IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 WP(C).No. 2529 of 2004(A) ------------------------- PETITIONER: --------------- P.P. JACOB, S/O. LATE PAILY, AGED 70 YEARS, PANTHALANGAKUDIYIL, 200 ACRE, MANNANKANDOM P.O., ADIMALI VIA., IDUKKI DISTRICT-685 561. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENTS: ----------------- 1. STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LABOUR GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. K.N. BALAKRISHNAN, KADAMBAKAMATHIL HOUSE, KALLRKUTTY P.O., KATTIPARA, IDUKKI DISTRICT. 3. THE LABOUR COURT, ERNAKULAM. BY ADV. SMT.KOCHUMOL KODUVATH FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2008, THE COURT ON 26/08/2008 DELIVERED THE FOLLOWING: WP(C).No. 2529 of 2004 EXT.P1: COPY OF THE PETITION DTD 16.3.93 FILED BY R2 BEFORE THE DEPUTY LABOUR OFFICER, MUNNAR. EXT.P2: COPY OF THE REFERENCE ORDER DTD 10.8.93 ISSUED BY R1. EXT.P3: COPY OF THE CLAIM STATEMETN SUBMITTED BY R2 BEFORE R3 IN I.D. 200/93. EXT.P4: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER/MANAGERMENT IN I.D. 200/93 BEFORE THE 3RD RESPONDENT. EXT.P5: COPY OF THE LOAN APPLICATIN DTD 7.7.91 FILED BY R2 BEFORE THE ADIMALI RATION RETAIL DEALERS CO- OPERATIVE SOCIETY. EXT.P6: COPY OF THE AWARD DTD 30/01/02 PASSED BY R3 IN I.D. 200/93 AS PUBLISHED IN THE KERALA GAZETTE NO.8 DTD 25.2.2003. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.2529 OF 2004 ---------------------------------------- Dated this the 26th day of August, 2008 JUDGMENT The management in I.D.No.200/93 before the Labour Court, Ernakulam is challenging Ext.P6 award passed by the Labour Court in that I.D., in this writ petition. The issue referred for adjudication was: “Whether the denial of employment to Sri. K.N. Balakrishnan, Salesman of ARD No.12 (Ration Shop), 200 acre, Manamkandam Panchayat is justifiable; if not, what relief is entitled to get?”. The management took the contention that the 2nd respondent workman was not employed by the management at all. Their case was that although the petitioner was the licencee of the ration shop, as per an agreement, the 2nd respondent was allowed to conduct the ration shop on payment of a fixed sum to the petitioner management. As such, the 2nd respondent was not a workman employed by the petitioner and he was conducting the ration shop in his own right was the contention raised. W.P.(c)No.2529/04 2 2. On a consideration of the evidence before the Labour Court, the Labour Court disbelieved the version of the petitioner management and came to the conclusion that the 2nd respondent was actually a workman employed by the petitioner management and that he was denied employment unjustly. Consequent to the said finding, the Labour Court directed the petitioner management to reinstate the workman with backwages at the rate of Rs.750/- per month with effect from 1.8.1991. The petitioner management challenges that award mainly on the ground of want of sufficient evidence to hold that the the 2nd respondent was a workman employed by the management. 3. I have gone through the discussion of evidence in Ext.P6 award. I could not find anything perverse whatsoever in the appreciation of evidence. As such, the finding that the 2nd respondent was a workman employed by the petitioner and he was denied employment with effect from 1.8.1991 cannot be faulted. However, I am not inclined to uphold the award of backwages. The Supreme Court has in several cases held that the payment of backwages is no longer automatic and it depends on the facts and circumstances of each case. In this case, the petitioner has got a contention that the petitioner's W.P.(c)No.2529/04 3 licence was cancelled in 1994. It is also contended that the petitioner's son started the ARD again only recently. In the above circumstances, I put it to the learned counsel for the 2nd respondent workman to come to a settlement with the management regarding the amount of backwages to be paid. With some persuasion, I was able to make the parties agree for a lumpsum amount of Rs.15,000/- to be paid as backwages. Accordingly, while confirming the direction in Ext.P6 judgment for reinstatement of the 2nd respondent, I direct that the backwages be limited to Rs.15,000/-. The 2nd respondent shall report for duty in the ARD. 4. The learned counsel for the 2nd respondent workman submits that the workman may be given time till 1.11.2008 for reporting for duty. If the 2nd respondent presents himself for duty on 1.11.2008, the petitioner management shall admit the 2nd respondent to duty. However, if the 2nd respondent does not present for duty on 1.11.2008, the 2nd respondent will not be entitled to any further reliefs pursuant to Ext.P6, except the backwages as ordered above. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.2529/04 4