V.P. Musthafa (deceased) v. Shop & Establishment Workers Union, Kannur District General Workers Union & Others (OP No. 15258 of 1996 (N))

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 OP.No. 15258 of 1996(N) ----------------------PETITIONER: - ------------ V.P.MUSTHAFA, HASEER HOUSE, 'MANAL' KANNUR -8.(DIED) ## **ADDL.P2 TO P8** : 2. AYISHA T.P., W/O LATE V.P.MUSTHAFA, HASEER HOUSE, MANAL, KANNUR – 8. 3. HAJIRA V.P., D/O LATE V.P.MUSTHAFA, HASEER HOUSE, MANAL, KANNUR – 8. 4. SAIBU V.P., HASEER HOUSE, MANAL, KANNUR – 8. 5. MOHASIN V.P., S/O LATE V.P.MUSTHAFA, HASEER HOUSE, MANAL, KANNUR – 8. 6. MANSOOR V.P., S/O LATE V.P.MUSTHAFA, HASEER HOUSE, MANAL, KANNUR – 8. 7. JASMIN V.P., D/O LATE V.P.MUSTHAFA, HASEER HOUSE, MANAL, KANNUR – 8. 8. JAMSHID V.P., D/O LATE V.P.MUSTHAFA, HASEER HOUSE, MANAL, KANNUR – 8. ADDL.P2 TO P8 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED PETITIONER AS PER ORDER DATED 8.12.2006 ON I.A.No.15147/06. BY ADV. SRI.U.K.RAMAKRISHNAN SRI.P.V.LOHITHAKSHAN SRI.V.KRISHNA MENON SRI.E.K.MADHAVAN RESPONDENTS: - ---------------- 1. THE SHOP & ESTABLISHMENT WORKERS UNION, AITUC, VALAPATTANAM, REPRESENTED BY ITS SECRETARY. **OP.No. 15258 of 1996(N)** 2 2. KANNUR DISTRICT GENERAL WORKERS UNION, C/O C.M.P.OFFICE, THANA, KANNUR – 12, REPRESENTED BY ITS SECRETARY. 3. P.K.SHAKEELA, W/O MOHASIN, ANJEENGAL HOUSE, CHEMMARASEREPARA, AZHIKODE, KANNUR. 4. LABOUR COURT, KANNUR. BY ADV. SRI.T.R.RAMACHANDRA MENON GOVERNMENT PLEADER SHRI K.SANDESH RAJA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APENDIX IN OP.No. 15258 of 1996(N) ## **PETITIONER'S EXTS:** EXT.P1: TRUE COPY OF THE NOTICE DATED 6.8.91 SENT BY THE PETITIONER TO THE EMPLOYEES. - EXT.P2: TRUE COPY OF THE NOTICE DATED 8.8.1991 SENT BY THE PETITIONER TO THE SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF LABOUR, THIRUVANANTHAPURAM IN FORM NO.F. EXT.P3: TRUE COPY OF THE AWARD DATED 23.11.1995 OF THE FOURTH RESPONDENT IN I.D.NO.45/92 PUBLISHED IN THE KERALA GAZETTE DATED 16.4.96. ## **P.N.RAVINDRAN, J. ---------------------------------------O.P.No.15258 OF 1996-N** ------------------------------------- ## **DATED THIS THE 5TH DAY OF FEBRUARY, 2008** ## **J U D G M E N T** Exhibit P3 award passed by the Labour Court, Kannur as early as on 23.11.1995 in I.D.No.45/92 is under challenge in this original petition. 2. The petitioner, who instituted this Original Petition , since deceased, was the proprietor of 'V.P.Industries' an industrial unit engaged in the manufacture and distribution of curry powder on wholesale basis. On the petitioner's death, his legal representatives have been impleaded as supplemental petitioners 2 to 8 as per order dated 8.12.2006 passed on I.A.No.15147/06. 3. The issue referred to the Labour Court for adjudication was the denial of employment to 35 workers of the petitioner's unit. In the Labour Court, the plea of the management was that the industry was closed down in terms of Section 25-FFF of the Industrial Disputes Act, 1947 and that only 12 workers were employed in his unit. The Labour Court, on an analysis of the **O.P.No.15258/96-N** 2 pleadings and the evidence in the case held that only 12 out of 35 persons projected as employees of the petitioner's unit were in fact employed in the petitioner's establishment. The plea of the petitioner that the unit was closed down was held to be untenable. The Labour Court also held that the establishment is still in existence and that 12 workers named in the award were denied employment since September, 1991. The Labour Court accordingly held that the 12 workers named in the award are entitled to be reinstated with back wages since the re-opening of the unit after lock out, with continuity of service. 4. I have heard Shri U.K.Ramakrishnan, the learned counsel appearing for petitioner and Shri P.R.Ramachandra Menon, the learned counsel appearing for respondents 1 and 2. The earned counsel for the petitioner contended that a closure notice was issued in terms of section 25-FFF of the Industrial Disputes Act, 1947 and that the finding of the Labour Court that the business is still in existence is factually incorrect and is not supported by the evidence on record. The learned counsel for the petitioner further contended that the business is being run by the 3[rd] respondent in the original 3 ## **O.P.No.15258/96-N** petition and there is no employer-employee relationship between the workers and the 3[rd] respondent. The learned counsel appearing for respondents 1 and 2 contended that the notice of closure was issued after employment was denied to the workers and that the claim of the management that the unit has been transferred to the 3[rd] respondent who is none other than the petitioner's daughter-inlaw is a bogus claim. The learned counsel also submitted that in fact, there was no closure at all and that the business was being carried on by the petitioner. The Labour Court has, on a consideration of the pleadings and the evidence in the case and on an analysis of the case law on the point held that the unit was not closed and is still continuing. The Labour Court had in arriving at the said finding taken note of the fact that the licence to run the factory continues in the name of the petitioner and that the 3[rd] respondent had not come forward to adduce evidence and establish her case that she is running the business on her own. Though the petitioner had placed reliance on the decision of the Apex Court in **- T.D.L.Association v. Ex Employees (AIR 1960 SC 815)** to contend that even if the closure is held to be malafide, the 4 ## **O.P.No.15258/96-N** consequence would only be the liability to pay higher compensation and not reinstatement, the said contention was repelled by the Labour Court on the finding that there was in fact and in reality no closure and that the industrial unit is still functioning under the same management. 5. I have considered the rival submissions made at the Bar. In my considered opinion, for the reason that the license to run the establishment still continues in the name of the petitioner, the finding of the Labour Court cannot be said to be perverse or illegal. No document evidencing the transfer of the business in favour of the third respondent was produced before the Labour Court. It was conceded before the Labour Court that the license to run the industry still stands in the name of the petitioner. The 3[rd] respondent, the alleged transferee is none other than the daughterin-law of the petitioner. Though the petitioner, examined as MW1 , on the side of the management attempted to depose that the 3[rd] respondent is doing the business independently, the Labour Court, taking note of the admitted fact that the license had not been transferred to the name of the 3[rd] respondent and the failure of the 5 ## **O.P.No.15258/96-N** 3[rd] respondent to enter the box and prove her case that she was running the establishment independently and in her own right, held that there was no closure of the establishment in the eyes of law and that the petitioner herein is still running the business. The said finding of the Labour Court in Exhibit P3 award is a finding of fact based on the evidence on record and cannot be said to be a perverse finding warranting interference by this Court. For the reasons stated above, I find no grounds to interfere with Exhibit P3. The original petition accordingly fails and it is dismissed. No costs. ## **P.N.RAVINDRAN, JUDGE.** dsn 6 ## **O.P.No.15258/96-N** **P.N.RAVINDRAN,J. ----------------------O.P.No.15258/96-N** **J U D G M E N T** **05.02.2008**