P. Kunjukrishnan (late) Imperial Bakery, Punalur & others v. Secretary, Vanijya Vyavasaya Mazdoor Sangh, Punalur & The Labour Court, Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945** **WA NO. 763 OF 2022** **AGAINST THE JUDGMENT IN WP(C)NO.28400/2005 DATED** ## **02/03/2022 OF HIGH COURT OF KERALA** ## **APPELLANTS/PETITIONERS:** 1 P.KUNJUKRISHNAN (LATE) IMPERIAL BAKERY, PUNALUR, KOLLAM DISTRICT, PIN - 691 305 (DIED). 2 K.R. ANIL, S/O LATE P. KUNJUKRISHNAN, 'ANIL BHAVAN', NEAR GOVERNMENT HOSPITAL, PUNALUR - 691 305. 3 P.N. RADHAMANI, W/O OF LATE P. KUNJUKRISHNAN, 'ANIL BHAVAN', NEAR GOVERNMENT HOSPITAL, PUNALUR - 691 305. 4 K.R. SAJINI, D/O LATE P. KUNJUKRISHNAN, 'ANIL BHAVAN', NEAR GOVERNMENT HOSPITAL, PUNALUR - 691 305. BY ADVS. P.RAMAKRISHNAN PREETHI RAMAKRISHNAN (P-212) T.C.KRISHNA C.ANIL KUMAR ASHA K.SHENOY PRATAP ABRAHAM VARGHESE ## **RESPONDENTS/RESPONDENTS:** 1 THE SECRETARY, VANIJYA VYAVASAYA MAZDOOR SANGH, BMS OFFICE, PUNALUR, PIN - 691 305. 2 THE LABOUR COURT, KOLLAM, PIN - 691 001. BY ADV B.ASHOK SHENOY (B/O) SR GP SRI T K VIPINDAS **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.02.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.763 of 2022** 2 ## **AMIT RAWAL & C.S.SUDHA, JJ.** **------------------------------------------------------Writ Appeal No. 763 of 2022 ---------------------------------------------------Dated this the 19th day of February, 2024** ## **J U D G M E N T** ## **C.S.Sudha, J.** This _intra_ court appeal has been filed by the petitioners against the judgment dated 02/03/2022 in W.P.(C).No.28400/2005. The respondents herein are the respondents in the writ petition. The parties and documents in this appeal will be referred to as described in the writ petition. 2. The writ petition was filed seeking quashing of Ext.P1 award dated 17/05/2005 in I.D.No.56/1999 on the file of the Labour Court, Kollam. The first petitioner who is now no more, was the owner of Imperial Bakery, Punalur. Suresh Babu had been appointed as a salesman in the bakery from January 1995. According to the petitioner, there were several instances of misconduct by the workman. However, the petitioner continued to employ him as he was a relative. On 07/09/1998 the workman was caught red-handed receiving money from customers without creating invoices. When a notice was issued to the workman, he abandoned his employment. Despite the fact that the workman had abandoned his **W.A.No.763 of 2022** 3 employment, the first respondent Union raised a dispute alleging denial of employment to the workman. Conciliation proceedings were initiated. While the conciliation proceedings were going on, the workman resorted to unlawful agitation and strike in front of the petitioner's shop, resulting in its closure. The workman also assaulted the petitioner's son, by causing severe injuries relating to which a crime was registered. Due to these developments and as the workman had abandoned employment, the petitioner did not agree to the demands made by the first respondent Union. The conciliation talks failed and so the dispute was referred to the Labour Court for adjudication on the question whether the denial of employment of the workman was justifiable and if not, the relief(s) to which he was entitled to. 3. Before the Labour Court MW1 was examined and Exts.M1 to M13 were marked on the side of the petitioner/management. WW1 was examined on behalf of the workman. The Labour Court by Ext.P1 award found the denial of the employment to the workman to be unjustified and hence the management was directed to reinstate him within one month. He was also directed to be paid 50% of the backwages and attendant monetary benefits. Aggrieved, the petitioner moved the writ petition. **W.A.No.763 of 2022** 4 4. The learned Single Judge modified the award passed by the Labour Court insofar as reinstatement with 50% backwages was concerned and directed payment of ₹5,00,000/- (five lakhs rupees) as compensation to the workman. The quantum of compensation was fixed based on the backwages ordered by the Labour Court and also taking into account the age of the workman. Relying on the dictum in **State Bank of Travancore v. Prem Singh, 2019 SSC Online Delhi 8258** , it was held that when an employee acts in manner by which the management has lost confidence in him, reinstatement could not be ordered because it would neither be desirable nor expedient to continue the employee in service. Reinstatement in the peculiar facts of the case was also held to be detrimental to the discipline and security of the establishment and so the same was disallowed. Hence, the appeal by the petitioner/management. 5. During the course of the proceedings, the petitioner passed away and hence his legal representatives were brought on record as additional petitioners 2 to 4. 6. Heard both sides. 7. It was submitted by the learned counsel for the petitioners that as the Labour Court rejected their case that the workman had abandoned **W.A.No.763 of 2022** 5 work on the ground of lack of evidence, interest of justice requires an opportunity to be given to the petitioners to adduce evidence to substantiate the same. As such an opportunity had not been given, the matter may be remanded to the Labour Court giving the petitioner the liberty to adduce evidence to substantiate the case. The learned counsel also drew our attention to Annexures 1 and 2 judgments relating to the criminal case registered against the workman for assaulting and injuring the additional second petitioner. The workman was found guilty and convicted accordingly. In such circumstances, it would be quite unjust to order compensation to be paid by the petitioners to the workman who had gone to the extent of attempting to commit murder of the additional second petitioner. _Per contra_ the learned counsel for the workman supported the impugned judgment and submitted that it calls for no interference. 8. As noticed earlier, the petitioner/management before the Labour Court had examined a witness and also adduced documentary evidence. Therefore, the argument that no opportunity had been afforded for the petitioners to establish their case of the workman abandoning his work, does not seem to be correct. Though opportunity was granted, no evidence was adduced to substantiate the case that the workman had abandoned the **W.A.No.763 of 2022** 6 job. In such circumstances, the Labour Court cannot be found to have erred in concluding that the management had failed to substantiate their case. 9. Be that as it may, a reference to Annexures 1 and 2 judgments is necessary. The workman admittedly, the first accused in the said case was charged with having committed the offences punishable under sections 143, 147, 148, 427, 324 and 307 read with 149 IPC. The learned Assistant Sessions Judge, Kottarakkara by Annexure A1 judgment found the workman guilty of the offences alleged except the one under Section 307 IPC and convicted and sentenced him to varying terms of imprisonment and the sentences was directed to run concurrently. In appeal the Court of Session, Kollam as per Annexure A2 judgment found that though there was clear evidence to prove the offence punishable under Section 307 IPC also, the trial court had wrongly acquitted the workman for the said offence. But as the State had not preferred any appeal, the sentence awarded by the trial court, which according to the Appellate Court was a flea bite sentence, could not be interfered with or the sentence enhanced. The conviction and sentence awarded by the trial court was confirmed. It was submitted by the learned counsel for the workman that criminal revision is pending against Annexure A2 judgment. In the aforesaid background the Labour Court was **W.A.No.763 of 2022** 7 certainly not justified in ordering reinstatement of the workman. 50% backwages ordered to be given by the Labour Court, has been modified and compensation of ₹5,00,000/- (five lakhs rupees) ordered to be given to the workman. It was submitted by the learned counsel for the petitioners that the compensation awarded is too high and that in the light of Annexure A1 and A2 judgments any amount of compensation awarded to the workman would be like compensating him for brutally assaulting the additional second petitioner. In these circumstances, we think it appropriate to reduce the compensation to ₹2,00,000/- (two lakhs rupees) only. In the result, the impugned judgment is modified and it is directed that compensation of ₹2,00,000/- (two lakhs rupees) shall be paid to the workman within two months from the date of this judgment. Interlocutory applications, if any pending, shall stand closed. **Sd/AMIT RAWAL JUDGE** **Sd/-** **C.S.SUDHA JUDGE** ak **W.A.No.763 of 2022** 8 ## **APPENDIX OF WA 763/2022** ## **' - PETITIONERS ANNEXURES:** Annexure 1 TRUE COPY OF JUDGMENT IN SESSIONS CASE NO. 431/2003 PASSED BY THE COURT OF ASSISTANT SESSIONS JUDGE KOTTARAKKARA. Annexure 2 TRUE COPY OF JUDGMENT IN CRL. A. NO. 247/2009 OF THE DISTRICT AND SESSIONS COURT, KOLLAM.