Dismissed

Mr. Yogeesha T N v. Management of

Karnataka HC7 Feb 2024WP/23259/2018

Case brief

AI extract

What is this about?

A fixed-term temporary operator alleged illegal refusal of employment after declining a renewal letter; the Labour Court dismissed his claim. The High Court held mere completion of temporary service confers no right to continued employment, Section 25F did not apply, and absence from work indicated voluntary abandonment. Writ petition dismissed; Labour Court award confirmed.

What the court decided

AI extract

Mr. Yogeesha T N Vs Management of — Labour and Industrial Disputes | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 07^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA

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WRIT PETITION No.23259/2018 (L-RES)

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BETWEEN:

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MR. YOGEESHA T.N. AGED ABOUT 33 YEARS, S/O. NARASIMHA MURTHY T.S. SADANA BADAVANE, BELAGUMBA (P) ROAD, TUMKUR – 572 104. ... PETITIONER

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(BY SRI T.S. ANANTHARAM, ADVOCATE)

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AND:

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MANAGEMENT OF M/S. KENNAMETAL INDIA LTD., 8/9^TH MILE, TUMKUR ROAD, BENGALURU – 560 073. ... RESPONDENT

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(BY SRI S.N. MURTHY, SENIOR ADVOCATE A/W SRI SOMASHEKAR, ADVOCATE (V.C.))

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE AWARD DATED 8^TH DAY OF MARCH 2018 OF THE 1^ST ADDITIONAL LABOUR COURT BENGALURU IN ID NO.02/2016 AT ANNEXURE-N AND DIRECT THE RESPONDENT MANAGEMENT TO REINSTATE THE PETITIONER WITH CONTINUITY OF SERVICE FULL BACK WAGES AND ALL OTHER CONSEQUENTIAL BENEFITS; CALL FOR THE RECORDS FROM THE 1^ST ADDITIONAL LABOUR COURT BENGALURU IN CONNECTION WITH THE AWARD DATED 8^TH DAY OF MARCH 2018 IN ID NO.02/2016.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 16/01/2024 FOR ORDERS AND COMING FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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The petitioner was appointed as an operator “on

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temporary basis” on 25.09.2010 for a fixed period of twenty four months, renewal of engagement for a further period of one year with effect from 2012 to 2013 was served on the petitioner.

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The respondent-management issued another

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letter of extension of the employment of the petitioner as operator on 01.09.2015 on temporary basis for a further period of twelve months, i.e., from 01/10/2015 to 30/09/2016, the petitioner though acknowledged the letter of extension of employment did not continue his services with the respondent-management and stayed away from work with effect from 12.10.2015 without obtaining any leave.

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The respondent-company wrote letter to the

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petitioner for his full and final settlement. After the period of nearly three and a half months, the petitioner addressed a

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letter dated 29.01.2016 claiming that though the petitioner had reported to duty in the respondent-company, the respondent – company has not given work. The respondentcompany replied and stated that the petitioner has not reported to duty as contended by the petitioner and has remained silent for three and a half months without giving a single representation.

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The petitioner raised dispute before the I Addl. Labour Court (“Labour Court” for short) alleging refusal of employment by the respondent – company claiming reinstatement with full back wages and other consequential benefits since his refusal of employment by respondents with effect from 14.10.2015.

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The respondent-company appeared and filed counter statement, inter alia, disputing that the company had stopped the services by way of termination/refusal of employment with effect from 14.10.2015 with valid or proper reasons. The respondent-company contended that the

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petitioner has continuously remained absent from work without obtaining any leave and the respondent-company, at no point of time, prohibited the petitioner from attending work from 12.10.2015. The company contended that the petitioner did not accept the renewal letter dated 01.09.2015, which clearly shows that the petitioner was not interested in continuing his employment in the respondentcompany. The Labour Court framed three issues, which reads as under:

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“1. Whether the first party proves that the second party management has illegally refused him employment with effect from 14.10.2015?

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2. Whether the second party management proves that the first party is not a permanent employee of the second party?

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3. To what relief the first party is entitled?”

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The Labour Court by the impugned order held that

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the petitioner has failed to prove that the management has

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illegally refused employment with effect from 14.10.2015.

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That the management proved that the petitioner

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is not a permanent employee of the second party and by the impugned order dismissed the claim statement filed by the workman under Section 10(4-A) of the Industrial Disputes (Karnataka Amendment) Act, 1988.

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Heard Sri T.S.Anantharam, learned counsel for the petitioner and Sri S.N. Murthy, learned senior counsel for the respondent and perused the material on record.

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Having heard learned counsel for the parties, the

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only point that arises for consideration is,

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“Whether the Labour Court was justified in rejecting the claim statement of the petitioner and, whether the management has illegally refused employment with effect from 14.10.2015?”

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Learned counsel appearing for the petitioner

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would contend that the petitioner was refused employment and the same is evident from Annexure – “E”.

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The petitioner was appointed as an operator “on temporary basis” for a fixed term as per the letter of engagement (Annexure – “A”), which reads as under:

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“ Sub: Letter of Engagement as “Operator” on Temporary Basis for a Fixed Term

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With reference to your application dated 2 August 2010 and the subsequent interview you had with us, we are pleased to engage you as an “ Operator ” on a Temporary Basis in Kennametal India Limited (hereinafter “Company”) for a fixed term period on the following terms and conditions.

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1. Nature of Engagement:

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1.1 Your engagement will be for a fixed term period of 24 months on a “Temporary basis”. Your engagement shall automatically come to an end at the expiry of 24 months as stipulated above. During the period of your engagement as aforesaid, your services are liable to be determined prior to 24 months by giving one month’s advance notice in writing or salary in lieu thereof by either party. However, if your services are terminated for misconduct, you are liable to be dismissed without notice or payment in lieu of notice.

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1.2 Your termination from service at the end of the temporary engagement term of 24 months and or at any time before the said date shall be a termination falling under Section 2(oo) (bb) of the Industrial Disputes Act, 1947.”

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The petitioner has put his signature to the

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appointment order accepting the employment on terms and conditions stated therein. The terms of the engagement was for a fixed period of 24 months “on temporary basis” and the engagement would automatically come to an end after expiry of 24 months as stipulated in the engagement letter. Further, it stated that during the period of engagement, the services are liable to be determined prior to 24 months by giving one month’s advance notice in writing or salary in lieu thereof by either parties. If the services are terminated for misconduct, he was liable to be dismissed without notice or payment in lieu of notice. Further the terms and conditions stated that the termination from service at the end of temporary engagement term of 24 months or at any time before the said date shall be terminated falling under Section

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2(oo)(bb) of the ID Act. On two occasions, the letter of engagement dated 25.09.2010 was extended for a further period of one year. On 01/09/2015, letter was issued stating that his term expires on 30/09/2015, and the work which he was engaged needs to be continued for some more time and as such, for a fixed term of engagement was renewed for a further period of one year from 01.10.2015 to 30.09.2016 and it was made clear that all other terms and conditions of engagement stipulated in the letter would continue to bind the petitioner and the company. The letter of extension was served upon the petitioner and the same is not in dispute on 24.09.2015, another letter was issued stating that the salary

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of the petitioner has been revised with effect from 01.10.2015. This being the state of affairs, after receipt of the letter of extension on 01.09.2015, having not reported to duty by the petitioner, the management issued notice on 04.10.2015, stating that, though the letter issued by the company on 01.09.2015 extending the service as an operator on temporary basis for a fixed term was received,

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but did not acknowledge the receipt and as taken as acceptance of terms and conditions and it appears that the petitioner is not interested in continuing with the work as an operator on temporary basis for a fixed period and the absence of him from 12.10.2015 without obtaining leave or permission, shows that he was no longer interested to continue to work with the company and that he has voluntarily abandoned employment.

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This being the state of affairs, after issuance of

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notice by the company, the petitioner did not turn up for nearly three and a half months, it is only in the month of January, 2016, letter was replied to the termination/refusal of employment stating that he has not voluntarily abandoned his job, as he stated that he was asked to continue year after year as a temporary employee under the guise of Section 2(oo)(bb) of the ID Act and the action of the management being not correct and since he demanded for absorption of his employment on permanent rules of the company, it is the case of refusal of employment with effect from 14.10.2015.

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It is relevant to note that, appointment of the petitioner was purely on temporary basis as is clearly evident from the terms of the engagement. It is clear that the petitioner was appointed for a specific period and the services were to be terminated before expiry of the term period as stated in the engagement. Mere completion of the period of employment on temporary basis, does not confer any right on the petitioner to claim appointment. The fact remains that the company had extended the appointment of the petitioner as operator on temporary basis for another fixed period and the petitioner was not happy with the extension of period of employment as temporary employee and demanded for absorption of employment on permanent rules of the company. Having regard to the clear terms of his appointment order, which has been accepted by signing, the petitioner is not entitled to bring his employment comes to an end on temporary employment.

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The Apex Court in the case of Birla VXL Ltd. vs.

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State of Punjab and others¹ at para No.7 has held as under:

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“7. The real question is whether the third respondent had a claim to employment beyond 31-121984. Having regard to the clear terms of his appointment order, which he accepted by signing at the foot thereof, the appellant was entitled to bring his employment to an end at the conclusion of the period of temporary employment. The letter stating that the third respondent’s services would come to an end on 31-12-1984 did not say that the services were being terminated because of any misconduct. There was no stigma whatever cast by that letter. The High Court was not, in the circumstances, warranted in concluding that the services had been terminated because of the third respondent’s misconduct and upholding his reinstatement with full back wages.”

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The other contention of the petitioner is that the company has refused employment to the petitioner by terminating his service under the guise of refusal of employment immediately after two days from the date of

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1 Civil Appeal No.2423/1998

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serving the renewal letter and the petitioner has completed five years and twelve days service continuously. When the petitioner was employed on contract basis only, putting contract end by an employer, not a dismissal from service. Working for 250 days, benefit thereof is not available to the petitioner as his service was purely contractual and termination of his contract does not amount to retrenchment and does not attract compliance with Section 25F of the ID Act. The Apex Court, in the case of Karnataka Handloom

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Development Corporation Ltd. vs. Sri Mahadeva

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Laxman Raval² , held at para Nos.21 and 22 as under:

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“21. The Division Bench of the High Court in the instant case relied upon the decision in S.M. Nilajkar case, which, in our opinion, has no application because in that case no period was indicated and the only indication was the temporary nature of engagement. We have already reproduced the terms and conditions of appointment in the case on hand, in all the orders of engagement specific periods and the amount of honorarium also been

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2 (2006) 13 SCC 15

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mentioned. Therefore, in our view, the High Court’s order does suffer from infirmity.

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22. Learned senior counsel appearing for the Corporation placed reliance on the decision of this Court in Secy., State of Karnataka v. Umadevi (3) and (Constitution Bench), paras 45 and 47 of the judgment. P.K. Balasubramanyan, J. speaking for the Bench has observed as follows: (SCC pp. 37-39)

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47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make

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them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.”

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The provisions of Section 25F of the ID Act did not

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apply to the petitioner in any manner as the petitioner has not been in continuous service for a period of 240 days immediately preceding the year from the date of termination of the services. There is no material on record to indicate that the terms of contract was in any manner a colourable exercise of power to deprive the petitioner of her right of regular employment. The petitioner who was appointed on a temporary basis cannot agitate the same in alleging that compliance of Section 25F of the ID Act has not been made, the termination of the petitioner was issued notice stating that his term has been extended for another period of one year on temporary basis for a fixed term, the that too after completion of the term. The extension has not been accepted

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by the petitioner. Management left with no option, than to hold that the petitioner is not willing to join the work and his

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absence has to be taken as unauthorized absence without

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obtaining leave or permission.

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The material on record also indicates that, even assuming that the management has refused employment, the unexplained on the part of petitioner for three and a half months to reply to the notice dated 14.10.2015 clearly indicates the petitioner’s intention of voluntarily abandonment of service. The petitioner having not accepted the renewal letter dated 01.09.2015 which clearly indicates that the petitioner is not interested in continuing his employment in the respondent – company and the contention of the petitioner that the letter dated 14.10.2015 that was issued to the petitioner by the respondent management, it is clear that the management terminated his service from 14.10.2015, though he worked continuously from 01.10.2010 to 12.02.2015 is totally incorrect. The petitioner has, on his own accord, stayed from away from work without seeking permission or obtaining any leave of absence with effect from 12.10.2015 and the Labour Court,

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on the evidence and the material placed before it, has rightly arrived at a conclusion that the provision of Sections 25F and 25G of the ID Act are not applicable to the present facts and circumstances of this case.

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The decisions relied by the petitioner in the case

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of Western India Match Co. Ltd. vs. The Third Industrial Tribunal, West Bengal and others³ was a situation where the employee fell ill and applied for leave, the Court in the said circumstances held that, when an employee is on leave, he cannot be called upon to discharge his duty and cannot be termed as abandonment of service. In Om Prakash (Dead) by LR’s. vs. Presiding Officer, Labour Court, Tohtak and another⁴ , the Apex Court has held that even if the service of the employee is put on end on the ground of abandonment of service, it must be in terms of the standing orders and that in the said case, there is no compliance with the terms of the standing orders. In Shiv

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3 (1978) 1 SCC 154

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4 (2002) 10 SCC 412

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Kumar vs. Hansita⁵ , the employee was declined duties and thereafter management illegally and unjustifiably terminated the employee and in the circumstances, the Apex Court held that abandonment of service is a question of intention which can be gathered from the totality of the facts and circumstances of each case. There has to be a clear evidence on record to show that despite grant of reasonable opportunity to the employee by the management, he failed to join back his duties without any sufficient reasons and therefore in the absence of any such cogent and convincing evidence, voluntarily abandonment on the part of the employee cannot be readily inferred.

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19. In Tamil Nadu Industrial Co-operative Bank

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(TAICO Bank), Rep. Managing Director vs. R. Alex Sues and another⁶ , abandonment cannot be established by the management and therefore, management could not have dispensed without complying with the procedure of Section

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5 Laws (DLH) 2010 5 56, High Court of Delhi

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6 2020-IV-LLJ-65 (Mad)

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25F of the ID Act. In Eagle Hunter Solutions Limited vs. Sh. Prem Chand⁷ , onus to prove the abandonment is by the management. The case of the respondent-management that the petitioner has voluntarily abandoned the service and having continuously remained absent unauthorisedly and after the lapse of three and a half months a letter has been addressed stating that the termination is incorrect. The material on record indicates that the respondent-company has not refused employment to the petitioner and though the letter dated 14.10.2015 was served on the petitioner, the petitioner did not come forward to join the services and accordingly, all his accounts has been settled in full. The petitioner cannot claim an employment as a matter of right in light of the clear terms of appointment order.

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