T.Y Varkey vs P.J Xavier
2023 Latest Caselaw 8428 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                    &
            THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
   MONDAY, THE 7TH DAY OF AUGUST 2023/16TH SRAVANA, 1945
                     WA NO.1401 OF 2023
AGAINST THE JUDGMENT DATED 30.07.2023 IN R.P.NO.569 OF 2023
AND THE JDUGMENT DATED 20.03.2023 IN WP(C) 21413/2009 OF
HIGH COURT OF KERALA
APPELLANT/RESPONDENT-PETITIONER:

            T.Y VARKEY, AGED 80 YEARS, S/O.YOHANNAN,
            THANACHIRAYAIL (NEAR PANNIMATTOM FCI GODOWN),
            CHANNANIKKAD P.O., KOTTAYAM., PIN - 686533.

            BY ADV. SRI.SANTHOSH MATHEW


RESPONDENT/PETITIONER-RESPONDENT:

            P.J XAVIER, AGED 68 YEARS, S/O.JOHN,
            PALIYA THEYYIL VEEDU, S.H. MOUNT P.O,
            KOTTAYAM, PIN - 686006.

            BY ADV. SRI.MATHEW PHILIP EDAPPALLIL


     THIS     WRIT    APPEAL   HAVING     COME   UP    FOR    ADMISSION   ON
07.08.2023,     THE    COURT   ON   THE     SAME      DAY    DELIVERED    THE
FOLLOWING:
      ALEXANDER THOMAS & C.JAYACHANDRAN, JJ.
     --------------------------------------
               W.A.No.1401 of 2023
     --------------------------------------
     Dated this the 7th day of August, 2023


                                 JUDGMENT

C.Jayachandran, J.

Under challenge in this appeal is the judgment of

the learned Single Judge dated 20.03.2023 in W.P.

(C) No.21413/2009, which confirmed Ext.P1 Award of

the Industrial Tribunal, Idukki dated 17.09.2008 in

I.D.No.15/2006.

2. The issue referred for adjudication in the I.D.

above referred, was the legality and justifiability

of the denial of employment to the respondent/

workman herein by the appellant/employer, the

proprietor of a Saw Mill by name M/s.Quality

Timbers. By the Award dated 17.09.2008, the

Industrial Tribunal found that the denial of

employment was illegal and unjustified and W.A No.1401/2023

accordingly, directed the Management to treat the

workman as retrenched from service with effect from

the date of Award, pay him notice pay, retrenchment

compensation and 50% of the back wages till the date

of Award. The Award was challenged by the appellant

herein in W.P.(C) No.21413/2009. The learned Single

Judge found no reason to interfere with the Award.

However, the direction to pay 50% of the wages was

quantified as a lumpsum compensation for Rs.2 lakhs,

to be paid within two months from the date of the

judgment. The appellant preferred Review Petition as

R.P.No.569/2023, seeking a clarification with

respect to the payment of Rs.35,000/- already made

pursuant to an interim order passed at the time of

admission of the Writ Petition. The learned Single

Judge clarified that the compensation of Rs.2 lakhs

would be inclusive of the said interim payment of

Rs.35,000/-. It was also directed that the

compensation amount would carry interest at the rate W.A No.1401/2023

of 6% per annum, unless the same is paid within two

months from the date of the judgment in the Review

Petition. The instant Writ Appeal is preferred

challenging the impugned judgment in the Writ

Petition, as also, the judgment dated 30.07.2023 in

the Review Petition.

3. Heard Sri.Santhosh Mathew, on behalf of the

appellant and Sri.Mathew Philip Edappallil, on

behalf of the respondent. Perused the records.

4. Having heard the respective counsel appearing

for the parties, we find no reason to interfere with

the judgments impugned, rendered in the afore

referred Writ Petition and Review Petition. The

Tribunal had analysed the evidence tendered by the

workman himself as WW1 and one of his co-worker as

WW2. Both the above referred witnesses spoke in

support of the workman's claim that he was W.A No.1401/2023

unjustifiably denied employment and was sent out of

the workplace, pursuant to a squabble. As against

the above evidence of WW1 and WW2, the petitioner

herein (the respondent in the I.D.) alone was

examined on the part of the Management and the

Tribunal did not take into account the interested

testimony of the petitioner herein, who tendered

evidence as MW1. The Tribunal also took stock of the

fact that in Ext.W3 FIR, the petitioner herein

(respondent in the I.D) had admitted that the

respondent herein (applicant in the I.D) had been

engaged as a workman and also the fact that he was

running the Mill for about 18 years. Similarly, the

Tribunal also took stock of Ext.W11 certified copy

of the deposition of the petitioner herein, which

was tendered before the Judicial First Class

Magistrate Court, Ettumannoor in connection with a

case, wherein a crime was registered on the

allegation that the workman had attacked and W.A No.1401/2023

manhandled the petitioner herein. In that

deposition, the petitioner herein would admit that

the workman was an employee in the Saw Mill from the

very beginning and that the Saw mill was being run

for the past 16 years. The Tribunal did not accept

the Management's version that the workman had

attacked and manhandled the petitioner herein.

Instead, the Tribunal accepted the version of the

workman that he was sent out of the workplace on

10.02.2005 pursuant to the incident, where the

workman would allege that he was manhandled and the

petitioner would allege that the workman had

manhandled him. The case of the workman is supported

by the evidence tendered by WW2, who was admittedly

working in the Saw Mill at the relevant time. The

Tribunal found that no action was taken against the

workman for absenting himself from duties; nor was

any disciplinary proceeding initiated against him in

connection with the alleged crime as per the version W.A No.1401/2023

of the petitioner herein. On such premise, the

Tribunal arrived at a conclusion that the version of

the petitioner that the workman had abandoned

employment could not be believed. Instead the

Tribunal found that the Management had denied

employment to the workman unjustifiably.

5. On judicial review, the learned Single Judge

found that, by virtue of evidence tendered by WW1

and WW2, the workman had discharged their burden and

the onus had shifted to the Management. The

Management, who was in possession of the Account

Books and Salary Disbursement Register, had not

cared to produce the same. Accordingly, the learned

Single Judge arrived at a conclusion that the Award

finding that the workman was illegally retrenched,

is only to be confirmed. As indicated earlier, the

direction to pay 50% of the back wages and

retrenchment compensation was quantified and the W.A No.1401/2023

petitioner herein was directed to pay a sum of

Rs.2 lakhs to the workman within a period of two

months from the date of judgment. By virtue of the

judgment in the Review Petition, the learned Single

Judge stipulated that if the amounts are not paid

within a period of two months from the date of

judgment of the Review Petition, the same will carry

interest at the rate of 6% per annum.

6. Having bestowed our attention to the attendant

facts and circumstances, as also, to the order of

the Industrial Tribunal and the judgments of the

learned Single Judge, we find absolutely no ground,

whatsoever, to interfere with the same. We cannot

find any perversity or illegality in the approach

made by the Industrial Tribunal, which has not been

interfered by the learned Single Judge in exercise

of the powers under Article 226 of the Constitution.

The view taken by the Industrial Tribunal is very W.A No.1401/2023

much a reasonable view and the same is not smeared

with any perversity or illegality. The findings are

arrived at based on facts and evidence adduced on

the yardstick of preponderance or probabilities. The

admission made by the petitioner herein in his

deposition before the Magistrate's Court concerned,

was relied upon. That apart, going by the best

evidence rule, the party who is in possession of the

best evidence is liable to produce the same before a

court of law, so as to enable the court to arrive at

the right and proper conclusion. If such records are

withheld, thus preventing the court from perusing

the same, then no relief can be extended to that

party, who could have adduced the best evidence.

7. We are, therefore, of the opinion that the

judgments impugned in this Writ Appeal warrant no

interference from this Court. Faced with the

situation, learned counsel for the appellant sought W.A No.1401/2023

for instalment facility to pay off the compensation

amount of Rs.2 lakhs quantified by the learned

Single Judge. It was pointed out that the petitioner

is 80 years old and he requires some time to perform

his obligation under the judgment impugned. We are

inclined to grant the said limited relief sought for

by the petitioner herein.

8. Accordingly, we direct that the quantified

amount of Rs.2 lakhs will be paid to the respondent

herein in three equal monthly instalments, the first

of which will be paid on 1st September, 2023. The 2nd

and 3rd instalments shall be paid on the first day of

the succeeding months. We would clarify that in the

event of any default in the matter of payment of the

amount as directed, the respondent will be at

liberty to enforce the Award of the Tribunal, as

modified by the learned Single Judge, in which case,

the outstanding amount will carry interest at the W.A No.1401/2023

rate of 6% per annum as directed by the learned

Single Judge in the judgment rendered in the Review

Petition.

With the aforesaid directions, this Writ Appeal

would stand disposed of.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

C.JAYACHANDRAN, JUDGE ww