IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 WP(C).No. 32605 of 2004(F) -------------------------- PETITIONER: ------------ DEEPAK EXPORTS ENTERPRISES, BEACH ROAD, KOLLAM, REPRESENTED BY ITS MANAGING PARTNER, N.JAYAPRAKASH. BY ADV. SRI.E.K.NANDAKUMAR SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SMT.PRIYA MAHESH RESPONDENTS: ------------- 1. K.N.BABUJI, KIZHAKKE VALAYIL VEEDU, PATTOMTHURUTHU P.O., KOLLAM. 2. INDUSTRIAL TRIBUNAL, KOLLAM. 3. LABOUR COURT, KOLLAM. BY ADV. SRI.G.SREEKUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 32605/04. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE AWARD IN ID.NO.98/2000 OF R2. P2. COPY OF THE COMPLAINT OF R1 DTD.30.6.99. P3. COPY OF THE REFERENCE ORDER DTD.25.9.00. P4. COPY OF THE WRITTEN STATEMENT. P5. COPY OF THE TRANSFER ORDER DTDE.27.3.96. P6. COPY OF THE LETTER DTD.17.8.96 TO R1. P7. COPY OF THE COMPLAINT DTD.13.9.96 TO KOTTARAKARA POLICE STATION. P8. COPY OF THE LETTER DTD.12.7.96 TO R2 BY THE UNION. P9. COPY OF THE LETTER DTD.19.9.98 TO R1. P10. COPY OF THE LETTER DTD.NIL TO THE PETITIONER BY THE DIST. LABOUR OFFICER. P11. COPY OF THE DEPOSITION OF R1. P12. COPY OF THE DEPOSITION DTD.29.8.03 OF R1. P13. COPY OF THE DEPOSITION OF THE PETITIONER. P14. COPY OF THE DEPOSITION DTD.13.2.04 OF THE PETITIONER's WITNESS. P15. COPY OF THE COMMUNICATION DTD.4.10.04 FROM R2. P16. COPY OF THE PAYMENT OF WAGES APPLICATION DTD.16.10.04 P17. COPY OF THE ATTACHMENT PETITION AND AFFIDAVIT DTD.18.10.04. P18. COPY OF THE POST ACKNOWLEDGMENT CARD DTD.20.9.04. ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.32605 of 2004 ================== Dated this the 19th day of June, 2008 J U D G M E N T The management in I.D.No.98/2000 before the Industrial Tribunal, Kollam, challenges Ext.P1 award passed by the Tribunal in that I.D. 2. The issue referred for adjudication was: “Whether the termination of service of Sri.K.N.Babuji, watcher of Deepak Export Enterprises, Beach Road, Kollam-1 w.e.f. 7.2.1998 is justifiable? If not, what relief he is entitled to.” 3. The contention of the workman before the Tribunal was that he along with four other workmen was denied employment in 1999 and later, the other four workmen were reinstated denying employment to the petitioner alone. The management took the contention that the workman was originally working in the Kizhakketheruvu Cashew Factory of the management at Kottarakkara and the workman was transferred to cashew packing centre at Kollam owned by the same management on 27.3.1996. The workman refused to join duty at packing centre at Kollam and therefore, by letter dated 17.8.1996 he was directed to rejoin duty within 48 hours, failing which it would be assumed that he has abandoned employment w.p.c.32605/04 2 and he would be removed from the rolls of the management without any further notice. The further contention was that on 13.9.1996, the workman conducted a dharna in front of the Kizhakketheruvu cashew factory pursuant to which a complaint was filed before the Kottarakkara Police Station. The contention of the management was that from then on the workman never came for duty and thereafter he raised an industrial dispute by filing a compliant on 30.6.1999. The management also adduced evidence to the effect that an office bearer of the union representing the workman undertook to see that the workman joins at the packing centre at Kollam, and later on, the union representative expressed helplessness in getting the workman to join at the packing centre at Kollam. The Tribunal disbelieved the evidence of the management and held that the workman was actually denied employment with effect from 7.2.1998 unjustly and directed reinstatement of the workman in service with all benefits including continuity of service and backwages. This is under challenge in this writ petition. 4. I have considered the rival contentions in detail. 5. Essentially what is canvassed before me is the correctness of the appreciation of evidence. Therefore, unless I w.p.c.32605/04 3 come to a finding that the findings entered by the Industrial Tribunal are demonstrably perverse, I will not be justified in interfering with Ext.P1 award. Ext.P5 is the alleged transfer order issued by the management to the workman. Ext.P6 is the alleged notice issued to him to join duty within 48 hours. The workman categorically denied having received both. Ext.P5 which is stated to be the transfer order does not state that the workman is being transferred to the packing centre from Kizhakketheruvu factory. It merely states that “the bearer of that letter, Babuji, is being sent as per the direction from the proprietor”. The Tribunal found that the same cannot be accepted as a transfer order assuming that the same was given to the workman which also was not accepted by the Tribunal. The management thereafter sought to prove their case by examining the union representative by proving Ext.P8 letter from the union representative to the manager of the management undertaking to send the workman to packing centre for duty. His evidence was also disbelieved by the Tribunal holding that Ext.P8 does not say the capacity in which that witness issued Ext.P8 and does not even mention therein the name of the union. In cross examination of that witness it was brought out that he belongs to Kerala Congress w.p.c.32605/04 4 Party whereas the workman is a CITU man. As such, the evidence of that witness was discarded in toto by the Tribunal. Further the case of the management was that after the workman was transferred to the packing centre at Kollam, in 1996, he never came for work. But the case of the workman was that he continued working till 1998 or 1999. The management had not even tried to explain about the period from 1996 to 1998/1999. They have not even stated that the workman did not work till 1998 or 1999. On the other hand, the Tribunal specifically found that the allegation of the workman that the management has subsequently reinstated four other workmen who were also denied employment by the management along with the workman in question in 1998 remains unchallenged. According to the workman, those four workmen also were dismissed along with the workman in 1999. In fact the issue referred for adjudication was the justifiability of denial of employment of the workman with effect from 7.2.1998. In Ext.P4 written statement of the management they state that by letter dated 19.9.1998 the workman was directed to collect his gratuity and since he did not collect the same, the same was deposited with the Controlling Authority under the Payment of Gratuity Act on 16.7.1999. These w.p.c.32605/04 5 facts would probabilise the case of the workman more than that of the management. In the above circumstances, I cannot by any stretch of imagination hold that the findings entered by the Industrial Tribunal on the evidence before it are perverse in any manner. That being so, I do not find any merit in the writ petition and accordingly, the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge