K. Chandran v. N. Gopinath Menon and others (including Dr. Lalitha Rao, Dr. Pankajam Gopalakrishnan and The Labour Court)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY, THE 17TH DAY OF MARCH 2017/26TH PHALGUNA, 1938 WA.No. 1512 of 2009 ( ) IN WP(C.).NO.6756/2007 ----------------------------------------------AGAINST THE JUDGMENT IN WP(C) 6756/2007 of HIGH COURT OF KERALA DATED 27-05-2009 APPELLANT/PETITIONER:: ------------------------------------ K.CHANDRAN, PROPRIETOR, N.P.B.CLINIC, C.C NO.XLI/1518, CHITTOOR ROAD, ERNAKULAM. BY ADVS.SRI.E.K.NANDAKUMAR SRI.K.JOHN MATHAI RESPONDENTS/RESPONDENTS:: -------------------------------------------------- 1. SRI.N.GOPINATHA MENON, RADHA NIVAS, SOUTH CHITTOOR, KOCHI. 2. DR.LALITHA RAO, KRISHNA NURSING HOME, CHITTOOR ROAD, ERNAKULAM. 3. DR.PANKAJAM GOPALAKRISHNAN, SWARAJ, KALATHIPARAMBIL ROAD, KOCHI-16. 4. THE LABOUR COURT, ERNAKULAM. R1 BY ADVS. SRI.E.A.BIJUMON SRI.PAULSON C.VARGHESE R2 & 3 BY ADVS. SRI.A.DINESH RAO SRI.L.GOPALAKRISHNAN POTTI R4 BY GOVT.PLEADER SRI.P.M.SANEER THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## K. SURENDRA MOHAN & A.M. BABU, JJ. - - - - - - - - - - - - - - - - - W.A No. 1512 of 2009 - - - - - - - - - - - - - - - - - Dated this the 17[th] day of March, 2017 ## JUDGMENT ## Surendra Mohan, J. This writ appeal is filed against the judgment of the learned Single Judge dated 27.5.2009 in W.P.(C) No. 6756 of 2007. As per the judgment under appeal, the writ petition has been dismissed. The aggrieved writ petitioner is the appellant before us. 2. W.P.(C) No. 6756 of 2007 was filed challenging an award of the Labour Court, Ernakulam in I.D. No. 110 of 1996. The award was passed on a reference made by the Government of Kerala of an industrial dispute between the appellant and the first respondent. According to the first respondent, the appellant was the Proprietor of an establishment by name NPB Clinic where he was working as a Pharmacist. The establishment, according to the first W.A.1512/2009. 2 respondent, was an Allopathic dispensary where treatment was being provided by qualified and competent doctors appointed by the appellant. The first respondent alleged that, he had been working continuously from 1960 onwards. He was not being paid wages in accordance with the provisions of the Minimum Wages Act. Though he was entitled to a monthly salary of Rs.1781.20, he was being paid only an amount of Rs.150/-. While so, during the first week of April, 1995, he took leave and went to Madurai for an eye operation. In order to avoid any inconvenience, he had informed the appellant well in advance about his absence and had requested for a leave for one month. On receipt of his letter, the appellant had responded by issuing a notice dated 25.4.1995 pretending ignorance of the legal right of the workman. After the completion of his treatment, though the first respondent had reported for duty on 12.5.1995, he was not permitted to rejoin service. The first respondent thereupon caused the issue of a notice dated 15.5.1995 through his lawyer claiming W.A.1512/2009. 3 reinstatement in service and other consequential benefits. However, the appellant/Management was not prepared to permit him to work on the basis of untenable and baseless allegations. Since the action of the Management was illegal and unjustified, an industrial dispute was raised. The matter was referred to the Labour Court by the Government. The dispute was numbered as I.D. No. 110 of 1996 and tried by the Labour Court. 3. According to the appellant, he was not conducting any clinic by name N.P.B. Clinic as alleged. His late father Dr.N.P. Bhaskara Menon was conducting the Clinic. His father passed away on 30.9.1976 and the functioning of the Clinic also came to an end upon his demise. Thereafter, the first respondent who had been working in the Clinic as a Pharmacist had received all benefits from the wife of the deceased. According to the appellant, there was no employer-employee relationship between him and the first respondent. The first respondent had not worked even for a W.A.1512/2009. 4 single day under him. According to him, he had filed his reply only because summons was served on him. 4. After the death of Dr. Bhaskara Menon, the premises had remained closed and unoccupied for about two years. Later on, the premises was taken on rent by two doctors, namely, Dr. Lalitha Rao and Dr. Pankajam Gopalakrishnan. They were conducting a Clinic from the premises under the name 'Women and Children's Clinic'. The said Clinic is functioning even to this date. 5. In view of the contention that, the Clinic was being conducted by two other doctors and not the appellant, respondents 2 and 3 were brought on the party array before the Labour Court. Though they filed written statement, no evidence was adduced by them. According to their written statement, there is no such clinic as N.P.B. Clinic in existence. According to them, since no relief was claimed against them by the workman in his claim statement, they were outside the scope of the reference that was made to the Labour Court. W.A.1512/2009. 5 According to them, the establishment N.P.B. Clinic was not transferred to them. They had taken the vacant building on rent from the appellant and had started a Clinic of their own by name 'Women and Children's Clinic' in the year 1979. They had never employed the first respondent in their clinic. The first respondent had also no claim that he had worked in the Women and Children's Clinic. Therefore, it was contended that the first respondent was not entitled to any relief in the matter. 6. The first respondent filed a rejoinder to the written statement filed by respondents 2 and 3. According to the first respondent, respondents 2 and 3 were also working in the Clinic as employees. They were not conducting the Clinic as alleged. 7. The trial court let in evidence on the basis of the pleadings. The appellant examined himself as MW1. Three witnesses, WW1, WW2 and WW3 were examined as witnesses on the side of the first respondent workman. Exts. M1 to M5 W.A.1512/2009. 6 documents were marked on the side of the first respondent, while Exts. W1 to W8 were marked on the side of the workman. 8. The Labour Court considered the contentions of the parties in the light of the evidence on record and found that the first respondent had worked in the N.P.B. Clinic till 1995 and that he was denied employment thereafter, which was not justified. However, considering the peculiar facts and circumstances of the present case, instead of ordering reinstatement, the Labour Court directed that an amount of Rs.70,000/- be paid as compensation to the first respondent workman. Though the award of the Labour Court was challenged by the appellant in W.P.(C) No. 6756 of 2005, the learned Single Judge has dismissed the writ petition confirming the award of the Labour Court. This appeal is filed against by the said judgment. 9. According to Senior Counsel Sri. E.K. Nandakumar, the learned Single Judge has erred in failing to take note of the fact that this is a case in which there is W.A.1512/2009. 7 absolutely no evidence to show that the first respondent was an employee of the appellant. Though it is true that the appellant's father had been conducting a clinic by name N.P.B. Clinic, the said establishment had to be closed down upon his demise. The appellant's father was a qualified medical practitioner and the clinic was being conducted by him within the same compound as his residence. The appellant being a person who is not qualified, was not in a position to conduct the Clinic after the death of his father. The premises had remained closed and unoccupied for two years. Thereafter the same was taken on rent by respondents 2 and 3 who are qualified medical practitioners. They started a separate clinic of their own by name 'Women and Children's Clinic', with the conduct of which the appellant is not involved in any manner. The first respondent was also not employed by them. Our attention is drawn to Ext.P7 Newspaper advertisement dated 2.9.1979 of respondents 2 and 3 notifying the opening of their Clinic. Ext.P6 lease agreement is also relied upon to W.A.1512/2009. 8 contend that the premises had been rented out to respondents 2 and 3. The above documents constitute clinching evidence of the fact that the appellant was not conducting the Clinic as alleged by the first respondent. It is further contended that, the appellant is not qualified to conduct a clinic since he was not a qualified medical practitioner. The Newspaper advertisement dated 2.9.1979 corroborated by the lease agreement proves that the appellant had no connection with the conduct of the Clinic. It is pointed out that, there is absolutely no evidence available to prove the employer-employee relationship between the appellant and the first respondent. The Labour Court seriously erred in placing implicit reliance on the interested testimony of the first respondent as WW1. The extract of the Property Tax Assessment Register which shows the appellant as the occupier cannot justify an inference that the appellant had been conducting the clinic and employing the first respondent also. According to the learned Senior Counsel, the Labour W.A.1512/2009. 9 Court erred in doubting the authenticity of the lease agreement produced for the reason that it was not of the year 1979. In the absence of any evidence to show that there was employer-employee relationship between the appellant and the first respondent, no liability to pay any amount could be fastened on the appellant. This is a case of 'no evidence' and therefore, this Court had the jurisdiction to interfere with and set aside the award. The learned Single Judge went wrong in proceeding to dismiss the writ petition finding that there were no grounds to interfere with the award. 10. Adv. Dinesh Rao, who appears for respondents 2 and 3 points out that, the scope of the reference made to the Labour Court was limited to examining whether denial of employment to the first respondent by the appellant was justified or not. Respondents 2 and 3 were not in the picture at all. The workman does not have a case that they had employed him at any time. They were unnecessary parties to the reference and an enquiry into their liability, if any, is W.A.1512/2009. 10 outside the scope of the reference. In spite of the above, they had appeared before the Labour Court and had filed their written statement also, stating the true facts. Therefore, according to them, the workman was not entitled to any relief. 11. Adv. Paulson C. Varghese, who appears for the first respondent, contends that, the first respondent when examined as WW1 had deposed to the case pleaded by him. His evidence is corroborated by the evidence of WW2, a respectable lawyer and WW3, who is one of the patients of the Clinic. Ext. W2 series are the bills of medicines purchased for the N.P.B. clinic. Ext.W4 series documents are postal acknowledgments of money orders sent by the first respondent on various dates. They have been returned by the postal authorities to M/s. N.P.B. Clinic. It is contended that the above documents show beyond any doubt that N.P.B. Clinic was continuing to function. Ext. W1 which is the Property Tax Assessment Register shows the name of the appellant as the occupant. Therefore, it is contended that, the W.A.1512/2009. 11 evidence available clearly establishes the liability of the appellant. In view of the above, no interference is called for with the judgment of the learned Single Judge or the award of the Labour Court. 12. Heard. It is not in dispute that, M/s. N.P.B. Clinic was started by Dr. N.P. Bhaskara Menon, who was the father of the appellant. He had been conducting the Clinic by himself, during his lifetime. He died on 30.9.1976. It is not in dispute that the appellant, who is the son of late Dr. Bhaskara Menon has no medical qualification. According to the first respondent, he had been conducting the Clinic after the death of his father. The above fact is denied by the appellant. According to him, after the death of his father, the Clinic had remained closed for two years. Thereafter, respondents 2 and 3 started a Clinic of their own by name 'Women and Children's Clinic' in the said premises. The above fact is evidenced by the Newspaper advertisement Ext.P7 dated 2.9.1979. The first respondent has no case that he was employed by them. In this W.A.1512/2009. 12 case, what is noteworthy is that, there is absolutely no evidence available to prove the employer-employee relationship between the appellant and the first respondent. Though the first respondent has asserted in his deposition as WW1 that he was being employed by the appellant, the appellant has denied the same in his deposition as MW1. Therefore, it is oath against oath. However, the fact that the appellant is not a qualified medical practitioner and that, for the said reason, the clinic had been given on rent to respondents 2 and 3, is supported by Exts. P6 and P7 documents. The Labour Court has disbelieved Ext.P6 for the only reason that, the same is of the year 1983. We are not satisfied that, Ext.P6 should be disbelieved for the said reason. The rental arrangement is further corroborated by the stand taken by respondents 2 and 3 in their written statement. According to their written statement, there was no such Clinic in existence as N.P.B. Clinic. According to them, they took the vacant building on rent from the appellant and started a Clinic W.A.1512/2009. 13 of their own named as 'Women and Children's Clinic' in the year 1979. They have not employed the first respondent as a Pharmacist in their Clinic. Though the first respondent has filed a rejoinder stating that the N.P.B. Clinic is still in existence, there is no evidence to support the said contention. In the rejoinder, the contention of the first respondent is that, respondents 2 and 3 were also working under the appellant. There is no evidence for the above fact also. 13. WW2 and WW3 are two witnesses examined by the first respondent to prove that the Clinic had continued to function. WW2 is a lawyer who claims that he had been going to the Clinic periodically and that he used to see the first respondent there till the year 1995 attending to the work of preparing medicinal mixtures, dressing up wounds of patients, etc. According to him, he had received such services from the respondent. However, in cross-examination, he admits that he was the lawyer who had issued Ext.W7 notice on behalf of the first respondent. In other words, he admits that he was W.A.1512/2009. 14 the first respondent's lawyer. The conduct of the said witness as a professional and a lawyer in testifying as a witness for his client after having issued a notice against the appellant on behalf of the first respondent, is to say the least, grossly lacking in propriety. The learned Senior Counsel for the appellant has attacked his evidence as being partisan. We are also of the view that the evidence of the said witness cannot be relied upon being of doubtful veracity. 14. WW3 is a person who claims to be engaged in the business of making sodas. He was a patient of Dr.Bhaskara Menon. He deposes that he had seen the first respondent at the Clinic when Dr. Bhaskara Menon was alive. Though both WW2 and WW3 claim that they had been depending on the Clinic for their treatment, no documents evidencing such treatment or the existence of the Clinic are available. The witnesses do not even state clearly as to what is the basis on which they have stated that the appellant was conducting the Clinic. We bear in mind the fact that, a Clinic W.A.1512/2009. 15 is even now functioning from the premises, under a different name 'Women and Children's Clinic'. But, the same is conducted by respondents 2 and 3, who have taken the premises on rent. Therefore, nothing turns on the fact that WW2 and WW3 have received medical treatment from the said Clinic, even if their testimonies are accepted to be true. There is no evidence or material on record either to show that the appellant had conducted the Clinic at any time after the death of his father or to show that the appellant had worked for him. 15. According to Adv. Paulson C. Varghese, who appears for the first respondent, Ext.W4 money order receipts show that the first respondent had been renewing his Pharmacist licence over the years, regularly. Ext.W4 series are acknowledgments for the money orders sent by him, where the address shown is that of M/s. N.P.B. Clinic. However, as rightly pointed out by the learned Senior Counsel who appears for the appellant, the said acknowledgments could have been received by the first respondent from the post office directly. W.A.1512/2009. 16 Ext. W2 series bills which are alleged to be issued for purchase of medicines for N.P.B. Clinic also, are not sufficient to support a conclusion that the appellant was conducting M/s. N.P.B. Clinic as alleged by the first respondent. As we have already noticed above, the crucial link that is necessary to be established, connecting the appellant to the first respondent as his employer is conspicuously missing in the present case. Though it cannot be denied that the appellant could have conducted the Clinic despite being not qualified to do so, by employing qualified medical practitioners as alleged, there is absolutely no evidence to prove the said fact also. On the contrary, the case of respondents 2 and 3 is that, the vacant premises were taken on rent by them and that they were conducting a Clinic of their own, from the premises. Even the first respondent has no case that he was employed by them. Therefore, this is a case in which, there is no evidence to support the case put forward by the first respondent. 16. The learned Single Judge has declined W.A.1512/2009. 17 interference with the award of the Labour Court on the ground that, the scope for interference with the same is very limited under Article 226 of the Constitution. The Apex Court has in Amar Chakrvarty v. Maruti Suzuki India Ltd. (2011-I-LLJ-251 (SC)) laid down the scope of interference with the award of the Labour Court in similar circumstances, in the following words: “13. In our opinion, in the light of the settled legal position on the point, the judgment of the High Court is clearly indefensible. Whilst it is true that the provisions of the Evidence Act, 1872 per se are not applicable in an industrial adjudication, it is trite that its general principles do apply in proceedings before the Industrial Tribunal or the Labour Court, as the case may be. (See. Municipal Corporation, Faridabad v. Siri Niwas AIR 2004 SC 4681). In any proceeding, the burden of proving a fact lies on the party that substantially asserts the affirmative of the issue, and not on the party who denies it. (See: Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558).” 17. Thus, though strict rules of evidence are not applicable to proceedings before the Labour Court, the principle that the party who asserts them has to prove the W.A.1512/2009. 18 facts asserted by him, is applicable. In the present case, the first respondent claims that he was an employee of the appellant, till 1995. Therefore, the burden to prove the said fact is on him. For the reasons already noted above, he has not succeeded in proving the said fact. Even the letter dated 9.4.1995 (Ext.W5) written by the first respondent to the appellant arouse suspicion and cannot be accepted as the normal conduct of a person who was maintaining cordial relationship with his employer, as alleged. A person who writes such a cordial letter would not normally retain a copy thereof. Nor would he despatch the same through registered post with acknowledgment due. The reply to Ext.W5 (Extr.W6) shows the response of the appellant, which is a total denial of the circumstances narrated in Ext.W5. 18. The above being the state of affairs, the appellant is entitled to succeed. This appeal is accordingly allowed. The judgment of the learned Single Judge as well as the award of the Labour Court are set aside. Considering the W.A.1512/2009. 19 admitted fact that the first respondent had been working for the father of the appellant till his death, we requested the learned Senior Counsel for the appellant to pay the amount deposited as condition for grant of the interim order in this appeal as an ex gratia payment. The learned Senior Counsel has agreed to our suggestion. An amount of Rs.35,000/- has been deposited before this Court on 8.9.2009 by the Senior Counsel on behalf of the appellant. The first respondent shall be entitled to receive the said amount as ex gratia payment for his past services with the father of the appellant. Ordered accordingly. K. SURENDRA MOHAN JUDGE A.M. BABU JUDGE sb