IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 OP.No. 5889 of 1995(A) -------------------------------- I.D.21/1991 OF LABOUR COURT, KANNUR. .................... PETITIONERS: --------------------- 1. L.H. ANDUNHI, UJOOR, ULWARA, KUMBALA, KASARAGODE DISTRICT. 2. P.M. ABBAS HAJI, PAIVALIKA, UPPALA, KASARAGODE DISTRICT. 3. PRAVEENKUMAR, MANJESHWAR, KASARAGOD DIST., BY ADV. SRI.M.SASINDRAN. RESPONDENTS: ------------------------ 1. C.M. MAHIN, CHECKING INSPECTOR, CHEROOR.P.O., CHENGALA, KASARAGODE DISTRICT. 2. HASSANKUTTY, PROPRIETOR, FIVESTAR MOTORS, KUMBALA, KASARAGODE. 3. MOIDEENABBA, HOSANGADI, SALES TAX CHECK POST, MANJESHWAR, KASARAGOD. BY ADV. SRI.A.P.CHANDRASEKHARAN (SR.), SRI.A.INEES, SRI.KODOTH PUSHPARAJAN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 29/02/2008, ALONG WITH O.P. NO. 12078/1995,THE COURT ON 07/03/2008 DELIVERED THE FOLLOWING: O.P. NO. 5889/1995-A: APPENDIX PETITIONER'S EXHIBIT : EXT.P.1: COPY OF THE AWARD DTD. 07/12/1993 IN I.S. 21/91 AS PER NOTIFICATION G.O. (RT). NO. 578/94/LRD DTD. 05/03/1994. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NOs.5889 & 12078 of 1995 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of March, 2008. JUDGMENT These original petitions are filed challenging the award of the Labour Court, Kannur in I.D. No.21/1991. The petitioners in the two original petitions were opposite parties before the Labour Court. 2. The workman is one C.M. Mahin who is no more now and his legal representatives have been impleaded. He died subsequent to the filing of the original petitions. The issue that was referred for adjudication before the Labour Court is:- “the alleged denial of employment as Checking Inspector of Shri C.M. Mahin is justified or not, if so remedial measures.” As per the award, the Labour Court held that the termination of service of the worker by respondents 1, 2, 3 and 7 is illegal and unjustified and the same tantamount to retrenchment and that too, without complying the mandatory provisions contained in Section 25-F of the Industrial Disputes Act; ordered reinstatement of the worker with backwages or in lieu thereof directing respondents 1, 2, 3 and 7 to pay compensation to the worker of a total amount of Rs.60,000/- making them jointly and severally liable, along with future interest at 12% per annum from the date of publication of the OP 5889 & 12078/1995 -2- award. 3. Firstly, I will consider O.P. No.5889/1995. In O.P. No.5889/1995 the petitioners are respectively opposite parties 1, 2 and 3. In O.P. No.12078/1995, the petitioner was the 7th opposite party who was set ex- parte before the Labour Court. Since common issues arise, the original petitions are disposed of by this common judgment. 4. The sum and substance of the claim raised by the original first respondent was that he was working as Checking Inspector in different buses under the respective managements who are mentioned as opposite parties. Initially he joined as Checking Inspector in 1977 under one K. Hassankutty who is opposite party No.4. He was working in various buses owned by him. The said Hassankutty sold the bus bearing registration No.KLC 9309 to the first petitioner in O.P. No.5889/1995. Subsequently, as the said bus was sold, he continued in another bus bearing registration NO. KLN 309 which also belonged to the same owner. At the same time, he was also partly employed with Shri Hassankutty in another bus, viz. KLC 9549. The second petitioner herein who was a transferee of one bus from Shri L.H. Andunhi had also employed the worker. He was also working under the first petitioner in two other buses. Ultimately two of the buses were sold on 11.6.1988 to petitioners 2 and 3 herein and thereafter he was OP 5889 & 12078/1995 -3- denied work by the petitioners in these original petitions. According to the workman, he was a permanent employee and the first petitioner herein had remitted instalments to the Kerala Motor Transport Workers Welfare Fund. 5. The various respondents before the Labour Court filed their respective counter statements disclaiming any liability. They disputed the claim on various grounds. The first petitioner in O.P. No.5889/1995 contended that when he had purchased the bus KLC 9309 from the second respondent, the first respondent was working as Checking Inspector in that bus and the said bus was sold on 18.2.1983, after due payment made to the worker. From 1984 onwards he was working in other buses KLN 309 and KLN 5182, etc. owned by the first petitioner on a part-time basis. KLN 309 was sold in 1984 and the other bus was seized by the financier I.C.D.L., Kasaragod branch on 10.5.1988 and in view of the above, the business was closed and hence the alleged termination is not correct. The third petitioner obtained possession of the bus from ICDL. It is also pointed out that the workman was being engaged in different buses as Checking Inspector and there was no particular time prescribed for this work also. The second petitioner herein denied the employer-employee relationship. The third petitioner put up a case that after he purchased the bus through ICDL, he was engaging his own workers and he has no liability towards the first OP 5889 & 12078/1995 -4- respondent. 6. Elaborate evidence was adduced before the Labour Court and the question whether there is denial of employment was considered in detail. During the enquiry, the workman limited his claim against the respondents/ opposite party Nos.1, 2, 3 and 7 and the Labour Court examined the issue on the basis of that development. It was found that he was not a casual employee and that merely because of the fact that the respective buses were being sold, his service will not terminate automatically. The Labour Court on an analysis of the evidence, found that he was working under respective opposite parties as Checking Inspector and his salary was paid equally by the respective owners. It was also found that he was not terminated in accordance with law and that he was not given any service benefits when his service stood terminated on 11.6.1988. In fact, some of the bus owners, respondents 1, 2 and 3 did not put matters to his notice. The Labour Court was of the view that a successor in interest also is liable for the service benefits of an employee and that the sale of a management concern by itself will not automatically put an end to the service and service conditions of an employee. It was found by the Labour Court that the worker was getting Rs.17/- per day from one management and the other half of the same was being paid by the other management. OP 5889 & 12078/1995 -5- 7. Therefore, the question whether he was terminated and whether that amounts to retrenchment was considered in the light of the evidence adduced as against respondents 1 to 3 and 7, before the Labour Court. It was also found that his half service was utilised by way of part time job by respondents 4 and 6, but that by itself is not sufficient to deny his rights under the other respondents. Ultimately the Labour Court entered a finding that the denial of employment is not bonafide. It was held that it amounted to retrenchment and that there is no compliance of Section 25F of the Act. 8. Learned counsel for the petitioners submitted that as far as the petitioners are concerned, they have no liability to continue him; as the first petitioner lost possession of the vehicle in the year 1988, as it was seized by the financier and the third petitioner obtained the bus from the financier while he was out of service. Therefore, it is submitted that the award cannot be sustained. Learned counsel for the additional respondents submitted that the said contention cannot be accepted in the light of the fact that merely because of transfer of possession of the bus or that the vehicle was seized by the financier, it cannot defeat the rights of the workman for appropriate compensation or reinstatement, as the case may be. 9. This aspect has been dealt with in paragraphs 25 and 26 of the award by the Labour Court. The Labour Court was of the view that prior to OP 5889 & 12078/1995 -6- 11.6.1988 the workman had no knowledge about the sale of any vehicle by the first petitioner to petitioners 2 and 3. Motor Transport Workers Welfare Fund was being deposited in his name for the vehicle KLN 5182. The sale of the bus, however, is not sufficient to terminate his service and as he was not terminated in accordance with law. It was also noticed that it is well settled that a successor in interest also is liable for the service benefits of an employee and that the sale of a management concern by itself will not automatically put an end to the service and service condition of an employee in that management concern. I find that the view taken by the Labour Court is perfectly reasonable and cannot be said to be perverse. The above said view has been taken after a detailed analysis of the evidence and it is not a case where the relevant aspects have been overlooked by the Labour Court. The situation herein will not satisfy the requirements of Section 2(oo) read with Section 25F of the Industrial Disputes Act. The alleged closure of the business by the first petitioner is not in tune with the provisions of Section 25(o) of the Act. Even if it is attracted, Section 25(o)(8) entitles him to claim compensation as provided therein. As regards the quantum of compensation fixed by the Labour Court also, it cannot be said that it is on a higher side or exorbitant. In the light of the above, O.P. No.5889/1995 does not deserve any OP 5889 & 12078/1995 -7- merit and the same is dismissed. 10. As far as O.P. No.12078/1995 is concerned, the learned counsel for the petitioner therein sought to raise various arguments. Actually, the said petitioner was declared ex-parte by the Labour Court. Even though it is asserted that no notice was issued to the petitioner, there is no cogent evidence to support the same. As the petitioner has not chosen to contest the proceedings before the Labour Court, the arguments based on certain grounds raised in the original petition, cannot be sustained, since the Labour Court had no opportunity to consider those contentions. They cannot, therefore, be allowed to be raised for the first time before this court. Further, the view taken by the Labour Court on the merits applies to the said petitioner. He is a transferee of one of the buses, which cannot defeat the rights of the workman. In the above view of the matter, the said original petition does not deserve any consideration and the same is dismissed. Accordingly, both the original petitions are dismissed. (T.R. Ramachandran Nair, Judge.) kav/ OP 5889 & 12078/1995 -8- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. Nos.5889 & 12078 of 1995 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 7th March, 2008.