Sajan Philip and Samuval Philip v. Harikumar alias Sunny and The State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, 1944`** ## **`WP(C) NO. 19695 OF 2018`** ## **`PETITIONERS:`** ``` 1SAJAN PHILIP, AGED 48 YEARS, CHERUTHURUTHY PLANTATIONS, VARIKKANAKKUZHI VEEDU, VETTIKKATTIRI, CHERUTHURUTHY-679531. 2SAMUVAL PHILIP, CHERUTHURUTHY PLANTATIONS, VARIKKANAKKUZHI VEEDU, VETTIKKATTIRI, CHERUTHURUTHY-679531. ``` ``` BY ADVS. SRI.VISHAK.K.JOHNSON SRI.S.NITHIN ANCHAL ``` ## **`RESPONDENTS:`** ``` 1HARIKUMAR ALIAS SUNNY, ELUVINIL HOUSE, VETTIKATTIRI P.O., PANJAL-679531. 2THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, MINISTRY OF LABOUR, STATE SECRETARIAT, THIRUVANANTHAPURAM-695001. ``` ``` BY ADVS. SRI.JUSTIN JACOB, SR.GP SRI.C.ANIL KUMAR SMT.A.K.PREETHA ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` `WP(C) NO. 19695 OF 2018 -` 2 `-` ## **`JUDGMENT`** The award of the Labour Court dated 08.03.2018 rendered in I.D.No.41 of 2016 allowing the claim petition of the workman by accepting the contention with regard to the illegal terms and conditions and by assessing the compensation of Rs.2,00,000/- is under challenge on behalf of the petitioners- employers. 2. Respondent No.1 workman was under the employment of the petitioners as a rubber tapper from 1994 to 2012. He was paid wages of Rs.1 per tree and tapping of 350 trees per day, thus his income in the year 1994 was almost Rs.9,100/- (Rupees Nine thousand one hundred only) per month. He was employed with the erstwhile owner of the plantation Sri.Samual Philip, who expired on 11.12.2011 and thereafter his sons, the petitioners continued to run the management. According to the workman, on 14.11.2012, he suffered an injury on `WP(C) NO. 19695 OF 2018 -` 3 `-` his leg and sought leave for one week. When his physical condition improved and reported for job, was not permitted, thus a case of retrenchment and not abandonment. 3. On the other hand, the management contested the aforementioned claim on the ground that petition was not maintainable, it was a case of abandonment, when the management changed workman left the job. A complaint was lodged against the workman, a compromise was arrived at and the workman expressed his intention not to continue the job and handed over the keys of the shed and tapping knife of the petitioners. Despite that on a humanitarian consideration, was paid a sum of Rs.10,000/-. Labour Court on the preponderance of the evidence allowed the claim petition as noticed above. 4. Learned counsel appearing on behalf of the `WP(C) NO. 19695 OF 2018 -` 4 `-` management submitted that the order of the learned Tribunal is not sustainable in the eyes of law for the reason that respondent No.1 voluntarily offended the job in view of the compromise arrived at and therefore, was estopped to raise such plea before the government for seeking reference to the Labour Court .There was misinterpretation and misleading of the documentary evidence. 5. On the other hand, learned counsel for the workman countered the argument on the ground that the alleged compromise arrived at was not placed on record. This was specifically denied when put to in the crossexamination. Petitioners did not conduct any enquiry if at all it was a case of abandonment., thus, the award of the Labour Court is perfectly legal and do not call for interference. 6. I have heard learned counsel for the parties `WP(C) NO. 19695 OF 2018 -` 5 `-` and appraised the paper book. 7. Management in labour disputes, commonly, come out with the plea of abandonment. No doubt there had been some genuine cases where the workman voluntarily abandon the job but the liability of the employer being the management is not warded off in the fashion. It is incumbent upon them to hold an enquiry by serving a charge sheet at the available address of the workman and in case of absence of the workman, nothing prevent them to hold an ex parte enquiry. The aforementioned exercise, for the reason best known, was not undertaken. 8. It is not the case of the management that the workman was not in employment/rolls of the management till the plantation was owned by the father since deceased. If at all the petitioners were so consistent and candid about the stand, nothing `WP(C) NO. 19695 OF 2018 -` 6 `-` prevented them to place on record muster roll or other attendance register or any notice sent to the petitioner for joining the duty to establish their bona fides. Labour Court by noticing all the aforementioned points, particularly the absence of any discharge of the burden qua compromise entered into before the police, rightly arrived at to determine compensation. The quantification of compensation in terms of money is also a mode culled out keeping in view the attenuating circumstances viz-a-viz the relationship between an employer and employee as per the judgment of the Supreme Court in **Tapash Kumar Paul v. BSNL & another** (AIR 2015 SC 357). The salary of the workman at the time of employment was Rs.9,100/- which may have increased considerably. Thus the compensation assessed to the tune of Rs.2,00,000/- along with the interest on account of non-payment thereof within a period of one month, is perfectly legal and justified and `WP(C) NO. 19695 OF 2018 -` 7 `-` do not call for any interference under Article 226 of the Constitution of India. Writ petition is accordingly dismissed. ``` Sd/- ``` ``` AMIT RAWAL JUDGE ``` ``` vv ``` `WP(C) NO. 19695 OF 2018 -` 8 `-` ## **`APPENDIX OF WP(C) 19695/2018`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1TRUE COPY OF THE JUDGMENT IN INDUSTRIAL DISPUTE NO.41/2016 ON THE FILES OF THE INDUSTRIAL TRIBUNAL, THRISSUR. ```