IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 OP.No. 21833 of 1999(Y) ----------------------- PETITIONER(S): --------------- THE MANAGER, MERCHISTON ESTATE, PONMUDI, TRIVANDRUM. BY ADV. E.K.NANDAKUMAR. SRI.E.K.NANDAKUMAR RESPONDENT(S): --------------- 1. J.GEORGE, DIVISION NO.2, MERCHISTON ESTATE, PONMUDI, TRIVANDRUM. 2. LABOUR COURT, KOLLAM. ADV. SRI.S.RAJASEKHARAN NAIR FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15.1.2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 21833/99. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE REFERENCE ORDER DTD.10.8.90. P2. COPY OF THE CLAIM STATEMENT IN THE I.D. P3. COPY OF THE WRITTEN STATEMENT. P4. COPY OF THE DEPOSITION OF R1. P5. COPY OF THE AWARD PASSED BY R2. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 21833 of 1999 ================== Dated this the 15th day of January, 2010 J U D G M E N T This original petition is filed by the management in I.D.No.79/1990 before the Labour Court, Kollam, challenging Ext.P5 award of the Labour Court in that I.D. The issue referred for adjudication was the justifiability of denial of employment to the 1st respondent herein. The 1st respondent-workman contended before the Labour Court that he was employed as a watchman in the management establishment since 1984 and that he was denied employment with effect from 2.9.1989 without assigning any reason. The management took the contention that he was only a temporary worker employed on daily wages and his temporary employment was discontinued, since no temporary work was available in the management establishment, which is a tea estate. The Labour Court found that apart from the workman's evidence, there is no other evidence in the case. It was held that the management did not adduce any evidence in support of their case by producing relevant registers maintained in their establishment. Since the workman deposed before the Labour Court that he was working in the management establishment from 6.10.1984 to 2.9.1989 continuously and uninterruptedly, the same was accepted and the workman was w.p.c.21833/99 2 directed to be reinstated with backwages and attendant service and other statutory benefits. That award is under challenge before me. 2. I find from the award that in 1978 the workman had earlier voluntarily relinquished his service due to illness. He again joined service under the management on 6.10.1984. Of course the management has not adduced any evidence to prove their case that the workman was engaged as a temporary worker on daily wages. But in Ext.P4 deposition of the workman, the workman admitted that he was employed temporarily. He categorically admitted that there are permanent workers in the establishment and he is not included in the permanent category. In the cross examination, the workman was asked whether he is prepared to accept employment as a temporary worker. But he answered in the negative. This original petition was filed on 11.8.1999 more than 10 years ago. Since, by the award, the workman was ordered to be reinstated with backwages, he had become entitled to wages under Section 17B of the Industrial Disputes Act. He has not chosen to file a petition claiming the same. The natural presumption therefrom is that either the workman was gainfully employed or he is unable to work. The counsel for the management would further submit that he originally entered service in 1969 and going by the same, he would have crossed the age of superannuation long ago. Taking into account all circumstances in the case, I feel that w.p.c.21833/99 3 a lump sum payment to the 1st respondent as compensation in lieu of reinstatement would satisfy the ends of justice in this case. Accordingly, Ext.P5 award is modified directing the management to pay to the workman a lump sum amount of Rs.15,000/- in full and final settlement of all his claims against the management under Ext.P5 award. The above amount shall be paid within one month. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 21833 of 1999-Y ================== J U D G M E N T 15th January, 2010