IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1719 of 2009()
1. P.K.HARIKUTTAN, AGED 44 YEARS,
... Petitioner
Vs
1. M/S. MATHA FISH FARM, SOUTH CHELLANAM,
... Respondent
2. LABOUR COURT, ERNAKULAM.
3. TAHSILDAR, ERNAKULAM.
For Petitioner :SRI.JAWAHAR JOSE
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.S.R.BANNURMATH
The Hon'ble MR. Justice A.K.BASHEER
Dated :08/09/2009
O R D E R
S.R.Bannurmath, C.J. & A.K. Basheer, J.
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W.A.No.1719 of 2009
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Dated this the 8th day of September, 2009
JUDGMENT
S.R.Bannurmath, C.J.
Aggrieved by the order of the learned Single Judge
dated 31st July, 2008 allowing the writ petition filed by the
employer and setting aside the award Ext.P5 passed by the
Labour Court, the present writ appeal is filed.
2. The appellant was in charge of a fish farm of the
first respondent and as it was found that there was
misappropriation of funds and when criminal proceedings were
proposed to be initiated against him, it is stated that he through
Ext.P1 letter admitted the misappropriation, and on initiation of
proceedings for departmental enquiry he was found guilty of
the charges levelled and accordingly dismissed him from
service.
3. Aggrieved by the same, when the appellant
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approached the Labour Court, it reversed the finding and passed
an award for reinstatement of the appellant with backwages.
Aggrieved by the said award, when the employer approached
this Court in the impugned writ petition, the learned Single
Judge, finding that practically there was no contest by the
appellant even though he was represented by counsel, and even
otherwise on merits, the appellant had no case, and especially
finding that the award passed by the Labour Court was
practically incorrect on the face of the records, set aside the
award of the Labour Court. However, taking into consideration
the fact that the appellant was in service with the petitioner for
some period, directed the petitioner employer to pay
compensation of Rs.50,000/- to the appellant. Aggrieved by the
same, the present writ appeal is filed.
4. The learned counsel appearing for the appellant
contended that as the appellant had no sufficient opportunity to
contest the case, the learned Single Judge was not justified in
proceeding to dispose of the case on merits. Even otherwise, it
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is submitted that the conclusion that Ext.P1 is not a confession
in specific as the same has to be scrutinised by way of evidence
which in fact has been done by the Labour Court, the learned
Single Judge was not justified in relying upon Ext.P1. It is also
contended that the delay observed by the learned Single Judge in
the impugned order is against the principles laid down by the
apex Court in the cases of Ajaib Singh v. Sirhind Co-operative
Marketing-Cum-Processing Service Society Limited and
another [(1999) 6 SCC 82] and Sapan Kumar Pandit v.
U.P.State Electricity Board and others [(2001) 6 SCC 222]. At
the outset, we have to note that though the appellant had
engaged counsel, he reported ‘no instructions’ to the Court and
sought permission to relinquish the vakalath. It is further
submitted that the observation that the counsel had reported ‘no
instructions’ two months back as noted by the learned Single
Judge is incorrect and on the other hand, just five days prior to
the passing of the impugned order, the letter of the counsel was
received, and as such the appellant could not take immediate
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steps. In this regard, if one peruses the affidavit filed by the
appellant himself for condonation of the delay of 319 days in
filing the writ appeal, it is clear that practically there was
inaction on the part of the appellant. Even if it is taken that he
received the communication from the counsel on 25.7.2008, he
was sleeping over the matter practically as stated in the
condonation of delay affidavit which indicates that he is a fence
sitter, especially when even after coming to know of the
impugned order, he has approached this Court belatedly after
about 319 days. It is to be noted that the learned Single Judge
admittedly and undisputedly has not passed the impugned
judgment only on the basis of absence of representation of the
appellant. The learned Single Judge has considered the case on
merits and in detail the effect of Ext.P1. Though now it is
claimed that this Ext.P1 was written by the appellant due to the
pressure tactics used by the employer, it appears to us that this is
an afterthought. If Ext.P1 was obtained from him under duress
he could have complained it immediately and taken steps to
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either recall or set aside it or to get the alleged statement
withdrawn. No such steps are taken. On the other hand, a
perusal of Ext.P1 as has been done by the learned Single Judge
would clearly indicate that details of the information which can
be said to be only within the knowledge of the appellant alone
have been disclosed in Ext.P1, and as such we find that the
learned Single Judge was justified in relying upon Ext.P1 which
remains uncontested. The finding of the learned Single Judge
that the Labour Court has brushed aside the effect of Ext.P1
lightly, in our view, is also justified and we find no illegality in
accepting Ext.P1. So far as the decisions relied on by the
learned counsel for the appellant regarding limitation are
concerned, we find that the observation of the learned Single
Judge regarding delay was only an observation and it is to be
noted that writ petition is not allowed only on that count.
5. Even on reappreciation of the entire materials we
find that there is absolutely no illegality or perversity in the
order passed by the learned Single Judge. In fact the learned
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Single Judge has given some solace to the appellant who is
admittedly employed in Government service now by directing
the employer to pay a sum of Rs.50,000/- by way of backwages.
As such on perusal of the entire materials, we find no illegality
or error on the part of the learned Single Judge in allowing the
writ petition and setting aside the award of the Labour Court.
Hence the writ appeal fails and it is liable to be dismissed.
However, we make it clear that as the first respondent/employer
has not challenged the order for payment of compensation, if the
appellant makes such a request for payment, the first
respondent/employer shall comply with the same within two
months from the date of making such a request.
With this observation the writ appeal is dismissed.
S.R.Bannurmath,
Chief Justice
A.K. Basheer,
Judge
vns/vku.