IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 OP.No. 14077 of 2002(A) ----------------------- PETITIONER: ------------ MANAGING PROPRIETOR, MUNDUKOTTAKKAL ESTATE, PADAGIRI P.O., PALGHAT DISTRICT. BY ADV. SRI.JOSEPH KODIANTHARA SRI.THOMAS VELLAPPALLY RESPONDENTS: ------------- 1. THE GENERAL SECRETARY, NELLIAMPATHI ESTATE LABOUR CONGRESS(INTUC), PADAGIRI.P.O. 2. THE INDUSTRIAL TRIBUNAL, PALAKKAD. 3. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR & REHABILITATION (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI.P.RAMAKRISHNAN FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A. NOS.12939,12940,12941,12942,12943,12944 & 12945/2004 IN O.P. NO.14077/2002 DISMISSED: 7.8.2008 SD/-(C.N.RAMACHANDRAN NAIR, JUDGE.) APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF PARTITION DEED DT.19.2.1996. P2: TRUE COPY OF AWARD OF R2 IN I.D. NO.26/99 PUBLISHED IN THE KERALA GAZETTE DT.1.1.2002. P3: TRUE COPY OF WRITTEN STATEMENT FILED BY PETITIONER. P4: TRUE COPY OF AWARD IN I.D. NO.17/88. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... O.P. No.14077 of 2002 .................................................................... Dated this the 7th day of August, 2008. JUDGMENT The petitioner is challenging Ext.P2 award passed by the Industrial Tribunal, Palakkad directing reinstatement of seven workers who were members of the first respondent-Union. I have heard counsel appearing for the petitioner and counsel appearing for the first respondent and have gone through the award. 2. The main contention raised by the petitioner is that the estate was managed through contract workers engaged by a contractor. However, the Industrial Tribunal noticed that the only evidence adduced by the petitioner was the oral testimony of the managing partner or proprietor of the firm. In the absence of any independent evidence about the contractor who managed the estate through workers engaged by him, the Tribunal rightly rejected the case of the petitioner. It is the further finding of the Tribunal that the estate was previously owned and managed by one Mr.M.P.Philip and his family and thereafter in the year 1990, the estate was purchased by one Mr.Balasubramaniam and his three family members. The case of the petitioner is that after purchase of the estate in the joint names of the family 2 members, there was partition and division of the estate among each of the family members leading to forfeiture of benefits to the employees under the Kerala Plantation Labour Act. The Tribunal has addressed this question also and found that the estate was in the joint names of all the family members, the person managing being Mr.Balasubramaniam. In the absence of proof of division of estate and division of labour and settlement of their claims until then, I feel the Industrial Tribunal rightly rejected the claim of the petitioner. 3. The petitioner has no case that the estate was abandoned or cultivation was not continued. It is the finding of the Industrial Tribunal that all the seven workers were permanent workers engaged by Mr.M.P.Philip before purchase of the estate by the petitioner. Unless there is any evidence to show retrenchment or resignation of these workers on M.P.Philip and others selling the estate, it has to be assumed that the permanent employees continued their service. Since denial of employment from 21.8.1997 is proved, the Industrial Tribunal ordered reinstatement with 50% back wages. Even though there is no ground to interfere with the finding of the Tribunal with regard to entitlement of the workers for reinstatement, I feel the relief portion requires modification for several reasons. In the first place, the workers are admittedly disemployed for the last 11 years. Even though during pendency of the O.P. Section 17B application was filed, this court ordered payment only for one month. It is 3 stated that this amount is not paid and respondents have not pressed for payment already ordered or for later periods. In any case it is difficult to assume that the disemployed persons remained unemployed for over a decade. The area is generally covered by estates and therefore, there is no difficulty for the disemployed workers to get employment elsewhere. The management's case that they may be employed and settled elsewhere cannot, therefore, be rejected altogether. In the circumstances, I feel instead of ordering reinstatement under the same management, the aggrieved employees can be granted compensation. Accordingly O.P. is disposed of modifying the award by directing payment of compensation at the rate of rupees fifty thousand to each of the seven employees named in the award. In order to ensure that the amount reaches the workers, the petitioner is directed to give Demand Drafts for the amount in the name of each of the employees through the first respondent within one month from date of receipt of copy of this judgment. C.N.RAMACHANDRAN NAIR Judge pms