W.A.No.252/2021
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS**
## **&**
**THE HONOURABLE MR. JUSTICE A. BADHARUDEEN**
**MONDAY, THE 20[TH] DAY OF SEPTEMBER 2021/29TH BHADRA, 1943**
## **WA NO. 252 OF 2021**
**AGAINST THE JUDGMENT DATED 22.12.2020 IN WP(C) 32208/2011 OF HIGH COURT OF KERALA**
## **APPELLANT/PETITIONER:**
S.PRASANNA KUMAR AGED 64 YEARS, ANIL PRINTERS, PALAKUNNU, CHIRAYINKEEZHU, THIRUVANANTHAPURAM.
BY ADV A.K.PREETHA
## **RESPONDENTS/RESPONDENTS:**
1 THE LABOUR COURT, KOLLAM, CIVIL STATION, CUTCHERY P.O., KOLLAM-691013. 2 S.GEETHA, CHARUVILA PUTHEN VEEDU, KALLINMOODU, ILAMBA P.O., AVANAVANCHERY, ATTINGAL, THIRUVANANTHAPURAM-695103.
BY ADVS. SRI.R.RAJESH (VARKALA)FOR R2 SRI.M.KIRANLAL SRI.MANU RAMACHANDRAN SRI.T.S.SARATH
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **ALEXANDER THOMAS & A. BADHARUDEEN, JJ.**
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## W.A No.252 of 2021
_[arising out of the judgment dated 22.12.2020 in W.P(c).No.32208/2011]_
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Dated this the 20[th] day of September, 2021
## **JUDGMENT**
## **ALEXANDER THOMAS, J.**
The appellant herein had approached this Court by filing the instant W.P©.No.32208/2011 with the following prayers _(see page 23 of the paper book of this O.P)_
_“i) writ of certiorari or any other appropriate writ, order or direction quashing and setting aside Exhibit-P1 award;_
_ii) to hold that Exhibit-P1 award is vitiated by non application of mind_
_iii) a writ of mandamus or any other appropriate writ, order or direction directing the 1[st] respondent to take up and pass an award afresh in I.D.No.20/2010 in accordance with law; and_
_iv) be pleased to issue such other writ, order or direction as are deemed just and proper in the circumstances of the case.”_
2. The main challenge made in the writ proceedings was
directed against the impugned Ext.P1 award dated 2.4.2011 rendered
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by the Labour Court, Kollam in Industrial Dispute Case No.20/2010 initiated by the respondent No.2 herein (workman). The Labour Court, as per the impugned Ext.P1 award, had ordered that the impugned termination of the service of the respondent workman is unjustifiable and directed that she is entitled to reinstatement with continuity of service and 50% of the backwages from 11.07.2008 till her reinstatement, etc.
3. The learned single Judge after hearing both sides had rendered the impugned judgment dismissing the above Writ Petition finding that no serious grounds are made out to challenge the verdict of the Labour Court at Ext.P1.
4. Being aggrieved by the dismissal of the above W.P(C) as per the impugned judgment of the learned Single Judge rendered on 22.12.2020, the writ petitioner herein had filed the present intracourt appeal under Section 5 of the Kerala High Court Act.
5. Heard Smt. A.K.Preetha, the learned counsel appearing for the appellant in the W.A/petitioner in the W.P(C) and Sri. R.Rajesh, the learned counsel appearing for R2 in the W.A/R2 in the W.P(C)
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(workman). Since the 1[st] respondent is a Labour Court, notice to R1 will stand dispensed with.
6. In the instant case, R2 herein (workman) was terminated from service on 10.07.2008 which led to raising of an Industrial Dispute at her instance, which in turn was referred to the Labour Court under Section 10(1)(c) of the Industrial Disputes Act, 1947. The Labour Court, Kollam by the impugned award found on the basis of the materials on records that the termination of the workman was legally unjustifiable and that she is entitled for reinstatement with continuity of service and 50% of backwages. It was the case of the worker that she was appointed in a printing press run by the appellant on 6.5.1988 as Compositor initially and that she continued there till her termination as DTP Operator on 10.7.2008. The management through the written statement controverted the allegations and stated that the worker was initially employed as a trainee on 6.5.1988 and thereafter only as a casual employee as and when work was available and that the employment was only for a period of 10-15 days in a month with a salary of Rs.75/- per day and that there was no
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employer-employee relationship between the parties. The learned Single Judge after considering the rival submissions of both sides and after going through the materials on records as well as the reasonings of the Labour Court in Ext.P1 award had found that the findings of the Labour Court are mainly on the basis of documents like Exts.W1 and W2 apart from the oral testimony of the worker. It was found that Exts.W1 and W2 are the certificates issued by the appellant employer certifying that R2 had worked in the establishment from 6.5.1988 to 30.4.1999. It was the specific case of the worker in a deposition that she used to sign the attendance register and the wages register everyday and that she was illegally terminated from service on 10.7.2008. The learned Single Judge has noted that on the basis of documents like Exts. W1 and W2 and the oral evidence of the worker, the Labour Court found that she had orally deposed that she had worked in the appellant’s establishment till 10.7.2008. On this basis, the learned Single Judge has held that on the basis of both documentary evidence as well as oral evidence, the worker has given evidence that she was working in the said institution till 10.07.2008 and that thus she was having continuous service of 240 days, in the
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year preceding the termination. Then her case stands proved by probabilities and therefore the burden had shifted to the management to show that the workman had not worked for 240 days in the year preceding the termination. The learned Single has noted that the evidence adduced would really show that not even a proper question was asked to the worker WW1 at the cross examination stage by the management regarding the attendance register or wages register and that management has not taken up any plea in its evidence that such registers are not available with them. Further that no effort was taken by the management to produce such registers to discharge their burden that had fallen upon them. In the light of these aspects, the learned Single Judge has taken the considered view that based on the available documentary evidence as well as on the basis of her oral evidence the worker has proved that she was working till 10.07.2008 and that she was thus in service for 240 days in the calendar year prior to the termination from service. Therefore, the burden had shifted to the employer, who has not made out a contra case, etc. It is on these grounds that the learned Single Judge has held that no interference is
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called for regarding the evidentiary fact finding made by the Labour Court in Ext.P1.
7. Smt.A.K.Preetha, the learned counsel appearing for the appellant employer would point out that it is well established by a series of rulings of the Apex Court as in _**Mohd. Ali v. State of H.**_ P [(2018) 15 SCC 641] and _**R.M.Yellatti v. Asstt. Executive Engineer**_ [(2006) 1 SCC 106] that the crucial aspect to be proved by the worker is that he/she should have worked for not less than 240 days in the calendar year preceding the date of termination/retrenchment and on the failure of the worker to prove this crucial aspect, interference at the hands of the Labour Court in the Industrial Dispute proceedings will not be justified. Further it is also pointed out that it was the bounden obligation of the worker to have at least filed an application before the Labour Court so as to call upon the employer to produce the requisite employment registers like wage register, attendance register, etc., and if orders in that regard had been given by the Labour Court and still the employer had not produced any such documents, then alone the Labour Court would have been
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justified to make adverse inference against the employer, etc. After hearing both sides, we find that the learned Single Judge has considered the evidence on record as well as the materials borne out in the proceedings and has taken a considered view that whatever documentary evidence was available with the worker and produced by her as per Exts.W1 and W2 etc. and that as she did not have the documentary evidence, she has given clear oral evidence before the court which is not controverted in any manner by the management that she had worked as aforesaid. It is on this ground that the learned Single Judge has taken the view that therefore the burden had shifted to the employer. Merely because the worker has not technically filed any application before the Labour Court so as to call upon the employer to produce the requisite wage register, etc. , is no ground to disturb the well considered fact findings by the Labour Court and by the learned Single Judge. The learned Single Judge clearly found that no proper question was put by the management to the worker to even suggest that the case put up by the worker is factually incorrect, etc. Further the learned Single Judge has also taken the view that the wages register, attendance register, etc., are all in the custody of the
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employer and if those documents were available to prove that the worker had not worked for 240 days in the calendar year preceding the date of termination from service etc., then the employer could have easily produced the said documents. Therefore, in the light of these aspects, merely because the worker had not filed any formal application before the Labour Court so as to call upon the production of documents by the employer, may not be a justifiable ground for the writ appellate court to interfere in the matter. The grounds for appellate interference will be justified in a case like this only if the fact findings are manifestly perverse or illegal. We are not in a position to countenance the said plea of the appellant, and at any rate, we are not prepared to hold that the fact findings made by the learned Single Judge in this case as above should be treated as perverse or unreasonable.
8. Moreover, we are appraised by both sides that the worker has already been reinstated in service and what remains is only payment of backwages, which is only 50% of the backwages during the relevant period. Smt. A.K.Preetha, the learned counsel for the
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appellant, would also point out that though the 2[nd] respondent worker had joined duty after reinstatement, thereafter she has not reported for work. The above said allegation is denied by Sri R.Rajesh, the learned counsel appearing for the 2[nd] respondent worker. We are not in a position to adjudicate on the correctness or otherwise of these rival factual pleas, for these are not issues that are germane and relevant in the adjudication regarding the validity or otherwise of Ext.P1 Labour Court award. The Labour Court award has been rendered as early as on 2.4.2011 and now more than 10 ½ long years have passed. In the light of all these aspects we are constrained to take the view that no interference is made out with the verdict of the learned Single Judge in the Writ Petition(Civil).
Hence the above Writ Appeal will stand dismissed.
_Sd/-_
## **ALEXANDER THOMAS, JUDGE**
_Sd/-_ **A. BADHARUDEEN, JUDGE**
rtr/
