IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 WP(C).No. 6756 of 2007(D) ----------- ------------------------- PETITIONER: ------------------- SRI.K.CHANDRAN, PROPRIETOR, N.P.B.CLINIC, C.C.NO.XLI/1518, CHITTOOR ROAD, ERNAKULAM. BY ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI RESPONDENTS: ------------------------ 1. SRI.N.GOPINATHA MENON, RADHA NIVAS, SOUTH CHITTOOR, KOCHI. 2. DR.LALITHA RAO, KRISHNA NURSING HOME, CHITTOOR ROAD, ERNAKULAM. 3. DR.PANKAJAM GOPALAKRISHNAN, SWARAJ, KALATHIPARAMBIL ROAD, KOCHI-16. 4. LABOUR COURT, ERNAKULAM. R1 BY ADV. SRI.PAULSON C.VARGHESE SRI.L.GOPALAKRISHNAN POTTI FOR R2 & R3 SRI.A.DINESH RAO FOR R2 & R3 R4 BY GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2009 ALONG WITH WPC NO.10683/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.6756 OF 2007-D APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE CLAIM STATEMENT FILED BY THE 1ST RESPONDENT BEFORE 4TH RESPONDENT IN ID NO.110/96 DATED 30.6.97 EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT IN ID 110/96 DATED 3.3.98 EXT.P3 TRUE COPY OF THE COMMON OBJECTION FILED BY RESPONDENTS 2 & 3 BEFORE 4TH RESPONDENT IN CMP 187/98 IN ID NO.110/96 DT.15.3.99 EXT.P4 TRUE COPY OF THE RECEIPT EVIDENCING SETTLEMENT OF CLAIM OF THE 1ST RESPONDENT DATED NIL EXT.P5 TRUE COPY OF THE COUNTER FOIL OF THE CHEQUE BOOK EVIDENCING PAYMENT OF THE AMOUNT DATED 28.10.1976 EXT.P6 TRUE COPY OF THE RENTAL AGREEMENT BETWEEN THE RESPONDENTS 2 & 3 AND THE PETITIONER DATED 7.6.83 EXT.P7 TRUE COPY OF THE NEWSPAPER ADVERTISEMENT PUBLISHED IN THE MALAYALA MANORAMA DAILY REGARDING THE OPENING OF THE CLINIC BY RESPONDENTS 2 AND 3 DATED 2.9.1979 EXT.P8 TRUE COPY OF THE LETTER SENT BY THE 1ST RESPONDENT TO THE PETITIONER DATED 9.4.95 EXT.P9 TRUE COPY OF THE REPLY SENT BY THE PETITIONER TO THE 1ST RESPONDENT DATED 25.4.95 EXT.P10 TRUE COPY OF THE AWARD PASSED BY THE 4TH RESPONDENT IN ID NO.110/96 DATED 28.6.06 / TRUE COPY / S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 6756 OF 2007 and W.P.(C)No. 10683 OF 2009 ------------------------------------------------- Dated this the 27th day of May, 2009 JUDGMENT W.P.(C) No.6756/07 is filed by the management in ID No.110/96 before the Labour Court, Ernakulam challenging Ext.P10 award passed in that ID, by which the Labour Court directed payment of an amount of Rs.70,000/- as compensation in lieu of reinstatement of the workman involved in that ID, who is the 1st respondent herein, for unjust denial of employment to him. W.P.(C) No.10683/09 is filed by the same management challenging the proceedings in CP No.26/96 before the Labour Court, Ernakulam for enforcement of the award which is under challenge in W.P.(C) No.6756/07. Since the fate of W.P.(C) No.10683/09 depends on the result of W.P.(C) No.6756/07, these two writ petitions are heard and disposed of together by this common judgment. The issues referred for adjudication in ID No.110/96 were as follows: “1. Whether the denial of employment of Sr.N.Gopinatha Menon by the management is justifiable or not ? WPC Nos.6756/07 & 10683/09 -:2:- 2. If not, what relief is entitled for ?” 2. The 1st respondent workman claimed that he was working in the management establishment from 1960 onwards and when he reported for duty after availing leave for a month, on 12.05.95, he was denied employment unjustly by the management. Before the Labour Court the management took the stand that, the establishment was closed after the death of the father of the petitioner, who was running the clinic, in 1976 and thereafter the building was rented out to two doctors who were running the establishment and therefore there is no employer-employee relationship between the petitioner and the first respondent. The said two doctors were impleaded in the ID as additional managements 2 and 3, who did not choose to support the petitioner, in the written statement filed by them in the ID. Evidence was adduced by both sides. The workman examined himself as a witness and also examined two other independent witnesses, one of whom was an advocate of this Court. That advocate, as WW2, deposed before the Labour Court that he was regularly availing the services of that clinic for treatment of himself WPC Nos.6756/07 & 10683/09 -:3:- and his children and that after the death of Dr.Bhaskara Menon, who was running the clinic, the petitioner herein, who was his son, continued to run the clinic and the two lady doctors who were arrayed as additional managements were seen in the clinic from 1975-76 onwards. He also stated that two other doctors had also served in the dispensary. Of course in the cross examination he deposed that he does not know as to who is running the dispensary at present. The petitioner management produced an advertisement in Malayala Manorama dated 02.09.79 to the effect that the additional managements have started the clinic by name 'Women and Children's Clinic' in the same premises on their own. The management also produced a document signed by the workman to the effect that he has accepted an amount of Rs.1,250/- and Rs.145/- in full and final settlement and left the establishment in 1976. Weighing this evidence, the Labour Court chose to believe the workman to hold that the petitioner herein was the employer of the 1st respondent workman and he has been unjustly denied employment. However, instead of awarding the relief of WPC Nos.6756/07 & 10683/09 -:4:- reinstatement with back wages, the Labour Court directed payment of an amount of Rs.70,000/- as compensation without any other benefit, by Ext.P10 award. That award is under challenge before me. 3. I have considered the rival contentions in detail. 4. Before dealing with the contentions of the parties, I must remind myself of the legal position that this Court cannot re- appreciate evidence in an Industrial Dispute to come to a different conclusion than the one reached by the Labour Court unless such conclusion is perverse. Even if on the same evidence this Court would come to a different conclusion than the one reached by the Labour Court, that is not a ground for interference with an award under an Industrial Disputes Act in exercise of powers of this Court under Article 226 of the Constitution of India is the settled legal position. 5. I have considered the challenge against Ext.P10 award in the light of the above settled legal position. I have perused Ext.P10 award. The Labour Court has elaborately discussed the entire evidence adduced by both sides and has given cogent reasons for WPC Nos.6756/07 & 10683/09 -:5:- his conclusions. The Labour Court chose to believe the evidence of the workman. I do not think there is anything perverse in the course of action adopted by the Labour Court. Perhaps some of the documents may support the case of the management. But, it is a significant fact that the case of the petitioner management was that he had rented out the premises to respondents 2 and 3. They were parties to the ID and had filed a written statement. But they did not choose to support the petitioner's case that they had taken the premises on lease from the petitioner. The best evidence in support of the petitioner would have been their evidence. The petitioner was not able to secure that evidence or even their support in the written statement. On the other hand, a reputed advocate of this Court had given evidence on behalf of the workman. That advocate is residing near to the clinic in question. He has stated on oath that he was availing the services of the clinic for treatment of himself and his children. He has categorically stated that after the death of Dr.Bhaskara Menon, who was formerly running the clinic, his son, Sri.Chandran, who is the petitioner herein continue to run the clinic. WPC Nos.6756/07 & 10683/09 -:6:- He also stated that respondents 2 and 3 also were seen in the clinic from 1975-76 onwards. Other doctors also served in the dispensary, according to him. After considering those evidence I cannot with any amount of certainty come to the conclusion that the findings of the Labour Court are perverse, without finding which I would not be justified in interfering with Ext.P10 award. Therefore, the two writ petitions are dismissed. S. SIRI JAGAN, JUDGE ttb