IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 OP.No. 3026 of 1999(I) ------------------------------- PETITIONER: ------------------- POOTHERI ABDURAHIMANKUTTY, S/O. MOOSAKUTTY, POST TANUR, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. MR.P.V.SURENDRANATH. RESPONDENTS: ------------------------ 1. V. CHANDRAN, S/O. VIYAM VEETTIL CHANDU, AMPATTUPADAM, P.O. PANANGATTUR, (VIA) TANUR, TIRUR TALUK, MALAPPURAM DISTRICT. 2. AUTHORITY APPOINTED UNDER THE KERALA SHOPS & COMMERCIAL ESTABLISHMENT ACT, 1960, (DEPUTY LABOUR COMMISSIONER), KOZHIKODE. R1 BY ADV. MR.T.KRISHNANUNNI, R2 BY GOVERNMENT PLEADER MR.DILIP MOHAN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 04/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 3026/1999-I: ORDER ON C.M.P. NO. 5191/1999 IN O.P. NO.3026/1999-I CLOSED 04/01/2010. SD/- S.SIRI JAGAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPEAL DTD. 20/05/1994 SUBMITTED BY THE R.1. BEFORE THE R.2. EXT.P.2: COPY OF THE ORDER DTD. 24/12/1997 OF THE R.2. IN S.A. 10/94. EXT.P.3: COPY OF THE REGISTERED ENVELOP OF THE R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== O.P.No. 3026 of 1999 ================== Dated this the 4th day of January, 2010 J U D G M E N T The petitioner is the opposite party-employer in Shop Appeal No.10/1994 before the Appellate Authority under the Kerala Shops and Commercial Establishments Act, 1960 (Deputy Labour Commissioner), Kozhikode. He is challenging Ext.P2 order of the authority in that shop appeal, wherein for illegal denial of employment to the 1st respondent herein, the 2nd respondent directed either reinstatement of the 1st respondent or payment of Rs.91,800/- as compensation. The establishment in question is a cinema theater. The 1st respondent herein was an operator in that cinema theater earning a salary of Rs.765/- per month. The 1st respondent filed the shop appeal alleging that on 11.2.1994 the petitioner herein, issued a notice to the 1st respondent stating that he was unauthorizedly absent from 1.12.1993 and he has abandoned employment. Taking this as an illegal termination from service, the 1st respondent filed the shop appeal. Before the appellate authority the petitioner took the contention that the 1st respondent was guilty of the misconduct of unauthorized absence from 1.12.1993 to 11.2.1994 and therefore, the termination of service for the said misconduct is perfectly valid and proper. The petitioner could not produce any evidence before the appellate o.p.3026/1999 2 authority to prove the alleged misconduct against the 1st respondent. He had admitted before the appellate authority that before terminating the service of the 1st respondent, he had not conducted an enquiry on the allegation of misconduct against the 1st respondent. After assessing the evidence of both sides, especially noting the fact that the petitioner failed to produce the service records of the 1st respondent, the 2nd respondent found that the 1st respondent was illegally terminated from service from 29.12.1993 onwards. Although there was a direction to reinstate the 1st respondent within 30 days, the petitioner was given an option to pay compensation of Rs.91,800/- in lieu of reinstatement. Ext.P2 is the order passed in the shop appeal. The petitioner is challenging that order in this original petition. 2. Although the petitioner challenged the validity of the finding of the 2nd respondent that the 1st respondent was illegally terminated from service, he could not satisfy me with any reliable evidence that he had sufficient reason to terminate the service of the 1st respondent. No records have been produced to prove the case of unauthorised absence set up by the petitioner against the 1st respondent. 3. The counsel for the petitioner would argue that in any event, fixation of compensation is exorbitant and unreasonable. According to him, the 1st respondent could very well get another o.p.3026/1999 3 employment since he was young and qualified to work as a cinema operator. He would submit that the 1st respondent would be entitled to compensation equivalent to the salary payable to him for a reasonable period, within which time the 1st respondent could have obtained another employment. He would further submit that at the most, the 1st respondent would be entitled to only three years' wages as compensation. 4. The counsel for the 1st respondent opposes the contentions of the petitioner. According to him, the 1st respondent was aged 36 years at the time of giving evidence before the appellate authority and he had 22 years more of service, based on which he is entitled to be compensated for the loss of employment. He would further submit that now-a-days it is very difficult to get employment in cinema theatres because cinema theaters are no longer profitable. 5. I have considered the rival contentions in detail. 6. Fixation of compensation depends on many factors, such as the age of the workman, the balance service left for him, the monthly wages, scope of getting another employment and the like. From a reading of Ext.P2 I do not find that the appellate authority has undertaken the exercise of computing the compensation payable to the 1st respondent on valid parameters. However, instead of remanding the matter for fresh computation of the amount of compensation on o.p.3026/1999 4 the basis of valid parameters, I put it to the parties to come to a reasonable agreement in respect of the amount of compensation. With some persuasion from the Court, the parties agree for an amount of Rs.75,000/- as compensation payable by the petitioner to the 1st respondent. Accordingly, Ext.P2 is modified to the extent of reducing the compensation to Rs.75,000/- instead of Rs.91,800/-. The said amount of Rs.75,000/- shall be paid by the petitioner to the 1st respondent within one month, failing which the same would carry interest at the rate of 9% per annum from the date of Ext.P2, viz., 24.12.1997 till payment. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 3026 of 1999-I ================== J U D G M E N T 4th January, 2010