IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 WP(C).No. 40311 of 2003(Y) -------------------------------------- PETITIONER: ------------------- A.T. UMMER HAJI, MANAGING PARTNER, HARISH TRADERS, SUPER VIEW, JAYANTHI NAGAR COLONY, MOONALINGAL, CALICUT – 32. BY ADVS. SRI.T.R.RAVI, SRI.P.S.MURALI. RESPONDENTS: ------------------------ 1. G. PRAKASHAN, KIZHAKKE KUZHIKKANDATHIL, NEAR PARAMEL DESHASEVA SANGHAM, KALLARENKKETTA ROAD, MALAPARAMBA, CALICUT – 673 009. 2. THE DEPUTY LABOUR COMMISSIONER, KOZHIKKODE. R1 BY ADVS. SRI.JACOB ABRAHAM, R2 BY GOVERNMENT PLEADER SMT. P. RANI DIOTIMA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.40311/2003-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DT. 29/10/2003 IN S.A. NO. 18/94 PASSED BY THE APPELLATE AUTHORITY UNDER THE KERALA SHOPS AND COMMERCIAL ESTABLISHMENTS ACT (DEPUTY LABOUR COMMISSIONER, KOZHIKKODE. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. K.SURENDRA MOHAN, J. ----------------------------------------- W.P.(C).No.40311 of 2003 ---------------------------------------- Dated this the 17th day of February, 2011 JUDGMENT The petitioner has filed this writ petition challenging Ext.P1 order dated 29.10.2003 passed by the appellate authority under the Kerala Shops and Commercial Establishments Act, 1960, Kozhikode, in S.A. No.18 of 1994. 2. According to the petitioner, the first respondent was working as a part time accountant in his establishment from October 1992 to 31.3.1994. During the said period, the first respondent was working as an accountant for other establishments also. While the petitioner was thus working for the petitioner on part-time basis, he stopped coming for work from 31.3.1994 onwards. Therefore, the petitioner was forced to get his accounts written by availing the services of another person. Subsequently, the first respondent approached the second respondent complaining of denial of employment. 3. According to the first respondent, he had worked in the establishment of the petitioner till July 1994. He was denied employment thereafter. It is the contention of the petitioner that if the petitioner had been denied employment from July 1994, he W.P.(C).No.40311 of 2003 2 ought to have approached the second respondent immediately. But he has not done so. Therefore, the proceedings before the second respondent were barred by time. 4. It is the further case of the first respondent that while working in the petitioner's establishment, he was asked to write the accounts for some other firms owned by the petitioner's close relatives, namely his mother and wife. Accordingly, he used to maintain the accounts of Hotel Sajina, Harish Traders, Jahana Manzil Lodge and Super Tobaco Store. According to him the respondent is in exclusive management of the above establishments also. While so, his services were terminated by the petitioner with effect from 20.7.1994. According to him he was getting a monthly salary of Rs.700/- and Rs.10 per day as allowance. Since his termination was without any reason and without notice, he contended that his termination was illegal, unjustified and against the principles of Natural Justice. Therefore, he claimed reinstatement in service or in the alternative, an amount of Rs.25,000/- as compensation. 5. The appeal filed by the first respondent under Section 18 of the Kerala Shops and Commercial Establishments Act, 1960 (hereinafter referred to as 'the Act' for short) was contested by W.P.(C).No.40311 of 2003 3 the petitioner, refuting the allegations of the first respondent. According to him, the first respondent was only a part time employee who was rendering similar services to various other establishments also on part time basis. Since he had voluntarily stopped coming for work from on 31.3.1994, it was contended that he was not entitled to any of the reliefs claimed. 6. The evidence in the case consists of the oral testimonies of the petitioner as RW1, the first respondent as AW1 and documentary evidence Exts.A1 to A3 on the side of the first respondent and Exts. R1 to R4 on the side of the petitioner. 7. On a consideration of the evidence on record as well as the contentions of the parties, the second respondent passed the impugned order directing the petitioner to pay an amount of Rs.20,000/- as compensation to the first respondent for his illegal termination from service. The relief of reinstatement was disallowed. This writ petition is filed challenging the said order. 8. According to Sri.T.R.Ravi who appears for the petitioner, the second respondent erred in not dismissing the first respondent's appeal finding that the same was barred by limitation. It is further contended that though the petitioner had furnished the relevant records of the establishment which are W.P.(C).No.40311 of 2003 4 marked as Exts.R1 to R4, they were neither referred to nor considered by the second respondent in Ext.P1. It is pointed out that a perusal of Exts.R1 to R4 would show that the pages thereof, up to 31.3.1994 are in the handwriting of the first respondent while the pages relating to the subsequent period are not in his handwriting. It is therefore pointed out that there was ample evidence before the authority to show that the petitioner had not maintained the books of accounts after 31.3.1994. The above vital fact according to the counsel for petitioner, was not taken note of by the second respondent. 9. Sri. Jacob Abraham who appears for the first respondent on the other hand, contends that even according to the petitioner the first respondent was writing his accounts from October 1992 to 31.3.1994. The other establishments referred to were only sister concerns of the petitioner himself. As a poor work man, the petitioner had to do any work that was directed to be done by the petitioner. Therefore, whenever he was directed to write the accounts of other establishments, he had to do the said work also. It is further pointed out that the petitioner has not produced any of the records of his establishment, that he is statutorily bound to maintain. Further I find that only the details of one W.P.(C).No.40311 of 2003 5 establishment has been produced, which would not give any details of the other sister concerns. Apart from the above, according to the counsel for the first respondent, the second respondent is the final authority on facts and a reappraisal of the evidence on all the vital aspects of the case is not contemplated in exercise of the jurisdiction under Article 226 of the constitution. Therefore, he prays for the dismissal of this writ petition. 10. I have heard the parties in detail. I have also been taken through the available records of the case. I have anxiously considered the rival contentions of the parties. 11. It is the admitted case of the petitioner that the first respondent was working for his establishment from October 1992 to 31.3.1994. The first respondent has admitted that he was working for other establishments like Hotel Sajina, Harish Traders, Jahana Manzil Lodge and Super Tobaco Store also, which are all business concerns managed by the petitioner himself though they are partnership concerns. The partners of the establishments are none other than his wife and mother. The portions of the petitioner's evidence extracted in Ext.P1 show that he was giving evasive answers to pointed questions regarding the constitution of his sister concerns. Therefore, the conclusion of the 2nd W.P.(C).No.40311 of 2003 6 respondent that the petitioner was in exclusive management of the said establishments is justified. 12. The second respondent has seen the witnesses who were examined as AW1 and RW1. The evidence of the said witnesses have been relied upon by the second respondent. In the absence of any evidence to show that the appreciation of evidence is perverse, I do not think that there is any justification for interfering with the findings of the second respondent. The day books marked as Exts. R1 and R4 are not specifically referred to in Exhibit P1. Even assuming that they bear a different hand writing after the crucial date, 31.3.1994, I do not think that it makes any difference for the reason that no indication as to the circumstances under which the first respondent stopped working for the petitioner can be inferred therefrom. According to the first respondent, he was terminated, while according to the petitioner, he stopped coming for work voluntarily. As rightly pointed out by the counsel for the first respondent, the petitioner should have produced some document that he was statutorily bound to maintain. If such a document were available that would certainly have shown whether the first respondent was a part time employee or not. W.P.(C).No.40311 of 2003 7 13. I notice that the petitioner was denied employment from the year 1994. More than 16 years have elapsed since then. The compensation amount of Rs.20,000/- that has been awarded by Ext.P1 order cannot be said to be excessive in any manner. The appreciation of evidence by the second respondent cannot be termed as perverse. I do not find any ground to interfere with Ext.P1. For the foregoing reasons the petitioner is not entitled to any of the reliefs claimed in this writ petition. This writ petition fails and is accordingly dismissed. K.SURENDRA MOHAN, JUDGE. mns