A writ petition challenging a Labour Court award that reinstated a terminated fitter. The Court held the employee was a 'workman' and his termination was illegal under Section 25(F), dismissing the petition.
The writ petition is dismissed; the Labour Court award reinstating the workman with back wages is upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE S.SIRI JAGAN
TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933
WP(C).No. 8032 of 2007(F)
--------------------------------ID.125/1991 of LABOUR COURT, ERNAKULAM
PETITIONER(S):
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THE PROJECT MANAGER, KHADI AND VILLAGE INDUSTRIES COMMISSION, CENTRAL SLIVER PLANT, KUTTOOR P.O., THRISSUR.
BY ADV. SRI.K.KESAVAN KUTTY,SC,KVIC
RESPONDENT(S):
--------------------
1. K.R.PETER, KANJIRATHINKAL HOUSE, PARAKKADAVU P.O., KURUMASSERY VIA, PIN-683 579.
2. LABOUR COURT, ERNAKULAM.
R1 BY ADVS. SRI.A.JAYASANKAR SRI.MANU GOVIND
R2 BY GOVT. PLEADER SRI.ANTONY MUKKATH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON 11/10/2011 DELIVERED THE FOLLOWING:
svs
W.P.(C). NO. 8032/2007
APPENDIX
PETITIONER'S EXHIBITS:
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.A. TO JUDGE.
svs
S. SIRI JAGAN, J.
- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.8032 of 2007
- - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of October, 2011
J U D G M E N T
The management in Industrial Dispute No.125/1991 before the Labour Court, Ernakulam is the petitioner in this writ petition. The petitioner challenges Ext.P4 award passed by the Labour Court, Ernakulam in that I.D. The issue referred for adjudication was “termination of service of Sri. K.R. Peter”, the 1st respondent herein. Originally the Labour Court passed an award holding that the 1st respondent being an apprentice is not entitled to the benefits applicable to a workman as defined under the Industrial Disputes Act, which was challenged by the workman and by Ext.P3 judgment this court quashed the award holding that an apprentice is also included in the definition of workman under Section 25 directing reconsideration of the I.D on merits. Pursuant thereto, Ext.P4 award was passed holding that the termination of
W.P.(C)No.8032 of 2007
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service of the 1st respondent was illegal and unsustainable. The 1st respondent was given the relief of reinstatement with 25% back wages and continuity of service. That is under challenge in this writ petition. The contention of the petitioner is that, the 1st respondent was only a temporary employee and therefore he is not entitled to continue in service beyond the period of appointment.
are as follows:
“Point Nos. 1 & 2: Admittedly the management invited applications for appointment in the post of fitters and electricians in its mislin project at Kuttoor. Workman's case is that on 26/8/1986, he was selected for the post of fitter in the above said project of the management. But the management paid only daily wages to him and he worked as a fitter for a period of one year and on 31/8/1997, he was served with a memo terminating his service with effect from 1/9/87 stating that his performance as apprentice fitter was found unsatisfactory. The management has contented in the written statement that as the workman was not found suitable to be appointed as fitter, he was appointed as apprentice and he was given stipend only and that he was not a workman. My learned predecessor in his office found that the workman was appointed only as an apprentice and that the apprentice is not a workman, and hence there is no retrenchment within the ambit of Section 2 (00) of the I.D. Act of 1947, and passed an award accordingly. The Hon'ble High Court set aside the award holding that the workman includes apprentice in view of section 2(s) of the I.D.Act, 1947. The management has no case that the worker in this case is an apprentice under the Apprenticeship Act, 1961.
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So the worker in this case is a workman in I.D. Act. Admittedly, the workman, worked for one year without any break and his service is continuous. The workman was examined as WW1 in this case. He deposed that he was appointed to the post of fitter in the management establishment. Ext.W1 is the copy of the advertisement inciting applications for the post of fitter, electricians in the management establishment, Ext. W2 is the memo for appearance of interview for the post of fitter. Ext.W3 is the S.S.L.C. Book of the workman. W4 is he National Trade Certificate and W5 is the National Apprenticeship Certificate. W4 would show that workman passed the Trade Test in the Trade of Fitter held in the month of July, 1981. W5 would show that the workman had undergone apprenticeship Training from 20.7.1983 to 19.7.1985 in the trade of Mechanic (Textile Machinery) and passed the prescribed trade test conducted by National Council of Vocational Training held in the month of November, 1985 and is awarded the National Apprenticeship Certificate. Ext. P6 would show that the workman had also worked as workman from 2.8.1981 to 25.6.1983 in the Dolphin Engineering Works at Kurumasery, Aluva Ext. W7 dated 31.8.86 would show that the workman worked as a worker in the General Engineering Works, Kalamassery and he has working knowledge of welding, pipe fabrication, fittings etc. As per Ext.M6 memo dated 31.8.87, management terminated the service of the workman with effect from 31.8.87. Ext.W1 advertisement would show that the appointment is not temporary. So it is a permanent post. If the post continues, the appointment will also continues. It has come out in evidence that the post is not temporary and even after the termination of the worker in this case, the post continued and the management appointed another person in the place of workman in this case. It is also particular to note that as per Ext.W1 notification, applications are invited for the post of fitters. No where in Ext. W1 it is stated that the post is an apprentice. Even the workman is an apprentice, he is a workman under the I.D. Act. Admittedly the workman worked continuously for one year till he was illegally terminated from the service of the management. No notice for retrenchment was issued to the workman. There is also no ground for retrenchment. No notice pay paid to the workman. No retrenchment compensation also paid to the workman. So the management violated Section 25 (F) of the I.D. Act. Therefore the termination of the worker Sri. K.R. Peter is not justifiable and is liable to set aside and the workman is entitled to be reinstated in service with 25% backwages and with continuity of service.
In the result, an award is passed holding that the
W.P.(C)No.8032 of 2007
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termination of the workman Sri. K.R. Peter from the service of the management is not justified and hence it is set aside. The management is directed to reinstate the workman into service with 25% backwags and with continuity of service. This award will take effect after one month from the date of pronouncement of award int he open court.”
As held by the Labour Court, the appointment of the 1st respondent was pursuant to a notification inviting applications for selection to the post of 'Fitter'. The fact that the petitioner chose to appoint him terming him as an 'apprentice' does not in any way effect the claim of the 1st respondent and he also comes within the definition of workman. The contention of the petitioner that the 1st respondent was a temporary worker also does not find favour with me in so far as the Industrial Disputes Act does not contemplate such a contention. Once the 1st respondent has 240 days continuous service, which the 1st respondent has, he is entitled to the benefits under the I.D. Act. The findings on fact by the Labour Court therefore amply justifies the relief granted to the workman. I do not find any perversity in the findings in Ext.P4 award. Unless the award is perverse, I cannot interfere with the said award in
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exercise of my discretionary jurisdiction under Article 226 of the Constitution of India. It is settled law that if the view taken by the Labour Court is one possible view this court cannot interfere with that award even if another view is also possible. I am of opinion that the view taken by the Labour Court is a possible view and is not in any way perverse. Hence I do not find any merit in this writ petition and accordingly the same is dismissed.
Sd/-
S. SIRI JAGAN JUDGE //True copy//
P.A. TO JUDGE
shg/
3 issues framed by the court
Whether a person appointed as an apprentice who satisfies the definition of a workman is entitled to protection under the Industrial Disputes Act.
Whether the termination of an employee with over 240 days of continuous service was justified under Section 25(F) without notice or compensation.
Whether the High Court can interfere with the Labour Court's award under Article 226 if the view taken is not perverse.
2 provisions across 1 enactments
THE PROJECT MANAGER, KHADI AND VILLAGE INDUSTRIES COMMISSION, CENTRAL SLIVER PLANT, KUTTOOR P.O., THRISSUR.
K.R.PETER
LABOUR COURT, ERNAKULAM.
S. SIRI JAGAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
