IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 WP(C).No. 35335 of 2005(F) -------------------------- PETITIONER(S): --------------- E.K.NARAYANAN, PROPRIETOR, BROTHERS HOTEL, THURAVOOR, PAYYOLI-673 523, KOZHIKODE DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.P.S.MURALI RESPONDENT(S): --------------- 1. THE SECRETARY, KOYILANDY TALUK COMMERCIAL EMPLOYEES UNION (CITU), KOYILANDY-POST, KOZHIKODE DISTRICT. 2. THE INDUSTRIAL TRIBUNAL, KOZHIKODE. GOVERNMENT PLEADER SHRI.M.R.SABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.8.2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 35335/2005 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE AWARD OF THE INDUSTRIAL TRIBUNAL DTD.27.7.05 IN I.D.NO.13/2005. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 35335 of 2005 ================== Dated this the 12th day of August, 2011 J U D G M E N T The petitioner is the management in I.D.No.13/2004 before the Industrial Tribunal, Kozhikode. The issue referred for adjudication was; “Whether the proprietor of Brothers Hotel, Thuravoor, Payyoli, has denied employment to worker Sri.A.K.Moosa ? If so what relief he is entitled to “ 2. In the industrial dispute, the union took the stand that the workman involved was denied employment by the petitioner from 17.7.2002 onwards. The management took the defence of total denial of the employment itself. After adjudication, the Tribunal believed the evidence of the union and the workman, and disbelieved the case of the management finding that the workman was illegally denied employment. Consequently, the workman was given the relief of payment of ` 21,600/- in full and final settlement of his claims. That is under challenge in this writ petition. 3. Before going into the merits of the contentions raised, I must remind myself of the constraints of my jurisdiction under Article 226 of the Constitution of India. It is settled law that this Court cannot reappreciate evidence in an industrial dispute. Only if the findings are so perverse that no judicial mind would come to that view, I can interfere with the findings of the Tribunal on facts. Even if on the same evidence, another view is also possible, this Court cannot interfere w.p.c.35335/05 2 insofar as the view taken is one possible view. 3. To conclude that the view taken by the Tribunal is one possible view, all I need is to extract the relevant portion of the findings in the award, which reads thus: “7) Sri.A.K.Moosa, the workman involved in this dispute has deposed before me as WW2 that he has been working in the management hotel as a cook from 1996 onwards continuously and he was denied employment from 17.7.'02 onwards without assigning any reason. He was a member of the union in the dispute and approached the union to sponsor his dispute. Accordingly, the union intervened in the matter and tried to settle the dispute through direct negotiation as well as through intervention of Labour department. Due to the non cooperation of the management, the dispute could not to (sic) be solved. He was elaborately cross examined by the counsel for the management and his evidence as to his employment relationship with the management and his denial of employment from 17.7.'02 is not controverted in any manner. Therefore, above aspects of this evidence can be believed to be true and correct. 8) Sri.Narayanan, Secretary of the union has deposed before me as WW1 regarding the employment relationship of Sri.Moosa with the management and his denial (sic) employment by the management and intervention of WW1 in the matter. He was also elaborately cross examined by the counsel for the management. But above aspects of his evidence are not controverted in any manner and therefore, same can be believed to be true and correct. 9) It is the contention of the management that they have been properly maintaining the employment records and the name of Sri.Moosa does not reflect there. With a view to make out this aspect, the management has produced Ext.M1 service record and Exts.M2 register of wages. I have scrutinised the above records. As per Ext.M1 service record S/Sri.E.K.Karunakaran joined the service of the management hotel on 20.10.'95. K.P.Kunhiraman on January, 1998, P.K.Basheer on February 1997, A.Prakasan on February 1997 and P.M.Nissar on 1.6.2003. Ext.M2 is the register of wages relating to the period from 1998 June to December 2000 and 2003 June to July, 2004. It is admitted by the management as MW1 that when the establishment was started in 1994, there were 4 workers, viz., S/Sri.Basheer, Kunhiraman, Karunakaran and Prakasan. But as per Ext.M1 service record, there was only one employee viz., E.K.Karunakaran till February, 1997. It is pertinent to note that the pages of Ext.M1 service record is not serially numbered. Ext.M1 Service record does not contain the true service particulars even in respect of admitted workers. The management as MW1 has clearly admitted before me that Ext.M2 was written up at a stretch. His version is as follows: “Ext.M2 w.p.c.35335/05 3 Considering the above aspects, it has to be concluded that Ext.M1 service record is not true and correct record containing the service particulars of all persons employed by the management from their inception of business in 1994. Likewise, Ext.M2 appears to be a concocted document brought into existence for the purpose of this case. Exts.M1 and M2 contain the signature of the Assistant Labour Officer, Quilandy. It has been argued by the counsel for the management that it reflects the authenticity of above documents. I don't agree. It appears that ALO has not conducted inspection of the management hotel and ascertained the persons employed there and signed the register. Admittedly, the management establishment is covered under the Kerala Shops and Commercial Establishments Act. The management is bound to take a registration under the above Act. The management has no case that they have taken such a registration. The management establishment is a hotel which is a scheduled employment under the Minimum Wages Act. As per the Minimum Wages Act and Rules the management is bound to maintain Muster Roll, Wages Register and to issue wage slips. The management has no case that they have issued wages slips to the persons employed by them. As per the above statutes, the management is bound to maintain muster rolls. That is also not seen maintained by them. Despite these glaring lapses, it is not known as to how the A.L.O. has affixed his signature in Exts.M1 and M2. Suffice to say, the A.L.O., has put his signature without applying his mind and not in bonafide discharge of his statutory duties. Hence no authenticity or genuineness can be attributed to Exts.M1 and M2. Above statutory provisions are introduced with the objective of security of employment and prompt payment of statutory wages. If we go by the records of the management, the security of employment of even admitted workers will be precarious. Therefore, the contention of the management that they have been maintaining the employment and wage records properly in respect of all persons employed by them cannot be accepted. On the strength of Exts.M1 and M2, which are not contemporaneous documents maintained in the usual course of business, it is not legal and proper to conclude that Sri.Moosa was not in the employment of the management. 10) It has been contended by the management that Sri.Moosa was employed in gulf countries during the claim period and in January 2000, he had gone abroad again for employment. This falsifies his claim that he was employed with the management. I have considered this contention. Ext.W2 is the passport issued to Sri.Moosa as per which, subsequent to 1994, he has not undertaken any journey to any of the foreign countries. Hence above line of contentions of the management is not accepted by me. It is pertinent to note in this context that as per an endorsement in the passport made on 29.12.'89 the profession of the workman is noted as cook. 11) It is the further contention of the management that Sri.Moosa has approached the management to give on lease of the hotel to him and with a view to pressurise the management to yield to his demand, the present dispute is raised. But the management has not spoken in w.p.c.35335/05 4 terms of the above contention in his evidence as MW1. Such a plea was put to the worker during his cross examination but the same was denied by him. Therefore above line of contention of the management does not inspire confidence in me. 12) It is the further contention of the management that the union has raised the dispute because of the animosity of the union with the management. This plea is not made out by the management by adducing any evidence and hence the same is not believed by me. Considering the totality of the materials on record, the conclusion is inescapable that Sri.Moosa was employed with the management from 1996 to 17.7.2002 and his employment was denied wrongfully with effect from 17.7.2002. 13) Next aspect to be considered is what relief can be granted to the worker concerned. When the denial of employment is wrongful and when it is not made out that the workman is gainfully employed otherwise, the worker will be eligible to reinstatement with full backwages with continuity of service and other attendant benefits. It is come out in evidence that the management establishment is a small scale hotel and if the above reliefs are granted in toto, the substratum of the industry itself will be adversely affected. That will create hardship to the existing employees and to the employer and his family. A worker who has been continuously employed for 6 years was thrown out of employment arbitrarily and this Tribunal cannot shut its eyes to the injustices shown to him. Considering all relevant aspects and to render justice between the parties, I am of the opinion that payment of one month's wages per year of service towards full and final settlement of all the claims of the workman including future employment will be a suitable relief for him. It is come out in evidence that the last drawn salary of the worker is Rs.120/- per day. His salary for 6 months will be 120 x 30 x 6 which be Rs. 21,600/-. The management shall pay the amount within 2 months from the date of pronouncement of this award, failing which, it will carry interest at the rate of 9% thereafter.” I am of opinion that the award is a very neatly written one giving very succinct and justifiable reasons for coming to the conclusion. I do not find any perversity whatsoever in the findings. In the above circumstances, I do not find any merit in the challenge against Ext.P1 award. Accordingly, this writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.35335/05 5