IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 WA.No. 312 of 2008 --------------------------- AGAINST THE JUDGEMENT IN OP.9884/1998 Dated 10/09/2007 .................... APPELLANT/PETITIONER IN OP: ---------------------------------------------- AYSHA HOSIERY FACTORY (P) LTD., POST PALAPARAMBA, NIRMALAGIRI-670 701, KANNUR DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.U.K.RAMAKRISHNAN RESPONDENTS/RESPONDENTS IN OP: -------------------------------------------------------- 1. THE INDUSTRIAL TRIBUNAL, KOZHIKODE. 2. THE SECRETARY, AYSHA HOSIERY WORKERS' UNION (CITU), PALAPARAMBA. 3. THE SECRETARY, KANNUR DISTRICT HOSIERY WORKERS' UNION (NLO), KUTHUPARAMBA, KANNUR DISTRICT. 4. THE SECRETARY, KANNUR DISTRICT NATIONAL HOSIERY WORKERS' UNION (INTUC), POST PALAPARAMBA, KANNUR DISTRICT. 5. THE SECRETARY, AYSHA HOSIERY STAFF ASSOCIATION, KUTHUPARAMBA, KANNUR DISTRICT. R3 & R5 BY ADV.SRI.T.A.RAMADASAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & K.M.JOSEPH, J. ------------------------------------------ W.A.No.312 of 2008 ------------------------------------------ Dated, this the 6th day of February, 2008 JUDGMENT H.L.Dattu, C.J. The order passed by the learned Single Judge in O.P.No.9884 of 1998 dated 10th September, 2007 is the subject matter of this appeal. 2. The appellant before us is the petitioner in O.P.No.9884 of 1998. It had called in question the award passed by the Industrial Tribunal, Kozhikode in I.D.No.13 of 1991. The Tribunal after detailed consideration of the evidence on record has come to the conclusion that the refusal of the State Government to grant permission to the appellant to retrench three workmen working in the mechanical section of the appellant industrial unit was justified. 3. The award passed by the Industrial Tribunal was the subject matter of the original petition. The learned Single Judge after detailed consideration of the findings of the Tribunal has come to the conclusion that the findings of the Tribunal are neither perverse nor capricious, has rejected the original petition and thereby has confirmed the award passed by the Industrial Tribunal. The said order of the learned Single Judge is the subject matter of this writ appeal. 4. Sri.U.K.Ramakrishnan, learned counsel appearing for the appellant, would submit that the finding of the learned Single Judge is erroneous, for the reason that the learned Single Judge has not taken into consideration that the mechanical section of the appellant industrial unit has been closed and therefore, the finding of the learned Single Judge on that aspect of the matter requires reconsideration. W.A.No.312 of 2008 2 5. The learned Single Judge on this aspect of the matter has taken into consideration the finding of the Tribunal which was based on the evidence that was adduced by the parties to the lis. The Tribunal, thereafter has come to the conclusion that the mechanical section of the industrial unit as such is not closed except the three persons working in that section sought to be retrenched by the management. Therefore, we cannot accept the contention of the learned counsel appearing for the appellant on this aspect of the matter. 6. Learned counsel would further submit that the learned Single Judge has not taken into consideration that the three workmen sought to be retrenched by the management were gainfully employed and therefore, the Industrial Tribunal was not justified in directing the management to reinstate them and pay the backwages. 7. This contention is taken by the management for the first time in this appeal. This was not raised either before the Tribunal or even before the learned Single Judge. We are of the opinion that if for any reason the appellant was of the view that the three workmen sought to be retrenched by the management were gainfully employed, definitely they would have brought it to the notice of the Tribunal or even at least before the learned Single Judge. In our opinion, if the same was brought to the notice of the learned Single Judge and proved by adducing proper evidence, the learned Single Judge would not have granted the backwages as directed by the Tribunal. Since this issue is raised for the first time in this appeal, we are of the opinion that this issue need not be considered by us in detail. 8. Learned counsel appearing for the appellant would further submit that the documentary evidence adduced by the management was not properly W.A.No.312 of 2008 3 considered by the Tribunal. 9. We have also gone through the award passed by the Industrial Tribunal. The Industrial Tribunal in its lengthy award, has taken note of the oral evidence that was adduced and also the documentary evidence that was produced by the management in coming to the conclusion that the State Government was justified in rejecting the request of the management to retrench the three workmen working in the mechanical section of the industrial unit under Section 25N of the Industrial Disputes Act. The finding of the Tribunal, in our opinion, is purely based on the claim and counter claim made by the parties and also based on the oral and documentary evidence. Therefore, the assertion made by the learned counsel for the appellant, in our opinion, has no merit whatsoever. 10. In view of all these, we are of the opinion, that the learned Single Judge has not committed such a grave error which would call for our interference in this appeal. Therefore, the writ appeal requires to be rejected and it is rejected. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (K.M.JOSEPH) JUDGE vns/DK