IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 RP.No. 870 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.12696/2008 .................... PETITIONER(S): RESPONDENT:PETITIONER: -------------------------------------------------------------------- DON BOSCO HOSPITAL, NORTH PARAVUR, REPRESENTED BY ITS DIRECTOR, FR. SAJU KANICHUKUNNATH, AGED 37 YEARS, S/O.K.V.ZAVIER, RESIDING AT DIRECTORS QUARTERS, DON BOSCO HOSPITAL, NORTH PARAVUR. BY ADVS. MR.B.ASHOK SHENOY, MR.SHIJU VARGHEESE. RESPONDENT(S): PETITIONER:1ST RESPONDENT: ---------------------------------------------------------------------------- C.A.REENA, 38 YEARS, W/O.SHIJU, VALIYARA HOUSE, III/161 THOTTAKKATTUKARA, ALUVA. BY ADVS. MR.K.S.MADHUSOODHANAN, MR.T.V.JAYAKUMAR NAMBOOTHIRI. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 3/07/2009 ALONG WITH WPC.NO.12696 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= R.P. No. 870 of 2008 & W. P (C) No. 12696 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 3rd July, 2009. J U D G M E N T The management in I.D.No. 79/2004 before the Industrial Tribunal, Alappuzha is the petitioner herein. They are challenging Ext. P6 award of the Tribunal in that I.D. The issue referred for adjudication was: “Whether the termination of service of Smt. C.A. Reena by the management of Don Bosco Hospital, N. Parur is justifiable? If not, to what relier she is entitled to?” The workman claimed before the Tribunal that she had been working in the management-hospital from 20-4-1991 to 15-7-2003 as X-ray Technician-cum-E.C.G. Technician continuously and uninterruptedly and her services were terminated with effect from 15-7-2003, which, according to her, was arbitrary and illegal. The management did not dispute the engagement of the workman. They contended that she was only a trainee and on the expiry of the training period, she was relieved.. The Tribunal after assessing the evidence adduced by both sides, believed the workman's case that she was a regular workman under the management and held that her services were unjustly terminated. She was directed to be reinstated with continuity of service and all other attendant benefits by the impugned award. 2. The challenge against that award is on the ground that the findings therein are perverse. In appreciating such contention, the jurisdiction of this Court is very very limited. It is not just sufficient to find that another person looking at the same evidence would come to a different conclusion. If the conclusion arrived at by the Tribunal is a possible or plausible conclusion, the fact that another conclusion W.P.C. No. 870/2008 -: 2 :- is also possible is no ground for interference with an award in an I.D in exercise of powers of this Court under Article 226 of the Constitution of India. 3. In this case, the engagement of the petitioner with effect from 20-4-1991 and her disengagement on 15-7-2003 as X-ray technician-cum-E.C.G technician is not disputed by the management. Their only dispute is that she was a trainee and after voluntarily disengaging herself from service for the period from 26-8-1999 to 2-7-2001 she again requested for joining as a trainee again which was permitted only for the period of training. Even assuming that the workman had voluntarily kept away from work as alleged, although the Tribunal had disbelieved it, the workman was engaged by the management for almost three years. That itself is a strong circumstance, which would disprove the contention of the management that the workman was engaged as a trainee, insofar as normally a training for a period of three years is extra-ordinary if not unheard of. The contention of the management was that the workman was engaged as a trainee in Advanced X-ray Techniques and Ultra Scan Course. But the witness of the management, who gave evidence as MW, himself admitted that in the management's hospital, no Advanced X-ray Techniques and Ultra Scan Course has been conducted. It was also admitted that there is no likelihood of the workman joining such a course in the hospital. Further, originally, the management issued an appointment letter on 15-4-1998 directing the workman to join duty on 15-4-1998, fixing her salary as Rs. 900/- p.m. Thereafter, all of a sudden, another letter was issued to the workman on 20-4-1998 stating that the workman had been accepted as a trainee in Advanced X-ray Techniques and Ultra Scan Course with effect from 20-4-1998. The sudden turn around itself casts grave suspicion on the bona fides of the management in the matter. W.P.C. No. 870/2008 -: 3 :- Further, the workman was issued a memo dated 28-9-1998 which was marked as Ext. M15 by the Tribunal, wherein the workman was informed that she was absent on 25th September resulting in their being no X-ray staff on that day. Added to that, in the written statement filed by the management, it has been specifically stated thus: “Under the provisions of the standing order, employer is entitled to take trainees, which is a special category, and is required for the functioning of the hospital.” As such, the evidence would certainly lead to a reasonable conclusion that the management was engaging the workman as a regular employee and for the purpose of defeating her legal claims, she had been later designated as a trainee. Such an inference is not at all perverse by any stretch of imagination, considering the evidence available before the Tribunal. 4. The learned counsel for the management would raise another contention that the employment was a contract employment and therefore it was for the workman to prove that the post which she was holding continued even after her cessation of service. I do not think that such a contention from the management can be entertained, when before the Tribunal, the management had set up a specific case that the workman was only a trainee and failed to prove the same. In fact, they never had a case of contract employment in their written statement. The Tribunal is not expected to consider a case which the management never had before the Tribunal. Even otherwise, if the management had a contention that the workman was engaged on contract basis on a short term vacancy, it was for the management to plead and prove the same, which they had not. 5. Lastly, counsel for the management would argue that the W.P.C. No. 870/2008 -: 4 :- Tribunal went wrong in awarding back wages. According to the counsel for the management, as laid down by various decisions of the Supreme Court, in the first instance, the workman should plead and prove that after the termination of service, the workman was not gainfully employed elsewhere. Counsel points out that in the claim statement filed by the workman there is not even a whisper to the effect that after the termination of her service, she was not employed elsewhere. He also points out that in the evidence also, the workman never stated that she was not employed elsewhere. Added to that, the management would rely on Annexure A1 document produced along with the review petition filed against the order in the petition filed by the workman under Section 17B of the Industrial Disputes Act, wherein it is certified by the LIC of India that the workman is working as a LIC agent in their Aluva Branch Office and her annual income for the year 2007-2008 was Rs.1,08,904.58. Although counsel for the workman would contend that there is no employer- employee relationship between the workman and the LIC, I am of opinion that, that is a relevant consideration for the purpose of deciding as to whether any back wages should be awarded to the workman. As rightly pointed out by the counsel for the management, the Supreme Court has time and again held that without any specific pleadings in the claim statement to the effect that the workman is not employed elsewhere, back wages cannot be automatic. Here, not only has the workman not stated so in the claim statement, she had no such case while giving evidence also. That coupled with Annexure A1 document would force me to modify the award to the extent it directs full back wages. Therefore, while confirming the direction to reinstate the workman with continuity of service and other attendant benefits, I am of opinion that justice would be met if the back wages is reduced to 25%. Ordered accordingly. W.P.C. No. 870/2008 -: 5 :- 6. The review petition is filed by the petitioner seeking review of my order dated 7-7-2008 in I.A.No. 6057/2008 filed by the workman seeking a direction to the petitioner to pay wages under Section 17B of the Industrial Disputes Act, which I had allowed. The petitioner contends that in view of Annexure A1 letter from the LIC of India, it is clear that the workman is gainfully employed elsewhere and therefore no wages under Section 17B is given. Although a counter affidavit has been filed, the workman does not dispute Annexure A1 and the fact that the workman is earning income as a LIC agent. The only contention is that the same is done by the husband of the workman in the name of the workman. Considering all the facts and circumstances of the case, I am of opinion that the petitioner should pay an amount of Rs.25,000/- as wages under Section 17B to the workman. The order dated 7-7-2008 impugned in the review petition would stand modified as above. The review petition and writ petition are disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/