IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21707 of 2005(H)
1. BENNY THOMAS, PROPRIETOR,
... Petitioner
Vs
1. K.P.JACOB, KALATHILPARAMBIL VEEDU,
... Respondent
2. LABOUR COURT, KOLLAM.
For Petitioner :SRI.S.SUBHASH CHAND
For Respondent :SRI.A.X.VARGHESE
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :27/08/2008
O R D E R
S.SIRI JAGAN, J
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W.P(C)Nos.21707 & 27008 of 2005
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Dated this the 27th day of August, 2008.
J U D G M E N T
Both the management and workman in I.D. No.25/1995
before the Labour Court, Kollam, is challenging the award in
that I.D. The award is Ext.P7 in W.P.(C)No. 21707 of 2005 and
P1 in the other. In this judgment, for convenience, refer to the
same as Ext.P7 as marked in W.P.(C) No. 21707/05. The issue
referred for adjudication was:
“Dismissal of Sri. Jacob K.P., Salesman, Benny & Co.,
Thiruvallay with effect from 14.10.1993.”
The management took a dual contention; one is that the
workman’s services were terminated for the misconduct of
unauthorised absence. The 2nd was that he abandoned
employment and accepted employment elsewhere. On both,
the Labour Court found against the management and the
management was directed to reinstate the workman with 30%
back wages. The management is challenging award as a whole
and the workman is challenging that part of the award whereby
a back wage is restricted to 30%, in these two writ petitions.
2. I have heard both sides.
W.P(C)Nos.21707 & 27008 of 2005 - 2 -
3. The fact that, the workman was employed by the
Management was not in dispute. Their contention was that
while being so employed attendance of the worker was
irregular and he did not properly respond to the warnings
issued. The contend that the workman did not turn up duty
from 18.8.1993 onwards and later he accepted employment in
another medical shop at Chengannoor and thus abandoned the
employment with the management. The management did not
have a case that they had initiated any disciplinary action
against the workman for any misconduct. The workman
examined himself as a witness that the management did not
cross examine which is not disputed by the management. The
workman categorically stated on his service where terminated
and he did not get any employment any where else as stated by
the management. His testimony being uncontravereted the
management cannot now contend to the contrary in respect of
both aspects and proved his case in the claim statement. In
the award it is stated discussion of evidence in Ext.P7 award, I
do not find anything therein even remotely suggesting any
perversity in the findings therein. I can interfere with award in
an industrial dispute only if I find perversity in the findings on
W.P(C)Nos.21707 &
27008 of 2005 – 3 –
evidence, which is the settled law. That being so, I do not think
that it would be justified in interfering with the award.
The next question is as to whether the workman is
entitled to backwages in excess of what has been awarded by
the Labour Court. The management filed the writ petition on
20.7.2005 ie more than three years ago, the workman has not
filed any application for wage, under Section 17B of the
Industrial Disputes Act. That would go to a great extent to
infer that the workman was alternatively employed. I am
unable to find that all these years after dismissal the workman
would be sitting idle at home. In such circumstances, I do not
find any justification to interfere with the restriction of
backwages to 30% in the award. Accordingly, both writ
petitions are dismissed.
S.SIRI JAGAN, JUDGE
rhs