IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 WA.No. 1548 of 2006 --------------------- ( AGAINST THE JUDGMENT IN O.P.NO. 22706 OF 2002 DATED 13.06.2006) APPELLANT/PETITIONER ------------------------ SRI.T.S.AZEEZ, GROCERY AND VEGETABLE MERCHANT, KOOTTICKAL ROAD, MUNDAKAYAM. BY ADV. SHRI E.K. NANDAKUMAR ADV. SHRI JAYASANKAR A.K. RESPONDENTS/RESPONDENTS: ---------------------------------- 1. N.BHASKARAN, VELANPARAMBIL HOUSE, LAKSHAM VEEDU COLONY, CHELIKUZHY, MUNDAKKAYAM. 2. THE APPELLATE AUTHORITY UNDER KERALA SHOPS AND COMMERCIAL ESTABLISHMENTS ACT, 1960 (DEPUTY LABOUR COMMISSIONER), KOTTAYAM. R1 BY ADV. SRI.V.B.PREMACHANDRAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2009, THE COURT ON 04/02/2009 DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. ........................................................................ W.A. No. 1548 OF 2006 ......................................................................... Dated this the 4th February, 2009 J U D G M E N T Ramachandra Menon, J. : The interference declined by the learned single Judge with regard to the reliefs prayed for by the appellant/petitioner to set aside Ext.P1 order passed by the appellate authority (Deputy Labour Commissioner, Kottayam) under the Kerala Shops and Commercial Establishments Act, 1960 (hereinafter referred to as the 'Act') ordering reinstatement of the worker with full back wages, is questioned in this appeal. 2. A shop appeal was filed by the respondent herein before the statutory authority way back in 1992, stating that he was denied employment by the management (the appellant herein) with effect from 03.05.1992, while working as a salesman in the Grocery and Vegetable shop owned and run by the respondent. The claim was resisted by the management contending that the W.A. No. 1548 OF 2006 2 claimant was never an employee of the management as his name was never shown in the relevant registers/records of the employer; that he was working elsewhere for the past several years and further that the management had engaged only one salesman by name K.P. Sali for the period from 1975 to 1986, one Hussainkutty from 1986 to 1992 and one Shameer from 1992 onwards. After considering the oral and documentary evidence adduced from both the sides, the statutory authority (the second respondent in the appeal) passed Ext. P1 order answering the issues against the management and ordering reinstatement of the worker with full back wages, which was quantified at Rs. Two lakhs, in lieu of which, to pay a compensation of Rs. 2,17,000/- as provided under section 18(4) of the Act. This was challenged by the the Management in the Writ Petition filed before this Court. The learned single Judge, after considering the rival contentions held that no interference was called for and the Writ Petition was dismissed, which led to the present appeal. 2. Mr. Benny Thomas, the learned counsel for the W.A. No. 1548 OF 2006 3 appellant/Management vehemently questioned the legality of Ext. P1 order on different grounds, particularly as to the granting of full back wages while ordering reinstatement, whereas Mr. V.B. Premachandran appearing for the first respondent-worker asserted the eligibility of the worker to have the reliefs granted. The position of law as to the eligibility of back wages is no more in a fluid state by virtue of authoritative pronouncements of the Apex Court holding that it is not all automatic on reinstatement. ( State of Maharashtra and others vs. Reshma Ramesh Meher and another [(2008 ) 8 SCC 664 ] and C .Jacob vs. Director of Geology & Mining [ (2008) 10 SCC 115 ] ). The Honourable Supreme Court has observed that several vital aspects have to be looked into before granting back wages either in full or in part, including as to the factual position whether the concerned workman was having any alternate employment or not during the relevant period. It has also been made clear by the Apex Court as per the decision rendered in Talwara Cooperative Credit and Service Society Ltd. vs. Sushil Kumar. [(2008) 9 SCC W.A. No. 1548 OF 2006 4 486] that the burden of proof as to the absence of any employment/income during the period in question is upon the worker himself. It was also pointed out by the learned counsel for the appellant that the first respondent has already crossed the age of 70 years and that no reinstatement is possible even by the farthest stretch of imagination. 3. In the instant case there is no specific pleading or proof as to the lack of alternate employment/income to the worker and hence granting of full back wages by the statutory authority in respect of the entire period of 110 months at the rate of the declared monthly income of Rs.1800/- , prima facie appeared to be unsustainable; which made us to inquire the possibility of an amicable settlement. Learned counsel appearing for both the sides fairly accepted the above suggestion, pursuant to which the worker was directed to be present before the court and accordingly, he was present on 22.01.2009. After negotiation between the parties, the worker submitted that he was agreeable to have the matter settled on paying a total sum of Rs.75,000/- in full and final settlement of the claim within a W.A. No. 1548 OF 2006 5 reasonable time and the said proposal was accepted by the appellant-management. 4. In the above facts and circumstances, while confirming the finding on denial of employment, we hereby modify the impugned verdicts, making it clear that the respondent/worker will be entitled to get only a total sum of Rs. 75,000/- as compensation in lieu of reinstatement, in full and final settlement of the claim. Accordingly, we direct the appellant/management to effect the payment as agreed forthwith, and at any rate, within a period of one month from today . The Writ Appeal is disposed of as above. No costs. KURIAN JOSEPH, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk