R. Murugan v. N.O. Pratheesh and Another; Pratheesh N.O v. Murukan and Another

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944** **WP(C) NO. 4559 OF 2019** ## **PETITIONER/S:** R.MURUGAN, CHAIRMAN, PRS COLLEGE OF ENGINEERING AND TECHNOLOGY, (FORMERLY MARY MATHA COLLEGE OF ENGINEERING AND TECHNOLOGY), PALIYODE, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADVS. GOPAKUMAR R.THALIYAL SRI.M.S.VIJAYACHANDRA ABABU ## **RESPONDENT/S:** 1 N.O.PRATHEESH, MATHA HOUSE, PONKODE, CHERUVALLUR (P.O), KANYAKUMARI DISTRICT, TAMIL NADU STATE, PIN - 629 152. 2 THE LABOUR COURT, KOLLAM, PIN - 691 013. BY ADV SRI.A.S.SHAMMY RAJ ## **OTHER PRESENT:** SR GP SRI JUSTIN JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.05.2022, ALONG WITH WP(C).8228/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 4559 OF 2019 and conctd case.** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944** ## **WP(C) NO. 8228 OF 2019** ## **PETITIONER/S:** PRATHEESH N.O., AGED 33 YEARS S/O.NESAMONY, MATHA HOUSE, PONKODE, CHERUVALLUR P.O., KANYAKUMARI DISTRICT, TAMIL NADU - 629 152. BY ADV A S SHAMMY RAJ ## **RESPONDENT/S:** 1 MURUKAN, CHAIRMAN, MARY MATHA COLLEGE OF ENGINEERING AND TECHNOLOGY, (NOW PRS COLLEGE OF ENGINEERING AND TECHNOLOGY), PALIYODU, DALUMUGHAM P.O., NEYYATTINKARA, THIRUVANANTHAPURAM - 695 125. 2 P.R.S.COLLEGE OF ENGINEERING AND TECHNOLOGY, PALIYODU, DALUMUGHAM P.O., NEYYATTINKARA, THIRUVANANTHAPURAM - 695 125. 3 THE LABOUR COURT, KOLLAM. BY ADVS. SRI.GOPAKUMAR R.THALIYAL SRI.M.S.VIJAYACHANDRA ABABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.05.2022, ALONG WITH WP(C).4559/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 4559 OF 2019 and conctd case.** **3** ## **JUDGMENT** ## **[WP(C) Nos.4559/2019, 8228/2019]** This order of mine shall dispose of two writ petitions W.P.(C) No.4559 of 2019 titled as R.Murukan v. N.O Pratheesh and another and W.P.(C) No.8228 of 2019 titled as Pratheesh N.O v. Murukan and Another. 2. In both the writ petitions, challenge has been laid to the labour court award dated 5.4.2018 whereby the claim for denial of the employment with effect from September 2008 by the management has been accepted in part, ordering reinstatement but by denying back wages. It is in that background the management has challenged the other part of the award ordering the reinstatement whereas the workman with regard to denial of reinstatement. 3. The facts in brief are that the petitioner is stated to have being an employee of a management known as Mary Matha College of Engineering and Technology, Paliyodu, Neyyattinkara and allegedly appointed as clerical staff in the said college on 20.7.2002, Ext.P1. The management had also **WP(C) NO. 4559 OF 2019 and conctd case.** **4** executed a bond in favour of the workman for deposit of Rs.1,50,000/- to be utilized by the management as working capital of the institution. The workman accepted the terms and conditions; continued to work and became permanent employee. Even an amount was deducted from the salary for GPF and LIC. From 2016 onwards the management started paying the salary to the workman through bank, Vellarada Branch. Petitioner opened an account bearing No.11313 and as per the Bank statement the amount has been deposited. Even a salary certificate was issued by the competent authority. In the year 2008, ie., with effect from 5.6.2008, there had been a change in the management known as 'PRS College of Engineering and Technology; when the aforementioned management taken over the charge all the employees working with them continued except there were some dispute with 16 employees. Petitioner continued to draw the salary but from 10.9.2008 denied the employment. It is in that background raised the dispute before the labour officer where the management did not appear and the matter was **WP(C) NO. 4559 OF 2019 and conctd case.** ## **5** referred to the labour court for adjudication. 4. Respondents in response to the aforementioned claim petition denied the employment of the petitioner with the erstwhile management and as well as their management except that there was a dispute with 16 employees and a settlement was arrived at before the conciliation officer on 24.3.2009 and all the employees were taken into job as evident from the appointment letters. The previous management did not hand over the attendance registers and therefore the same could not be produced. There was no relationship of the employer and employee. Both the parties in support of the respective claims produced on record the documents as well as the statements. The workman examined as WW1 and brought on record documents Exts.W1 to W9 whereas the management examined MW1 and documents M1 and M2 ie., the settlement arrived between 16 employees. 5. Learned counsel appearing on behalf of the management submitted that labour court has erred in treating the workman as employee of the subsequent management as **WP(C) NO. 4559 OF 2019 and conctd case.** **6** no documentary evidence has been placed on record regarding the employment or deposit of Rs.1,50,000/- as per the conditions of the bond. The salary certificate was also a forged document. The entire evidence was required to be looked into but the contents of cross examination in isolation cannot be a determining factor for answering the reference partly in favour of the workman. All the employees of the previous management was taken over except the dispute with 16 workers, which were resolved before the settlement officer and were absorbed in the department as evident from the appointment letters attached. The workman is not also entitled to reinstatement much less of the back wages and there was no averment with regard to the gainful employment. 6. On the other hand, counsel representing workman submitted that the labour court erred in not ordering the reinstatement as the workman was not permitted to continue with the employment with effect from 10.9.2008. The workman worked for a period of 6 months and therefore the management did not intentionally permit the workman to ## **WP(C) NO. 4559 OF 2019 and conctd case.** **7** continue. The issuance of a certificate by the Employee Provident Fund is the testimony that the workman was the employee of the erstwhile management. In view of the stand of the management that all the employees were taken except the dispute with 16 persons referred leads to a conclusion that the workman was deemed to have been taken into service. Even if there is no pleadings with regard to the gainful employment or deposit of the 1.5 lakhs, the contents of the bond would reveal that the workman would not have been permitted to continue had a sum of Rs. 1,50,000/- been not deposited, thus there is a presumption in favour of the workman. Allotment of PF Number is the testimony that the workman was in employment of the erstwhile management. 7. I have heard the learned counsel for the parties and appraised the paper book and of the view that there is no force and merit in the submission of either the management or of the workman qua the claim of the back wages. As per the settled law of the Supreme Court in _**Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors.**_ **WP(C) NO. 4559 OF 2019 and conctd case.** ## **8** _**(2013) 10 SCC 324**_ for claiming the back wages, the workman is required to specifically plead in the pleadings qua the gainful employment and then onus is upon the management to prove. If the management is able to discharge, then the onus is again shifted on the workman to prove, otherwise the presumption has to be drawn in favour of the workman. In the absence of any pleadings or the evidence, the onus never shifted upon the management and therefore the workman failed to prove the fact of the period he was out of job / was not gainfully employed and thus, in my view the claim of the back wages has rightly been rejected. As regards the refund of Rs.1,50,000/- the contents of the bond attached to the petition filed by the workman would not reveal that in case amount is not deposited, ie., there was a negative condition of forgoing the employment. No material has been placed before the labour court or this Court for deposit of the said amount. Accordingly, the labour court rightly rejected the said claim. 8. Coming to the other writ petition preferred by the **WP(C) NO. 4559 OF 2019 and conctd case.** **9** management, the witness of the management as noticed by the labour court categorically admitted the employment of the workman on the rolls after taking over the management with effect from March 2008. The tenor and mode of the pleadings of the management would reveal that all the employees on the rolls of erstwhile management had been absorbed into the service except the dispute with 16 workmen, would lead to an irresistible conclusion since the workman was not the member of that settlement, deemed to have been taken absorbed and denial of the employment subsequent on expiry of six months, the violation of the provisions of Section 25(f) of the Industrial Dispute Act, 1947. No cogent reasons have come forth on record of not permitting the workman to discharge the duties. Withholding of the attendance register would also be a consideration for the labour court to draw adverse inference as envisaged under Section 114(g) of the Indian Evidence Act. The allotment of the PF number in favour of the workman is the testimony that the workman was on the rolls of the previous management. All these factors have been extensively ## **WP(C) NO. 4559 OF 2019 and conctd case.** **10** examined by the labour court in arriving at a fair and just conclusion. Such decision does not call for any interdiction or modification much less rectification. Award is perfectly legal and justified. 9. It has been brought to the notice of this Court that the workman has already been employed in the service with effect from 20.08.2003. Both the writ petitions sans merit and are accordingly dismissed. The workman is entitled to all the benefits as required in terms of the award of the labour court. **Sd/-** sab **AMIT RAWAL** **JUDGE** ## **WP(C) NO. 4559 OF 2019 and conctd case.** ## **11** ## **APPENDIX OF WP(C) 8228/2019** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 20/7/2002. - EXHIBIT P2 TRUE COPY OF THE BOND EXECUTED BY THE THEN CHAIRMAN ON BEHALF OF THE INSTITUTION, DATED 20/7/2002. - EXHIBIT P3 TRUE COPY OF THE SALARY CERTIFICATE ISSUED BY THE RESPONDENTS. - EXHIBIT P4 TRUE COPY OF THE COMPLAINT DATED 24/3/2009 MADE BEFORE THE DISTRICT LABOUR OFFICER. - EXHIBIT P5 TRUE COPY OF THE COMPLAINT DATED 9/6/2011 MADE BEFORE THE DISTRICT LABOUR OFFICER. - EXHIBIT P6 TRUE COPY OF THE CLAIM STATEMENT FILED BY THE PETITIONER IN THE SAID INDUSTRIAL DISPUTE CASE DATED 17/4/2013. - EXHIBIT P7 TRUE COPY OF THE LETTER DATED 29/8/2013 UNDER RIGHT TO INFORMATION ACT, BEFORE THE EMPLOYEE'S PROVIDENT FUND ORGANIZATION, ON 29/8/2013. - EXHIBIT P8 TRUE COPY OF THE REPLY LETTER DATED 18/9/2013 ISSUED BY THE EMPLOYEES PROVIDENT FUND ORGANIZATION. - EXHIBIT P9 TRUE COPY OF THE AWARD DATED 5/4/2018 ON THE FILE OF LABOUR COURT, KOLLAM. - EXHIBIT P10 TRUE COPY OF THE LETTER DATED 9/11/2018 GIVEN TO RESPONDENTS. - EXHIBIT P11 TRUE COPY OF THE LETTER DATED 5/12/2018 ISSUED BY 1ST RESPONDENT. **WP(C) NO. 4559 OF 2019 and conctd case.** ## **12** EXHIBIT P12 TRUE COPY OF THE COMPLAINT GIVEN BY PETITIONER BEFORE DISTRICT LABOUR OFFICER, THIRUVANANTHAPURAM ON 21/1/2019. RESPONDENT EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE SALARY CERTIFICATE DATED 6.7.2006 EXHIBIT R1(B) TRUE COPY OF THE SALARY CERTIFICATE EXHIBIT R1(C) TRUE COPY OF THE PETITION DATED 24.3.2009 ALONG WITH ENGLLISH TRANSLATION EXHIBIT R1(D) TRUE COPY OF THE MEMORANDUM OF SETTLEMENT DATED 2.8.2008 ALONG WITH ENGLISH TRANSLATION EXHIBIT R1(E) TRUE COPPY OF THE PROCEEDINGS DATED 5.8.2008 EXHIBIT R1(F) TRUE COPY OF THE DEED OF AGREEMENT DATED 5.6.2008 ## **WP(C) NO. 4559 OF 2019 and conctd case.** ## **13** ## **APPENDIX OF WP(C) 4559/2019** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE GOVERNMENT ORDER DATED 11.05.2011. EXHIBIT P2 TRUE COPY OF THE CLAIM STATEMENT/WRITTEN STATEMENT FILED BY THE 1ST RESPONDENT DATED 17.04.2013. EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER DATED 07.08.2013. EXHIBIT P4 TRUE COPY OF THE AWARD PASSED BY THE 2ND RESPONDENT IN I.D NO.21/2011 DATED 05.04.2018. RESPONDENT EXHIBITS EXHIBIT R1(a) TRUE COPY OF THE SALARY CERTIFICATE OF THE PETITIONER ISSUED BY MARY MATHA COLLEGE OF ENGG. & TECHNOLOGY ANNEXURE A: TRUE COPY OF THE APPOINTMENT ORDER DATED 20.7.2002 ANNEXURE B: TRUE COPY OF THE SALARY CERTIFICATE DATED 6.7.2006 ANNEXURE C: TRUE COPY OF THE SALARY CERTIFICATE ANNEXURE D: TRUE COPY OF THE PETITION DATED 24.3.2009 ALONG WITH ENGLLISH TRANSLATION ANNEXURE E:TRUE COPY OF THE MEMORANDUM OF SETTLEMENT DATED 2.8.2008 ALONG WITH ENGLISH TRANSLATION ANNEXURE F: TRUE COPPY OF THE PROCEEDINGS DATED 5.8.2008 EXHIBIT R1 TRUE COPY OF THE DEPOSITION OF THE PETITIONER DATED 20/3/2014 ## **WP(C) NO. 4559 OF 2019 and conctd case.** ## **14** EXHIBIT R1 TRUE COPY OF THE BANK PASS BOOK OF PETITIONER ISSUED FROM VIJAYA BANK, SHOWING THE DEPOSIT OF SALARY IN THE BANK ACCOUNT Exhibit R1(d) TRUE COPY OF THE MEMO DATED 28.12.2021, ISSUED BY THE GOVERNMENT OF KERALA Exhibit R1(e) TRUE COPY OF THE ORDIANCE DATED 20.0.2021, ISSUED BY THE GOVERNMENT OF KERALA Exhibit R1(f) TRUE COPY OF THE REQUEST LETTER DATED 10.02.2022 SUBMITTED BY THE 1ST RESPONDENT IN WPC BEFORE THE ORIGINAL PETITIONER Exhibit R1(g) TRUE COPY OF THE LETTER DATED 08.03.2022, SUBMITTED BY THE 1ST RESPONDENT IN WPC BEFORE THE ORIGINAL PETITIONER, ALONG WITH ITS ENGLISH TRANSLATION.