IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 15258 of 1996(N)
1. V.P.MUSTHAFA
... Petitioner
Vs
1. THE SHOP & ESMT.WORKERS UNION
... Respondent
For Petitioner :SRI.U.K.RAMAKRISHNAN
For Respondent :SRI.P.R.RAMACHANDRA MENON
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :05/02/2008
O R D E R
P.N.RAVINDRAN, J.
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O.P.No.15258 OF 1996-N
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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
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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 3rd respondent in the original
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petition and there is no employer-employee relationship between
the workers and the 3rd 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
3rd respondent who is none other than the petitioner’s daughter-in-
law 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 3rd
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
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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 3rd
respondent, the alleged transferee is none other than the daughter-
in-law of the petitioner. Though the petitioner, examined as MW1 ,
on the side of the management attempted to depose that the 3rd
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 3rd respondent and the failure of the
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3rd 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
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P.N.RAVINDRAN,J.
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O.P.No.15258/96-N
J U D G M E N T
05.02.2008