M.K.THANKAPPAN Vs. A.V.ANTONY

JUDGEMENT

(1.) HEARD the learned counsel for the appellant and the learned senior counsel for the first respondent.

(2.) THIS writ appeal comes up with an application seeking condonation of delay of 312 days. Even though the matter was presented on 19.12.2007, the application seeking condonation of delay was listed before the Bench on 02.01.2008. Being dissatisfied with the contents of the affidavit filed in support of the application, the Bench had passed an order on 08.01.2008 directing the appellant to file better affidavit in two weeks time. An additional affidavit dated 04.03.2013 in support of the application for condonation of delay was filed on 05.03.2013. Later, another affidavit was filed on 11.03.2013 placing on record a medical certificate dated 19.01.2008 wherein the Doctor, a retired Civil Surgeon with MBBS and FICA (USA) qualifications, says that the appellant was under his treatment from June, 2007 to November, 2007 and that he was suffering from vertebral disc prolapse and that he was advised rest at home for the absent period. However, in paragraph No.3 of the additional affidavit dated 11.03.2013, the appellant also says that he was also undergoing ayurvedic treatment during the period from June, 2007 to November, 2007. The matter comes up before us nearly seven years after the institution of the appeal with delay petition. We, therefore, thought it appropriate to hear the learned counsel appearing for either side, on the merits as well.

(3.) THE appellant was employed with the first respondent, who was, apparently, having a small scale establishment in soft drinks. In 1997, there was a civil suit leading to an injunction and an original petition before this Court in which an order directing grant of police protection was issued in favour of the establishment. Going by the case of the establishment, a charge sheet was issued to the appellant on 18.02.1997 for unauthorised absence and those disciplinary proceedings ended in imposition of a punishment of warning with a direction to join duty immediately. The workman did not rejoin duty. Thereafter, another charge sheet was issued on 12.05.1998, again on ground of unauthorised absence. That led to a domestic enquiry. Thereafter, instead of responding to that notice, the workman took up the matter for conciliation and adjudication on the specious plea that he was kept out of service. The matter went for conciliation before the Agricultural Inspector, Thrissur. He submitted a failure report and thereupon, the Government of Kerala referred for adjudication, the dispute as to whether the denial of employment to the workman (appellant herein) with effect from 15.04.1998 is justifiable or not, and if not, what relief he is entitled to. In the claim statement filed by the workman before the Industrial Tribunal, no specific pleading was made about the so -called denial of employment or as to basic inferential facts to demonstrate a case of denial of employment. We say this in the context of the findings of the learned single Judge that though the allegation that there is denial of employment is reflected in the dispute as referred by the Government to the Tribunal, there is no syllable in the claim statement as to how the workman claims that he was denied employment. With all that, the parties went to tender evidence and then, the employee placed the case that the order of injunction and the direction to grant police protection stood in the way of his case. That was taken into consideration by the Tribunal and an award was issued granting the employee a lump sum amount of Rs.40,000/ - towards compensation, since it was found that no purpose would be served by ordering his reinstatement. It was also noted by the Tribunal that the so - called injunction order was issued and continued in proceedings, which was left uncontested by the workman.