Dismissed

M.M.Najeema v. the Managing Director

Kerala HC27 Nov 2012WP(C)/20321/2012

Case brief

AI extract

What is this about?

The Court dismissed writ petitions filed by temporary employees appointed for 180 days through the Employment Exchange. It held that they have no vested right to continue service after tenure expires, rejecting claims based on disability status or 'one-day break' practices favored by the Supreme Court in Uma Devi. However, the court directed the Corporation to identify and regularize posts manned

What did the court decide?

Respondent directed to identify posts manned by temporary employees for over one year and fill them as permanent vacancies within six months.

M.M.Najeema Vs the Managing Director — Pension and Retirement Benefits | Kerala HC (2012)

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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 P.R.RAMACHANDRA MENON

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TUESDAY, THE 27TH DAY OF NOVEMBER 2012/6TH AGRAHAYANA 1934

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WP(C).No. 20321 of 2012 (M)

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PETITIONER(S):

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1. M.M. NAJEEMA, MADATHIKKALAYIL HOUSE, KAVUMKARA. P.O., KALACHANTHA, MUVATTUPUZHA-686 673.

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2. BENCY. K.J.,

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W/O.BENNY, KOLLASSERY HOUSE,

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KUMBALANGI VILLAGE, ERNAKULAM DISTRICT.

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3. BABY. C.P., W/O.SURESH,

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CHARIYAMPARAMBIL HOUSE, DESOM. P.O.,

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ERNAKULAM DISTRICT-683 103.

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BY ADV. SRI.DEEPU THANKAN.

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RESPONDENT(S):

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1. KERALA STATE BEVERAGES (M&M) CORPORATION, SASTHAMANGALAM, THIRUVANANTHAPURAM,

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REPRESENTED BY ITS MANAGING DIRECTOR, PIN-695 010.

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2. THE REGIONAL MANAGER,

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KERALA STATE BEVERAGES (M&M) CORPORATION,

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REGIONAL OFFICE, ERNAKULAM-683 103.

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BY ADV. SRI.C.S.AJITH PRAKASH, SC.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-11-2012, ALONG WITH W.P.(C)NO.20388 OF 2012 AND CONNECTED CASES, THE COURT ON 27-11-2012 DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 20321 of 2012 (M)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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P1THE TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONERS DATED 24.02.2012.

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P2THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE DISTRICT MEDICAL BOARD DATED 13.03.2006.

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P3THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE DISTRICT MEDICAL BOARD DATED 19.06.2002.

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P4THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER DATED 13.08.2012.

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P5THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER DATED 21.08.2012.

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P6THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD PETITIONER DATED 21.08.2012.

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P7THE TRUE COPY OF THE JUDGMENT IN W.A.NO.1687/2011 OF THE HON'BLE HIGH COURT DIVISION BENCH DATED 04.11.2011.

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RESPONDENT'S EXHIBITS:-

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EXT.R1A COPY OF THE REVIEW PETITION NO.43/2012.

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EXT.R1B COPY OF THE JUDGMENT DATED 23/01/2012 IN RP. NO.43/2012.

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EXT.R1C COPY OF THE JUDGMENT IN W.P.(C)NO. 29076/2011.

//TRUE COPY//

P.S. TO JUDGE

rs.

(CR.)

P.R. RAMACHANDRA MENON, J.

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W.P. (C) Nos. 20321, 20388, 20389, 21800, 21999, 25521 and 25541 Of 2012

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Dated this the 27^th November, 2012

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J U D G M E N T

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The issue involved in all these petitions is in respect of the alleged rights of the petitioners to continue in service after the expiry of the contract engagement of 180 days, till regular hands join duty. Some of the petitioners are Physically Handicapped persons and seek to establish their right with reference to this aspect as well. In some cases, a reference is made to the provisions of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation)Act and the the Kerala Rules 2000, thereunder. Reference is made to the parties and events as given in W.P.(C) 20321 of 2012.

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The petitioners were sponsored through the concerned Employment Exchange and were appointed as Helpers (Labelling) for a period of 180 days in the respondent

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W.P. (C) No. 20321 of 2012 and connected cases

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Corporation. Ext. P2 is the appointment order issued by the Corporation, wherein the nature of engagement has been shown as on 'daily wage basis'; that the tenure is only for a maximum period of 180 days; that the said appointment shall never be a basis for claiming regular appointment and that the said appointment was liable to be terminated as and when regular hands reported for duty or as and when the Corporation decided that no more engagement was necessary.

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Petitioners 1 and 2 in W.P.(C) 20321 of 2012, the second petitioner in W.P.(C) 20381 of 2012 , the first petitioner in W.P.(C) 20389 of 2012 and the petitioner in W.P.(C) 21800 of 2012 are stated as Physically Handicapped persons. The tenure of appointment in all the cases, except W.P.(C) 25541 of 2012, has expired; whereas the petitioners in W.P.(C) 25541 of 2012 still continue in service by virtue of Ext. P1 appointment order dated 23.08.2012, which will come to an end only by March, 2013. The main contention raised by the petitioners is that, though they were initially appointed only for a period of '180'

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W.P. (C) No. 20321 of 2012 and connected cases

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days as sponsored through Employment Exchange, they are entitled to continue, since the requirement of the Corporation has not come to an end and further when they are proceeding with steps to recruit another set of temporary hands, after replacing persons like the petitioners, which is not correct or sustainable. It is also contended that engagement of the petitioners was as Helpers (Labelling) and this duty cannot be discharged by the existing workers in the Corporation, as the nature of the work involved is a perennial one, particularly in view of the duty that is being undertaken by the Corporation in procuring and dispensing the Indian Made Foreign Liquor to the customers in the State of Kerala. It is also stated that there is no complaint whatsoever with regard to the work performed by the petitioners and that they came to be sponsored and appointed by virtue of their seniority in registration with the Employment Exchange and also by virtue of their better credentials. The petitioners contend that they are either Physically Handicapped persons or widows/unmarried women/aged persons and that termination of

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W.P. (C) No. 20321 of 2012 and connected cases

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their service, merely for the reason that the tenure of 'six' months was over, is not correct or sustainable. It is also the contention of the petitioners, particularly the Physically Handicapped persons that they are entitled to be treated differently, by virtue of the provisions of 'The Persons with Disabilities( Equal Opportunities Protection of Rights and Full Participation)Act, 1995' and that, sending them out immediately on completion of '180' days, is rather cruel and contrary to the scheme of the enactment. All the petitioners rely on the verdict passed by the Division Bench of this Court vide Ext.P7 judgment in W.A. 1687 of 2011 dated 04.11.2011, whereby the petitioner therein was permitted to be engaged even after the tenure of 180 days, with one day's break and that the petitioners are also entitled to have similar relief.

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The claim of the petitioners is sought to be rebutted by the first respondent Corporation(who has filed a detailed counter affidavit) pointing out that the petitioners were selected for temporary engagement through Employment Exchange without

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W.P. (C) No. 20321 of 2012 and connected cases

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considering that they are handicapped and even if they have any physical disability, their engagement cannot be taken as under 'reserved category'. It is pointed out that the engagement of the petitioners was purely 'adhoc' and need-based and that there is no substantive vacancy to be filled up in the Corporation in relation to the posts to which the petitioners have been given appointment. It is stated in paragraph '7' of the counter affidavit that, as of now, almost all the posts have been filled up by deputation and no vacancy against any sanctioned post is available; though some persons were engaged on adhoc basis to meet the peak time demand, which cannot be taken as a permanent requirement. It is also pointed out that, as and when manpower shortage arises, the same is taken care of by appointing temporary hands through Employment Exchange; more so, based on the specific directions given by a Division Bench of this Court to have such a course and to restrict the same only for a period of '180' days, as borne by the decision

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reported in ILR 2006(4)Ker.285 (K.R. Manoj vs. Kerala

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W.P. (C) No. 20321 of 2012 and connected cases

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State Bevarages Corporation) . The learned Standing Counsel for the Corporation submits that, it cannot resort to appointment on permanent basis through Employment Exchange, in respect of such posts which are brought under the purview of Kerala Public Service Commission. It is also stated that no law has been laid down by the Division Bench as per Ext.P7 and that the observation therein, (enabling the petitioner to continue after one day's break) as if it were on the basis of the submission made by the Standing Counsel for the Corporation that they would be replaced only when the regular hands report for duty, is not correct. Reference is made to Ext.R1(a) Review Petition ( R.P.No.43 of 2012) seeking to review Ext.P7 judgment and the verdict passed therein, as borne by Ext.R1(b) dated 23.01.2012. The learned Standing Counsel also refers to the decision rendered by this Court in W.P.(C) 16039 of 2009, wherein similar contentions were raised by the petitioners therein which came to be disallowed . Reliance is also sought to be placed on the decision rendered by a Constitution

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W.P. (C) No. 20321 of 2012 and connected cases

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Bench of the Supreme Court in Secretary of State, State of Karnataka vs. Uma Devi [ 2006 (4) SCC 1] to the effect that no regularisation can be given to temporary hands.

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Heard Mr. Deepu Thankan, Mr. B. Mohan Lal and Mr. B. Balaprasannan on behalf of the concerned petitioners . Mr. C.S. Ajith Prakash addressed the Court on behalf of the respondent Corporation in all the cases, while Mr.T.R. Rajesh, the learned Government Pleader made submissions on behalf of the first respondent in W.P.(C) 21999 of 2012.

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6. With regard to the nature and extent of appointment , there is no dispute that the petitioners came to be appointed through Employment Exchange for a specified tenure of '180' days. It has been clearly stipulated therein, that the temporary engagement will come to an end on expiry of the tenure of '180' days or as and when the Corporation finds that no further engagement is necessary. There is no case that anybody has been caused to be terminated during the subsistence of the contract. As such, whether the petitioners are entitled to

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continue once the tenure is over, is the sole question.

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The learned Standing Counsel for the Corporation

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submits that the engagement of the petitioners as helpers on daily wage basis was only a 'need based' one. It is stated that the Corporation is not pursuing any course to give back-door appointment to anybody and that temporary engagement is being made by engaging Employment Exchange hands, to cater to the need of the hour, by virtue of the specific direction given by this Court as per the decision reported in (2006) 4 ILR (Ker.)285 (cited supra ). Such Employment Exchange hands cannot be retained beyond the tenure of six months, as ordered by the Court and if any further requirement is there, it can only be by reporting to the concerned Employment Exchange for sponsoring eligible hands, to be considered by the Corporation.

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The learned Standing Counsel submits that Ext.P7 judgment, as discernible therefrom and also as made clear by the very same Bench vide Ext. R1(b) order passed in the Review Petition, makes it clear that no law has been laid down in the

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W.P. (C) No. 20321 of 2012 and connected cases

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judgment and there is no duty upon the Corporation to continue to engage persons sponsored from the Employment Exchange beyond the tenure of six months or 180 days. Referring to the contents of Ext.R1(a) Review Petition, the learned Counsel submits that, the observation made by the Division Bench in Ext. P7 itself, as to the alleged submission made by the learned Standing Counsel when the matter was considered is not correct on facts and it was accordingly, that a specific observation was made in Ext.R1(b) order passed in the Review Petition that it shall not be a precedent.

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The nature of engagement as involved herein, the claim to continue in service at least till the regular hands are engaged and also the claim with reference to the provisions of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 had come up for consideration of this Court earlier in W.P.(C) 16039 of 2009. After hearing both the sides, a learned Judge of this Court, observed that, the petitioners who claimed to be the persons with disabilities, were

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W.P. (C) No. 20321 of 2012 and connected cases

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appointed as labourers purely on provisional basis for a period of six months. The appointment order in the said case is almost similar in terms as in these cases as well; mentioning the extent of rights and liberties flowing therefrom and also the liberty of the Corporation to terminate the service, on expiry of the tenure or even before that. The learned Judge arrived at a clear finding that the petitioners cannot claim any right to continue in service beyond the term for which they were appointed. Reliance was also placed on the decision rendered by a Division Bench of this Court [presumably in K.R. Manoj Vs. Kerala State Bevarages Corporation (ILR 2006 (4) Ker. 285) ], whereby this Court had directed the respondent Corporation to terminate the service of the provisional employees and to replace them with regular hands, after following the prescribed procedure. Accordingly, interference was declined and the writ petition was dismissed.

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Similar issue came up for further consideration again in W.P.(C) No. 29076 of 2011 and after referring to the judgment in W.P.(C) No. 16039 of 2009, interference was declined and the

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W.P. (C) No. 20321 of 2012 and connected cases

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said writ petition was also dismissed. It was against the said verdict, that the aggrieved party approached the Division Bench by filing W.A. 1687 of 2011, wherein Ext. P7 judgment came to be passed on 04.11.2011. Ext. P7 was subsequently modified as per Ext. R1(b) order passed in the Review Petition filed as R.P. No. 43/2012.

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With regard to the scope of Ext. P7 judgment passed by the Division Bench, it is to be noticed that, no law has been laid down by the Bench in the said case. When the matter came up for consideration, it was recorded that the learned standing counsel for the Bevarages Corporation had submitted that replacement will be made only with regular hands, based on the relevant norms. On the basis of the said statement, it was observed that the respondent could permit the appellant to continue with 'one day's break', until the selected candidates were appointed. But the alleged statement made by the learned standing counsel was disputed by filing Ext. R1(a) review petition. After considering the same, Ext. R1 (b) order came to

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W.P. (C) No. 20321 of 2012 and connected cases

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be passed, whereby the writ petitioner was directed to give an undertaking that he will not seek for any regularization, if he is not otherwise entitled and on this condition, he would be permitted to continue with 'one day's break', to get over the difficulty. With regard to the possible/probable claim for regularization on priority basis, it was also made clear as per Ext. R1(b), that the relief was being granted to the writ petitioner who was a 'disabled person' and the review petitioner/Corporation need not treat the judgment under review (Ext. P7) as a precedent for retaining other temporary hands. Reading of Exts. P7 and R1(b) together, shows it point blank that, no positive direction has been given by the Division Bench to have the said course followed or made applicable to anybody else. As such, there is no basis for the reliance sought to be placed on the said verdict, from the part of the petitioners.

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Yet another aspect to be considered is that the Division Bench has made a specific observation in Ext. P7 judgment itself in the following lines:

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W.P. (C) No. 20321 of 2012 and connected cases

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“We do not think this Court can order retention of appellant though he may be entitled to apply in the quota reserved for disabled persons”

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The Writ Appeal itself was virtually dismissed, as borne by the last sentence/paragraph, however, with the observation that the respondent Corporation can permit the appellant/writ petitioner to continue with 'one day's break', after completion of six months until the selected candidates are appointed. Even then, there was no direction to appoint the writ petitioner/appellant, but for observing that he can be permitted by the Corporation, which discretion always stands with the Corporation, in the absence of any positive direction. The judgment passed by the Single Bench in W.P.(C) No. 29076 of 2011 still stands, as not set aside.

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With regard to the submission made by the learned counsel for the petitioners that the petitioners might be permitted to continue with 'one day's break', this Court finds that, it is an alien concept, which cannot be pressed into service, as of any universal application. Even if a person is continuing in service

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W.P. (C) No. 20321 of 2012 and connected cases

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beyond the stipulated term; by virtue of the law declared by the Constitution Bench of the Supreme Court in Secretary, State of Karnataka and Others Vs. Umadevi and others [ (2006) 4 SCC 1], there cannot be any vested right for regularization, except to the extent as mentioned in paragraph 53 of the said verdict, as a 'one time measure' in respect of a person having more than 10 years of such service. Continuous engagement of a person/temporary hand, with an artificial one day's break was the device designed by some unscrupulous employers of the bygone era to keep on engaging persons without making them regularized; thus denying them the benefits of regular employees. The said course was being pursued more in industrial sector; presumably in view of some adverse situations against engaging workers continuously on daily wages or as temporary hands/provisional hands/'badlees'; which in fact amounts to an 'unfair labour practice' as included in the 'fifth schedule' to the Industrial Dispute Act, and is liable to be proceeded with, by virtue of the penal provision as provided

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W.P. (C) No. 20321 of 2012 and connected cases

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under Section 25 U of the said Act. Section 25 B of the Industrial Dispute Act defines the term 'continuous service'. Once a 'workman', as defined under Section 2 (s) of the Industrial Dispute Act satisfies 'continuous service' as mentioned above, he is eligible to have various benefits under the Act. The employers used to engage persons with an artificial break of a few days, to see that the workers did not have the requisite 'continuous service'; which came to be deprecated by the Apex Court as per the decision reported in State Bank of India Vs. Sundaramony (1976 SCC 1111) . It was thereafter, that the Industrial Dispute Act itself came to be amended, incorporating clause (bb) to S. 2 (oo) of the Act, defining the term 'retrenchment' (Act 49 of 1984 w.e.f. 18.08.1984). This being the position, the petitioners cannot expect to have any verdict from this Court, to pursue any practice which is not known to law and the sanctity of 'artificial break' cannot be there any more.

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The nature of engagement of workers being pursued by

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the respondent Corporation, the scope of the verdict passed by

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W.P. (C) No. 20321 of 2012 and connected cases

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the Apex Court in Umadevi's case (cited supra) in relation to such circumstances and such other relevant aspects came to be considered by a Division Bench of this Court in the decision reported in ILR 2006 (4) Kerala 285 (cited supra) . After considering the facts and figures as to the engagement of workers on daily wages and the right to continue in service after the tenure of engagement, this Court gave specific directions as

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contained in paragraph 7, in the following terms.

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(1) All regular posts vacant should be notified for appointment. All regular posts now held by temporary hands shall be reported in accordance with the rules (2) No temporary hands shall be appointed to the regular vacancy (3) All vacancies shall be reported to the Public Service Commission within six months from the date of receipt of copy of this judgment. All posts manned by temporary employees for more than one year continuously shall be treated as permanent post. (4) As far as upper age limit is concerned regular appointments, the temporary employees who are working in the Corporation for more than six months, shall be given age relaxation. But there shall not be any relaxation in the matter of basic qualifications. (5) The temporary employees working in the regular post shall

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W.P. (C) No. 20321 of 2012 and connected cases

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be allowed to continue in service only until these posts are filed up by regular only through employment exchange and such employees will not get any right for regularization on that regular vacancies should be notified and regular appointments should be made as expeditiously as possible. With these directions the writ petitions are disposed of.

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From the above, it is clear that the respondent Corporation has necessarily to fill up all the vacancies by pursuing regular process of selection and temporary engagement has to be confined to a maximum of 'six' months. In view of the specific direction given by the Division Bench that temporary hands can be engaged only through employment exchange and that the posts manned by temporary hands for more than one year continuously have to be treated as regular posts, the respondent Corporation has to identify these posts and get them filled up on a regular basis.

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In the above facts and circumstances, this Court finds that the claim of the petitioners to continue in the posts after expiry of the tenure of 180 days mentioned in their appointment order is not liable to be entertained. Accordingly interference is

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W.P. (C) No. 20321 of 2012 and connected cases

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declined.

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This Court however exercises the discretionary jurisdiction of this Court, particularly, in the light of observations made by the Division Bench as per the decision reported in ILR 2006 (4) Kerala 285 (cited supra) and hereby directs the respondent Corporation to identify all the posts which are manned by temporary employees for a period of more than one year, notwithstanding any change of temporary hands by another set of temporary hands and shall take appropriate steps for filling up the said posts, treating the same as permanent vacancies. If such posts are not sanctioned posts, it shall brought to the notice of the State Government within two months from the date of receipt of a copy of this judgment; on which event, the matter shall be considered and necessary sanction shall be given to have the posts filled up on regular basis. This Court is given to understand that the respondent Corporation happens to be one of the major contributors of Revenue for the

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State, by virtue of the monopoly trade in the sale of IMFL in the State of Kerala (sharing similar status with the 'Consumer Fed' ) and the Corporation cannot function and earn revenue without sufficient and dependable infrastructure including staff and officers. As such, all the necessary steps as aforesaid shall be pursued and finalized as expeditiously as possible, at any rate, within six months.

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The Writ Petitions are dismissed with the above observations.

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P.R. RAMACHANDRA MENON, JUDGE.

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lk/kmd

M.M.Najeema v. the Managing Director

Case brief

What is this about?

What did the court decide?

M.M.Najeema v. the Managing Director

Case brief

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