SASI.S v MAVELIKKARA MUNICIPALITY, THE DISTRICT LABOUR OFFICER, ALAPPUZHA & THE STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944`** ## **`WP(C) NO. 29789 OF 2018`** ## **`PETITIONER:`** ``` SASI.S S/O.SREEDHARAN, KOLADATH PADINJARATHARA, KARUNAGAPALLY, KOLLAM DISTRICT. ``` ``` BY ADVS. K.MOHANAKANNAN A.R.PRAVITHA ``` ## **`RESPONDENTS:`** ``` 1THE MAVELIKKARA MUNICIPALITY REPRESENTED BY ITS SECRETARY, MAVELIKKARA (P.O), MAVELIKKARA TALUK, ALAPPUZHA (DISTRICT) 690101. ``` ``` 2THE DISTRICT LABOUR OFFICER, THE DISTRICT LABOUR OFFCE, ALAPPUZHA-690101 ``` ``` 3THE STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, LABOUR AND REHABILITATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. ``` ``` BY ADVS. SRI.DEEPAK JOY.K. SMT.M.J.SAJITHA ``` ``` SRI.JUSTIN JACOB – SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 29789 OF 2018 ``` ``` 2 ``` ## **JUDGMENT** The present writ petition is directed against the award dated 26.04.2018 of the Labour Court, Kollam, dismissing I.D.No.94/2015 preferred by the petitioner claimant claiming various reliefs on account of retrenchment. 2. The case set up by the petitioner before the Labour Court was that he was appointed as a driver with the Municipality on 30.10.2009 and continued to work for more than 240 days, but on one fine morning, was not permitted to join the duty without holding any enquiry or payment of retrenchment compensation as envisaged under Section 25F of the Industrial Dispute Act. Respondents employed another driver. 3. In pursuance of the notice, the management had taken up the plea of non-maintainability of the petition on the ground that petitioner had not completed 240 days and the employment was daily wages without marking any attendance on the wage register or attendance register. Also that petitioner had already accepted an amount of Rs.2,75,000/-. Before the Labour Court the parties brought on record following documents: ``` WP(C) NO. 29789 OF 2018 ``` ``` 3 ``` - a). W1-Copy of letter dated 17.11.2014 by the workman to the management. - b). W2-Copy of petition dated 28.01.2005 by the worker to the DLO Alappuzha. - c). W3-G.O.(Rt) No.155/2016/LBR dated 03.02.2016 by the Labour & Skills (A) Department. - d) W4-Copy of Letter No.G2.80864/2014 dated - 26.12.2014 by the Public Information Officer, Mavelikkara Municipality - e) W5-Copy of EPF Remittance receipts (6 Nos) - f) W6-Letter No.G2/8064/2014 dated 26.12.2014 by - the Public Information Officer, Mavelikara, Municipality. - g) W7-Original of EPF remittance receipts (6 Nos.) 4. The Labour Court, by noticing the cross examination reflected in findings paragraph 10, dismissed the claim petition. 5. Sri.Navaneeth Pai representing the learned counsel Sri.K.Mohanakannan appearing on behalf of the petitioner, submits ``` WP(C) NO. 29789 OF 2018 ``` ``` 4 ``` that there is a misreading of the documentary evidence which resulted into travesty of justice for the reason that the Labour Court is enjoined upon an obligation to deal with every documents. Reading of the cross examination cannot be a ground for nonsuiting the petitioner as the document Ext.W6 letter dated 26.12.2014 issued by the Public Information Officer Mavelikkara Municipality leaves no manner of doubt that petitioner attended more than 240 days in the year and therefore could not have been termed as daily wager, therefore, the award is liable to be set aside. 6. Learned counsel for the 1[st] respondent supports the award and submitted that the admission in the cross examination is best evidence which would defy all the other contents of the documents. Once there is a candid admission on behalf of the petitioner, there was no other ground for the Labour Court to form different opinion than the one arrived at and urged this Court for dismissal of the writ petition. 7. I have heard the learned counsel for the parties and appraised the paper book. ``` WP(C) NO. 29789 OF 2018 ``` ``` 5 ``` ## 8. Paragraph 10 of the award dismissing the claim petition is extracted hereinbelow: “10. The counsel fro the management cross examined the workman, the workman conceded in cross examination that he had not submitted application for appointment, he was directed to drive the tractor in cleaning section of the municipality on daily wages and no attendance register kept by the municipality for marking his attendance and the workman was working on daily wage, as driver of tractor in cleaning section municipality.” ## 9. The documents referred above from the tenor and mode of the award have not been dealt with in extenso much less even there is passing reference. The contents of Ext.P1 information received under RTI Act reads thus: “The details requested as per reference cited is furnished below: 1. DLR Driver - II. a. Joined duty on 30-10-09. - b. from 1-1-2009 to 31-3-2011 @ Rs.200/- per day - c. from 1-4-2011 to 28.02.2012 @ Rs.350/- per day - d. from 1-3-2012 to 9/2014 @ Rs.400/- per day For furnishing the details in respect of EPF, 10 days may be granted.” ## On perusal of the above, it is indubitably proved that the ``` WP(C) NO. 29789 OF 2018 ``` ``` 6 ``` workman had rendered more 240 days service. Therefore, the Labour Court ought to have opined that in the absence of any enquiry against the petitioner, the management cannot overcome the plea of not awarding the retrenchment compensation or could not place on record any material to support the case of abandonment. 10. For the reason aforementioned, the findings of the Labour Court are set aside. The question which arises at this point of time is whether the order of reinstatement with full or 50% of backwages would be appropriate or not or a compensation. Much time has lapsed and respondents have already employed a driver, I am of the view that compensation would be the best remedy for eradicating the grievance of the petitioner. The aforementioned view of mine is derived from ratio decidendi culled out in the judgment of the Hon’ble Supreme Court reported in **B.S.N.L v. Bhurumal (2014) 7 SCC 177).** **11.** Claim petition was preferred on 24.03.2015 and decided on 26.04.2018. The income of the petitioner was Rs.400/- per day. Assuming that he had worked for 20 days in a month, ``` WP(C) NO. 29789 OF 2018 ``` ``` 7 ``` compensation would be more than Rs.2,75,000/-. Rounding it off, Compensation to the tune of Rs.2,50,000/- is directed to be paid to the petitioner. Award is modified accordingly. Respondents are directed to comply with the award and pay the compensation within a period of 45 days from the date of receipt of copy of this judgment. Writ petition stands disposed off. **Sd/-** **AMIT RAWAL JUDGE** nak ``` 8 ``` ## **`WP(C) NO. 29789 OF 2018`** ## **`APPENDIX OF WP(C) 29789/2018`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1 ``` - `TRUE COPY OF THE RIGHT TO INFORMATION ACT REPLY DATED 17/11/2014.` - `EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 17/11/2014 ALONG WITH COPY OF THE POSTAL RECEIPT.` - `EXHIBIT P3 TRUE COPY OF THE LAWYER NOTICE DATED 18/11/2014 WITH POSTAL RECEIPT.` - `EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 24.03.2015 SUBMITTED BEFORE THE 1ST RESPONDENT.` - `EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 24.03.2015 SUBMITTED BEFORE THE 1ST RESPONDENT AND COPIED TO THE LABOUR OFFICER ALONG WITH POSTAL RECEIPT.` - `EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 24.03.2015 SUBMITTED BEFORE THE 1ST RESPONDENT AND COPIED TO SECRETARY TO GOVT. INDUSTRIES DEPARTMENT ALONG WITH POSTAL RECEIPT.` - `EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED 24.3.2015 SUBMITTED TO LABOUR COMMISSIONER.` - `EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 28.1.2015 SUBMITTED TO LABOUR OFFICER.` - `EXHIBIT P9` - `TRUE COPY OF THE PETITION IN ID NO.94 OF 2015 FILED BEFORE THE LABOUT COURT.` ``` EXHIBIT P10TRUE COPY OF THE GO(RT)155/2016/LBR DATED 3.2.2016 ``` ``` 9 ``` ## **`WP(C) NO. 29789 OF 2018`** ``` EXHIBIT P11TRUE COPY OF THE AWARD IN ID NO.05/2016 OF LABOUR COURT, KOLLAM. ``` ``` EXHIBIT P12TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER IN ID NO.94/2015. EXHIBIT P13TRUE COPY OF THE AWARD IN ID NO.94/2015 DATED 26/4/2018 OF LABOUR COURT, KOLLAM. ```