Skip to content


Miss Thressia C. Nidhiyiri Joint Proprietor, Nidhiyiri Estate and anr. Vs. Kurian (A.P.), President, Ezhattumugham Rubber Thozhilali Union and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1970)ILLJ511Ker
AppellantMiss Thressia C. Nidhiyiri Joint Proprietor, Nidhiyiri Estate and anr.
RespondentKurian (A.P.), President, Ezhattumugham Rubber Thozhilali Union and ors.
Excerpt:
.....reason of his union activities. 3378 of 1966 the only point raised by the petitioner, namely, the workman, is that that tribunal was not justified in denying to him the relief of reinstatement when it had been clearly found that the retrenchment was illegal and mala fide. the depositions of all the witnesses examined before it as well as the documentary evidence available on record have been duly considered by the tribunal. it was perfectly open to the tribunal to decide which of the versions spoken to by the two sets of witnesses should be accepted by it and so long as its conclusion is based on a fair appreciation of the evidence available on record, interference by this court with a finding of fact arrived at by the tribunal will not be justified under article 226 of the..........quantum of compensation awarded to the workman is closely linked up with the point urged by the workman in original petition no. 3378 of 1966, i shall be dealing with it while considering the plea put forward by the workman that the tribunal was not justified in denying to him the relief of reinstatement.8. the only point urged by the counsel appearing for the petitioner in original petition no. 3378 is that the tribunal has acted illegally in denying to the workman the relief of reinstatement when it had found that the termination of his service was wrongful. as pointed out by the supreme court in swadesamitran, ltd. v. their workmen 1960-i l.l.j. 504 at 509:. once it is found that retrenchment is unjustified and improper, it is for the tribunals below to consider to what relief the.....
Judgment:

V. Balakrishna Eradi, J.

1. These two writ petitions arise out of an industrial dispute which culminated in an award by the industrial tribunal, Calicut, evidenced by Ex. P. 1 dated 16 June 1966. Original Petition No. 3368 of 1966 is filed by the management and Original Petition No. 3378 of 1966 by the workman whose alleged wrongful termination from service formed the subject-matter of the industrial dispute.

2. The petitioner in Original Petition No. 8368 of 1966, hereinafter referred to as the petitioner, is the owner of a rubber estate having an extant of about 174 acres. The petitioner in Original Petition No. 3378 of 1966 hereinafter referred as the workman, was employed there as a maistri until 20 April 1964 on which date the management retrenched him from service under the order produced and marked before the tribunal as Ex. W. 7. The workers' union raised an industrial dispute challenging the bona fides and validity of this retrenchment on the ground that it was an act of victimization prompted by ulterior motives on account of the trade union activities carried on by the workman. It was further contended that the retrenchment was in violation of Section 25G of the Isdustrial Disputes Act, 1947, since the workman in question had been retrenched while persons junior to him belonging to the same category ware being retained in service. The said dispute having been referred for adjudication to the industrial tribunal, Calicut, the tribunal conducted a detailed investigation into both the aforesaid points in controversy between the parties. The tribunal has found on a consideration of the evidence that the retrenchment of the workman was in contravention of Section 25G since another maistri by name Munjell Thomas, who was Junior in service compared to the petitioning worker, had been retained in service and was still continuing as a maistri in the estate in question. It further found that the evidence clearly established that the retrenchment had been reported by the management only for the reason that the workman in question had proved himself to be a thorn on the side of the management by reason of his union activities. The tribunal therefore came to the conclusion that the retrenchment was not bona fide but was an act of victimization. In view of the Above fixings the further question naturally arose before the tribunal as to what relief the workman was entitled to. Relying on the circumstance that subsequent to the impugned order evidenced by Ex. W. 7 the management had effected a further retrenchment of thirteentoppers under a settlement evidenced by Ex. M. 3 thereby reducing to six the total number of tappers employed in the estate, the tribunal considered that the case was not a fit one for directing reinstatement of the workman and the only relief that the workman was entitled to be granted is the payment of full wages from the date of the impugned retrenchment order to the date of Ex. M. 3 settlement, that is, from 20 April 1964 to 20 April 1965. Accordingly it passed an award directing the management to pay to the workman his full wages for the aforesaid period covering one year.

3. In Original Petition No. 3368 of 1966 It is contended on behalf of the management that the tribunal was not Justified on the evidence adduced in the case in recording the conclusion that the retrenchment was not bona fide and was really an act of victimization. The management also challenges the correctness of the finding entered by the tribunal in regard to the contravention of Section 25G of the Industrial Disputes Act. Finally, It is urged that even if the aforesaid findings are to be assumed to be correct, the compensation awarded to the workman is excessive and should have been fixed at a much lesser amount.

4. In Original Petition No. 3378 of 1966 the only point raised by the petitioner, namely, the workman, is that that tribunal was not justified in denying to him the relief of reinstatement when it had been clearly found that the retrenchment was illegal and mala fide.

5. Notwithstanding the strenuous efforts made by the counsel appearing for the management, I do not see any grounds whatever for interfering with the findings of fact arrived at by the tribunal on either of the points decided by it. It has not been shown that the appreciation of the evidence by the tribunal is vitiated by any illegality, nor can it be said that the finding entered by it is in any sense unreasonable or perverse. The depositions of all the witnesses examined before it as well as the documentary evidence available on record have been duly considered by the tribunal. It is as a result of such consideration that it chose to believe the evidence of the witnesses examined on behalf of the workman that one Murjeli Thomas who is a maistri junior in service when compared to the workman in question was being retained in service by the management even at the time when the master was being tried by the tribunal. It was perfectly open to the tribunal to decide which of the versions spoken to by the two sets of witnesses should be accepted by it and so long as its conclusion is based on a fair appreciation of the evidence available on record, interference by this Court with a finding of fact arrived at by the tribunal will not be justified under Article 226 of the Constitution. On the merits also I am satisfied that the finding is perfectly correct.

6. Equally so is the finding on the second question as to whether or not the retrenchment was bona fide. The tribunal has given good reasons for holding that the retrenchment had been resorted to by the management as a measure of victimization and was not therefore bona fide. There are therefore no grounds justifying interference by this Court with the aforesaid conclusion recorded by the tribunal.

7. Since the next contention raised by the management relating to the quantum of compensation awarded to the workman is closely linked up with the point urged by the workman in Original Petition No. 3378 of 1966, I shall be dealing with it while considering the plea put forward by the workman that the tribunal was not justified in denying to him the relief of reinstatement.

8. The only point urged by the counsel appearing for the petitioner in Original Petition No. 3378 is that the tribunal has acted illegally in denying to the workman the relief of reinstatement when it had found that the termination of his service was wrongful. As pointed out by the Supreme Court in Swadesamitran, Ltd. v. their workmen 1960-I L.L.J. 504 at 509:. Once it is found that retrenchment is unjustified and improper, it is for the tribunals below to consider to what relief the retrenched workman are entitled. Ordinarily, 17 a workman has been improperly and illegally retrenched, he is entitled to claim reinstatement. The fact that in the meanwhile the employer has engaged other workmen would not necessarily defeat the claim for reinstatement of the retrenched workmen; nor can the fact that protracted litigation in regard to the dispute has inevitably meant delay, defeat such a claim for reinstatement. This Court has consistently held that in the case of wrongful dismissal, discharge or retrenchment, a claim for reinstatement cannot be defeated merely because time has lapsed or that the employer has engaged fresh hands....

In the present case, the tribunal has dearly found that the retrenchment was illegal on account of the contravention of Section 25G. It has further found that the retrenchment had been resorted to not bona fide but as an act of victimization because of the trade union activities carried on by the workman. Ordinarily, in view of these findings there is no doubt that the workman was entitled to be awarded the relief of reinstatement. The ground mentioned by the tribunal for departing from the ordinary rule is that under a settlement evidenced by Ex. M. 3 dated 20 April 1985 the management had effected a further retrenchment of thirteen tappers and that as a result thereof the number of tappers employed in the estate had become reduced to six. The tribunal then proceeded to observe thus:

It is contended for the management that they do not require a separate maistri now to supervise the tapping work. This contention cannot be said to be unreasonable even if some other work can be found for the maistri. After all it is the right of the management to decide about the strength of their labour force.

Quite apart from the correctness or otherwise of the last portion of the tribunal's observation extracted above, it is clear that the tribunal has lost eight of its own finding recorded in the previous paragraph that even at the time of the adjudication a maistri by name Munjeli Thomas was being retained in service by the management. The tribunal has further found that the said person is Junior in service when compared to the workman before it. In these circumstances, it is difficult to understand how the tribunal could regard as reasonable the contention put forward by the management that it did not require the services of a maistri to (supervise the tapping work. If the management had chosen to retain in service one maistri and that person was junior in service to the workman whose retrenchment had been found to be illegal and mala fide, reinstatement cannot be denied to the retrenched workman on the ground that the management did not 'then require the services of a separate maistri.' The reasoning contained in Para. 8 of the tribunal's award is obviously vitiated by errors apparent on the face of the record.

9. It is, therefore, necessary to direct the tribunal to consider afresh the question of the relief to which the workman is entitled and pass appropriate orders with the utmost expedition, in the light of the findings entered by it on points (1) and (2) which will stand confirmed and also in the light of the observations contained in this judgment.

10. I am not impressed with the contention put forward by the management that in case it is to be assumed that the workman is not entitled to reinstatement the compensation awarded to the workman is arbitrary or excessive. Ordinarily it is for the tribunal to determine what would be the reasonable quantum of compensation to be awarded to the retrenched workman in cases where reinstatement was not being ordered and no interference will be made by this Court with such fixation unless some manifest error of law or miscarriage of justice is made out. In the present case it is not necessary to discuss this matter further in view of the direction that I have given above for a reconsideration by the tribunal of the question as to the relief to which the workman in question is entitled. Original Petition No. 3368 of 1966 is dismissed and Original Petition No. 3378 of 1966 will stand allowed to the extent indicated above. The petitioner in Original Petition No. 3368 will pay the costs of the respondents. In Original Petition No. 3378 I direct the parties to bear their respective costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //