IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 WP(C).No. 16540 of 2006(R) --------------------------------------- ID.63/2003 of LABOUR COURT, KOLLAM .................... PETITIONER(S): ------------------------- K. SURESH BABU, SREERAMA MANDIRAM, THAZHUTHALA, KOTTIYAM P.O., KOLLAM. BY ADVS.MR.T.M.CHANDRAN MR.S.SUJITH RESPONDENT(S): ------------------------- 1. THE SECRETARY, QUILON DISTRICT PRIVATE MOTOR AND ENGINEERING MAZDOOR SANGH, MAZDOOR BHAVAN, THAMARAKULAM, KOLLAM. 2. THE LABOUR COURT, KOLLAM. BY ADVS. SMT.K.GIRIJA FOR R1 AEI.SANU.S.PANICKER FOR R1 BY GOVT. PLEADER MR.P.NARAYANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2009, ALONG WITH WPC NO. 26946 OF 2006 WPC NO. 3786 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.16540/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE CLAIM STATEMENT DT. 3.8.04 FILED BY THE IST RESPONDENT UNION. P2:- COPY OF THE WRITTEN OBJECTION DT. 6.12.04 FILED BY THE PETITIONER. P3:- COPY OF THE COUNTER AFFIDAVITFILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P4:- COPY OF THE PROVISIONAL DETERMINATION ORDER NO.B1/EQ.578/2001-02 DT.3.6.02 FOR THE YEAR 2001-02 IN RESPECT OF KL.01 D/8212. P5:- COPY OF THE FINAL DETERMINATION ORDER NO.B1/EQ/578/01-02 DT. 29.6.02. DO. P6:- COPY OF THE FINAL DETERMINATION ORDER NO.B1 EQ 578/02-03 DT. 27.6.03 FOR THE YEAR 02-03 DO. P7:- COPY OF THE MEMORNDUM OF SETTLEMENT DT. 28.8.01. P8:- COPY OF THE FINAL DETERMINATION ORDER NO.B1 EQ 511/99-2000 DT. 6.11.2000 FOR THE YEAR 1999-2000 IN RESPECT OF KL.2 B/2129. P9:- COPY OF THE AWARD DT. 25.2.06 IN ID. 63/03 PASSED BY THE 2ND RESPONDENT. P10:- COPY OF THE CLAIM PETITION FILED BY IST RESPONDENT DT. 26.7.06 BEFORE THE 2ND RESPONDENT. P11:- COPY OF THE SUMMONS ISSUED BY 2ND RESPONDENT TO THE PETITIONER DT. 12.9.06. P12:- COPY OF THE CERTIFIED COPY OF DEPOSITION OF W.W.1 SRI.B.SOBANAN. P12(a):- COPY OF THE EXT.P12 FOR EASY RESIDING. P13:- COPY OF THE CERTIFIED COPY OF DEPOSITION OF W.W.2 SRI.RAJENDRAN PILLAI. P13(a):- COPY OF THE EXT.P13. P14:- COPY OF THE CERTIFIED COPY OF DEPOSITION OF M.W.1 SRI.SURESH BABU. P14(a):- COPY OF THE EXT.P14. P15:- DO OF MW 2 SRI.BIJU . 15(a):- COPY OF THE EXT.P15. W.P.(C) NO.16540/2006 RESPONDENT'S EXHIBITS R1:- ORDER PASSED BY THE LABOUR COURT IN CLAIM PETITION NO.44/08. R1(a):- COPY OF THE EXT.W4 MARKED BY THE LABOUR COURT , KOLLAM. R1(b):- COPY OF THE EXT.W5 MARKED BY THE LABOUR COURT, KOLLAM. R1(c):- COPY OF THE EXT.W6 MARKED BY THE LABOUR COURT, KOLLAM. R1(d):- COPY OF THE EXT.W7 MARKED BY THE LABOUR COURT, KOLLAM. R1(e):- COPY OF THE EXT. W8 MARKED BY THE LABOUR COURT, KOLLAM. R1(f):- COPY OF THE EXT.W9 MARKED BY THE LABOUR COURT, KOLLAM. TRUE COPY P.S. TO JUDGE TSS V.GIRI, J. ---------------------------------------- W.P.(C).No.16540 & 26946 of 2006 & 3786 of 2008 ---------------------------------------- Dated this the 18th day of June, 2009. JUDGMENT The issue involved in these writ petitions are inter-connected and to some extent, the decision in W.P. (C)No.16540/06 will govern the other two writ petitions. Therefore, they have been heard together and they are disposed of by this common judgment. I will, therefore, refer to W.P.(C)No.16540/06 in the first instance. 2. The petitioner is the owner of two stage carriages bearing registration Nos.KL-01-D/8212 and KL.2b/2129. The first vehicle was known as Sarada bus and the second vehicle was known as Priya Bus. The 1st respondent claimed that one Sri.Sobhanan, who was employed as a cleaner was denied employment and therefore, the following issue was referred to the Labour Court. W.P.(C).No.16540 of 2006 & con.cases :: 2 :: “Whether the management of KL-01- D/8212 Sarada Bus, Kottiyam, Thazhuthala, Kollam has denied employment to Sri.Sobhanan, Cleaner? If so what relief he is entitled to?” 3. The parties adduced evidence and ultimately, the Labour Court framed the following points for consideration: (1) Whether worker Sobhanan is a reguar employee of the Bus KL-01-D/8212 ? (2) Whether there was denial of employment as alleged? 4. The tribunal found that the workman is regular employee of bus KL-01-D/8212, that there was denial of employment and consequently passed an award directing reinstatement with 60% back wages. The said award had been challenged in W.P.(C)Nos.16540/06 and 26946/06 by the management and the Union respectively. 5. In the meanwhile, though there was an order of stay in W.P.(C)No.16540/06, the same was later W.P.(C).No.16540 of 2006 & con.cases :: 3 :: modified and this enabled the workman to prosecute his claim under Section 33(c)(2) of the Industrial Disputes Act, before the Labour Court. The claim was allowed and the order passed in the claim petition has been challenged in W.P.(C)No.3786/08 by the management. 6. I heard Mr.T.M.Chandran, learned counsel for the petitioner and Mr. Saju S.Paniker, learned counsel for the respondent Union. 7. The evidence adduced before the Labour Court essentially consisted of Exts.M1 to M5 adduced on behalf of the management and W1 to W10 on behalf of the Union. The owner of the bus was examined as MW.1 and another cleaner stated to be employed in the bus KL-01- D/8212 viz., Sarada bus as MW2. Ext.M1 is the final determination order passed by the assessing authority under the Motor Transport Workers Welfare Fund Act. So also Exts.M4 and M5 are the orders passed by the said authority. Ext.W1 adduced on behalf of the workman is W.P.(C).No.16540 of 2006 & con.cases :: 4 :: stated to be the memorandum of settlement arrived at between the parties on 28.8.2001. Exts.W4 to W9 are stated to be the letters issued by the Union Secretary to the Management or to the District Labour Officer. The letters are stated to have been issued after the settlement, alleging non-compliance with the settlement. 8. The Labour Court proceeded to find that the workman was a regular employee. The Labour Court, in this regard, did not accept the probative value of M4 and M5 on the ground that the names of driver and cleaner are provisionally determined and therefore, the absence of the name of the workman is of no consequence. MW.2 was examined as a cleaner of vehicle No.KL-01-D/8212. But Ext.P8 produced in the writ petition, which is the same as Ext.M5 will show that one Baiju was the cleaner in KL.2b/2129. According to the workman, Baiju shown in M5 was MW.2; that he has accepted this fact and therefore the management's claim that M.W2 was employed as a cleaner W.P.(C).No.16540 of 2006 & con.cases :: 5 :: in vehicle No.KL-01-D/8212 was proved to be false. According to the petitioner, Exts.P4 and P5 will show that the cleaner in vehicle No.KL-01-D/8212 was Biju and the person noted as Baiju in Ext.P8 was only a mistake. Ext.P5 produced before this court was not produced before the Labour Court. The contention raised by the management cannot be completely ruled out. But what seems to have significantly weighed with the Labour Court was Exts.W4 to W10, produced on behalf of the workman. Those are, as stated above, letters sent by the Union or the Workman to the District Labour Officer or to the management and particular reference is made by the workman to Ext.W9 stated to have been submitted by the owner of the bus before the District Labour Officer, wherein he has taken up the contention that the workman was employed temporarily. This, learned counsel for the workman would juxtapose with the stand taken before the Labour Court that the workman is never employed by the management. W.P.(C).No.16540 of 2006 & con.cases :: 6 :: This will show that the management had no consistent case before the Labour Court, it is contended. 9. I would have accepted this contention of the workman, but for one fact. Exts.W4 to W10 came to be marked through WW2, the Secretary of the Union, after recalling the said witness. No doubt, the management got an opportunity to cross-examine the witness. But, I note the fact that specific questions have been asked in the cross-examination of WW2 as regards the acceptability and even the genuineness of Exts.W4 to W10 and in particular, there was a question as to whether the owner of the bus had signed Exts.W8 and W9. In these circumstances, the witnesses examined on behalf of the management did not get an opportunity to specifically depose regarding these documents Exts.W4 to W10. Had it been marked earlier i.e. before the witness was recalled, the owner of the bus could have either examined himself or called upon the District Labour Officer to testify as regards Exts.W4 to W10. W.P.(C).No.16540 of 2006 & con.cases :: 7 :: 10. I also find force in the submission made by Mr.Chandran, learned counsel for the petitioner that all along the petitioner had disputed the settlement Ext.W1. The settlement in question cannot be considered as one arrived at in the course of conciliation between the parties. The owner of the bus had disputed the signature. No doubt, as pointed out by learned counsel for the workman, the issue which referred was not whether the settlement was proper or binding. The issue was whether there was denial of employment. The settlement, at best will be, only a piece of evidence to indicate whether the workman was employed and if so, whether he was denied employment. But, in circumstances where the owner of the bus had denied his signature in Ext.W1, the best evidence possible in the circumstances would have been, to summon the District Labour Officer in this case to speak on the question as to whether the workman had actually sent two communications stated to have been sent by him or by W.P.(C).No.16540 of 2006 & con.cases :: 8 :: the Union Secretary to the District Labour Officer and whether District Labour Officer had actually tried to bring about a settlement between the parties and if so, whether the owner of the bus had submitted a statement like Ext.W9 before the District Labour Officer. Accordingly, I think it is only appropriate that management be given an opportunity to summon the District Labour Officer to speak on the above aspects. 11. In the circumstances, I am of the view that the issue must be reconsidered by the tribunal. Accordingly, Ext.P9 award in W.P.(C)No.16540/06 and Ext.P1 award in W.P.(C)No.26946/06 is set aside and the Labour Court, Kollam is directed to pass a fresh award, after giving parties sufficient opportunity to adduce evidence, keeping in mind the observations made above. A revised award shall be passed within six months from the date of receipt of a copy of this judgment. I make it clear that it is up to the management to summon the District W.P.(C).No.16540 of 2006 & con.cases :: 9 :: Labour Officer for the purpose aforementioned and the onus of proving, that Exts.W4 to W10 were actually not sent/submitted either to the District Labour Officer or to the Union Secretary, will lie on the management and if they fail to discharge the burden, the Labour Court shall draw necessary inference therefor. 12. I further make it clear that the Labour Court shall consider whether the workman is entitled to 100% back wages and in this case, the Labour Court shall not be influenced by the view already taken to the effect that the workman is entitled to 60% back wages. If the workman is entitled to reinstatement, then unless there are special circumstances, the workman shall also be entitled back wages for the entire period. 13. In view of the fact that the award under challenge has been set aside, it follows that the orders passed by the Labour Court in the claim petition and challenged in W.P.(C)No.3786/08 also requires to be set W.P.(C).No.16540 of 2006 & con.cases :: 10 :: aside. Accordingly, Ext.P4 order in W.P.(C)No.3786/08 shall stand set aside. The workman will be entitled to file a fresh claim petition, depending upon the award that has to be passed afresh. 14. In the circumstances, it is made clear that whatever be the award that the Labour Court may pass the pursuant to the direction issued by this court, the workman shall not be called upon to refund the amount of Rs.50,000/-, which has already been deposited, pursuant to the direction of this court. Writ petitions are disposed of as above. Sd/- (V.GIRI) JUDGE sk/ //true copy//