IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 WP(C).No. 23748 of 2004(B) -------------------------- PETITIONER(S): --------------- M/S.TATA TEA LIMITED, REGIONAL OFFICE, MUNNAR REP. BY THE MANAGER, IR & SIED PRATHAP RAMDAS. BY ADVS. .. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.P.BENNY THOMAS SMT.PRIYA MANJOORAN RESPONDENT(S): --------------- 1. THE GENERAL SECRETARY, DEVICOLAM ESTATE WORKERS UNION, (AITUC) MUNNAR P.O. 2. THE INDUSTRIAL TRIBUNAL, IDUKKI. BY // THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 7/9/2009, THE COURT ON 13.10.2009 DELIVERED THE FOLLOWING: W.P.(C)NO.23748/2004 PETITIONER'S EXHIBITS: Ext.P1: True copy of certified standing order applicable to the estate workmen dated Nil. Ext.P2: True copy of claim statement filed by the 1st respondent before the 2nd respondent dated 23.2.2001. Ext.P3: True copy of written statement filed by the petitioner before the 2nd respondent dated Nil. Ext.P4: True copy of reply statement dated 28.9.2001 filed by the 1st respondent before the 2nd respondent. Ext.P5: True copy of the award dated 26.2.2004 passed by the 2nd respondent. RESPONDENTS' EXHIBITS:NIL C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C) NO. 23748 OF 2004 -------------------------------------------- Dated this the 13th day of October, 2009 JUDGMENT The workman concerned in I.D. No.89 of 2000 on the file of the Industrial Tribunal, Idukki, Sri. Rayappan, was working as watchman under the petitioner/Management, which is a company registered under the Companies Act, 1956. He had been working as such from 1984 till 1998 when he was denied the said employment. Thereupon, the first respondent/union raised an industrial dispute. According to the first respondent/union, certain bombastic charges were cooked up by the Management against the workman, regardless of truth and without any regard to responsibility and also without any iota of evidence to support them. Though notice levelling such allegations was served on the petitioner on 11.8.1998, no disciplinary proceedings were initiated against him.. However, he was denied the job of watchman without any justification whatsoever. The Government of Kerala as per G.O.(Rt.) No. 3268/2000/LBR dated 18.9.2000 referred the aforesaid industrial dispute for adjudication to the Tribunal. 2. Before the Tribunal, the first respondent/union contended that the W.P.(C)NO. 23748/2004 2 workman concerned was employed as watchman since 1984 and he had been doing the work sincerely and efficiently. He was also getting wage differential and 30 days' work every month. It was further contended that on 11.8.1998, the Management issued a notice to the workman alleging commission of theft of a gold chain belonging to one Guruswamy's daughter. However, in the very same notice, it was stated that in the late night, the said chain was found lying in the drain in the house. Despite service of notice, no disciplinary action whatsoever was initiated against the workman. In the said circumstances, the first respondent/union contended that there was absolutely no justification for denying the job of watchman to the workman and that he is entitled to continue as watchman under the Management. 3. The petitioner/Management did not dispute the fact that no disciplinary action was initiated against the workman based on the notice served on him on 11.8.1998. At the same time, it was contended that all the workmen in the estates belonging to the Management were appointed as general workers and they were engaged for different kinds of work like watching, plucking, spraying etc. The contention of the management is that ordinarily a general worker is liable to do any kind of work in the estate according to the directions issued by the officers concerned. The W.P.(C)NO. 23748/2004 3 settlement entered into at the PLC would show that the general workers who were engaged for certain types of work like watching, cattle keeping etc. were entitled for wages for the days actually worked and that when they are engaged for work like spraying, pruning, watching etc. they were entitled for wage differential. The crux of the contentions of the Management is that the workers have no right to demand a particular job, but they are liable to do work according to the instructions. 4. The issue referred for adjudication, namely, “whether the denial of watcher job to Shri Rayappan, No.1865 is justifiable or not and if not, what relief he is entitled to?”, assumes relevance in the context of the above rival contentions. It is obvious from the issue that was referred for adjudication that what was called for adjudication is the justifiability of denial of watcher job to the concerned workman Sri. Rayappan and consequential reliefs, if any, in case of absence of justifiability. Needless to say that justifiability of such an impugned action depends on the rightfulness and reasonableness of the said action. 5. At the very outset, I make it clear that I am not reappreciating the evidence, but only adverting to the evidence, based on the contentions, only to see whether there was any evidence before the Tribunal for arriving W.P.(C)NO. 23748/2004 4 at the conclusion in Ext.P5 award. Before the Tribunal, the Manager of Guderale Estate, Munnar was examined as MW1 and the concerned workman was examined as WW.1. Exts.M1 and M2 were marked on the side of the Management and Exts.W1 to W10 were marked on the side of the workman. The workman deposed before the Tribunal that he had been employed as watchman from 1984 to 6.8.1998, the date on which the alleged incident of theft of the gold chain had taken place. At this juncture, it is apposite to refer to the specific question put to MW.1 in the cross-examination pertaining to the said aspect. The specific question put to him was whether Sri Rayappan was working as a watcher in the factory division from 1984 to 1998 and he had answered as “may be correct”. Thus taking into account the totality of the circumstances and the evidence adduced on both sides, the Tribunal had arrived at the finding that the workman was employed as watcher in the factory division from 1984 to 1998. This finding of the Tribunal cannot be said to be a finding without any basis in view of the oral evidence of WW.1 which was virtually corroborated by the evidence of MW.1. 6. As stated earlier, the question that was referred for adjudication was whether the denial of watcher's job to Sri. Rayappan, No.1865 is justifiable or not and if not, what relief he is entitled to . The justifiability W.P.(C)NO. 23748/2004 5 of the impugned action was considered by the Industrial Tribunal based on the rightfulness and reasonableness of the said action. In the context of the case and in view of Ext.P5 award, it is relevant to refer to paragraph 9 of the counter affidavit filed by the Management before the Industrial Tribunal, which reads as follows: “The deployment of workers for particular works depend on a suitability, for example pruning cannot be done by all the workers. The employment of general workers, as watchman is based on the qualities required for the work of a watchman. The worker must be sincere, loyal, hardworking and punctual. Though Sri. Rayappan was engaged as watchman for certain period, he was found to be not suitable and there were allegations that he was found removing letters from the tapal bag, he was involved in the case of theft of a gold chain from the line unit and he was involved in conspiring to accuse to filed staff of theft that took place, a few years ago. Thereafter Sri. Rayappan was instructed to go for the other estate works, but he did not adhere to this direction of the management and he absented from work till date.” This was considered by the Industrial Tribunal based on the evidences adduced before it. The contention of the Management is that the workman concerned, Sri. Rayappan, was appointed as a general worker and the fact that he was employed as watcher for sometime cannot fetch him any right to demand the job of watcher as a matter of right and that the W.P.(C)NO. 23748/2004 6 Management is entitled to deploy him for any type of work in the estate. As stated earlier, the Industrial Tribunal found that Sri. Rayappan had been working as watcher in the factory division from 1984 to 1998 till he was issued with Ext.W10 notice. The contention of the Management, as extracted above, and the evidence adduced before the Industrial Tribunal would go to show that the order disengaging him from the work of watchman is not an order simplicitor, whilst it amounts to denial of job of watchman. I may hasten to add that in the light of the specific contention of the petitioner if the concerned workman is allowed to disengage as watchman, it would definitely cast a stigma on him. The Industrial Tribunal found that considering the fact that the workman concerned was employed as watchman for a pretty long time from 1984 to 1998, denying him the said job of watcher and directing him to go for other work without assigning any justifiable reason is an arbitrary action on the part of the Management. Most importantly, the fact that the Management after levelling some allegations against the workman failed to adduce any evidence to substantiate the said allegations and the fact that MW.1 in his evidence deposed to the effect that even at present the workman concerned is provided with watcher's job were taken into consideration by the Industrial Tribunal to hold that there was no justification for the Management to deny the job of watcher to Sri. Rayappan and engage W.P.(C)NO. 23748/2004 7 another person in his place. It is based on the aforesaid finding that Ext.P5 award was passed directing the Management to engage Sri. Rayappan as watchman in the factory division. In view of the specific contention of the Management in the counter affidavit, as extracted above, and also the evidence adduced on both sides, I do not find any scope for interfering with the finding of the Industrial Tribunal that there was no justification for the Management to deny the workman concerned the job of watcher. The said conclusion and finding were arrived at after appreciating the evidence. I do not think that this Court could re-examine or reappraise the evidence and enter into a different finding, when the Industrial Tribunal reached the conclusions based on facts and supported by evidence. It is the settled position of law that a finding on fact shall not be interfered with by this Court unless and until it is absolutely perverse and passed without any evidence. I am of the opinion that no such circumstances exists in this case warranting interference by this Court with Ext.P5 award. The Writ Petition is devoid of merits and it is accordingly dismissed. (C.T. RAVIKUMAR, JUDGE) sp/ W.P.(C)NO. 23748/2004 8 C.T. RAVIKUMAR, J. W.P.(C) NO. 23748/2004 JUDGMENT 13th October, 2009