Dismissed

Binu Cherian and Others v. Fact Rep. by Its Chairman & Md,Udyogaman

Kerala HC4 Jun 2010WP(C)/40174/2003

Case brief

AI extract

What is this about?

The single-judge Court disposed of a writ petition wherein three former 'player-cum-trainees' sought mandatory direction for their absorption into the regular cadre of an industrial undertaking. The Court held that no statutory right to absorption existed and dismissed the prayer for mandamus, yet directed the respondent to reconsider the petitioners' representation compassionately upon future rec

What did the court decide?

Direction to respondent to reconsider the petitioners' representation for absorption/regularisation compassionately before any fresh recruitment for clerk/typist posts.

Binu Cherian and Others Vs Fact Rep. by Its Chairman… — Service and Employment | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM

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FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932

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WP(C).No. 40174 of 2003(G) --------------------------

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PETITIONER(S):

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BINU CHERIAN, W/O.T.C.RAJU, AGED 30 YEARS, H.NO.V/338/A. ISWARYA NAGAR VIA, NEAR.GYNAEO SPECIALIST HOSPITAL, ATHANI P.O. 683 585.

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SINI THALIYATH, AGED 29 YEARS, W/O.ANIL JOHN, MARANGOLI HOUSE, PONOTH ROAD, KALOOR 682 017.

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KALADEVI R., AGED 26 YEARS, W/O.JAIMON, K.K. NATTINGAL HOUSE, GLASS FACTORY COLONY, KALAMASSERY.

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BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE

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RESPONDENT(S): ---------------

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F.A.C.T.REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR, UDYOGAMANDAL, KOCHI 683 901.

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UNION OF INDIA REP. BY ITS SECRETARY, INDUSTRIES DEPARTMENT, NEW DELHI.

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ADV.SRI.T.P.M.IBRAHIM KHAN, ASG SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN SRI.LALGI P.THOMAS, ADDL.CGSC FOR R2

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).40174/03

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1(A):- TRUE COPY OF CALL LETTER DT.15.4.1998 NO.PM(IR)-HO-PER-229 TO 1ST PETITIONER

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EXT.P1(B):- TRUE COPY OF DO- DO- NO.PM(IR)-HO-PER-230 TO 2ND PETITIONER

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EXT.P1(C):- TRUE COPY OF DO- DO- NO.PM(IR)-HO-PER-231 TO 3RD PETITIONER

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EXT.P2(A):- TRUE COPY OF APPOINTMENT LETTER DT.15.5.98 TO 1ST PETITIONER

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EXT.P2(B):- TRUE COPY OF DO- DO- TO 2ND PETITIONER

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EXT.P2(C):- TRUE COPY OF DO- DO- TO 3RD PETITIONER

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EXT.P3(A):- TRUE COPY OF LETTER DT.7.8.01 DYCM(PER)-IR-HO-PER-399 TO 1ST PETITIONER

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EXT.P3(B):- TRUE COPY OF DO- DO- TO 2ND PETITIONER

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EXT.P3(C):- TRUE COPY OF DO- DO- TO 3RD PETITIONER

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EXT.P4:- TRUE COPY OF REPRESENTATION MADE BY 2ND PETITIONER DT.23.8.01

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EXT.P5(A):-TRUE COPY OF THE SALARY STATEMENT OF THE 2ND PEITITONER IN JUNE 1998(1ST DRAWN SALARY)

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EXT.P5(B):-TRUE COPY OF DO-DO- IN APRIL 2003(LAST DRAWN SALARY)

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EXT.P6(A):-TRUE COPY OF THE CERTIFICATE ISSUED BY THE BOARD OF TECH.EXAMINATION. TO 2ND PETITIONER

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EXT.P6(B):- TRUE COPY OF DO-DO- TO 3RD PETITIONER

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EXT.P7:-TRUE COPY OF LIST OF ACHIEVEMENTS DURING THE PERIOD FROM 1995-02

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EXT.P8:-TRUE COPY OF REREPESENTATION DT.19.7.03

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RESPONDENT'S EXHIBITS:- NIL

OKB

//TRUE COPY//

P.A. TO JUDGE

C.K.ABDUL REHIM, J.

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W.P.(C).No.40174 OF 2003

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------------------------------

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Dated this the 4^th day of June, 2010

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J U D G M E N T

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The petitioners herein were appointed as 'Player-cum-Trainee' on contract basis at the Udyogamandal unit of the 1^st respondent company, on 6.7.1995 and they continued till April 1998. By virtue of Ext.P1 series letters they were invited for an interview to assess suitability for absorption as 'player-cum-trainee'. All of them were selected and appointed as 'player-cum-trainee' by virtue of Ext.P2 series letters dt.15.5.1998. Clauses 7 to 9 of Ext.P2 series letters set forth enumerating the terms and conditions of such appointment, which is extracted below:-

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“7. On satisfactory completion of 3 years training and satisfactory performance as a Basket Ball player, subject to a favourable assessment including aptitude/job test and subject to sole discretion of the management, you are eligible for consideration for absorption as an employee of the Company and placed on a suitable job and appropriate scale of pay. The absorption as above is subject to your acquiring the required

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W.P.(C).40174/03

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qualification for the post during the period of your training. In case you do not acquire the required qualification, the Company reserves the right to extend the period of your training or terminate your service.

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You will have to give an undertaking to complete the training and to be available for field workouts and participation in Basket Ball tournaments/matches whenever required by the Company or by such persons and/or such authority authorised on that behalf/for and a further period of 2 years after the completion of the training if you are absorbed in the regular scale on satisfactory completion of training/acquiring the required qualification. In case you fail, neglect or refuse to complete the training and/or serve the Company and/or fail, neglect or refuse to attend workouts and participate in tournaments/matches for two years thereafter, you will be held liable to the Company for liquidated damages of Rs.10,000/(Rupees Ten Thousand only). A bond in favour of the Company in as regard (in the proforma enclosed) has to be executed by you together with a solvent surety acceptable to the Company on or before the joining date. Surety will have to bring Solvency Certificate issued by the Competent Authority to that effect. It is clarified that this implies no obligation on the part of the Company to employ you for two years.

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During the period of your training, you will be

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W.P.(C).40174/03

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governed by the Certified Standing Orders, service conditions and other rules and regulations in force in the Company from time to time as applicable to the non-managerial employees of Head Office.”

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According to the petitioners, all of them continued in the Basket Ball Team of the 1^st respondent and participated in many State and National-level Tournaments. The Women's Basket Ball Team of the 1^st respondent in which the petitioners were members, became winners or runner ups in so many competitions and one among the petitioners were selected as 'Best Player' during the year 1997. They were also reporting for duty in the office of the 1^st respondent during normal working hours, apart from attending practice and tournaments on a regular basis during the morning and evening.

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On completion of three years they were issued with Ext.P3 series letters, requesting to acquire prescribed qualification of either graduation or typewriting (Higher) to enable them to be absorbed against the regular posts in the clerk/stenographer cadre within a period of one year thereafter. In Ext.P3 series it is mentioned that as per the terms of the appointment, absorption of the petitioners were subject to

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W.P.(C).40174/03

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acquiring the prescribed qualification during the period of training (3 years period). It is further stated that on failure to acquire the qualification the company reserve the right to extend the period of training or to terminate the service. However, they were informed that the management has decided to extend the training period for a further period of one year i.e: upto 21.5.2002 on condition that the petitioners should acquire the required qualification as stated above within the said period. It is an admitted case that inspite of lapse of the extended period the petitioners were not terminated and they were allowed to continue till 21.5.2003.

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Petitioner Nos.2 and 3 had acquired the qualification of typewriting (higher) thereafter. But they were not considered for absorption. Ext.P6(a) and P6(b) are the certificates with respect to petitioners 2 and 3, which will reveal that the results of petitioners 2 & 3 were published on 28.5.2003 and 21.11.2002, respectively. However, the petitioners have no case that any representation was made to the company seeking absorption on the basis of Ext.P6(a) and P6(b), before the date of their discontinuation, i.e. before 21.5.2003. But the petitioners submitted Ext.P8 representation to the Chairman and Managing

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W.P.(C).40174/03

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Director of the 1^st respondent, enumerating details of contributions made by them to the Basket Ball Team and seeking to consider them for absorption in the permanent cadre of the 1^st respondent company. It is elaborately mentioned about the lengthy service rendered by them on the basis of the contract appointment and thereafter by virtue of Ext.P2 series, totalling to a period of 8 years. It is also pointed out that contemporaries of the petitioners, who are eminent Basket Ball players, joined in other Government and public sector undertakings have already been absorbed and they got settlement in the higher posts in such establishments. Since Ext.P8 has not been considered this writ petition is filed seeking direction to command the 1^st respondent to absorb the petitioners in the regular cadre and for payment of service benefits to them from 21.5.2003 onwards.

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In the counter affidavit filed by the 1^st respondent it is specifically mentioned that since the petitioners had failed to acquire the prescribed qualification within the initial period of three years they were not absorbed. However, considering the terms of appointment as enumerated in clause 8 of Ext.P2, training period of the petitioners were extended till 21.5.2003. But they were disengaged due to re-structuring and poor

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financial position of the company and also due to non-availability of suitable posts against which they could be absorbed. It is further stated that absorption of persons appointed as 'playercum-trainee' as permanent employees is within the sole discretion of the management. It is further stated in paragraph 7 of the counter affidavit that by virtue of Ext.P2 series letters, appointment of the petitioners were made subject to the condition that they should acquire the prescribed qualification within the training period of three years. It is stated that normally ladies are taken in the Administration Department in non-managerial category of clerk or typist/steno. The petitioners were apprised about the qualification required for such posts. But they failed to acquire such qualification during the initial period of three years and hence they could not be absorbed to any regular post.

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Learned counsel for the petitioners pointed out that Ext.P2 series letters does not mention anything about the post to which the petitioners will be absorbed on completion of training period. Nor the letters mention specifically as to what should be the qualification to be acquired within the period of three years. It is further contended that during the period of training the

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petitioners were never informed about any proposal for absorption, nor they were informed at any point of time to acquire any specific qualifications. It is submitted that, for the first time only through Ext.P3 series letters the petitioners were informed about acquiring qualification of Graduation or Typewriting (Higher). It is further contended that two of the petitioners had acquired qualification as required, before they were disengaged on 21.5.2003. The request of the petitioners were not favourably considered, is the contention.

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Learned counsel for the 1^st respondent per contra contended that considering the terms and conditions of appointment, relevant portion of which is extracted above, the petitioner was at an obligation to acquire the required qualification within the period of three years. Further it is pointed out that by virtue of clause 9 they were informed that their appointment will be governed by certified Standing Orders, Service Conditions and Rules and Regulations in force in the company from time to time. It is also pointed out that as per clause 7 of Ext.P2 series letters it was clarified that eligibility of the petitioners for consideration for absorption will be subject to available assessments and will be in the sole discretion of the

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W.P.(C).40174/03

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management. It is contended that the terms and conditions of Ext.P2 does not confer any right upon the petitioners for absorption against any regular post. Further the petitioners are precluded from raising any such claim because of the fact that they failed to acquire the qualification within the training period of three years.

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On an active consideration of the rival contentions, I notice that there is some merit in the arguments of the petitioners that within the period of three years they were never informed about the post in which they will be absorbed and the qualification which is to be acquired by them for appointment against any such post. Another aspect to be taken note of is that two of the petitioners had acquired qualification mentioned in Ext.P3, before they were disengaged from service. At the same time the petitioners could not point out any statutory right which enables them to claim absorption despite continuance for a period of 5 years on the basis of Ext.P2 letteres. Therefore I am of the considered opinion that a writ of mandamus directing absorption of the petitioners on a regular basis against any particular cadre in the 1^st respondent company could not be ordered.

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W.P.(C).40174/03

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It is mentioned in the counter affidavit of the 1^st respondent that Ext.P8 was duly considered by the Chairman and Managing Director and that the matter was placed before the Board of Directors, and it was decided not to regularise the petitioners considering the financial position. But there is no evidence to the effect that the matter was considered in the back ground of the above said two aspects upon which the petitioners bases their contentions. However, the aspect regarding the financial position of the company enumerated in the counter affidavit is also one of the factor which is to be taken note of. On an overall appreciation of the facts and circumstances I am of the view that even though petitioners could not claim absorption as a matter of right, their representation need consideration with due compassion taking note of the fact that they worked in the company for a long spell of 8 years and they could achieve victories in sports, which definitely would have boosted the proud and prestige of the 1^st respondent during the relevant period. Of course, it is for the 1^st respondent to consider such aspects only when they could get out of the present financial stringencies and only when they could able to make fresh recruitments of staff in the concerned posts.

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W.P.(C).40174/03

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In the result the writ petition is disposed of on the following terms. While denying prayer for issuance of a writ of mandamus directing absorption of the petitioners, the 1^st respondent is directed to reconsider Ext.P8 on the basis of the observations contained herein above and to take a decision thereof before any fresh recruitment is made to the post of clerk or typist/steno in any of the units of the 1^st respondent company.

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C.K.ABDUL REHIM, JUDGE.

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okb

Binu Cherian and Others v. Fact Rep. by Its Chairman & Md,Udyogaman

Case brief

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Binu Cherian and Others v. Fact Rep. by Its Chairman & Md,Udyogaman

Case brief

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