IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23920 of 2008(V)
1. K.P.R.JAYAKRISHNAN, PROPRIETOR, KANAKA
... Petitioner
Vs
1. K.BALAKRISHNAN, KRISHNA MANDIRAM,
... Respondent
2. THE DEPUTY LABOUR COMMISSIONER, KOLLAM.
For Petitioner :SRI.WILSON URMESE
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :08/08/2008
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)No.23920 OF 2008
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Dated this the 8th day of August, 2008
JUDGMENT
The petitioner challenges Ext.P2 order of the Appellate
Authority under the Shops and Commercial Establishments Act
(the Shops Act for short) in S.A.No.9 0f 2000 filed by the 1st
respondent against the petitioner stating that the service of the
1st respondent has been dispensed with without assigning any
reason.
2. The petitioner herein who was the opposite party in
the S.A. took the contention that the 1st respondent was not an
employee of his shop, but he was only employed as a domestic
servant at his home. The Appellate Authority after considering
the evidence adduced by both sides, came to the conclusion that
the evidence adduced by the 1st respondent was believable.
Accordingly, the 2nd respondent held that the petitioner herein
dispensed with the services of the 1st respondent without any
reasonable cause. Accordingly the 2nd respondent directed the
petitioner to pay a compensation amounting to Rs.65,000/- to
W.P.(c)No.23920/08 2
the 1st respondent in lieu of reinstatement. This order is under
challenge before me at the instance of the petitioner employer.
According to him, the 2nd respondent misdirected himself in
finding that it was the duty of the petitioner to prove that the
1st respondent was a domestic servant by producing
documentary evidence or witnesses. According to the learned
counsel for the petitioner, it was the duty of the workman to
prove that he was actually employed by the petitioner in the
petitioner’s Shop and not the other way round. He also
disputes the monthly salary claimed by the 1st respondent
before the 2nd respondent.
3. I have considered the arguments of the learned
counsel for the petitioner. While dealing with such cases, I
must remind myself that my jurisdiction in interfering with
orders of the Appelalte Authority under the Shops Act is a very
limited jurisdiction to examine whether the decision making
process itself is valid. I cannot re-appreciate evidence and
come to a different conclusion from that of the Appellate
Authority unless I find that the conclusion on the basis of the
evidence before the Authority is perverse.
W.P.(c)No.23920/08 3
4. In this case, the 1st respondent adduced evidence
before the 2nd respondent to the effect that he was actually
employed by the petitioner in the Jewellery shop of the
petitioner. He also examined a witness stated to be an
independent witness, who deposed to the effect that the 1st
respondent was actually an employee of the petitioner in his
shop. The 2nd respondent came to the finding that since the
petitioner’s shop is one covered under the Shops Act, he could
have proved that the 1st respondent was not an employee of
his shop by producing the statutory registers, which he is
manadatorily expected to maintain as per the Shops Act. The
2nd respondent drew an adverse inference from non-production
of those records, which is what is now termed by the petitioner
as a finding that it was for the petitioner to prove that the
workman was not an employee of the petitioner. The petitioner
had not produced any evidence other than examining himself
as a witness. The Appellate Authority considered the evidence
of both sides and believed the evidence of the 1st respondent
workman. The fact that the petitioner had a Jewelery shop is
admitted. The workman claimed that he was employed in that
shop. The petitioner contended that the workman was only a
W.P.(c)No.23920/08 4
domestic help. In such circumstances the petitioner could
have produced statutory registers to prove that the workman’s
name does not find a place therein. This only had been stated
by the Appellate Authority. There is nothing perverse
whatsoever in the same. Therefore, I do not find any merit in
the challenge against Ext.P2 and accordingly, the writ petition
is dismissed.
S. SIRI JAGAN, JUDGE
Acd
W.P.(c)No.23920/08 5