IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WA.No. 1719 of 2009 ----------------------------- AGAINST THE JUDGEMENT IN WPC.22551/2005 Dated 31/07/2008 .................... APPELLANT/1ST RESPONDENT: --------------------------------------------- P.K.HARIKUTTAN, AGED 44 YEARS, S/O.P.G.KUMARAN, POKKOTHUPARAMBIL HOUSE, P.O.KATTAMANGALAM, KAINAKARI, ALAPPUZHA. BY ADV. SRI.JAWAHAR JOSE RESPONDENTS/PETITIONER & RESPONDENT 2 & 3: -------------------------------------------------------------------------- 1. M/S. MATHA FISH FARM, SOUTH CHELLANAM, KOCHI, REPRESENTED BY ITS PROPRIETOR, P.C.CHERIAN 2. LABOUR COURT, ERNAKULAM. 3. TAHSILDAR, ERNAKULAM. R1 BY ADV.SRI.K.ANAND R2 & R3 BY SR. GOVERNMENT PLEADER SRI.BENJAMIN PAUL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.Bannurmath, C.J. & A.K. Basheer, J. ------------------------------------------ W.A.No.1719 of 2009 ------------------------------------------ Dated this the 8th day of September, 2009 JUDGMENT S.R.Bannurmath, C.J. Aggrieved by the order of the learned Single Judge dated 31st July, 2008 allowing the writ petition filed by the employer and setting aside the award Ext.P5 passed by the Labour Court, the present writ appeal is filed. 2. The appellant was in charge of a fish farm of the first respondent and as it was found that there was misappropriation of funds and when criminal proceedings were proposed to be initiated against him, it is stated that he through Ext.P1 letter admitted the misappropriation, and on initiation of proceedings for departmental enquiry he was found guilty of the charges levelled and accordingly dismissed him from service. 3. Aggrieved by the same, when the appellant W.A.No.1719 of 2009. - 2 - approached the Labour Court, it reversed the finding and passed an award for reinstatement of the appellant with backwages. Aggrieved by the said award, when the employer approached this Court in the impugned writ petition, the learned Single Judge, finding that practically there was no contest by the appellant even though he was represented by counsel, and even otherwise on merits, the appellant had no case, and especially finding that the award passed by the Labour Court was practically incorrect on the face of the records, set aside the award of the Labour Court. However, taking into consideration the fact that the appellant was in service with the petitioner for some period, directed the petitioner employer to pay compensation of Rs.50,000/- to the appellant. Aggrieved by the same, the present writ appeal is filed. 4. The learned counsel appearing for the appellant contended that as the appellant had no sufficient opportunity to contest the case, the learned Single Judge was not justified in proceeding to dispose of the case on merits. Even otherwise, it W.A.No.1719 of 2009. - 3 - is submitted that the conclusion that Ext.P1 is not a confession in specific as the same has to be scrutinised by way of evidence which in fact has been done by the Labour Court, the learned Single Judge was not justified in relying upon Ext.P1. It is also contended that the delay observed by the learned Single Judge in the impugned order is against the principles laid down by the apex Court in the cases of Ajaib Singh v. Sirhind Co-operative Marketing-Cum-Processing Service Society Limited and another [(1999) 6 SCC 82] and Sapan Kumar Pandit v. U.P.State Electricity Board and others [(2001) 6 SCC 222]. At the outset, we have to note that though the appellant had engaged counsel, he reported 'no instructions' to the Court and sought permission to relinquish the vakalath. It is further submitted that the observation that the counsel had reported 'no instructions' two months back as noted by the learned Single Judge is incorrect and on the other hand, just five days prior to the passing of the impugned order, the letter of the counsel was received, and as such the appellant could not take immediate W.A.No.1719 of 2009. - 4 - steps. In this regard, if one peruses the affidavit filed by the appellant himself for condonation of the delay of 319 days in filing the writ appeal, it is clear that practically there was inaction on the part of the appellant. Even if it is taken that he received the communication from the counsel on 25.7.2008, he was sleeping over the matter practically as stated in the condonation of delay affidavit which indicates that he is a fence sitter, especially when even after coming to know of the impugned order, he has approached this Court belatedly after about 319 days. It is to be noted that the learned Single Judge admittedly and undisputedly has not passed the impugned judgment only on the basis of absence of representation of the appellant. The learned Single Judge has considered the case on merits and in detail the effect of Ext.P1. Though now it is claimed that this Ext.P1 was written by the appellant due to the pressure tactics used by the employer, it appears to us that this is an afterthought. If Ext.P1 was obtained from him under duress he could have complained it immediately and taken steps to W.A.No.1719 of 2009. - 5 - either recall or set aside it or to get the alleged statement withdrawn. No such steps are taken. On the other hand, a perusal of Ext.P1 as has been done by the learned Single Judge would clearly indicate that details of the information which can be said to be only within the knowledge of the appellant alone have been disclosed in Ext.P1, and as such we find that the learned Single Judge was justified in relying upon Ext.P1 which remains uncontested. The finding of the learned Single Judge that the Labour Court has brushed aside the effect of Ext.P1 lightly, in our view, is also justified and we find no illegality in accepting Ext.P1. So far as the decisions relied on by the learned counsel for the appellant regarding limitation are concerned, we find that the observation of the learned Single Judge regarding delay was only an observation and it is to be noted that writ petition is not allowed only on that count. 5. Even on reappreciation of the entire materials we find that there is absolutely no illegality or perversity in the order passed by the learned Single Judge. In fact the learned W.A.No.1719 of 2009. - 6 - Single Judge has given some solace to the appellant who is admittedly employed in Government service now by directing the employer to pay a sum of Rs.50,000/- by way of backwages. As such on perusal of the entire materials, we find no illegality or error on the part of the learned Single Judge in allowing the writ petition and setting aside the award of the Labour Court. Hence the writ appeal fails and it is liable to be dismissed. However, we make it clear that as the first respondent/employer has not challenged the order for payment of compensation, if the appellant makes such a request for payment, the first respondent/employer shall comply with the same within two months from the date of making such a request. With this observation the writ appeal is dismissed. S.R.Bannurmath, Chief Justice A.K. Basheer, Judge vns/vku.