M/S.M.M.J.PLANTATIONS MANARCAUD BUILDINGS v. K.J.YESUDAS & another; The District Labour Officer, Idukki

W.P.(C.) No.25287/17 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 23[RD] DAY OF JUNE 2023 / 2ND ASHADHA, 1945** **WP(C) NO. 25287 OF 2017** **AGAINST THE ORDER/JUDGMENTID 45/2012 OF INDUSTRIAL TRIBUNAL, IDUKKI** ## **PETITIONER/S:** 1 M/S.M.M.J.PLANTATIONS MANARCAUD BUIDINGS, LALAM VILLAGE,PALA, KOTTAYAM - 686 575,REPRESENTED BY ITS GENERAL MANAGER AND PARTNER MR.M.MICHAEL. 2 THE MANAGER BON AMI TEA GARDENS, FAIRFIELD P.O.,ELAPPARA 685 501, IDUKKI. BY ADVS. SRI.MATHEWS K.UTHUPPACHAN SRI.SHARAN SHAHIER SRI.TERRY V.JAMES **RESPONDENT/S:** 1 K.J.YESUDAS ZION HOUSE, KAVAYAL PUTHUVAL,BONAMI ESTATE, FAIRFIELD P.O., ELAPPARA 685 501IDUKKI. 2 THE DISTRICT LABOUR OFFICER THODUPUZHA P.O., IDUKKI 685 603. BY ADVS. SMT.PREETHY R. NAIR GOVERNMENT PLEADER GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C.) No.25287/17 2 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C.) No. 25287 of 2017 -----------------------------------------Dated this the 23[rd] day of June, 2023** ## **JUDGMENT** The petitioners are aggrieved by the award dated 30.10.2015 in ID No.45/2012 of the Industrial Tribunal, Idukki, ordering payment of compensation and costs to the 1[st] respondent. Ext.P3 is the award passed by the Industrial Tribunal, Idukki. The Government of Kerala as per G.O. (Rt) No.1254/2012/LBR dated 14.08.2012 referred the following industrial dispute for adjudication to the Industrial Tribunal. _“1.Whether the denial of employment of Sri.K.Yesudas, driver of Bonami Tea Gardens, Fairfield P.O, Elappara by the management of estate is justifiable._ _2. If not, what reliefs the workman is entitled to?”_ 2. The petitioners are the management in the above W.P.(C.) No.25287/17 3 industrial dispute and the 1[st] respondent herein is the workman (parties are mentioned as per their ranks in the industrial tribunal). 3. The workman filed a claim statement in which he contends that he was a driver under the management from 02.01.1986 onwards till 24.12.1992. During the above period it is submitted by the workman that he has got an unblemished record of service under the management. On 26.12.1992, when he reported for work in Bon Ami Tea Gardens the manager of the estate told him that he has no work in the estate and from that day onwards he was denied employment by the management. At the time of denial of employment, the management did not give him any notice is the submission. Though he approached the management on several occasions seeking employment, he was not provided with work by the management is the grievance. Therefore, according to the workman the denial of employment to him by the management is unjustifiable and arbitrary. The workman claimed reinstatement with W.P.(C.) No.25287/17 4 ## back-wages and continuity of service. 4. The management filed a written statement in which they contend that the workman is only a casual worker under them and he was appointed for work only on a few occasions, as and when his service was required by the management. According to them, the workman was a pastor in some Pentecostal Church for some time and he was working thereafter at Tamil Nadu. He left the place with the sister of his wife to Tamil Nadu. The management did not employ him in their estate either permanently or temporarily. 5. To substantiate the case, two witnesses were examined on the side of the workman as WW1 and WW2. One witness was examined on the side of the management as MW1. After going through the materials and evidence, the Tribunal found that the workman is entitled to an amount of Rs.1,00,000/- as compensation. Accordingly an award was passed as follows: - _“1. The denial of employment of the workman by the management is unjustifiable and arbitrary._ _2. The workman is entitled to get a_ W.P.(C.) No.25287/17 5 _compensation of Rs.1,00,000/- (Rupees One Lakh Only) from the management._ _3. The management shall pay the compensation within a period of 2 months from the pronouncement/publication of this award and in case of failure, they shall pay a simple interest @8% per annum on the above amount to the workman for the period of default._ _4. The management shall pay the workman a cost of Rs.5,000/- (Rupees Five Thousand Only) towards the litigation expense.”_ 6. Ext.P3 is the award. Aggrieved by Ext.P3, this writ petition is filed by the management. 7. Heard learned counsel for the management and the learned counsel appearing for the workman. The learned counsel for the management submitted that the industrial tribunal erred in passing the award without considering the evidence available. The learned Counsel for the Management submitted that, there was a long delay from the side of the workman to approach with his claim. It is also contended that, Ext.P1 claim statement is highly belated and is barred by limitation. It is also submitted that the burden of proof is on the workman to prove that he is a workman as defined under W.P.(C.) No.25287/17 6 the Act. It is the submission of the management that the workman miserably failed to prove the same. No documentary evidence is produced by the workman, is the submission. The Counsel for the Management also relied on the judgment of the Apex Court in **Prabhakar v. Joint Director, Sericulture Department and another** [2015 (15) SCC 1] and also **Kerala State Cashew Development Corporation v. C. Thomas Panikkar and others** [2017 KHC 1049] **.** 8. The Counsel for the workman supported the award. The Counsel submitted that, there is no dispute raised by the management regarding the delay before the Industrial Tribunal. There is no pleading to that effect, is the submission. 9. This Court considered the contentions of the Management and the Workman. This Court perused Ext.P3 award passed by the Industrial Tribunal. While entertaining a writ petition against an award passed by the Industrial Tribunal, the jurisdiction of this Court under Article 226 is very limited. This Court has to bear in mind the scope of W.P.(C.) No.25287/17 7 interference under Article 226 of the Constitution of India in such matters, while deciding the issue. It is a trite law that, High Court is not a Court of Appeal, in respect of the awards passed by the Labour Courts/Industrial Tribunals. This point is considered by this Court in **Kunjukrishnan P and Others. v. Secretary, Vanijya Vyavasaya Mazdoor Sangh and another** [2022 (4) KHC 23]. It will be beneficial to extract the relevant portion of the above judgment. “ _11. While appreciating the respective contentions raised by the learned Counsel on either side, it is necessary to bear in mind the scope of interference under Art.226 of the Constitution of India. It is trite law that the High Court is not a Court of appeal in respect of the awards passed by the Labour Court / Industrial Tribunals. Reference can be made to Canara Bank, Circle Office, Tvm. v. D. S. Mohini and Others [2019 KHC 199: 2019 (2) KLT SN 69]._ _12. The scope of interference in the award of a Labour Court is very limited. Interference can be made only when the order of the Labour Court is perverse and there is a total dearth of evidence to support the findings of the Labour Court. If two views are possible from the circumstances brought out on record, merely because the Labour Court chose to adopt one view by itself is not a reason to interfere with the findings of the Labour Court._ _13. In this context, the observations of the Supreme Court in_ W.P.(C.) No.25287/17 8 _Management of Madurantakam Coop. Sugar Mills Ltd. v. S. Viswanathan [2005 KHC 459: (2005) 3 SCC 193: AIR 2005 SC 1954: 2005 SCC (L&S) 372: 2005 (2) SLR 700: 2005 (27) AIC 23 (SC): 2005 (104) FLR 1229: 2005 (2) LLN 38: 2005 (1) CLR 1078] are relevant. It was observed that "Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final Court of facts in these types of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Art.226 or under Art.227 of the Constitution can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the Writ Court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the Writ Court will not enter into the realm of factual disputes and finding given thereon."”_ 10. This Court has to consider this writ petition, in the light of the above principle. This Court perused Ext.P3 award. The Industrial Tribunal considered the available materials and concluded that the workman is entitled to Rs.1,00,000 (Rupees One Lakh Only) as compensation. The main contention of the Management is that, no evidence is produced by the workman to prove that, he was working under the Management. But a perusal of Ext.P3 award would show that the workman filed an W.P.(C.) No.25287/17 9 application before the Tribunal to summon the temporary worker’s check roll from January, 1986 to 1992 and the trip sheet book for the period from January, 1986 to December, 1992. The Tribunal issued a direction to the Management to produce the documents sought for in the above application or to file an affidavit. The Management neither produced any documents nor filed any affidavit. Moreover, MW1, the witness examined on the side of the Management admitted in the cross-examination that the Management maintained vouchers towards payment of wages to the casual workers in the estate. But they could not produce any such vouchers in respect of payment of wages to the workman to substantiate their case that the workman in this case was only a casual worker under them. It is also admitted by MW1, the witness of the Management that in all the vehicles of the Estate, trip sheets are maintained. But the same is also not produced. He also deposed that there were no temporary drivers in the Estate and they could not produce the check roll as directed by this Court. According to him, the above documents were kept W.P.(C.) No.25287/17 10 only for 5 years. The Tribunal after considering the facts and circumstances of this case, observed that the workman has got a more probable case than the Management that he was a temporary driver under the Management and he was denied employment by the Management with effect from 24.12.1992 without any reasonable cause. There is nothing to interfere with such factual finding. 11. As far as the delay in raising the industrial dispute by the workman is concerned, this point is considered by the Tribunal in the award itself. In the award, it is clearly stated that there is no dispute raised by the Management regarding the delay in raising the industrial dispute by the workman and there is no such pleading in this respect. In such situation, I am of the considered opinion that such a contention need not be entertained in a writ petition filed under Article 226 of the Constitution of India. Moreover, Ext.P3 award was passed on 30.10.2015 and this writ petition was filed only on 24.07.2017. The reason mentioned by the Management for the delay in filing this writ petition is also not convincing. The decision cited W.P.(C.) No.25287/17 11 by the Management regarding the delay in raising the industrial dispute is not at all applicable in the facts and circumstances of this case. The facts in **Prabhakar'** _**s**_ case (supra) cited by the Management is not applicable here. That was a case in which reinstatement was ordered by the Tribunal after about 14 years when there was no live dispute. Moreover the question of delay was raised before the Tribunal itself in that case. The other decision cited by the Management is ## **Maheshkumar Menon I.S. v. Labour Court, Ernakulam and** **anr. [2017 (3) KHC 665]** . That was a case in which a preliminary point of maintainability was raised before the Labour Court based on the delay and that was allowed by the Labour Court. That order was confirmed by this Court in the above case. In this case, the Management has not even raised such a plea before the Tribunal. In such circumstances, I am of the considered opinion that the contention raised by the Management regarding the delay need not be considered. The Tribunal after considering the available materials ordered compensation. There is nothing to interfere with that award invoking the powers under Article 226 of the Constitution of W.P.(C.) No.25287/17 12 India. Therefore, this writ petition is dismissed. **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** AP SKS W.P.(C.) No.25287/17 13 ## **APPENDIX OF WP(C) 25287/2017** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF CLAIM STATEMENT DATED 31/01/2013 FILED BY THE 1ST RESPONDENT IN I.D 45/2012 BEFORE THE INDUSTRIAL TRIBUNAL, IDUKKI EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT DATED 22/5/2013 FILED BY THE PETITIONERS IN I.D 45/2012 BEFORE THE INDUSTRIAL TRIBUNAL, IDUKKI EXHIBIT P3 TRUE COPY OF AWARD DATED 30/10/2015 IN ID 45/2012 OF THE INDUSTRIAL TRIBUNAL, IDUKKI EXHIBIT P4 TRUE COPY OF EXHIBIT P4 SHOW CAUSE NOTICE DATED 8/6/2017 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS