T.V. Sunil Kumar v. P.T. Vasanthi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 WP(C).No. 9710 of 2011(K) ------------------------CP.11/2004 of LABOUR COURT, KANNUR .................... PETITIONER(S): --------------- T.V.SUNIL KUMAR, PROPRIETOR VIBIYOR DIGITAL STUDIO & VIDEO, OPP.MUNICIPAL BUS STAND KANNUR-1. BY ADV. SRI.P.U.SHAILAJAN SRI.KISHOR B. RESPONDENT(S): --------------- P.T.VASANTHI, D/O.VASU, VASANTHA NIVAS, PACHAPOIKA PO, KUTHUPARAMBA KANNUR DISTRICT PIN 670 643. ADV. SRI.CIBI THOMAS FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **APPENDIX** ## **W.P.(C) No. 9710/2011** ## **PETITIONER'S EXHIBITS:** **EXT.P1 : COPY OF THE CLAIM PETITION NO.11/2004 BEFORE THE LABOUR COURT, KANNUR FILED BY THE RESPONDENT EXT.P2 : COPY OF THE COUNTER STATEMENT IN CLAIM PETITION NO.11/2004 EXT.P3 : COPY OF THE REJOINDER IN CLAIM PETITION NO.11/2004 EXT.P4 : COPY OF THE ORDER IN IN CLAIM PETITION NO.11/2004 PASSED BY THE LABOUR COURT, KANNUR EXT.P5 : COPY OF THE NOTICE ISSUED BY THE LABOUR COURT** ## **RESPONDENT'S EXHIBITS:** NIL **//TRUE COPY//** ## **P.A. TO JUDGE** vps ## **P.N.RAVINDRAN** , **J.** ## **--------------------------W.P.(C) No. 9710 OF 2011 -------------------------Dated this the 20[th] day of October, 2011** ## **J U D G M E N T** Ext.P4 order passed by the Labour Court, Kannur on an application filed by the respondent herein under section 33 C(2) of the Industrial Disputes Act, 1947(hereinafter referred to as 'the Act' for short), directing the petitioner to pay the sum of Rs.5,500/- with interest to the respondent is under challenge in this writ petition. The brief facts of the case are as follows:- 2. The respondent herein filed C.P. No.11 of 2004 in the Labour Court, Kannur under section 33C(2) of the Act claiming payment of the sum of Rs.5,500/- with interest at 18% per annum. She contended that she had worked as a receptionist in the studio run by the petitioner during the period 1.11.2001 to 31.3.2002, that though she was promised salary at the rate of Rs.1,500/- per mensem, salary was paid in full only for the month of November, 2001 that only Rs.500/- was paid for the month of December, 2001 and that thereafter no salary was paid as agreed upon as a result of which she left the employment on 31.3.2002. The respondent also contended that the petitioner had used her photograph for an advertisement inserted in the newspaper dated 4.5.2002 and that the petitioner is liable to pay her the sum of Rs.5,500/-being the arrears of wages for WPC No.9710/2011 2 the period from 1.11.2001 to 31.3.2002 after giving credit to the sum of Rs.2,000/- already paid. 3. The petitioner entered appearance and filed a written statement. In that written statement, after denying the claim made by the respondent that she had worked as a receptionist in his studio, he conceded the fact that she had worked as a trainee in his studio and was paid salary and allowances during the period. He also admitted the fact a photograph of the applicant was published in the newspaper as a part of an advertisement of his studio. In the Labour Court, the respondent was examined as PW1 and the petitioner as RW1. The lawyer notice caused to be issued by the respondent and the reply caused to be issued by the petitioner to the said notice were marked as Exts.R1 and R2. The petitioner contended before the Labour Court that when the relationship of master and servant is disputed and the status of the applicant has to be adjudicated, no relief can be granted in an application under section 33C(2) of the Act. The Labour Court overruled the said contention relying on the decision of a learned Single Judge of this Court in **Ajithkumar v. Labour Court** (1998 (1) KLT 898) and held that the mere denial of the relationship of master and servant will not deprive the Labour Court of the jurisdiction to decide the question whether there was in fact a master servant WPC No.9710/2011 3 relationship. The Labour Court also held on the evidence available before it that the applicant was employed as a receptionist in the petitioner’s studio. The Labour Court accordingly allowed the application and directed the petitioner to pay the sum of Rs.5,500/with interest at 12% per annum from 29.4.2003 till payment. Hence this writ petition challenging Ext.P4. 4. The main contention raised by the petitioner is that when the employer-employee relationship is disputed, a claim petition under section 33C(2) of the Act is not maintainable and the respondent should have first got her right or entitlement to receive salary decided before invoking the jurisdiction of the Labour Court under section 33C (2) of the Act. It is also contended that apart from the testimony tendered by the petitioner, who was examined as PW1, no evidence was adduced before the Labour Court to prove the fact that she was appointed as a receptionist on a salary of Rs.1,500/- per month. The petitioner has also explained the delay in challenging Ext.P4 order by stating that till he received Ext.P5 show cause notice dated 1.1.2011 from the District Labour Officer, Kannur demanding payment of the amount awarded as per Ext.P4 order, he was not aware of the said order and that he did not get the information from the counsel who represented him in the Labour Court about the disposal. Of the WPC No.9710/2011 4 application. 5. I heard Sri.P.U.Shailajan, learned counsel appearing for the petitioner and Sri.Ciby Thomas, learned counsel appearing for the respondent. Ext.P4 order was passed on 14.10.2009. The petitioner was represented before the Labour Court by counsel. The only explanation offered by the petitioner in the writ petition, which was filed on 25.3.2011, for not challenging Ext.P4 within three months from the date on which it was passed or immediately thereafter is set out in paragraph 5 of the writ petition which reads as follows:- _“5. In the above matter, the petitioner was informed by his counsel that, he will intimate the petitioner on receipt of the copy of the order. But he did not get any information from the counsel. On getting Exhibit-P5, he approached the counsel and only at that time he got Exhibit-P4. So there is no wilful delay on the part of the petitioner to challenge Exhibit-P4 order.”_ 6. The petitioner has not pleaded that his lawyer failed to inform him in time about the award. The only case set out by him is that he did not get any information from his counsel and that it was only when he approached the counsel on receiving Ext.P5 notice that he got Ext.P4. The explanation offered by the petitioner in paragraph 5 of the writ petition for the long delay in challenging Ext.P4 is in my opinion not worthy of acceptance. In this context it is relevant to note that the petitioner was examined as RW1. The petitioner has no case that WPC No.9710/2011 5 Ext.P4 order was passed long after he was examined as RW1. The petitioner is having his business place opposite the Kannur Municipal Bus Stand. The petitioner was represented by a lawyer practicing in Kannur courts. Therefore, the statement made by the petitioner that he was unaware of Ext.P4 order till he received Ext.P5 show cause notice cannot be believed. The petitioner has conceded in Ext.P2 statement filed by him that the first respondent had worked as a trainee in his establishment. He had also stated that he had paid salary to her. As rightly held by the Labour Court as the petitioner had admitted the presence of the respondent in his establishment and had not adduced any acceptable evidence as regards the quantum of allowances paid to the respondent and had also failed in proving that the respondent was only a trainee in his establishment, the respondent is entitled to the relief prayed for. I therefore find no merit in the challenge to Ext.P4. The writ petition fails and is accordingly dismissed. ## **P.N.RAVINDRAN, (JUDGE)** vps