Decided on February 05,1974



- (1.) Challenge is made in the Original Petition to Ext. P1 order passed by the Additional Deputy Labour Commissioner. Trivandrum functioning as the appellate authority under S.18(2) of the Kerala Shops and Commercial Establishments Act, 1960. The appellant in the said appeal claimed to be an employee of the respondent who was having a shop at Alleppey of the name Messrs. Asia Sea Foods, Alleppey, carrying on the business of running a fishing boat to catch fish from the sea. The appellant was said to have been employed by the respondent as a driver in one of the mechanised fishing boats belonging to the respondent. His remuneration was said to be Rs. 75 per mensem in addition to 5 per cent of the net catch and other incidental remuneration like special remuneration for repairing and overhauling the boat and for starting the engine by means of handle. The appellant's case was that he was denied employment on 24th February 1966 as he was not allowed to go as driver on the fishing boat thereafter. He was not given notice of termination. The respondent denied this case and according to him the appellant was a deserter who voluntarily abandoned his service. There was intervention at the instance of the District Labour Officer, Alleppey, who in a joint conference of the parties held on 14th March 1966 brought them together in an agreement that the appellant will be taken back provided he reported for duty on 18th March 1966 and an amount of Rs. 6 will be paid to the appellant to enable him to join duty. The respondent would say that the appellant did not turn up for duty on 18th March 1966 and the result was that a registered notice was sent to the appellant intimating that he did not report for work and therefore he must be deemed to have voluntarily abandoned his employment. The respondent had also a case that the appellant was not his employee and therefore no appeal would lie at his instance.
(2.) The appellate authority in the order impugned found that the appellant was an employee, a person principally employed in connection with the establishment. The plea that the appellant, having been engaged to work far beyond the business premises of the respondent and out at sea where the respondent would have no control over him, was not one who could be said to be an employee of the respondent was not accepted by the appellate authority. It was also found on the evidence that the appellant was not a defaulter in turning up for work on 18th March 1966 and therefore could not be considered as having deserted or abandoned his office. His wages were calculated by adding the monthly remuneration to the estimated average income which he would receive as 5 per cent of the net catch. Having found that the appellant had been denied employment unlawfully the appellate authority, instead of directing reinstatement, held that in the circumstances of the case it would be sufficient if the employer was directed to pay one year's wages and that order is challenged here.
(3.) Counsel for the petitioner attempted to raise a contention here that the 3rd respondent cannot be said to be an employee for a reason different from that considered by the appellate authority. According to him the fact that the 3rd respondent was receiving 5 per cent of the net catch would be indicative of the fact that he was a partner with the petitioner and therefore a partner cannot be an employee. I do not think I should go into this contention for this is a contention which ought to have been raised before the appellate authority if at all there was any substance in it. Having not done so and for that reason having not been considered by the appellate authority, it is not for this court to go into the matter. Not that I am impressed by the plea. It appears to be rather frivolous to contend that simply because in addition to salary a person who is working under the orders of another is being paid a portion of the catch from the sea, he should, for that reason only, be considered as a partner in the venture run by the employer. But as I have said, it is not necessary to go into the question as it is not a contention raised at any time earlier before the appellate authority.;

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