Anil Kumar P. v Labour Court Kannur and Balakrishnan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 18TH SEPTEMBER 2007 / 27TH BHADRA 1929 WP(C).No. 13602 of 2006(T) ----------------------------------------ID.11/2002 of LABOUR COURT, KANNUR .................... PETITIONER: ------------------ ANILKUMAR.P, AGED 42 YEARS, S/O.KELUKKUTTY, PUTHIYONAN HOUSE, KUTTIKKAKAM.P.O, EDAKKAD-670 663, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENTS: ----------------------- 1. THE LABOUR COURT, KANNUR. 2. P.BALAKRISHNAN, PUTHELATH VEEDU, PATEL ROAD, P.O.CHIRAKKAL-670 011, KANNUR DISTRICT. BY ADV. SRI.PAULSON C.VARGHESE GOVERNMENT PLEADER SMT. M.R. SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/09/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)NO.13602/2007 ## APPENDIX ## PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE NOTICE DATED 18.11.1999. EXT.P1(A) TRUE COPY OF THE COMPLAINT DATED 15.11.1999. EXT.P2: TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN I.D.NO.11/2002. EXT.P3: TRUE COPY OF THE REJOINDER DATED 15.11.1999. EXT.P4: TRUE COPY OF THE CHIEF AFFIDAVIT. EXT.P5: TRUE COPY OF THE AFFIDAVIT BEFORE THE 1ST RESPONDENT. EXT.P6: TRUE COPY OF THE AWARD DATED 27.10/2005. EXT/.P7: TRUE COPY OF THE CLAIM PETITION DATED 11.4.2006. EXT.P7(A): TRUE COPY OF THE SUMMONS DATED 20.4.2006. EXT.P8: TRUE COPY OF THE REGISTER OF WAGES. EXT.P8(A): TRUE COPY OF THE REGISTER OF WAGES. EXT.P9: TRUE COPY OF THE MUSTER ROLL SHOWING THE NAME OF THE 2ND RESPONDENT FROM 1.6.2001 TO 31.2.2003. EXT.P10: TRUE COPY OF THE WAGES SLIP DATED 2.12.2000. EXT.P11: TRUE COPY OF THE RECEIPTS AND AGREEMENT. EXT.P12: TRUE COPY OF THE LETTER DATED 14.11.2005. TRUE COPY PA TO JUDGE. ## **S. SIRI JAGAN, J. ------------------------------W.P.(C)NO. 13602 OF 2006 ---------------------------------DATED THIS THE 18[th] DAY OF SEPTEMBER, 2007** ## **JUDGMENT** The petitioner is the management in I.D.No.11 of 2002 before the Labour Court, Kannur. He is challenging Ext.P6 award of the Labour Court in that I.D. The issue referred for adjudication was, “Whether the denial of employment to Sri. P. Balakrishnan, Worker from 8.11.1999 is justifiable? If not, what relief the workman is entitled to?” 2. The workman, the 2[nd] respondent herein claimed that he was a dyer employed in Ajith Textiles, Kuttikkakam P.O., Edakkad, Kannur which is owned by the petitioner herein. He contended that on 6.11.99, the management asked him to carry a bundle of yarn from a distance, which according to him was not his work as a dyer. Further, his health did not permit such carrying of yarn and therefore he informed his inability to carry out the said work. On 8.11.99 when the worker reported for duty W.P.(c)No.13602/06 2 after the intervening Sunday, the workman was denied employment without any notice or compensation. Therefore, he claimed reinstatement in service with backwages. 3. The contention of the management before the Labour Court was that the workman was engaged only as a casual employee as a helper in the dyeing section occasionally. He would submit that on 6.11.99 the workman refused to carry out his work as a helper and on the following day which was Sunday the workman abused the petitioner in a drunken state. Thereafter the workman never turned up for work was the case of the management. 4. According to the petitioner, the management never denied employment to the workman and the workman on his own abandoned the employment. There was no documentary evidence in the case. The workman gave evidence himself and the petitioner gave evidence on behalf of the management. The Labour Court after weighing the evidence of both came to the conclusion that the version put forward by the workman is to be believed and the petitioner cannot be believed. On that assessment of the evidence, the Labour Court entered a 3 W.P.(c)No.13602/06 finding that the workman was denied employment from 8.11.99 onwards and since the denial of employment was unjustified, the workman was directed to be reinstated in service with 25% backwages. That award is under challenge before me. 5. The challenge is on the ground that the findings entered by the Labour Court are not supported by the evidence adduced by the petitioner before the Labour Court. According to the petitioner, it was for the workman to prove his case by producing documents regarding his work and denial of employment which according to the petitioner the workman has not discharged. He also relies on the decision of **BATALA** ## **COOP. SAGAR MILLS LTD vs. SOWARAN SINGH (2005(8)** **SCC 481)** which is to the effect that the burden of proof lies on the workman to prove his case. 6. On the other hand, the learned counsel for the 2[nd] respondent workman would say that the question of adducing documentary evidence does not arise in this case since the petitioner himself admitted that he does not maintain any records which he is statutorily liable to maintain as per law W.P.(c)No.13602/06 4 which was the finding entered by the Labour Court. According to the workman, when the petitioner himself admitted that the petitioner was actually employed by him, it was for him to prove that such employment was in a casual or temporary manner which the petitioner has palpably failed to do. He would further contend that the fact of denial of employment can be proved only by oral evidence since an employer who denies employment to a workman illegally would not leave any documentary evidence of the same. He would also point out that he had filed a petition before the Labour Court directing the management to produce muster roll and wage register of permanent workers as well as temporary and casual workers for the year 1999 which the petitioner was statutorily liable to maintain which has not been produced, instead he claimed that his being a small establishment is not maintaining such records. That being so an adverse inference can be drawn against the petitioner is the submission made by the 2[nd] respondent. On these contentions, the counsel for the workman would support Ext.P6 award. 7. I have considered the rival contentions in detail. W.P.(c)No.13602/06 5 This is a case, where there is no documentary evidence. Evidence available is that of the workman against that of the management-petitioner. The only question is as to who should be believed. The Labour Court weighed the oral evidence of both and came to the conclusion that the petitioner cannot be believed. Cogent reasons have also been stated in the award. The Labour Court found that in cross examination the petitioner was not able to discredit the evidence of the workman. On the other hand, all replies given by the petitioner while giving evidence were evasive. In cross examination, as MW1, the petitioner stated that he did not understand that the case of the worker is that he is working as a dyer in the dying section. He stated that he does not remember as to whether it is admitted in the written statement that the workman is employed in the dying section. Although he admitted that there is an establishment belonging to his mother engaged in textile business he denied knowledge of the name of that establishment. He even went to the extent of saying that he was not bound to know the same. He stated that he did not remember whether there was a factory prior to W.P.(c)No.13602/06 6 the starting of the dying house. He denied knowledge about the premises where the dying work of the Textile belonging to his mother was being conducted. He further stated that the dying work was not done by the dyer in the dying unit but it was done by the helper. The Labour Court came to the conclusion that since the petitioner has stated that the person, who was conducting the dying job, is not called for dying, the petitioner was deliberately trying to twist the facts. The petitioner stated that he was not maintaining any registers as required under law. He could not also state anything about the details of the wages paid to the employees. He admitted that the workman was directed to carry bundle of yarn which the workman refused, which was exactly the case of the workman also. Although he claimed that the workman came in a drunken state and abused him, he admitted that he had not taken any proceedings against the workman for the same. In fact at one time, the petitioner even admitted that the job of the workman was to wash yarn but he claimed that the actual dying was done by the helper. At the same time, he contended that the workman was not a dyer but only a helper. W.P.(c)No.13602/06 7 The petitioner stated in his deposition that there was another helper by name Gangadharan whom he was prepared to examine as a witness, however, that employee was not examined at all. The petitioner stated that the workman was being paid Rs.100/ per day. The Labour Court also found discrepancy in the evidence regarding the number of workers employed by him. The Labour Court drew an adverse inference from non production of documents which the petitioner is liable to maintain under the relevant statute namely Kerala Casual, Temporary and Badli Workers (Wages) Rules 1993. 8. It is under the above circumstances that the Labour Court chose to believe the evidence of the workman and to disbelieve the petitioner. I do not find anything perverse in such appreciation of evidence. The Labour Court had given very cogent reasons as to why the petitioner cannot be believed and the workman had to be believed. Without a finding that the conclusion arrived at by the Labour Court is perverse, I cannot, under Article 226 of the Constitution of India, interfere with Ext.P6 award of the Labour Court. I also W.P.(c)No.13602/06 8 note that the Labour Court had granted only 25% backwages to the workman in spite of finding that there was unjust denial of employment. In the above circumstances, 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.13602/06 9