IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 WP(C).No. 12464 of 2004(H) --------------------------------------- PETITIONER(S): ----------------------- 1. SOMANATHAN, MANAGING PARTNER SARATHY MOTORS, P.O. BOX NO.7, PALLIMUKKU, KOLLAM-10. * ADDITIONAL PETITIONERS 2 TO 4 ARE IMPLEADED * ADDL.P2: SMT.MEENAKSHI SOMANATHAN, W/O.LATE SRI.SOMANATHAN, SAI BHAVAN, THATTAMALA.P.O., KOLLAM. * ADDLP3: SMT. ANASUY SOMANATHAN, D/O.LATE SRI. SOMANATHAN, SAI BHAVAN, THATTAMALA.P.O., KOLLAM. * ADDLP4: SHRI.RAJESH,S/O. LATE SRI. SOMANATHAN, SARATHY MOTORS, THATTAMALA.P.O., KOLLAM. * ARE IMPLEADED AS ADDITIONAL PETITIONERS 2 TO 4 AS PER ORDER DATED 29/3/2010 IN I.A.NO.4446/2010. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF LABOUR, THIRUVANANTHAPURAM. 2. GENERAL SECRETARY, KERALA PRIVATE MOTOR AND MECHANICAL WORKERS FEDERATION (INTUC), JETTY ROAD, KOLLAM. R1 BY GOVERNMENT PLEADER SRI. P. RANI DIOTHIMA R2 BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SMT.LAKSHMI B.SHENOY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.12464/2004 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE REFERENCE ORDER DATED 23/9/92 NO.G.O(RT) NO.2268/92/LBR. P2 COPY OF THE OBJECTION FILED BY THE PETITIONER. P3 COPY OF THE AWARD DATED 22/11/2003 IN I.D.NO.125/92 ON THE FILES OF THE LABOUR COURT, KOLLAM. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts K.SURENDRA MOHAN, J. ------------------------------------------- W.P.(C) No.12464 of 2004 ------------------------------------------- Dated this the 10th February, 2011 JUDGMENT This writ petition is filed challenging the award of the Labour Court, Kollam dated 22.11.2003 in I.D.No.125/1992. 2. The writ petitioner is the Managing Partner of M/s Sarathy Motors which is engaged in the business of sale of two wheelers and three wheelers. One Sri.N.Subhash Babu complained that he was denied employment with effect from 13.2.1992. According to him, he was working in the writ petitioner's establishment since 1997. The dispute was referred for adjudication to the Labour Court, Kollam under Section 10(1)(c) of the Industrial Disputes Act, 1947 by the Government of Kerala. The reference was tried by the Labour Court. Both sides adduced evidence. After trial, the Labour Court found that the denial of employment to the workman was without any justification. Therefore, the Labour Court ordered his reinstatement in service with 60% backwages. This writ petition is filed challenging the said award. wpc No.12464/2004 2 During the pendency of the writ petition, the writ petitioner died and his legal representatives have been brought on party array as additional petitioners 2 to 4. 3. The case of the writ petitioner is that the workman was not an employee of M/s Sarathy Motors which is the establishment of the petitioner. M/s Sarathy Motors is a dealer of M/s Bajaj Auto Limited. The Management does not have a Mechanic in their service. Their business is only that of selling two wheelers and three wheelers in their capacity as an authorised dealer of M/s Bajaj Auto Limited. It is the contention of the Management that it does not own any service unit since the activity of the establishment is limited to the dealership business. The free service extended by the manufacturer to their customers is being carried out on contract basis by the service unit, which does not belong to the management. Therefore, the management disputed all liability to the claim of reinstatement made by the workman. 4. The workman on the other hand contended that the establishment of the petitioner was not maintaining wpc No.12464/2004 3 the labour records properly and that they were not paying proper wages to the workmen. When complaints regarding the above were raised, it is alleged that the workman was terminated. The termination of the workman resulted in an industrial dispute which was the subject matter of a number of conciliation conferences that were attended by the representatives of the management also. Since the conciliation failed, a failure report was submitted to the Government. Thereafter the matter was referred for adjudication to the Labour Court, Kollam. 5. It is the case of the workman that the evidence in the case clearly proved that the workman was an employee of the petitioner's establishment from 1989 onwards and that he had been denied employment from 13.2.1992 onwards. It is pointed out that the Labour Court had considered all the relevant aspects of the case as well as the evidence on record and has rightly ordered reinstatement of the workman. The Labour Court has granted only 60% of the backwages to the workman. The award is only reasonable and therefore, the same does not call for any interference. wpc No.12464/2004 4 6. The matter has been heard at length and the records of the case perused in detail. I have also given anxious consideration of the contentions advanced. 7. Though it is the case of the management that the workman was never employed by them, it is not in dispute that the management is the authorised dealer of M/s Bajaj Auto Limited and is engaged in the sale of two wheelers and three wheelers manufactured by their Principals. As dealers, the writ petitioner's establishment is expected to provide the free services that are guaranteed by the Bajaj Auto Limited to its customers. According to the petitioner, for the purpose of providing the free service, the petitioner is depending on a service station that is located adjacent to their premises. According to the Management, the said service station is conducted by none other than the proprietor's son, who according to him has taken the same on lease. Though the son has been examined as MW3, no document evidencing the rental arrangement between him and his son has been produced before Court. In fact, there is absolutely no evidence to show that the petitioner's establishment and the service station are two wpc No.12464/2004 5 separate entities or establishments. The Labour Court has noticed the fact that both the petitioner's establishment as well as the service station are located in the same premises and therefore there is unity of location. The management has examined a witness, MW1 who has deposed that he was a person who has taken the work of the management establishment on contract basis and that the workman in this case is a helper of his. However, his story has been disbelieved by the Labour Court. It is worth noticing that the management does not have a case that the work of its establishment is given on contract basis to any other person. Ext.X4 document which is the file relating to an inspection conducted by the Assistant Labour Officer, Ist Circle, Kollam shows that the workman was an employee of the petitioner's establishment from 1989 onwards. His salary as per the said file is Rs.375/-. 8. The records relating to the proceedings for conciliation initiated by the Labour authorities also do not contain evidence of any contention of the management to the effect that the workman was not an employee of the petitioner's establishment. Though there is no order of wpc No.12464/2004 6 appointment or other document evidencing the appointment of the workman to the petitioner's establishment, in the light of the records available, the attendant circumstances and the conduct of the parties, there can be no doubt that the workman was an employee of the petitioner's establishment. The Labour Court has considered the evidence and the materials on record and has entered a finding that the petitioner was an employee of the establishment. The Labour Court has also not awarded the entire backwages, by way of abundant caution. The award of backwages is limited to the extent of 60% in the present case. Therefore, the contentions of the petitioner are without any basis. 9. I do not find any error warranting interference with the award of the Labour Court that is under challenge in this Writ Petition. 10. In view of the above, this writ petition fails and is accordingly dismissed. No costs. K.SURENDRA MOHAN, JUDGE css/