IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 WP(C).No. 1539 of 2006(G) ------------------------- ID.25/1999 of INDU.TRIBUNAL,KOZHIKODE .................... PETITIONER(S): --------------- PAYYANNUR KHADI CENTRE, REPRESENTED BY ITS DIRECTOR, PAYYANNUR P.O., KANNUR DIST. BY ADV. SRI.A.JAYASANKAR SRI.MANU GOVIND RESPONDENT(S): --------------- 1. INDUSTRIAL TRIBUNAL, KOZHIKODE. 2. T.V.SREENIVASAN, S/O.GOVINDAN, NEAR KAPPAD ROAD, KELOTH, PAYYANNUR P.O. ADV. SRI.M.V.AMARESAN FOR R2 SRI.V.N.RAMESAN NAMBISAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON 21/12/2011 DELIVERED THE FOLLOWING: W.P.C. NO. 1539 of 2006 APPENDIX PETITIONER'S EXHIBITS: EXT. P1 TRUE COPY OF THE COMPLAINT DATED 18.5.1998 SUBMITTED BY 2ND RESPONDENT BEFOF DLO KANNUR. EXT.P2 TRUE COPY OF THE STATEMENT DATED 26.10.1999 SUBMITTED BY PETITIONER BEFORE 1ST RESPONDENT. EXT.P3 TRUE COPY OF THE AWARD DATED 10.3.2005 PASSED BY THE 1ST RESPONDENT IN ID NO.25/99. RESPONDENT'S EXHIBITS: NIL [ True copy ] P.S. to Judge. ul/- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 1539 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 21st day of December, 2011. J U D G M E N T The management in I.D.No. 25 of 1999 on the files of the Industrial Tribunal, Kozhikode is the petitioner in this writ petition. The petitioner challenges Ext.P3 award passed by the Tribunal in that I.D. The issue referred for adjudication was as follows: “Whether the action of the management in transferring the complainant from staff category to worker category which is Lower Grade and denial of employment by preventing him entering in the factory are justifiable. If not what are the relief entitled to.” The Tribunal found that the transfer of the complainant from staff category to worker category is actually a demotion and consequent denial of employment for not joining as a lower grade employee, which was continued by suspending the workman, is unsustainable. Consequently, the Tribunal passed the award holding that the transfer of the workman from helper in the staff category to the worker category is illegal and directing the management to reinstate the workman in service as helper in the staff category with full back wages from 9.2.1998 and 30.12.1997 and other attendant benefits. 2. The challenge by the petitioner against Ext.P3 award is on three grounds. The first is that the issue of transfer cannot be raised by the workman under Section 2A of the Industrial Disputes Act and consequently the Tribunal could not have entered a finding in respect thereof and relief granted. The second is that the workman was suspended from 9.2.1998 W.P(C) No. 1539 of 2006 -: 2 :- onwards, validity of which was not an issue referred for adjudication and therefore the workman could not have been given any relief in respect of that suspension in the I.D. Thirdly, the petitioner contends that no evidence was available before the Tribunal to enter a finding that the workman was working continuously from 1983 onwards and therefore that finding is perverse. 3. I have heard both parties. 4. Of course, if the 2nd respondent-workman had raised a dispute pure and simple about the transfer, certainly the industrial dispute could not have been entertained under Section 2A. But, here it is not actually a transfer. It was a demotion from staff category to worker category and denial of employment since the 2nd respondent insisted on working in the staff category. Therefore, essentially, this is a dispute on the issue of denial of employment, for which the dispute under Section 2A is maintainable. Apart from that from Ext.P2 written statement of the petitioner before the Tribunal, it does not appear that the petitioner had challenged the reference on that ground. As such, I do not find any merit in the contention of the petitioner that the issue of transfer could not have been considered under Section 2A. 5. The second contention is that the 2nd respondent workman was suspended from service on certain allegations of misconduct with effect from 9.2.1998 and since the W.P(C) No. 1539 of 2006 -: 3 :- suspension was not an issue referred for adjudication, the Tribunal could not have validly considered the same. As evident from Ext.P3 award, originally, the workman reported for duty on 13.1.1998, but the management insisted on the workman working in the worker category itself, which led to the dispute regarding denial of employment. Thereafter, the management claimed that the workman was suspended from service from 9.2.1998. But, no further steps whatever were taken in respect thereof in order to see that the workman was paid any subsistent allowance. Therefore, the Tribunal came to the conclusion that the suspension was on a smoke screen to escape from the consequences of the denial of employment. It is evident from the fact that even today, nothing has been done by the management in respect of the alleged suspension. Therefore, I am satisfied that the Tribunal was perfectly right in disregarding the suspension as such and finding it as a continuation of denial of employment itself. 6. Lastly, The contention raised is that there was no evidence before the Tribunal to find that the workman was working continuously from 1983 onwards without any break in service till he was suspended from service on 9.2.1998. That is a question of fact. The Tribunal has stated in the award that it is supported by evidence. It is for the petitioner to prove before me that that decision is perverse and based on no evidence. No attempt has been made by W.P(C) No. 1539 of 2006 -: 4 :- the petitioner before me in that direction by referring to the evidence before the Tribunal. The management has not been able to satisfy me that the same is perverse. In the above circumstances, I do not find any merit in this writ petition and accordingly the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/