IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 OP.No. 13614 of 1999(U) ---------------------------------- PETITIONER(S): ---------------------- 1. THE PRESIDENT, THE MOOTHEDAM SERVICE CO.OP. BANK LTD., NO.M-277, MOOTHEDAM P.O., VIA EDAKKARA, MALAPPURAM DISTRICT. 2. THE SECRETARY, MOOTHEDAM SERVICE CO.OP. BANK LTD., NO.M-277, MOOTHEDAM P.O., VIA EDAKKARA, MALAPPURAM DISTRICT. BY ADV. MR.K.M.SATHYANATHA MENON RESPONDENT(S): ------------------------- 1. A.P. ABDUL REHIMAN, S/O.MUHAMMED, ALIPARAMBIL HOUSE, P.O. MOOTHEDAM, MALAPPURAM DISTRICT, PIN-679 331. 2. THE COMMISSIONER FOR WORKMEN COMPENSATION (DY. LABOUR COMMISSIONER), KOZHIKODE. 3. THE SECRETARY, LABOUR DEPARTMENT, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. R2 & R3 BY GOVERNMENT PLEADER MR.ARAVINDA KUMAR BABU. R1 BY ADV. MR.V.V.SURENDRAN, MR.P.M.PADMANABHAN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 13614/1999-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PETITION FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT DTED 02/06/1993. EXT.P2: COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT DATED 22/01/1994. EXT.P3: COPY OF THE REJOINDER FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT IS PRODUCED HEREWITH MAY BE MARKED AND DATED 05/11/1994. EXT.P4: COPY OF THE PLAINT IN O.S.294/93 BEFORE THE MUNSIFF COURT MANJERI DATED 08/06/1993. EXT.P5: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS IN O.S.294/93 DATED 25/10/1993. EXT.P6: COPY OF THE DRAFT ISSUED FILED BEFORE THE MUNSIFF COURT IN O.S.294/93. DATED 29/01/1994. EXT.P7: COPY OF THE JUDGMENT IN O.S.294/1993. THE SUIT WAS DISMISSED BY THE LEARNED MUNISFF. DATED 11/07/1994. EXT.P8: COPY OF THE THE RECEIPTS PRODUCED AS EXT.R1 SERIES, DATED 02/11/1997. EXT.P9: COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY TO SHOW THAT THE 1ST RESPONDENT HAD VAILED TWO LOAN IN 1989, DATED 25/05/1999. EXT.P10: COPY OF THE PROCEEDINGS OF THE PART TIME ADMINISTRATOR DATED 03/03/1992. EXT.P11: COPY OF THE LETTER SENT BY THE 1ST RESPONDENT TO THE SECRETARY OF THE BANK, DATED 03/03/1992. EXT.P12: COPY OF THE 1ST PROCEEDINGS OF THE ADMINISTRATOR DATED 12/03/1992. EXT.P13: COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT IN SA.9/93 DATED 25/3/1998. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. V.K.MOHANAN, J. ------------------------- O.P. NO. 13614 OF 1999 ----------------------------------- DATED THIS THE 28TH DAY OF JULY 2009 JUDGMENT Challenging Ext.P3 order of the Commissioner for Workmens Compensation (Deputy Labour Commissioner), Kozhikode in S.A No. 9 of 1993 dated 25-3-1998, the management preferred this Writ Petition. 2. The 1st respondent herein is the appellant in S.A No.9/1993 filed under Section 18 of the Kerala Shops and Commercial Establishments Act 1960 ( in short 'the Act') before the appellate authority. The case is that he was working under the management (hereinafter referred to as 'the society') from 1-9-1983 as an attender and he has got 9 years of service. It is also his contention that he was paid at the rate of Rs.30/- from 1992 onwards and he was terminated all of a sudden from 5-5-1993 without giving any notice. By the impugned order the appellate authorities directed the petitioner herein to re-instate the appellant in service of the society within 30 days from the date of receipt of the impugned order with WP(C)NO. 13614 OF 1999 2 continuity of service and the respondent is if failed to re-instate the appellant within the stipulated period, the respondent was directed to deposit with the Commissioner an amount of Rs.1,01,400/- as compensation within 7 days payable to the appellant. If failure to re-instate within 7 days after 30 days of receipt of the order, revenue recovery proceedings will be initiated against the respondents with 12% interest from the date of default to deposit the amount. The above finding and order of the appellant authority is challenged in this writ petition. 3. The learned Counsel for the Petitioner Shri. K.M. Sathianatha Menon vehementally argued that the impugned order is liable to be set aside because of its perversity, illegality and arbitrariness. The main contention raised by the Counsel for the Petitioner is that the provisions of the Act is not attracted in the present case as the petitioner/management has not appointed the appellant as the attender of the society. Therefore the first respondent herein will not come within the definition of 'employee' as defined under WP(C)NO. 13614 OF 1999 3 Section 2(6) of the Act. It is also pointed out that in order to attract Section 18 of the Act there must be at least 6 months continuous service. In the present case there is no appointment order appointing the first respondent and there is no evidence to show that the workmen was continuously employed for a period of 6 months. In support of the above contention it is pointed out that employees can be appointed in the co-operative institutions those who are registered under the provisions of the Kerala Co-Operative Societies Act 1969, only with the previous sanction from the registrar and on the basis of the allotted strength and in the present case, no post was sanctioned as envisaged by provisions of the Societies Act and therefore no appointment was made as claimed by the first respondent. It is also the case of the Counsel for the Petitioner that, even if it is admitted that the first respondent was appointed as attender in the Society, the forum for the 1st respondent to raise a dispute under Section 16(9) of the Societies Act is before the Arbitrator. Thus according to the Counsel the 2nd WP(C)NO. 13614 OF 1999 4 respondent has no jurisdiction to entertain the Shop Appeal preferred by the 1st respondent. The further contention of the learned Counsel for the Petitioner is that the 1st respondent/appellant miserably failed to establish that he was appointed and continuously worked for more than 6 months under the petitioner/management. In the absence of such a crucial evidence, the 2nd respondent has committed wrong in allowing the Shop Appeal preferred by the 1st respondent. It is also pointed out that in view of Section 3 of the Act, the provisions of the Act are not applicable to the Society and therefore the 2nd respondent has no jurisdiction to entertain the appeal and hence on that ground also the appeal ought to have been dismissed. 4. On the other hand learned Counsel appearing for the 1st respondent/appellant pointed out that the materials produced by the petitioner/management before the 2nd respondent itself was sufficient to show that the 1st respondent was employed by the Society. The learned Counsel invited my attention to the WP(C)NO. 13614 OF 1999 5 deposition given by RW(1) before the 2nd respondent in which the said witness admitted that the workmen was engaged in the service of the society right from 1983. Thus according to the learned Counsel for the 1st respondent, Ext.P13 order passed on the basis of the evidence and materials on record and within the competence of the 2nd respondent and the order is no way tainted due to perversity, illegality or irregularity. 5. I have carefully considered the arguments advanced by the Counsels for the petitioner and first respondent and also the learned Govt. Pleader. As directed by this court the learned Govt. Pleader made available to me the records connected with the Shop Appeal 9/1993 from the custody of the 2nd respondent. 6. The specific contention of the 1st respondent appellant is that the earlier managing committee of the society appointed him as an attender on daily wages and he was promised that his service would be regularized. It is also his case that though he repeatedly approached them for regularization of his service the same was not WP(C)NO. 13614 OF 1999 6 considered and his service was terminated abruptly without any notice and not for any charge on misconduct. Thus according to the 1st respondent he had a total length of 9 years of service as attender in his credit under the petitioner/management. Thus he preferred Shop Appeal No. SA 9/1993 before the 2nd respondent. Thought the appeal is pertains to the year 1993, Ext.P13 order is dated 25-3-1998, about 5 years were taken for the disposal of the appeal. On completion of the pleadings, the matter was posted for evidence and from the side of the appellant and the management one witness each were examined as AW1 and RW1 respectively. From the side of the respondents Ext.R1 series of documents were marked. When the first respondent/appellant was examined he had deposed before the 2nd respondent in terms of the averments in Shop Appeal, the relevant portion of the oral deposition of the shop appeal reproduced in the impugned order. From which it can be seen that he was worked as an attender on 1983 August till May 1993. He was getting the salary promptly. According to the WP(C)NO. 13614 OF 1999 7 appellant he had received Rs. 750/- per month till 1993 April. He had admitted before the appellate authority that no appointment order was given to him. It is his case that the management committee who was in power during the year 1983 engaged him and it was the then President and Secretary appointed him. He also deposed that he was assured that his service would be regularized in the future and no notice was given when he was terminated. He had also deposed during the course of examination that occasionally he was submitting petitions before the management committee for regularization of his service. He had also submitted he had put his signature in the attendance register. He has specifically submitted that he had received the remuneration as monthly salary for which he had given voucher after putting his signature. Thus Ext.R1 series were proved through the first respondent/appellant. Thus going by the records it appears that the first respondent workmen had made out a case in support of his appeal preferred under Section 18 of the Act. WP(C)NO. 13614 OF 1999 8 7. The above claim of the first respondent/appellant was sought to be discredited and controverted by adducing evidence by the petitioner herein /management before the 2nd respondent appellant authority. With the above purpose they have examined one witness, who is none other than the Secretary of the society, as RW(1). The relevant portion of RW(1) is also extracted in the impugned order. RW(1) in his Chief Examination stated that it is not correct to say that the petitioner had worked continuously 9 years from 1983. He had also deposed that the appellant was appointed in accordance with the Co-operative Rules and Act. No appointment order was issued. He had categorically admitted that the Shop appellant/1st respondent herein had worked there till 1993. It is also deposed that the administrator appointed the appellant on temporary basis. He had also stated that but that appointment was subsequently cancelled as there was no sanction from the co- operative department. When RW(1) was subjected to cross examination, he had deposed that the appellant was terminated WP(C)NO. 13614 OF 1999 9 from the service before his assumption of charge. He had stated It is also deposed that “Daily wages It is also stated that after the termination of the petitioner from the service appointment was made to the post of attender. 8. The 2nd respondent/appellate authority after evaluation of the evidence, which consists of documentary and oral, came into the conclusion that the case put forward by the 1st respondent is correct. 9. The learned Counsel vehementally argued that in the absence of any appointment order especially when no post is sanctioned by the co-operative department, it cannot be held that the first respondent was an employee of the society. In support of the above submission he had invited my attention Clause 2(6) of the Kerala Shops & Commercial Establishments Act 1960 which reads; “Employee” means “a person wholly or principally employed in, and in connection with, any establishment and includes an apprentices” WP(C)NO. 13614 OF 1999 10 Thus on the basis of the above definition, the learned Counsel submits that as there is no appointment order in favour of the first respondent and he had occasionally engaged on a daily wages, he will not get the status of an employee. It is also the contention of the learned counsel that in order to attract Section 18 it has to be established that the first respondent employee was employed continuously for a period not less than 6 months but in the present case there is no evidence or claim that he was continuously employed for not less than 6 months. According to the learned counsel for the petitioner, the casual engagement on daily wages are not sufficient to invoke the appellate jurisdiction under Section 18 of the Act. I am unable to accept such contention. Neither Section 2(6) or Section 18 of the Act says that only the regularly appointed persons can be treated as an employee and invoke Section 18 of the Act. As correctly observed by the 2nd respondent/appellate authority, the Kerala Shops and Commercial Establishments Act 1960 is of a welfare legislation so as to protect WP(C)NO. 13614 OF 1999 11 the employees- workmen engaged by the shop owners and to prevent them terminating the service of such employees illegally and according to the whims and fancies of such employers. Thus if an employee is succeeded to show that he had worked not less than 6 months under an employer definitely he is entitled to get the benefit of the provisions contained in the Act. The contention of the learned counsel for the petitioner that department did not sanction the post and therefore no appointment were made etc.. are too strange to accept. When an employee or workmen engaged or appointed for work, he cannot insist the employer to bring the order of sanction of the post and unless showing the appointment order he will not join for duty etc.. In the present case even according to the management it not disputed that he had been engaged as an attender. The dispute is that he was not continuously employed for not less than 6 months and the specific contention to the effect that the first respondent was engaged only on daily wages and therefore he is not entitled for the status of an employee as contemplated WP(C)NO. 13614 OF 1999 12 under Section 2(6) of the Act. In the present case the evidence of the management is fully in support of the claim of the appellant. I have already referred to the evidence. The Ext.R1 series of document marked as evidence of management shows that the appellant was working under the management for more than 6 months. In this juncture it is relevant to note these documents are not produced by the Shop appellant but by the management. There is no claim or evidence to show that the management has produced the entire records which are available with them with respect to the payment of wages to the first respondent. The learned Counsel for the first respondent pointed out Ext.P10 produced by the management along with the Writ Petition is an appointment order allegedly issued by the then administrator which bearing the date 3-3-1992. Of course after Ext.P10 the appointment was cancelled by Ext.P12 dated 12-3-1992. This shows that the petitioner was appointed after the period covered Ext.R1 series of document. Ext.R1 series covered period before and after Ext.P10, besides the WP(C)NO. 13614 OF 1999 13 above documentary evidence, we have the oral evidence of RW(1) recorded by the appellate authority. He deposed that it is correct to say that the first appellant worked up to 1993. Besides the above he had positively deposed before the appellate authority that it is correct to say that the first respondent was there from 1983 onwards. The above oral evidence has to be appreciated as the truth experienced by RW1 as pointed out by the Counsel of the first respondent. RW(1), when he was examined, deposed before the appellate authority, as the Secretary of the management society. But he was working in that society even before his assumption of charge as Secretary and therefore he was fully aware of the engagement of the first respondent workmen. So the substantiative evidence adduced by RW(1) cannot be ignored especially when the matter related to the termination of an employee in an appeal preferred by the terminated employee. On evaluation of the evidence of RW(1) and the documentary evidence under such a legal premises and factual scenario, I am of the view that the 2nd WP(C)NO. 13614 OF 1999 14 respondent is absolutely correct in holding that the first respondent/appellant was employed by the petitioners /management and his termination without notice is illegal. 10. As per Ext.P13 order petitioner was directed to pay compensation of Rs. 1,01,400/- on the basis of the calculation as borne out from Ext.P13 order itself. The figures were arrived on the basis of the materials on record and evidence and therefore I find no error or irregularity or illegality in fixing the compensation. The 12% interest is only a statutory one and no interference is called for on that reason. 11. In the light of the above facts, circumstances and discusions especially in the light of the materials which referred above, I find no perversity or illegality in Ext.P13 order issued by the 2nd respondent. This court while exercising jurisdiction under Article 226 of the Constitution of India is not expected to conduct an inquiry regarding the sufficiency of evidence and appreciation of the same since this court is not exercising appellate jurisdiction WP(C)NO. 13614 OF 1999 15 over the appellate authority constituted under the provisions of the above Act. As there is no perversity or illegality with Ext.P13 order and Ext.P13 order is within the jurisdiction of the 2nd respondent, I find no reason to interfere with Ext.P13 order. In the result there is no merit in the Writ Petition, the same is dismissed. V.K.MOHANAN JUDGE pkk