IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 WP(C).No. 31910 of 2006(W) -------------------------- ID.19/2001 of LABOUR COURT, KOLLAM .................... PETITIONER ----------------- D. THANKAMMA, MARANA VEEDU, PARAVOOR P.O., ALAPPUZHA. BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT -------------------- THE PRESIDENT, BHARATH COIR MATS AND MATTING, CO-OPERATIVE SOCIETY LIMITED NO.526, ASRAMAM WARD, ALAPPUZHA. BY ADV. SRI.R.AZAD BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29 /09/ 2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31910 of 2006(W) ----------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ---------------------------------- EXT. COPY OF THE WRITTEN STATEMENT IN I.D. NO.19 OF 2001 OF THE LABOUR COURT, KOLLAM. EXT.P2. COPY OF THE DEPOSITION OF THE PETITIONER IN ID. NO.19 OF 2001 OF THE LABOUR COURT, KOLLAM. EXT.P3. COPY OF THE MEMO DATED 12.7.1993 EXT.P4. COPY OF THE REPLY TO THE MEMO DATED 24.7.1993. EXT.P5. COPY OF THE ACKNOWLEDGEMENT CARD DATED NIL ET.P6. COPY OF THE ORDER OF THE LABOUR COURT KOLLAM IN I.D. NO.10/2001 DATED 4.2.2006. RESPONDENT'S EXHIBITS: NIL -------------------------------------- / TRUE COPY / P.A. TO JUDGE VK S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.31910 OF 2006 ---------------------------------------------- Dated this the 29th day of September, 2011 JUDGMENT The workman in I.D.No.19/2001 before the Labour Court, Kollam is the petitioner herein. She challenges Ext.P6 award of the Labour Court in that I.D. The issue referred for adjudication was; “Whether the denial of employment of Smt. D. Thankamma, Marana Veedu, Paravoor P.O., Alappuzha is justifiable? If not, what relief she is entitled to?” 2. The contention of the petitioner in the Industrial Dispute was that the petitioner was originally appointed as a Clerk of the management on 15.8.1978 and the management Society became defunct in 1988. In 1993, when the Society restarted, the petitioner was not given employment and therefore complaining that she has been denied employment, she sought appropriate reliefs. The management took the contention that the petitioner is not a workman as defined under Section 2(s) of the Industrial Disputes Act and that there is no denial of W.P.(C)No.31910/06 2 employment, but, the petitioner voluntarily abandoned the employment on account of the fact that the management found out that the petitioner had misappropriated an amount of Rs.93,207/-, which was demanded from the petitioner. It was also contended that the petitioner has not explained the long delay of six years in raising the dispute. The Labour Court found in favour of the management on all counts and by Ext.P6 award held that the petitioner is not entitled to any relief. That is under challenge in this writ petition. The petitioner contends that the award is perverse and therefore, the same is liable to be quashed and the petitioner is liable to be reinstated with backwages. 3. The learned counsel for the management argues in support of the award. 4. I have considered the rival contentions in detail. To decide the issue all I need to do is to just extract the relevant portion from the award which is self explanatory reads as follows: “7. Point No.1: The dispute involved in the case relates to the alleged denial of employment to Smt. D.Thankamma, who was working as the Secretary of Bharath Coir Matts and Mattings Co- operative Society Limited, which is one registered under the Co-operative Societies Act. As regards the maintainability of the dispute before the W.P.(C)No.31910/06 3 Labour Court, it is contended that there is delay as well as the person involved is not a 'worker' as defined under Section 2 (s) of the Industrial Disputes Act. According to the worker, she was originally appointed as accounts clerk and was later given charge of the secretary, and while so working the establishment became defunct in 1988 and thereafter she was not given any intimation of the re-starting of the society; and thus it is alleged that she was denied employment by the management illegally. The complaint to the District Labour Officer on the basis of which the reference is made is dated 12.5.1999. The reference is made in March 2001. The worker does not offer any explanation for not complaining of the alleged denial of employment from 1988 to 1999, except for stating that the society was closed for some time and that she was not intimated by the society of the re-starting of the functioning. 8. The worker was examined as WW1, and even in her chief examination she does not offer any explanation for keeping silent for several years. It is pertinent to note that in her evidence she states that in May 1993 the President and other office bearers came to her residence and collected keys of the Alamarahs and also cheque book; and even according to her a memo was issued on 27.3.1993 imputing certain allegations against her including misappropriation of money. She has produced the copy of this memo as Ext.W1 and she had sent a reply to it, the copy of which is produced as Ext.W2. According to her she was denied employment from 1993 onwards and inspite of it she kept silent for long 6 years for which she offers no explanation. There is no limitation for raising a dispute. But it is settled position of law that a stale claim cannot be entertained by the Labour Court unless there is convincing explanation offered. The Hon'ble Supreme Court in the decision reported in 2000 AIR S.C. 839 (Nedungadi Bank Ltd. Vs. Madhavan Kutty) = 2000 (1) KLT 616.) has laid down that the power has to be exercised reasonably and in a rational manner and that a stale claim could not be subject matter of reference. The worker was cross examined in this regard, and in the cross examination she has an allegation that she had complained the matter in 1996 to the Labour W.P.(C)No.31910/06 4 Officer. But there is absolutely no material to show that there was any such complaint to the Labour Officer prior to 1988 and even in the claim statement there is no such allegation. So it has to be found that the claim made in 1999 after long delay is stale. 9. On the maintainability the 2nd contention is that the person is not a 'workman' as defined in Section 2(s) of the Industrial Disputes Act. According to the management the Secretary was holding a managerial and administrative position in the society and such person cannot be treated as a workman. In this context the decision of the Hon'ble High Court of Kerala reported in 1996 (II) LLJ 1140 K.M. Ulahannan Vs. Labour Court) was relied on that was also a case of a Secretary of the Co-operative Society who was dismissed from service challenged the order of dismissal before the Labour Court, and on the maintainability of the reference it was held: “A person who is employed as the head of the administration of the society must be deemed to be discharging duties in a managerial capacity. One holding the post in managerial capacity cannot be considered as a workman”. She has no case that though she was designated as Secretary she was doing any clerical or ministerial work so as to attract the definition of 'workman' in Section 2(s). So in the absence of any such evidence it has to be found that the person involved is not a workman. The reference before the Labour Court is not maintainable. 10. Point No.2: Coming to the merits of the alleged denial of employment, definite contention of the management is that the worker abandoned the job when she received the memo Ext.W1 alleging misappropriation of money, and inspite of re-starting of the society she never reported for duty. The worker though gave evidence as WW1 she did not swear even in her chief examination that she approached the management of the society for taking charge as Secretary; or that she, as the Secretary of the society reported for duty at any date. As I have earlier pointed out she admits that the President and others came to her house and collected key and cheque books. Even at that stage she is keeping silent and has no allegation that she reported for duty at te society premises. Even on W.P.(C)No.31910/06 5 receipt of Ext.W1 she does not report for duty, and according to him she was all along asking for accounts to the President only. Her conduct in this regard shows that she has not reported for duty at any time as contended by the management. So the contention of the management that there is abandonment of job by the person is justified. Therefore the contention of the worker that there is denial of employment is not proved. She is not entitled to reinstatement or to get any other relief against the management. In the result the reference is answered as follows: Smt. D. Thankamma the worker involved in the dispute is not entitled to any relief against the management”. Of course, the learned counsel for the petitioner would vehemently argue that the finding that the petitioner is not a workman as defined under the Act is patently unsustainable, insofar as she was only a Clerk discharging the functions of the Secretary. Even assuming to be so, I am of opinion that the finding of the Labour Court that the petitioner abandoned employment is certainly one very possible view on the basis of the evidence on record. Admittedly, the petitioner's claim was that she was denied employment from 1993. She kept quiet for long six years after the alleged denial of employment. She has not been successful in giving any convincing explanation for the long delay of six years. On the other hand, the petitioner candidly admitted while giving evidence that the W.P.(C)No.31910/06 6 respondents had issued a memo to the petitioner demanding an amount of Rs.93,207/- allegedly misappropriated by the petitioner. Of course, the petitioner had filed reply denying the allegations. But the fact that after receiving the memo demanding the allegedly misappropriated money, the petitioner kept quiet for six long years would more probabilise the case of the management than that of the petitioner. Therefore, I do not find any perversity whatsoever in Ext.P6 award. It is settled law that if the view taken by the Labour Court is one possible view, even if this Court is inclined to take another view, that is no ground to interfere with an award of the Labour Court. Therefore, there is no merit in this writ petition and accordingly, the same is dismissed. S. SIRI JAGAN, JUDGE acd