 3. As is clear from Ext.P4 order of the appellate authority, the second respondent, while giving evidence as AW1, in chief examination, stated that he was engaged in the work of an extra departmental delivery agent in the Postal Department with the permission and consent of the petitioner herein and the said work is not a permanent job and is not even a part time contingent employment. He stated that the said work starts at 8 a.m. and ends at 1 p.m. According to him, he was doing the work in the Postal Department without obstructing the work of the petitioner's establishment also, which was known to the petitioner from the time of beginning of the employment. It is not disputed before me that the work in the petitioner's a cinema theatre starts only later in the afternoon. The second respondent works in the Postal Department only up to 1'O' clock. Insofar as the Postal Department has no objection in the second respondent working anywhere-else after 1 p.m., the petitioner cannot contend that since the second respondent is working in the Postal Department, he is not a permanent employee of the petitioner when admittedly the 2nd respondent was an employee of the petitioner's theatre. Therefore, I do not find any merit in the first W.P.(C)NO.4042 OF 2006 3 contention. 4. As far as the second contention is concerned, no law prescribes that in private employment for indulging in other employment the employee should take the consent of the employer unless the standing orders prohibits the same. The petitioner has no such case. Even otherwise, the appellate authority believed the evidence of the second respondent that he was doing the work in the Postal Department with the permission and consent of the petitioner. Therefore, I do not find any merit in the second contention also. 5. The petitioner has not chosen to prove that the second respondent abandoned the employment. Although he raises such a contention in the written statement, such a contention has to be pleaded and proved. The second respondent has not adduced any evidence in support of the same. In any event, the contention is that the second respondent abandoned employment in 1994. But the finding in Ext.P4 order is that the second respondent was denied employment on 01.05.1995. In the above circumstances, there is no merit in the third contention also. In the above circumstances, I do not find any merit in this writ petition. Accordingly, the same is dismissed. S.SIRI JAGAN, JUDGE STU W.P.(C)NO.4042 OF 2006 4 W.P.(C)NO.4042 OF 2006 5