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W.P.58381-91/13 IN THE HIGH COURT OF ,

DATED THIS THE 18TH DAY OF MARCH, 2014

BEFORE

THE HON'BLE MR.JUSTICE RAM MOHAN REDDY

WRIT PETITION Nos. 58381-91 OF 2013 (L-RES)

BETWEEN:

1. SMT AMASAMMA W/O RAJU, AGED ABOUT 32 YEARS, R/AT NO-657, JANATHA COLONY, 2ND BLOCK, BELAVADI POST, -570018.

2. P RAMESH BHAT S/O GOPAL RAMACHANDAPPA, AGED ABOUT 50 YEARS, R/A C/O DODDABANDE DEVEGOWDA, NO.272/A, BELAVADI POST, MYSORE-570018. NOW RESIDING AT C/O SUSHEELA NAGARAJ, NO.43/1, KOORGALLI, BELAVADI POST, MYSORE-570018.

3. P SIDDARAJU S/O PINNA MADASHETTY, AGED ABOUT 48 YEARS, RESIDING AT NO.279, DATTANAGAR, OOTY ROAD, MYSORE.

4. K RAMACHANDRA S/O KENCHEGOWDA, AGED ABOUT 32 YEARS, RESIDING AT NO.217, HOOTAGALLI, BELAVADI POST, MYSORE-570018. 2

W.P.58381-91/13

5. KARISHETTY S/O LATE MADASHETTY, AGED ABOUT 49 YEARS, RESIDING AT MAVINAHALLI VILLAGE, I BLOCK, BASAVESHWARA ROAD, JAYAPURA POST AND HOBLI, MYSORE TALUK AND DISTRICT.

6. KALAPPA S/O MARIKALAIAH, AGED ABOUT 41 YEARS RESIDING AT NO.52, BASTHIPURA, BYALALU POST, BELAGOLA HOBLI, SRIRANGAPATNA TALUK, MYSORE DISTRICT.

7. SIDDARAJU B K S/O LATE KRISHNA, AGED ABOUT 31 YEARS, RESIDING AT NO.655, JANATA COLONY, 2ND BLOCK, BELAVADI, MYSORE-570018.

8. K.P.CHELUVARAJU S/O PUTTASWAMYGOWDA, AGED ABOUT 36 YEARS, RESIDING AT KYATHANAHALLI VILLAGE AND POST, H.D.KOTE TALUK, MYSORE DISTRICT.

9. RAJU M S/O MUTHAIAH, AGED ABOUT 39 YEARS, RESIDING AT NO.657, JANATA COLONY, 2ND BLOCK, BELAVADI POST, MYSORE-5700018.

10. S SIDDARAJU S/O SIDDEGOWDA, AGED ABOUT 33 YEARS, RESIDING AT NO.47, 3

W.P.58381-91/13

HOOTAGALI, BELAVADI POST, MYSORE-570018.

11. M MAHADEVA S/O MADASHETTY, AGED ABOUT 53 YEARS, RESIDING AT C/O N.RANGANNA, NO.140/8, NEAR WATER TANK, BELAVADI, MYSORE-570018. NOW RESIDING AT NO.265, MARISHETTY BADAVANE, NEAR KRISHNA BAKERY BELAVADI POST, MYSORE-570018. ... PETITIONERS

(By Sri.T NARAYANASWAMY, ADV)

AND

1. SRI A RAGHUNATH AGED ABOUT 77 YEARS, PROPRIETOR, HOTEL KAYNES, CORRESPONDENCE ADDRESS, AUTO.I.D.SYSTEM, V.V.MOHALLA, TEMPLE ROAD, MYSORE.

2. J KUSMAN MAJOR, PROPRIETOR, HOTEL KAYNES, MYSORE. ... RESPONDENTS

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF PRAYING TO CALL FOR THE RECORDS & SET ASIDE THE COMMON AWARD DT.20.12.10, PASSED BY THE LABOUR COURT, MYSORE IN IID.NOS.17/03 TO 32/03 VIDE ANN-G, THEREBY, ALLOWING THE DISPUTES FILED BY THE PETITIONERS WITH ALL THE CONSEQUENTIAL BENEFITS INCLUDING THE MONETARY BENEFITS; ETC.

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W.P.58381-91/13

THESE PETITIONS COMING ON FOR PRL.HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

These petitions are filed invoking Article 227 of the

Constitution of India by the workmen calling in question the legality and validity of the Award dt. 20.12.2010 in

IID 17-32/2004 of the Labour Court, Mysore, Annexure-

G, partially allowing the claim petitions to the extent of payment of terminal benefits such as notice pay, closure compensation, leave encashment and gratuity, in accordance with law while denying reinstatement.

2. Petitioners filed claim petitions before the

Labour Court, invoking Section 10(4-A) of the Industrial

Disputes Act, 1947, for short ‘ID Act’, whence they were registered as IID 17-32/2004, respectively, for the reliefs of reinstatement with continuity of service, back wages and consequential benefits on the allegation of illegal termination from service by order dated

11.12.2003. The sheet anchor of the case of the 5

W.P.58381-91/13 petitioners was that the respondent-employer failed to comply with the requirements of Section 25-FFA of the

Act by not seeking prior approval of the State

Government before the closure of the Hotel industry carried on by the respondent-proprietor since there were more than 50 persons employed monthly on an average, in the 12 months preceding the termination from service. Those petitions were opposed by filing statement of objections denying the allegations, while conceding the fact of closure of the Hotel industry which led to the termination of the service of the petitioners, amongst others, and that total number of workmen employed on an average every month during 12 months preceding the termination from service was less than 50 in number and therefore, Section 25-FFA of the Act had no application. In the premise of pleadings of the parties, the Labour Court framed the following issues:

“1. Whether the I party proves that she was illegally removed from services w.e.f. 11.12.2003 ? 6

W.P.58381-91/13 2. Whether II party (1) proves that it was constrained to close down the hotel business for bonafide and inevitable reasons resulting in termination of the I party ?

3. Whether the second party (1) proves that full and final settlement comprised of notice pay, closure compensation, gratuity and leave encashment has been paid to the I party ?

4. Whether the II party no.2 proves that it is not a successor-in-interest of II party no.1 and is not liable to answer the claims of the I party ?

5. Whether the I party is entitled to the reliefs claimed ? If so, against whom ?

6. What award?”

3. Petitioners when examined as WW1 to 15 marked Exs.W1 to W13, while the Managing Director of the second party No.1 i.e., 1 st respondent was examined as MW-1 and marked 7 documents as Exs.M1 to M7.

4. Labour Court having regard to the material on record and the evidence both oral and documentary observed that MW-1 introduced in evidence Ex.M1, the attendance register maintained by the Hotel industry 7

W.P.58381-91/13 disclosing the total number of persons employed as 43, including the Managers by name Kushalappa,

Chandramouli and Raju.K, though did not fall within the definition of the term “workman” under the Act, hence required to be excluded, and if so done, the total number of workmen in a month is 40 as corroborated by the salary register showing the names of the said 40 employees. Labour Court also observed that the testimony of WW-1 to 15 and the documents introduced in evidence were not in the direction of establishing that the 1 st respondent-Hotel industry engaged on an average, in a month, 50 workmen in the 12 months immediately preceding the order of termination to conclud that Section 25-FFA in the matter of issue of 60 days notice of intention to close down the undertaking was not applicable to the 1 st respondent and accordingly returned findings in the negative over point No.1; in the affirmative over point Nos.2 and 4; while issue No.3 was answered holding that second party No.1 i.e. 1 st 8

W.P.58381-91/13 respondent having not paid notice pay, closure compensation, gratuity and leave encashment, required to do so and accordingly answered issue Nos. 5 and 6, by the award impugned including directions noticed supra.

5. Learned counsel for the petitioners submits that that petitioners did not place material to establish the factum of 1 st respondent having engaged 50 and more employees, on an average, every month, in the 12 months preceding the termination of their services, nevertheless in the cross-examination of MW-1 elicited that there were in employment two drivers, four security guards and two bell boys apart from one person in the

Bar and two in the Stores who were not shown in

Ex.M1. It is submitted that, it must be held that there were more than 50 persons employed in the industry at the relevant point of time. In addition, learned counsel places reliance upon “registration Certificate of 9

W.P.58381-91/13 Establishment” issued by the Govt. of Karnataka,

Department of Labour, Annexure-E stating that the establishment in the name of ‘Keyns Hotel Private

Limited’ under the employer one A.Raghunath, was registered on 9.10.1997 and on the reverse of the same, recorded its renewal for the year 1998 on 20.12.1997 with 122 employees; a second renewal dt. 6.11.1998 for the period 1999-2003 whence 137 persons were employed, while the third renewal dt. 29.4.2009 for the period 2004-2013 stated that there were 76 persons employed and therefore, substantially establishing the fact that the 1 st respondent-Hotel industry engaged more than 50 persons in a month, on an average, during 12 months preceding 11.12.2003 date of termination from service.

6. Admittedly this document Annexure – E was not placed before the Labour court at any point of time and no evidence was let in but is placed before this 10

W.P.58381-91/13 Court for the first time in these petitions without disclosing the reasons as to why was not produced before the Labour Court at the earliest opportunity.

Therefore, it cannot be said that the Labour Court committed an error apparent on the face of the record or had recorded findings which are perverse calling for interference.

7. Even otherwise what is required to be seen is the attendance register and the acquaintance roll maintained by the 1 st respondent in a proof of total number of employees engaged by the 1 st respondent.

Annexure-E by itself and nothing more, it cannot be concluded that the 1 st respondent did engage employees in excess of 50 in a month, on an average, during the 12 months prior to the date of termination from service.

8. If regard is had to Ex.M1 the attendance register and the copies of the salary register disclosing the name of 43 employees including three Managers 11

W.P.58381-91/13 who are not workmen and even assuming that there were some employees whose names were not included in the register as disclosed in the cross-examination of

MW-1, nevertheless there is no proof of 50 or more employees engaged, on an average, in a month for a period of 12 months immediately preceding 11.12.2003.

In the cross-examination it is not elicited as to what were the dates the nature of employment the period those persons whose names were not found in Ex.M1 were, in fact, employed. Petitioners did not examine the said persons as their witness in support of their case.

9. In the facts, circumstances and evidence on record, the Labour Court having recorded findings of fact which are not shown to be either perverse or illegal, the award does not call for interference in exercise of supervisory jurisdiction.

10. Applying the observations of the Apex Court in SURYA DEV RAI vs. RAM CHANDER RAI AND 12

W.P.58381-91/13 OTHERS 1 in the matter of exercise of supervisory jurisdiction of this Court under Article 227 of the

Constitution of India, to the facts of the case ex-facie it is not shown that the Labour Court had either adopted a perverse approach or recorded reasons, findings and conclusions which are perverse or illegal, these petitions deserve to be rejected and are accordingly rejected.

Sd/- JUDGE ln

1 AIR 2003 SC 3044