IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 WP(C).No. 6595 of 2007(I) ------------------------------ PETITIONER(S): ------------------ P. GIRILAL, S/O.PARAMESWARAN, CHAKKUVANTAZHIKATHU VEEDU, MAYYANAD, ERAVIPURAM, KOLLAM. BY ADV. SRI.K.ABDUL JAWAD RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LABOUR DEPARTMENT, THIRUVANANTHAPURAM. 2. DISTRICT LABOUR OFFICER, KOLLAM. 3. R. JAYAKUMAR, S/O.RAGHAVAN PILLAI, PULILYARA VAYALIL, VALATHUNGAL P.O., ERAVIPURAM, KOLLAM. 4. LABOUR COURT, KOLLAM. ADV. SRI.P.B.SURESH KUMAR FOR R3 GOVT.PLEADER SRI.M.A.ASIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.6595/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE AWARD DT 25.10.2003 IN ID NO.38/03 PASSED BY LABOUR COURT, KOLLAM. EXT.P2: TRUE COPY OF THE CLAIM PETITION NO.48/06 FILED BY 3RD RESPONDENT. EXT.P3: TRUE COPY OF THE REFERENCE ORDER DT 22.2.2003 ISSUED BY GOVERNMENT. EXT.P4: TRUE COPY OF SALE LETTER DT 25.4.2002. EXT.P5: TRUE COPY OF THE AGREEMENT 1/5/02 ENTERED INTO BETWEEN PETITIONER AND ONE SAMUEL KOCHI. EXT.P6: TRUE COPY OF THE CLEARANCE CERTIFICATE ISSUED BY THE MOTOR VEHCILE DEPARTMENT EXT.P7: TRUE COPY OF THE DEMAND NOTICE SENT BY UNION DT 13.10.2000. EXT.P8: TRUE COPY OF THE SALE AGREEMENT DT 29.7.01. EXT.P9: TRUE COPY OF THE ORDER DT 1.1.2002 IN CRL.M.P.NO.1077/2002 ON THE FILE OF JUDICIAL 1ST CLASS MAGISTRATE COURT, KOLLAM. EXTS.OF R3 EXT.R3(a): TRUE COPY OF THE ACKNOWLEDGEMENT CARD SIGNED BY THE PETITIOERN EVIDENCING RECEIPT OF NOTICE IN ID NO.38/2003 from the LABOUR COURT DT 12/6/2003. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. ============== W.P.(C) NO. 6595 OF 2007 (I) ==================== Dated this the 19th day of February, 2009 J U D G M E N T The challenge in this writ petition is against Ext.P1, an award passed by the Labour Court, Kollam in ID No.38/03. The issue referred for adjudication was the following. Whether the denial of employment to Sri.R.Jayakumar, Conductor of KL-.2 E 594. I.T.C.Motors (Bus Service), Karukuzhy, Mayyanadu P.O, Kollam with effect from 7.9.2001 is justifiable? If not, what relief is entitled to him. 2. It is seen that the petitioner, who was arrayed as the employer remained absent in the Labour Court and therefore he was set ex parte. On that basis, accepting deposition of the workmen regarding employment and its denial, the Labour Court passed Ext.P1 Award holding that the workmen was denied employment illegally w.e.f. 10/11/2001 and on that basis directed the petitioner to reinstate the workmen with full back wages and continuity of service from 10/11/2001 till reinstatement. 3. According to the petitioner, he was not in the know of the developments before the Conciliation Officer or the Labour Court and that he came to know of all these only after he received Ext.P2, a petition filed by the workmen before the Labour Court under Section 33 C(2) of the WPC 6595/07 :2 : Industrial Disputes Act for quantifying and paying the monetary benefits due under Ext.P1 Award. Petitioner submits that thereupon he made enquiries and came to know of the Award and it was thereupon this writ petition has been filed. 4. On the direction of this Court, the petitioner has filed an affidavit dated 18th of July, 2007, where he says that he did not get notice in the conciliation proceedings or from the Labour Court and that he was unaware of the developments. It is stated that the alleged service of notice was also incorrect and that during the relevant period, he was in the gulf countries from 1986 onwards and had worked there till 2003. He reiterates that he came to know of the proceedings only in December, 2006 when he was served with Ext.P2. 5. On merits, the counsel for the petitioner contends that the alleged termination of service was on 10/11/2001. According to him, the petitioner came into possession of the vehicle in which the workmen was claiming to be employed, only by Ext.P4 w.e.f. 24/5/2002. It is stated that even Ext.P7 notice issued by the Union was addressed to three other persons and his name is not even mentioned in the notice. It is also stated that from Chandran Pillai mentioned in Ext.P7, a person called Sudhakaran Pillai acquired the vehicle. It WPC 6595/07 :3 : is stated that while the vehicle was under the ownership of Sudhakaran Pillai, it was seized by the police and by Ext.P9 order dated 01/04/2002 of Chief Judicial Magistrate, Kollam , Sudhakaran Pillai got the vehicle released from police custody. It is stated that all these documents prove that he was not the owner of the bus at the time when the alleged termination of service took place on 10/11/2001. Petitioner submits that there was no wilful latches on his part and therefore seeks an opportunity to contest the case on merits. 6. Prima facie, there appears to be some substance in the contentions now raised, and in any case, these are matters of questions of fact which will have to be urged before the Labour Court and it is for that Court to appreciate the same. 7. As already noticed, the petitioner was absent when the proceedings were pending before the Labour Court. It is the case of the petitioner that he was out of station and that he did not have any notice in the proceedings. This contention is contradicted by the counsel for the workmen and he alleges that the petitioner chose to keep away from the proceedings. 8. Even if I am willing to concede that there has been default on the part of the petitioner, still from Ext.P1 award, what I notice is that not even a scrap of paper was produced by the workmen to prove his employment under WPC 6595/07 :4 : the petitioner. In such a situation, especially in the light of the materials produced by the petitioner to contend that the workmen was not under his employment, I feel the petitioner is entitled to have another chance to contest the case on merit. 9. However, in view of the default that was committed, such opportunity can be given only on terms. 10. Accordingly, I quash Ext.P1 award rendered by the Labour Court, Kollam in ID No.38/03, on condition that within 3 weeks from today, the petitioner shall deposit with the Labour Court, an amount of Rs.7,500/- towards cost. It is made clear that the workmen will be at liberty to get the amount released. On deposit as above, the Labour Court shall reconsider ID No.38/03 with notice and opportunity to both sides and render a fresh award . 11. It is made clear that if payment is not made before the Labour Court as directed, the Award will stand restored and the Ext.P2 proceedings will continue. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp