IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 OP.No. 18930 of 2001(C) -------------------------------- PETITIONER(S): ----------------------- 1. K.K.MOHANAN, KARIKKANTHARA HOUSE.P.O. PATTORE, VIA MLAMKUNNATHUKAVU, 2. P.K.RAJAN, PADINJARETH HOUSE, PERAMANGALAM.P.O., THRISSUR DISTRICT PIN - 680 545. 3. T.F.JAMES, THAIKKATTIL HOUSE, P.O. ATHANI. 4. N.K. RAJAENDRAN, NAMBRATH HOUSE, PERINGANDOOR P.O., THRISSUR. 5. K.K.UNNIKRISHNAN, KONDATH VALAPPIL HOUSE, P.O. ATHANI, THRISSUR. 6. C.G.PARAMESWARAN, THERLIKULAMETH HOUSE.P.O., PERINGANDOOR, VIA MULANKUNNATHUKAVU, THRISSUR. 7. A.A.MANIKANDAN, AMBADATH HOUSE, P.O. MINALOOR, THRISSUR. 8. E.S.SURENDRAN, ETTILAMVALAPPIL HOUSE.P.O., THEKKUMKARA, PUNNAMPARAMBU, KARYAD. 9. K.N.ASOKAN, KOTTAYIL HOUSE P.O. THANGALLOOR VIA, MULANKUNNATHUKAVU. 10. C.K.SHAJU, CHAVARATTIL HOUSE, P.O. THANGALLOOR VIA, MULANKUNNATHUKAVU. 11. P.S.SREEDHARAN, PAMBUNGAL HOUSE, P.O.MANALITHARA, VIA ENKAKKAD, THRISSUR DISTRICT. 12. P.V.MANI, PATTIYATH HOUSE, P.O. POOMALA, THRISSUR. 13. K.K.HARIHARAN, KALLATHVALAPPIL HOUSE, MUNDATHICODE P.O., VIA VADAKKANCHERRY. 14. T.P.SATHYAN, THIRUMANNAMKUNNATHU HOUSE P.O., PATTIKKAD. 15. K.V.DINESAN, KUMBALATH HOUSE, ATHANI P.O., THRISSUR. 16. K.P.SOURI KANNANYKKAL HOUSE, P.O.THANGALOOR, VIA MULANKUNNATHUKAVU. 17. V.K.RAJAN, VALIYAVAZHAYIL HOUSE, MANALITHARA.P.O., VADAKKANCHERRY VIA. 18. K.O.JOSHY, KOKKADAN HOUSE, PAMBOOR, KUTHUR.P.O. OP.No. 18930 of 2001(C) -2- 19. A.J.JOSE, ALAPPADAN HOUSE, P.O.MULANKUNNATHUKAVU, THRISSUR. 20. P.G.SIVADASAN, PULLOOTTIPARAMBIL HOUSE, P.O.MULANKKUNNATHUKAVU, THRISSUR. 21. P.M.SURENDRAN, PAMBUGAL HOUSE, P.O.POOMALA, VEDIPPARA. 22. K.RAJAN, KANJANGATT HOUSE, P.O.MULANKKUNNATHUKAVU, THRISSUR. 23. C.K.MOHANDAS, CHALLYATH HOUSE, P.O.MULANKKUNNATHUKAVU, THRISSUR. 24. K.G.HARIDAS, KOOMULLY HOUSE, P.O.MULANKKUNNATHUKAVU, THRISSUR. 25. T.K.DASAN, THADATHIL HOUSE, P.O.MULANKKUNNATHUKAVU, CHIRAKKUNNU PIN 680 581 26. P.K.BALAN, POOKKOTTUPARAMBU HOUSE, P.O.PERIMGANDOOR, VIA MULANKKUNNATHUKAVU, THRISSUR. 27. K.V.SASIDHARAN, KANNIPARAMBIL HOUSE., P.O.MULANKKUNNATHUKAVU, CHIRAKKUNNU, THRISSUR. 28. A.B.SHYLAN, AMBAZHAPULLY HOUSE, P.O.MULANKKUNNATHUKAVU, CHIRAKKUNNU PIN 680 581 29. P.C.SIVAKUMAR, PUNNUR, KALARIKKAL HOUSE, P.O.ATHANI, THRISSUR. 30. K.C.XAVIER, KAIPARAMBU HOUSE, P.O.POTTORE, MULANKKUNNATHUKAVU. 31. V.K.SHAJU, VYSERI HOUSE, P.O.POOMALA, THRISSUR. BY ADV. SRI.P.RAMAKRISHNAN SMT.T.C.KRISHNA RESPONDENT(S): ------------------------ 1. APPELLATE AUTHORITY UNDER THE KERALA CASUAL TEMPORARY AND BADLI WORKERS (WAGES) ACT, (REGIONAL JOINT LABOUR COMMISSIONER), ERNAKULAM. 2. CONTROLLING AUTHORITY UNDER THE KERALA CASUAL, TEMPORARY AND BADLI WORKERS (WAGES) ACT, (DEPUTY LABOUR COMMISSIONER) TRICHUR. 3. M/S. RAJAGOPAL TEXTILES MILLS LTD REPRESENTED BY ITS MANAGING DIRECTOR, MULANKUNNATHUKAVU, TRICHUR DISTRICT. ADV. SRI.M.P.ASHOK KUMAR FOR R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/11/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 18930 of 2001(C) APPENDIX PETITIONERS' EXHIBITS: EXT.P1 - TRUE COPY OF OBJECTION FILED BY 3RD RESPONDENT BEFORE 2ND RESPONDENT DATED 23.9.96. EXT.P2 - TRUE COPY OF ORDER DATED 28.1.1999 OF 2ND RESPONDENT. EXT.P3 - TRUE COPY OF APPEAL MEMORANDUM FILED BY 3RD RESPONDENT BEFORE FIRST RESPONDENT DATED 23.3.1999. EXT.P4 - TRUE COPY OF ORDER DATED 4.11.2000 OF 1ST RESPONDENT. /TRUE COPY/ PA TO JUDGE S.SIRI JAGAN, J ================== O.P.No.18930 of 2001 ================== Dated this the 11th day of November, 2008. J U D G M E N T Thirty one workers of the 3rd respondent company has filed this original petition challenging Ext.P4 order of the appellate authority under the Kerala Casual, Temporary & Badli Workers (Wages) Act, reversing Ext.P2 order of the controlling authority whereby the controlling authority had directed the 3rd respondent to pay difference in wages between wages paid to permanent workers for the same work done by the workmen and the actual wages paid to the workers since the Act provides for the same wages to causal, temporary and badli workers as paid to regular workers doing the same job. The contention of the petitioners is that after having found that the workmen were actually employed by the 3rd respondent, the appellate authority could not have interfered with the decision of the controlling authority directing difference in wages on the ground that the workmen have not adduced sufficient evidence, since it was based on evidence on record the order was passed. According to the petitioners, the petitioners had furnished a statement O.P.No.18930 of 2001 - 2 - showing the wages due, wages paid and the difference. The 3rd respondent management had not cared to file any counter statement to the same and therefore the appellate authority could not have rejected the claims of the petitioners on the ground that there was no evidence. Further they would submit that they had examined two workers who had given evidence on the wages paid and payable to them. They submit that when admittedly the workmen were employed by the 3rd respondent and the 3rd respondent was maintaining attendance register and acquittance register showing the number of days each of the workers worked and the wages paid to them which the 3rd respondent had not cared to produce, the appellate authority could not have rejected the applications of the workmen on the ground that there was no evidence. It is further pointed out that in the 3rd respondent's establishment, wages were paid in accordance with the memorandum of settlements which were produced and marked in evidence. Therefore, it was not difficult at all to ascertain the difference in wages on the basis of the evidence available, which only has been done by the controlling authority. When the workmen gave evidence in support of the statement regarding the wages and the management did not file any contra statement or produce any evidence to disprove the O.P.No.18930 of 2001 - 3 - same, the appellate authority had no reason to conclude that the workmen did not prove the wages payable and wages paid is the contention raised. 2. In answer to the contentions of the petitioners, the counsel for the 3rd respondent would contend that the onus of proving the nature of employment, wages paid and wages payable as per the Kerala Casual Temporary & Badli Workers (Wages) Act is squarely on the petitioners and they had not discharged that burden, without which the controlling authority could not have found that the workmen are entitled to difference in wages. He relies on the decision of Supreme Court in Range Forest Officer v. S.T. Hadimani with State of Karnataka v. S.T. Hadimani 2002(3) SCC 25 and Rajastan State Ganga Nagar F Mills Ltd. v. State of Rajastan and another 2004 (8) SCC 161 in support of the contention regarding burden of proof. A technical contention is also raised to the effect that since the petitioners filed separate claim petitions before the Controlling Authority, separate original petition ought to have been filed failing which original petition is not maintainable on behalf of the 31 petitioners. 3. I have considered the rival contentions in detail. 4. At the outset I must note that the 3rd respondent has no O.P.No.18930 of 2001 - 4 - case whatsoever that any of the workers whose claims were considered in Ext.P2 was not a workman employed by them. They have categorically admitted that these workers were employed by them. Their contention was that they were not casual workers in the 3rd respondents establishment, which the workmen claimed to be. Under Section 10 of the Kerala Casual Temporary & Badli Workers (Wages) Act in a proceedings under the Act the burden of proving that the work performed by casual, temporary and badli workers is not the same work or work of a similar nature as that performed by permanent worker shall be on the employer. That section puts the onus on the 3rd respondent in disproving the petitioner's case. I am of opinion that the evidence in the case has to be assessed in accordance with the spirit of that section. As is evident from Ext.P2, MW1, examined on behalf of the 3rd respondent management, categorically admitted that they are maintaining attendance register, wages register and acquittance register in their establishment and that on perusal of the same the facts as to on which all days the petitioners worked and how much wages were paid to them can be ascertained. Two of the workmen deposed to the correctness of the statement regarding the difference of wages due to them. The 3rd respondent did not care to file any O.P.No.18930 of 2001 - 5 - counter statement controverting the said statement. The 3rd respondent's counsel cross examined the workmen also and could not shake the deposition of the witnesses of the petitioners. Therefore I am of opinion that the petitioners had discharged their burden of proving their claim especially when the wages payable to the regular workers of the establishment was covered by memorandum of settlements which were marked in evidence. That being so, the onus of disproving the evidence of the workmen shifted to the 3rd respondent. If the 3rd respondent so wished they could have produced the attendance register and acquittance register which was admittedly available with the 3rd respondent to disprove the evidence of the workmen. Having not cared to do so, I do not think that the 3rd respondent can take the stand that the workmen had not discharged the burden of proving their claim. I do not think that the decisions of the Supreme Court relied upon by the counsel for the 3rd respondent in respect of the onus of proof in industrial disputes and petitions under Section 33C(2) of the Industrial Disputes Act in relevant in the context in so far as here the petitioners had in fact adduced sufficient evidence to prove their claim. Having proved the same by adducing sufficient evidence, the onus shifted to the 3rd respondent to disprove the case of the O.P.No.18930 of 2001 - 6 - petitioners, which admittedly the 3rd respondent has not chosen to do. That being so, the ratio of the above decisions which only says that prima facie it is for the workmen to prove his case has no application to the facts of this case. In Ext.P2 the controlling authority had discussed the evidence in detail and accepted the statements furnished by the workmen detailing the difference in wages due to them. Therefore I do not find anything wrong with the findings in Ext.P2 order of the controlling authority. As such Ext.P4 order of the appellate authority reversing Ext.P2 order of the controlling authority is clearly unsustainable. 5. The 3rd respondent's contention that filing of single original petition by all the petitioners is irregular and therefore original petition is not maintainable, does not appeal to me. Of course he relies of the decision of the Madras High Court in R.Maria Thangam and U. Murugan and others 1979 II LLJ 29. That decision says that “a single writ petition seeking to displace different reliefs afforded to different workmen on independent consideration of the merits relating to each of them, could never be entertained.” I do not think that the facts of that case are similar to the facts of this case. In this case, all the workmen raised identical claims under the Kerala Casual Temporary & Badli Workers (Wages) Act. All the claims were O.P.No.18930 of 2001 - 7 - jointly tried and common orders were passed both by the controlling authority and the appellate authority. In fact the contentions in the claim petition and in the counter statement were identical in all cases. In any event the judgment of the Madras High Court is not of binding nature but has only persuasive value. I do not find any infirmity in all the petitioners jointly challenging the common orders in all the appeals filed by the 3rd respondent. 6. Accordingly, Ext.P4 is quashed and Ext.P2 order of the controlling authority is restored. The amounts as directed in Ext.P2 order shall be paid to the workers within two months from the date of receipt of a copy of the judgment, failing which the amount would carry interest at the rate of 9% per annum on the said amount from the date of filing of the claim petitions before the Controlling Authority till the date of payment. The original petition is allowed as above. S.SIRI JAGAN, JUDGE rhs