IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 8TH APRIL 2008 / 19TH CHAITHRA 1930 OP.No. 2716 of 1996(W) ---------------------- ID.95/1992 of LABOUR COURT, KOZHIKODE .................... PETITIONER: ------------ K.K. SUBRAMANIAN, KALLADITHODI HOUSE (PO) MANNOOR, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS: ------------- 1. MANAGING PARTNER, THANKAM THEATRE, MANNOR (PO) KOZHIKODE. 2. LABOUR COURT, KOZHIKODE. R1 BY ADV. SRI.P.RAMAKRISHNAN R2 BY GOVERNMENT PLEADER SMT. N.SUDHA DEVI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/04/2008, THE COURT ON 8.4.2008 DELIVERED THE FOLLOWING: ORDER ON CMP NO.4766/1996 DISMISSED 8/4/2008 SD/- T.R. RAMACHANDRAN NAIR, JUDGE. APPENDIX EXT.P1-TRUE COPY OF THE AWARD DATED 31.1.1995 PASSED BY THE LABOUR COURT, KOZHIKODE IN ID NO.95/1992 // TRUE COPY // P.S. TO JUDE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.2716 of 1996-W - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of April, 2008. JUDGMENT The challenge is against the award of the Labour Court finding that the workman is not entitled to any relief. The dispute that was referred for adjudication is denial of employment of the workman concerned. The Labour Court found that the evidence adduced by the workman does not establish that there was employer employee relationship between the management and the workman. 2. Learned counsel for the petitioner submitted that there is total non application of mind by the Labour Court and relevant evidence have not been assessed properly. The learned counsel further submitted that the petitioner has discharged his burden of proving that there was employer employee relationship and actually the management has not discharged their burden. Hence, it is contended that the matter should be remanded to the Labour Court for appropriate orders and for taking evidence. 3. The workman in this dispute claimed employment under the management as a booking clerk. He claimed that he was working in the cinema theatre, named Thankam Theatre since 19.12.1986. From 7.2.1992 OP 2716/1996 -2- onwards employment is denied to him. 4. The management in their statement before the Labour Court, submitted that he was never employed by them in the theatre and hence there is no question of either termination or denial of employment. It was further contended that he is a relative of the managing partner of the establishment and occasionally he used to come to the theatre. 5. Evidence was adduced by both sides. The petitioner examined himself as WW.1 and another witness WW2 was also examined on his side. Mws.1 and 2 were examined on the side of the management. The workman produced Exts.W1, W2 and W3 and Exts.X1 to X3 have also been relied upon. 6. Learned counsel for the petitioner submitted that the evidence of WW.2 who is the Joint Secretary of the Union will prove that the petitioner was a member of their union. Ext.X3 is the membership receipt book for the period from 24.12.1988 to 24.12.1990. The Labour Court on an analysis of the evidence of WW.2 found that he was not in a position to say exactly what was the job of the petitioner in the theatre. A perusal of the evidence of WW.2 shows that apart from stating that the petitioner was a member of the union, he had no intimate knowledge about his tenure. Even in Ext.W2 letter addressed to the petitioner by the union, his designation is absent. OP 2716/1996 -3- The petitioner heavily relied upon Ext.W1 which is an authorisation letter given by the management to the petitioner to collect the sealed tickets, etc. from the Panchayat Office, Kadalundi. Therein also, the designation of the petitioner has not been shown. In fact, MW.1 has stated that on the date of inauguration he had authorised the petitioner to collect the sealed tickets and running licence from the Panchayat. Ext.X1 is the authorisation letter given by him. M.W.1 is the relative of the petitioner also. Even then the entire evidence of Wws.1 and 2 along with the documentary evidence produced will only show that on rare occasions the management had authorised him to perform some casual duties like getting sealed tickets from the Panchayat, etc. and it will not conclusively show that he was an employee under the management. In fact, WW.1 admitted in his evidence that he had not put his signature in the attendance register on the day of joining the service. Strangely, none of the co-workers of the petitioner have been examined. WW.2 has stated the names of three other workers, who were members of his union for some period. No other independent witness was examined in support of the case, apart from the leader of the union. Therefore, the Labour Court has rightly concluded that Exts.W1 series receipts or W2 letter will not improve his case. The workman has not chosen to call for any registers from the establishment. Even though OP 2716/1996 -4- learned counsel for the petitioner submitted that the management ought to have produced such documents once there is total denial of employer employee relationship, as found by the Labour Court, production of those registers cannot improve his case. It was upto the petitioner to adduce cogent and conclusive evidence in support of his case that he was working as a Booking Clerk and there is denial of employment. For lack of evidence, the Labour Court found against the petitioner. Hence, the argument that he had discharged his burden of proof is not correct. It cannot be said that the appreciation of evidence is so perverse warranting interference at the hands of this court. Apart from that, no lacuna in the proceedings have been shown warranting a remand of the matter to the Labour Court for fresh consideration. In view of the above facts and circumstances, the original petition fails and the same is dismissed. (T.R. Ramachandran Nair, Judge.) kav/ OP 2716/1996 -5- OP 2716/1996 -6- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.2716 of 1996-W - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 8th April, 2008.