Kerala High Court
The Provincial Franciscan Brothers vs Titus on 5 June, 2025
2025:KER:39698
W.P.(C).No.29265 of 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
WP(C) NO. 29265 OF 2016
ID NO.14 OF 2011 OF LABOUR COURT, KOLLAM DATED
28.05.2016
PETITIONER:
THE PROVINCIAL,
FRANCISCAN BROTHERS (BROTHER JOSEKUTTY), T.C.NO.3/48,
MORES BHAVAN, KESAVADASAPURAM, THIRUVANANTHAPURAM.
BY ADVS.
SMT.MEENA.A.
SRI.VINOD RAVINDRANATH
RESPONDENTS:
1 TITUS
SAVINS BHAVAN, NEAR LOURDES MOUNT SCHOOL, VATTAPPARA,
THIRUVANANTHAPURAM-695615.
2 STATE OF KERALA
REPRESENTED BY SECRETARY, DEPARTMENT OF LABOUR,
THIRUVANANTHAPURAM-695001.
BY ADVS.
SMT.M.BINDUDAS
SRI.R.T.PRADEEP
SRI.S.V.PREMAKUMARAN NAIR
GP - FOR R2
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.P.(C).No.29265 of 2016
2
S.MANU, J.
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W.P.(C).No.29265 of 2016
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Dated this the 05th day of June, 2025
JUDGMENT
Ext.P3 award of the Labour Court is under challenge in this
writ petition.
2. An industrial dispute was raised by the 1 st respondent
alleging that he was denied employment by the petitioner.
Petitioner is the present Provincial of Franciscan Brothers
Congregation of Missionaries of St.Francis of Assisi (CMSF)
Charitable Society. The Society has 26 acres of land at
Vattappara. There is a school in the property. In six acres of
land rubber trees were planted. First respondent was engaged
for tapping from December, 2004. Dispute was raised by the 1 st
respondent alleging that after a recess during summer in 2009
the petitioner Society denied employment to him.
3. The dispute led to the Government making a
reference to the Labour Court. The issues referred for
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adjudication as per G.O.(Rt.)No.474/2011/LBR dated 23.3.2011
were as follows:-
"Whether the denial of employment to Sri.Titus
by the management of Franciscan Brothers
Charitable Society owned estate is justifiable or
not? If not what relief the workman is entitled
to?"
4. First respondent filed a claim statement and a
counter statement was filed by the writ petitioner. In the claim
statement 1st respondent contended that he was engaged in
December 2004 and was tapping around 560 trees on each day.
He had worked on all days in a month. In 2007, 40 paise per
tree was the wage fixed. In 2008 onwards it was 50 paise.
Wages were paid on monthly basis. On 2 nd March 2009
management told the 1st respondent to stop tapping during
summer season. When the tapping restarted management
engaged two other tappers and refused entry to the compound
to the 1st respondent.
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5. First respondent contended that he sent a request for
reinstatement on 11.5.2009 to the management and then
approached the Asst. Labour Officer and also the Labour
Minister. Finally the reference was made on 23.3.2011. First
respondent claimed that he was a permanent employee and the
petitioner resorted to arbitrary termination in his case. He
asserted that the termination was irregular and illegal and
therefore he had the right to get reinstatement with back wages
and all consequential benefits.
6. Petitioner denied the claims of the 1 st respondent in
the counter statement filed by it. In the counter statement it
was contended that the 1st respondent was engaged to tap the
rubber trees, however, rubber tapping is a seasonal activity and
cessation of tapping during summer is common. According to
the petitioner, when tapping resumed in 2009 the 1 st respondent
did not turn up and in fact he abandoned the work. There was
no denial of employment. First respondent was not entitled for
reinstatement and other benefits. The petitioner further stated
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that it was prepared to provide employment to the 1 st
respondent as tapper if he was ready to report for work.
7. Before the Labour Court 1st respondent was examined
as a witness and Exts.W1 to W9 were marked. Petitioner
Society examined a witness. The Labour Court after analysing
the evidence and also the contentions of the parties, passed the
impugned award holding that the 1st respondent is entitled to
get 50% of back wages due as on 2.3.2009. It was declared
that the 1st respondent would also be entitled to get continuity
of service and monetary benefits.
8. Learned counsel for the petitioner argued that the 1 st
respondent was not a workman as defined in the Industrial
Disputes Act. He never worked for 240 days in any year. The
learned counsel submitted that the Labour Court had adopted a
highly erroneous approach in appreciating the facts and
evidence of the case. He contended that the Labour Court by
holding that the burden would be on the management to show
that the claimant was not a workman who worked for more than
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240 days in a calendar year committed a serious error. He
submitted that the onus to prove that the workman was actually
in employment for more than 240 days was essentially on the
1st respondent. However, the 1 st respondent did not produce
any materials before the Labour Court to show that he had
worked for more than 240 days in a year. He hence contended
that the Labour Court seriously erred by accepting the
contentions of the 1st respondent in this regard. He also assailed
the granting of 50% of back wages to the 1st respondent. He
argued that the said direction was given ignoring the specific
case of the management that the 1st respondent had in fact
abandoned the work. Learned counsel also pointed out that the
management re-engaged the 1st respondent when he expressed
willingness to work.
9. The learned counsel appearing for the 1 st respondent
submitted that tapping of rubber trees is a work which extends
to almost everyday in a year except during summer and heavy
rains. He argued that the 1 st respondent was engaged in 2004
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and he was in regular employment. For no valid reasons he was
disengaged in 2009. Learned counsel pointed out that the
documents marked during the trial before the Labour Court
would show that the 1st respondent had requested the
petitioner's Society to re-engage him and when the request was
not accepted he approached the authorities under the Industrial
Disputes Act. He submitted that the contention of the
management that the 1st respondent had abandoned work
cannot be accepted in view of the request in writing made by
the 1st respondent which was marked in evidence. He also
submitted that the 1st respondent was re-engaged only after a
suggestion/direction by the Labour Court and therefore the
contention of the management that it was willing to permit the
1st respondent to continue to work lacks bonafides. Learned
counsel submitted that for tapping a rubber tree only a meager
amount is offered as wages and therefore the 1 st respondent
was earning only meager amounts as wages. The workman was
not gainfully employed anywhere else during the interregnum.
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He therefore justified the granting of 50% of back wages.
10. In a writ petition under Article 226 of the Constitution
challenging an award of the Labour Court or Industrial Tribunal
scope of judicial review by the High Court is limited . The writ
jurisdiction is not akin to appellate jurisdiction. This Court is not
sitting in appeal over the award passed by the Labour Court.
11. Perusal of the counter statement filed by the
petitioner before the Labour Court shows that the status of the
1st respondent as a workman was not seriously disputed by the
management. Only contention raised during trial as discernible
from the impugned award is that the 1st respondent never
worked for 240 days in a year. Normally, the burden to prove
that the claimant is a workman as defined under the Act will be
on him. However, in the case of many peculiar employments
documentary evidence to determine actual number of days in
which a workman was employed may not be available with the
workman. In some cases it may not be available even with the
management. In the case at hand, as observed above, the
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status of the 1st respondent as a workman was not seriously
challenged by the management even in the counter statement.
Though there is merits in the contention of the learned counsel
for the petitioner that the approach of the Labour Court in
holding that the management did not adduce evidence to show
that the 1st respondent was a workman was not correct, in view
of no serious dispute raised by the management regarding the
status of the workman, the ultimate conclusion of the Labour
Court that there existed a valid industrial dispute cannot be held
to be perverse.
12. The 1st respondent has adduced oral and
documentary evidence before the Labour Court in support of his
contentions regarding disengagement. He also deposed that he
and his family faced severe financial difficulty on account of
denial of employment. There is no specific averment in the
claim statement that the 1st respondent was not gainfully
employed anywhere else during the relevant period.
Nonetheless the Labour Court concluded that he is entitled for
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50% of the back wages as he spoke about severe financial
difficulty faced during the relevant period. The Labour Court
came to this conclusion on an analysis of evidence adduced and
granted 50% of the back wages exercising its discretion. This
Court in exercise of the jurisdiction under Article 226 will not be
justified in interfering with the reliefs granted by the Labour
Court in exercise of its discretion unless a case is made out to
show that the same was done without any basis or in a perverse
and illegal manner.
13. Outcome of the above discussion is that there is no
reason to interfere with Ext.P3 award. Writ Petition is therefore
dismissed.
Sd/-
S.MANU
JUDGE
skj
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APPENDIX OF WP(C) 29265/2016
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF CLAIM STATEMENT SUBMITTED
BY THE 1ST RESPONDENT BEFORE THE LABOUR
COURT KOLLAM DATED 2-4-2013.
EXHIBIT P2 TRUE COPY OF THE COUNTER STATEMENT
FILED BY THE PETITIONER DATED 28-8-2013
TO EXHIBIT P1.
EXHIBIT P3 TRUE COPY OF THE AWARD PASSED BY THE
LABOUR COURT KOLLAM DATED 28-5-2016.
