IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 WP(C).No. 21707 of 2005(H) ------------------------------------- PETITIONER: -------------------- BENNY THOMAS, PROPRIETOR, BENNY & CO., CHEMIST & DRUGGIST, THIRUVALLA. BY ADV. SRI.S.SUBHASH CHAND RESPONDENTS: ----------------------- 1. K.P.JACOB, KALATHILPARAMBIL VEEDU, CHALAKUZHY MURI, AZHIYIDATHU CHIRA, THIRUVALLA. 2. LABOUR COURT, KOLLAM. BY ADV. SRI.A.X.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2008, ALONG WITH WP(C) 27008 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21707 of 2005(H) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE COMMUNICATION DATED 6/6/1997 ISSUED BY THE LEARNED PRESIDING OFFICER OF THE LABOUR COURT, KOLLAM TO THE SECRETARY TO GOVERNMEN, LABOUR (A) DEPARTMENT ALONGWITH THE AWARD DATED 19/11/1996. EXT.P2 - TRUE COPY OF THE APPLICATION BEARING CMP NO. 194/97 IN ID NO. 25/95. EXT.P3 - TRUE COPY OF THE APPLICATION BEARING CMP NO. 195/97 IN ID NO. 25/95. EXT.P4 - TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN CMP NO. 194/97 IN I.D. NO. 25/95. EXT.P5 - TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER IN CMP NO. 195/97 IN I.D. NO. 25/95. EXT.P6 - TRUE COPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONER IN CMP NO. 195/97 IN ID NO. 25/95. EXT.P7 - TRUE COPY OF THE AWARD DATED 29.1.2005 PASSED BY THE LABOUR COURT, KOLLAM. /TRUE COPY/ PA TO JUDGE rhs S.SIRI JAGAN, J ======================= W.P(C)Nos.21707 & 27008 of 2005 ======================= Dated this the 27th day of August, 2008. J U D G M E N T Both the management and workman in I.D. No.25/1995 before the Labour Court, Kollam, is challenging the award in that I.D. The award is Ext.P7 in W.P.(C)No. 21707 of 2005 and P1 in the other. In this judgment, for convenience, refer to the same as Ext.P7 as marked in W.P.(C) No. 21707/05. The issue referred for adjudication was: “Dismissal of Sri. Jacob K.P., Salesman, Benny & Co., Thiruvallay with effect from 14.10.1993.” The management took a dual contention; one is that the workman's services were terminated for the misconduct of unauthorised absence. The 2nd was that he abandoned employment and accepted employment elsewhere. On both, the Labour Court found against the management and the management was directed to reinstate the workman with 30% back wages. The management is challenging award as a whole and the workman is challenging that part of the award whereby a back wage is restricted to 30%, in these two writ petitions. 2. I have heard both sides. W.P(C)Nos.21707 & 27008 of 2005 - 2 - 3. The fact that, the workman was employed by the Management was not in dispute. Their contention was that while being so employed attendance of the worker was irregular and he did not properly respond to the warnings issued. The contend that the workman did not turn up duty from 18.8.1993 onwards and later he accepted employment in another medical shop at Chengannoor and thus abandoned the employment with the management. The management did not have a case that they had initiated any disciplinary action against the workman for any misconduct. The workman examined himself as a witness that the management did not cross examine which is not disputed by the management. The workman categorically stated on his service where terminated and he did not get any employment any where else as stated by the management. His testimony being uncontravereted the management cannot now contend to the contrary in respect of both aspects and proved his case in the claim statement. In the award it is stated discussion of evidence in Ext.P7 award, I do not find anything therein even remotely suggesting any perversity in the findings therein. I can interfere with award in an industrial dispute only if I find perversity in the findings on W.P(C)Nos.21707 & 27008 of 2005 - 3 - evidence, which is the settled law. That being so, I do not think that it would be justified in interfering with the award. The next question is as to whether the workman is entitled to backwages in excess of what has been awarded by the Labour Court. The management filed the writ petition on 20.7.2005 ie more than three years ago, the workman has not filed any application for wage, under Section 17B of the Industrial Disputes Act. That would go to a great extent to infer that the workman was alternatively employed. I am unable to find that all these years after dismissal the workman would be sitting idle at home. In such circumstances, I do not find any justification to interfere with the restriction of backwages to 30% in the award. Accordingly, both writ petitions are dismissed. S.SIRI JAGAN, JUDGE rhs