IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 WA.No. 2118 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.20854/2007 Dated 06/07/2007 .................... APPELLANT: PETITIONER ------------------------- KEERIKKADU COIR VYAVASAYA CO-OPERATIVE SOCIETY LTD.NO.107, KEERIKKADU SOUTH, KAYAMKULAM P.O. BY ADV. MR.B.JAYASANKAR MR.MANU GOVIND RESPONDENTS: RESPONDENTS --------------------------- 1. LABOUR COURT, KOLLAM. 2. G.SUSEELA, THRIPPOORAKAM HOUSE, KEERIKKADU SOUTH, KAYAMKULAM P.O. BY GOVT. PLEADER MS.K.MEERA ADV. MR.AZAD BABU FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY, Ag.CJ & P.BHAVADASAN, J. =========================== W.A.No.2118 of 2007 =============================== Dated this the 6th day of February, 2009. J U D G M E N T Koshy, Ag.CJ. Appellant is a co-operative society. Secretary of the society was dismissed from service. The matter was referred as an industrial dispute before the Labour Court, Kollam. Before the Labour Court, a counter statement was filed denying all allegations in the claim statement filed by the workman and also stating that he is not a workman as per the Industrial Disputes Act. No oral or documentary evidence was produced to prove that he was working in the managerial capacity. The fact that he was working as a secretary was admitted. The contention was that he was doing the clerical work. Only a mere pleading was raised by the appellant society. Preliminary hearing regarding the validity of the enquiry was granted by the Labour Court. Even at that time maintainability of the dispute on the grounds that the dismissed person was not a workman was not taken up. Only workman and the enquiry officer was examined. After going through the pleadings and written statement, Labour Court found W.A.No.2118 of 2007 2 that the findings in the enquiry are not proper and misconducts were not proved. It was also held that enquiry was conducted violating the principles of natural justice. Hence, domestic enquiry was set aside. But, the management also allowed to adduce evidence before the Labour Court to prove the misconduct. But, no evidence was adduced by the appellant to prove the misconduct alleged despite the opportunity granted. Therefore, an award was passed directing reinstatement with 60% back wages. That award is questioned in the writ petition. The learned Single Judge refused to interfere in the award. The only contention raised by the appellant in this appeal is that the Labour Court ought to have found that he is not a workman. Whether one employee is a workman and he was doing mainly managerial work has to be decided on the basis of evidence adduced. No evidence was adduced before the Labour court by the appellant to show that respondent was doing any managerial or administrative work. Such contentions has to be placed and proved by the management. When an industrial dispute is referred and the validity of the dispute referred for adjudication and its maintainability is questioned by the management only W.A.No.2118 of 2007 3 because that the dismissed person is not a workman, it is for the management to plead and prove that he was in the managerial capacity. That was no done. No evidence was adduced to prove the same. Therefore, we see no ground to interfere in the impugned award and the judgment and accordingly, we dismiss the writ appeal. J.B.KOSHY, ACTING CHIEF JUSTICE. P.BHAVADASAN, JUDGE. bkn/-