IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 OP.No. 30444 of 1999(Y) ----------------------- PETITIONER(S): --------------- THE KERALA STATE CONSTRUCTION CORPORATION LTD., IIND FLOOR, CARMEL CENTRE, BANERJEE ROAD, KOCHI-18, REP. BY ITS SECRETARY. BY ADV. SRI.M.V.THAMBAN RESPONDENT(S): --------------- 1. P.K. SOMAN, S/O. PAVATHUSSERY HOUSE, NORTH OF PALLATHURUTHY OBRIDGE, PALLATHURUTHY, ALAPPUZHA. 2. LABOUR COURT, KOLLAM. ADV. SRI.ASP.KURUP FOR R1 SMT.SANDHYA DEVI FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 29/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 30444/99 ------------------------------------------------------------- EXT.P1 TRUE COPY OF AWARD IN I.D 49/1992 OF LABOUR COURT, KOLLAM. EXT.P2 VOUOCHER DT. 19-11-1987. EXT.P2(a) DO. DT. 23-11-1987. EXT.P2(b) DO. DT. 28-11-1987. EXT.P2(c) DO. DT. 24-12-1987. EXT.P2(d) DO. DT. 1-8-1988. EXT.P2(e) DO. DT. 8-8-1988. EXT.P2(f) DO. DT. 16-8-1988. EXT.P2(g) DO. DT. 20-8-1988 EXT.P2(h) DO. DT. 30-9-1988. EXT.P2(i) DO. DT. 1-10-1988. EXT.P3 VOUCHER DT. 29-4-1989. EXT.P3(a) VOUCHER DT. 5-11-1987. EXT.P3(b) DO. DT. 7-11-87. EXT.P3(c) DO. DT. 27-11-1987. EXT.P3(d) DO. DT. 3-12-1987. EXT.P3(e) DO.DT. 1-12-1987. EXT.P3(f) DO.DT. 5-12-1987. EXT.P3(g) DO. DT. 8-12-1987 EXT.P3(h) DO.DT. 10-12-1987. EXT.P3(i) DO. DT. 6-4-1988. EXT.P4 JUDGMENT IN O.P.3232/95. EXT.P5 WRITTEN STATEMENT. EXT.P6 LIST OF DOCUMENTS. EXT.P7 DEPOSITION OF R1. EXT.P8 LEGIBLE HAND WRITTEN COPIES OF R1. EXT.P9 NOTIFICATION DT. 6-4-1999. EXT.P10 JUDGMENT IN W.A.NO. 1380/2007. EXT.P11 AWARD DT. 26-12-1997 IN I.D.49/1992. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 30444 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 29th October, 2008. J U D G M E N T The management in I.D.No. 49/1992 before the Labour Court, Kollam is the petitioner herein. They are challenging Ext. P1 award passed by the Labour Court in that I.D. The issue referred for adjudication was termination of service of the 1st respondent herein. 2. The management undertook the work of Pallathuruthy bridge in the Alappuzha-Changanacherri road. The 1st respondent claimed that he was engaged as a workman of the management from 13-11-1987 and continued to work there up to 30-9-1989. Thereafter, 1st respondent was not allowed to work. It is under the above circumstances, the 1st respondent raised the industrial dispute, which culminated in Ext. P1 award by which the management was directed to reinstate the workman with backwages on the finding that the denial of employment to the workman was without complying with the mandatory provisions of Section 25F of the Industrial Disputes Act. 3. This original petition was earlier dismissed by me on the ground of delay and laches on the part of the management. Later on, the management filed a writ appeal in which a contention was raised that certain factual errors have crept into the judgment. The Division Bench allowed the petitioner to withdraw the writ appeal without prejudice to the right of the petitioner to move for review of the judgment before the Single Judge. Accordingly, the review petition was filed, which was allowed by me and the matter comes up for hearing again accordingly. 4. The petitioner's contention is that the Labour Court went wrong in holding that the 1st respondent was a workman under the petitioner and in directing him to be reinstated with backwages. According to them, the petitioner was a petty contractor who was supplying labour at the project site. They would further contend that O.P. No. 30444/1999. -: 2 :- even if he is found to be a workman, the direction to reinstate him is bad, since the project was completed on 16-9-1989, whereafter the 1st respondent having been employed in a project, is not entitled to continue after the project was completed. They would also submit that by virtue of Section 25FFF(2) of the Industrial Disputes Act, no compensation is payable to the 1st respondent and therefore the finding in Ext. P1 award that the provisions of Section 25F have not been complied with is not sustainable. 5. The counsel for the 1st respondent contends that the original petition is highly belated and the petitioner has not even offered any explanation for the delay. They have also not offered any plausible explanation for not appearing before the Tribunal is also the contention of the 1st respondent. He would further contend that apart from the contention that the 1st respondent was not a workman of the petitioner, in the written statement before the Tribunal, none of the other contentions raised now have been raised. He submits that by his evidence he had sufficiently proved that he was a workman of the petitioner. Therefore, he argues to sustain Ext. P1 award. 6. I have considered the contentions in detail. 7. The award was passed on 26-12-1997. It was published in the official gazette on 6-4-1999. The petitioner filed this original petition challenging the award only on 4-12-1999, after eight months of the date of publication of the award. The petitioner although filed a written statement and cross-examined the workman, did not further take part in the proceedings before the Labour Court and therefore the Labour Court continued the proceedings in the absence of the petitioner and passed the award. The petitioner has not been able to give any convincing explanation as to why the petitioner could not take part in the proceedings before the Labour Court after the O.P. No. 30444/1999. -: 3 :- witness of the workman was examined and cross examined by them. In the written statement filed by them, which is produced as Ext. P5 along with I.A.No.13344/2008, the only contention raised was that the 1st respondent was not a workman but only a pity contractor engaged by the petitioner at the project site for supply of labour. Although they stated that the activities of the petitioner are seasonal (?) in character and project was wound up upon completion of the work, none of the other contentions raised now were raised before the Labour Court. The workman gave evidence to the effect that he was working as a watchman in the project site of the petitioner at the Pallathuruthy bridge. The petitioner now relies on a sentence in the cross examination of the workman after the re-examination to the effect that the workman admitted that he was only a petty contractor. Of course, the workman had in fact given such an answer to a leading question, but through out the other part of the examination, he has consistently maintained that he was engaged as a watchman by the petitioner and he was denied employment on 30-9-1989. It is settled law that deposition has to be read as a whole and cannot be be read in isolation taking out one sentence, that too, as an answer to a leading question. Except for the one answer 'yes' to a leading question, which is obviously inadvertent the workman gave very convincing evidence in support of his case. 8. Of course, the petitioner takes several contentions now which are totally absent in the written statement filed by them before the Labour Court. I am not inclined to consider all those contentions since no such contentions whatsoever were taken by them before the Labour Court. The one and only contention raised by them before the Labour Court was that the 1st respondent was not a workman as defined under the Act but only a petty contractor. After having sadly O.P. No. 30444/1999. -: 4 :- failed to prove the same before the Labour Court, I am not inclined to consider any of the new contentions raised, which are not supported by the pleadings before the Labour Court. Further for proving those contentions evidence on certain questions of fact is also necessary, such as, to whether the petitioner was recruited exclusively for the project on contract basis and the date when the project started, in respect of which no evidence has been adduced by the petitioner. In fact, I am of opinion that this is a fit case where I should decline to exercise my discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner. The petitioner did not take appropriate contentions in their written statement before the Labour Court, they did not conduct their case before the Labour Court properly, they did not file the original petition challenging the award within any reasonable time, they did not explain the reasons why they have not participated in the proceedings before the Labour Court and they did not explain the delay of eight months in challenging the award. At every stage, the petitioner was at fault. Certainly, such a petitioner is not entitled to invoke the discretionary jurisdiction under Article 226 of the Constitution of India. Although the petitioner would seek another opportunity to contest the case on merits by adducing evidence, I do not think that after almost 20 years of his denial of employment the poor workman should again be asked to go through the travails of a protracted litigation which he can ill- afford. 9. Even then, I am inclined to consider certain aspects of the matter in view of the fact that the petitioner is a company owned by the Government of Kerala and that the petitioner was engaged in a project site for the construction of a bridge. The 1st respondent was engaged for work in the course of construction of the bridge and he O.P. No. 30444/1999. -: 5 :- was denied employment on completion of the work. That being so, I do not think that the 1st respondent is entitled to the relief of reinstatement with backwages. Taking into account all the facts and circumstances of the case, I am of opinion that interest of justice would be met if the 1st respondent is paid a reasonable amount as compensation. I fix the compensation as Rs. 50,000/-. Accordingly, I modify the award to the extent of directing the petitioner to pay compensation to the 1st respondent amounting to Rs. 50,000/- instead of reinstatement with backwages, which amount shall be paid within two months from today. If the amount is not paid within the said time, the amount would carry interest at the rate of 9% p.a from the date of the award till payment. The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/