IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 WP(C).No. 20625 of 2003(E) -------------------------- PETITIONER: ---------------- THE MANAGING DIRECTOR, KERALA RUBBER AND RECLAIMS LTD., CARMEL CENTRE, BANERJI ROAD, KOCHI-18 BY ADV. SRI.B.N.SHIVSANKAR RESPONDENT: ------------------ K.C.RAJAN, VALIYAPARAMPATHU VEEDU, NEAR SANSKRIT COLLEGE ROAD, TRIPUNITHURA, ERNAKULAM. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20625 of 2003 ORDER ON I.A.NO.7432/2003 IN W.P.(C) NO.20625/2003 DISMISSED 09.01.2008. SD/- S. SIRI JAGAN, JUDGE. APPENDIX EXT.P1: COPY OF FINAL ORDER OF TERMINATION DTD 5.11.93. EXT.P2: COPY OF LETTER DTD 8.11.90. EXT.P3: COPY OF REPLY DTD 9.11.90. EXT.P4: COPY OF THE SHOW CAUSE DTD 31.3.392. EXT.P5: COPY OF LETTER DTD 10.3.92. EXT.P6: COPY OF REPLY DTD 7.4.92. EXT.P7: COPY OF SHOW CAUSE DTD 14.12.92. EXT.P8: COPY OF REPLY DTD 16.12.92. EXT.P9: COPY OF THE SHOW CAUSE DTD 7.1.93. EXT.P10: COPY OF REPLY DTD 11.1.93. EXT.P11(a): COPY OF LETTER DTD 24.3.93. EXT.P11(b): COPY OF LETTER DTD 28.4.93. EXT.P12: COPY OF CERTIFICATE DTD 23.11.91. EXT.P13: COPY OF LETTER DTD 14/5/93. EXT.P14: COPY OF THE REPLY DATED NIL. EXT.P15: COPY OF MEMO DTD 27.10.93. EXT.P16(a): COPY OF REPLY DATED NIL. EXT.P16(b): COPY OF REPLY DTD 28.10.93. EXT.P17: COPY OF AWARD IN I.A.NO.91/94 OF LABOUR COURT ERNAKULAM DTD 10.9.2002. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C) No.20625 OF 2003 ---------------------------------------- Dated this the 9th day of January, 2008 JUDGMENT The management in I.D.No.91/94 before the Labour Court, Ernakulam is the petitioner herein. They are challenging Ext.P17 award passed by the Labour Court in that I.D. The issue referred for adjudication was “Whether the termination of K.G. Rajan is justifiable or not? If not, what will be the relief entitled to him”. The workman’s contention before the Labour Court was that due to ill-health, the workman was absent for some days which absence was regularized by the management and later, on the ground of unauthorized absence, the petitioner’s services were terminated. The management contended that for the periods from June 1993 to October 1993 the workman was absent from duty for 58 ½ days in addition to 15 days ESI leave and because of the continued unauthorized absence of the workman, he was dismissed from service. After considering the evidence adduced by both sides, the Labour Court came to the conclusion that the W.P.(c)No.20625/03 2 termination of the workman involved was not justifiable and he was directed to be reinstated with half backwages and continuity of service. That award is under challenge in this original petition. 2. The contention raised in this original petition is to the effect that the finding of fact arrived at by the Labour Court is perverse. They would further raise a contention that the termination was in any way, not by way of punishment, but for the reason of continued ill-health and this does not amount to dismissal or retrenchment. 2. I have considered the rival contentions in detail. In Ext.P17 award the Labour Court found thus: “It is evident from Ext.M21 punching card of the workman for the month of November 1993 that he attended duty on first and second of November, he was on E.S.I. Leave on 3 rd and 4 th and he attended duty on 5 th and 6 th of November and Ext.M14 termination order is seen served on 6-11- 1993. When he attended for duty and his attendance marking on that day is seen cancelled and it is recorded in Ext.M21 that he was terminated from service w.e.f. 6-11- 1993. It is not disputed by the workman that he was suffering from Epilepsy complaint and was undergoing treatment from Sri Chitra Thirunal Medical Science and Technology, W.P.(c)No.20625/03 3 Trivandrum w.e.f.1988. His continuance of treatment was duly informed to the management and for some days the workman was availing E.S.I. leave. Thus it can be gathered from the evidence adduced from both sides that the workman was continuing treatment and so he had to avail leave and continuance of treatment was duly informed to the management. It is evident from Ext.W9 dated 8-10-1993 issued by the management to the workman that the workman sent his leave on 8-10-1993 at the gate and it was not sanctioned. The workman as WW1 has deposed that whenever he absented from duty he used to sent leave letter through his wife who will entrust the same to the security at the gate which was the normal practice. During chief examination and cross examination of WW1 he offered his willingness to face medical examination before a Medical Board to prove his fitness for duty. Further the workman had produced Ext.W16 medical certificate dated 15-12-1999 issued by the Chitra Thirunal Institute for Medical Science and Technology in which it is seen stated that since the past 5 years the workman is seizure free and off antiepileptic drugs. It is admitted by the management witness as MW1 that there is no approved standing orders available for the management company. Since the workman was a permanent employee of the management establishment his termination from service as per Ext.W14 without following the formalities contemplated in the I.D. Act is not W.P.(c)No.20625/03 4 sustainable in the eye of a law thereby it has to be found as unjustifiable. In view of the evidence adduced from both sides it can be found that the termination of Sri. K.G. Rajan the workman involved in the present case by the management is not justifiable and he is entitled to be reinstated with ½ backwages and continuity in service. Points are answered accordingly”. This finding was on the basis of material available before the Labour Court on record. From a reading of the award, I cannot persuade myself to accept the contention of the petitioner, the findings entered by the Labour Court on evidence is in any way perverse, without which I cannot interfere with Ext.P17 award in exercise of my discretionary jurisdiction under Article 226 of the Constitution of India. Therefore I do not find any merit in this writ petition and accordingly the same is dismissed. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.20625/03 5