Dismissed

Sundhar S.P. v. State of Kerala

Kerala HC8 Aug 2017WP(C)/7745/2017

Case brief

AI extract

What is this about?

The Court addressed a writ petition challenging the alleged illegal termination of five daily wage employees. While granting interim relief by stay of operation pending final adjudication, the Court finally dismissed the petition, holding that daily wage workers have no right to regularisation and that retrenchment claims fall under the Industrial Disputes Act.

What did the court decide?

The writ petition in its challenge against the illegal termination of services of the petitioners is dismissed.

Sundhar S.P. Vs State of Kerala — Labour and Industrial Disputes | Kerala HC (2017)

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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 A.K.JAYASANKARAN NAMBIAR

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TUESDAY, THE 8TH DAY OF AUGUST 2017/17TH SRAVANA, 1939

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WP(C).No. 7745 of 2017 (P)

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PETITIONER(S):

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1. SUNDHAR S.P., S/O. SUNDHARESAN NAIR, AGED 43 YEARS, SUNDHAR NIVAS,

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VENGODE P.O., VATTAPPARA,

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THIRUVANANTHAPURAM- 690 028.

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2. SIJESH B.UNNI, AGED 37 YEARS, S/O.BALAKRISHNAN UNNI, ARAKKALKIZHAKKEKUTTU MADAM, CHARAMANGALAM, MAYITHARA MARKET P.O., CHERTHALA, ALAPPUZHA -688 539.

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3. SANDHYA P.B., AGED 39 YEARS, PADMINI COTTAGE, 2/248, STUDIO WARD, THIRUVAZHIMUKKU, THIRUVALLAM P.O., THIRUVANANTHAPURAM.

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4. SARATH S.K., AGED 22 YEARS, S/O.SURENDRAN, RAJAJI NAGAR, FLAT NO.150, HOUSING BOARD, PANAVILA, THIRUVANANTHAPURAM -695 001.

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5. JAYALAKSHMI.S.,

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AGED 35 YEARS, D/O.GOPALA PILLAI, 16/1005 (JRA 86A), MANJU NIVAS, JAGATHY, THYCAUD P.O., THIRUVANANTHAPURAM-695 014.

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BY ADVS.SRI.RAM MOHAN.G.,

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SRI.G.P.SHINOD, SRI.GOVIND PADMANAABHAN, SRI.AJIT G.ANJARLEKAR.

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, KERALA LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.

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WP(C).No. 7745 of 2017 (P)

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2. THE KERALA RURAL EMPLOYMENT AND WELFARE SOCIETY (KREWS), REPRESENTED BY ITS SECRETARY, SWARAJ BHAVAN, BASEMENT (I), NORTH BLOCK, NANTHENCODE, KAWDIAR P.O., THIRUVANANTHAPURAM -695 003.

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3. GRAMALEKSHMI MUDRALAYAM, REPRESENTED BY ITS SECRETARY, KALLIYOOR P.O., THIRUVANANTHAPURAM-695 003.

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4. THE GENERAL MANAGER, GRAMALEKSHMI MUDRALAYAM, KALLIYOOR P.O., THIRUVANANTHAPURAM- 695 003.

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R1 BY GOVT. PLEADER SRI.MATHEW GEORGE VADAKKEL. R2 TO R4 BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR, SRI.JELSON J.EDAMPADAM.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 7745 of 2017 (P)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1 COMPUTER COPY OF LIST OF DAILY WAGED EMPLOYEES WORKING AT THE THIRD RESPONDENT.

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EXT.P2 COMPUTER COPY OF THE WAGE REGISTER OF THE DAILY WAGES EMPLOYEES OF THE THIRD RESPONDENT INCLUDING THE PETITIONERS FOR THE MONTH OF NOVEMBER 2016.

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EXT.P2(A) COMPUTER COPY OF THE WAGE REGISTER OF THE DAILY WAGES EMPLOYEES OF THE THIRD RESPONDENT INCLUDING THE PETITIONERS FOR THE MONTH OF DECEMBER 2016.

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EXT.P2(B) COMPUTER COPY OF THE WAGE REGISTER OF THE DAILY WAGES EMPLOYEES OF THE THIRD RESPONDENT INCLUDING THE PETITIONERS FOR THE MONTH OF JANUARY 2017.

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EXT.P3 COMPUTER COPY OF THE EMPLOYEE/EMPLOYER CONTRIBUTION OF THE DAILY WAGED EMPLOYEES OF THE THIRD RESPONDENT INCLUDING THE PETITIONERS FOR THE MONTH OF APRIL 2016.

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EXT.P3(A) COMPUTER COPY OF THE EMPLOYEE/EMPLOYER CONTRIBUTION OF THE DAILY WAGED EMPLOYEES OF THE THIRD RESPONDENT INCLUDING THE PETITIONERS FOR THE MONTH OF MAY 2016.

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EXT.P3(B) COMPUTER COPY OF THE EMPLOYEE/EMPLOYER CONTRIBUTION OF THE DAILY WAGED EMPLOYEES OF THE THIRD RESPONDENT INCLUDING THE PETITIONERS FOR THE MONTH OF JUNE 2016.

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EXT.P3(C) COMPUTER COPY OF THE EMPLOYEE/EMPLOYER CONTRIBUTION OF THE DAILY WAGED EMPLOYEES OF THE THIRD RESPONDENT INCLUDING THE PETITIONERS FOR THE MONTH OF JULY 2016.

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EXT.P3(D) COMPUTER COPY OF THE EMPLOYEE/EMPLOYER CONTRIBUTION OF THE DAILY WAGED EMPLOYEES OF THE THIRD RESPONDENT INCLUDING THE PETITIONERS FOR THE MONTH OF AUGUST 2016.

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EXT.P3(E) COMPUTER COPY OF THE EMPLOYEE/EMPLOYER CONTRIBUTION OF THE DAILY WAGED EMPLOYEES OF THE THIRD RESPONDENT INCLUDING THE PETITIONERS FOR THE MONTH OF SEPTEMBER 2016

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EXT.P3(F) COMPUTER COPY OF THE EMPLOYEE/EMPLOYER CONTRIBUTION OF THE DAILY WAGED EMPLOYEES OF THE THIRD RESPONDENT INCLUDING THE PETITIONERS FOR THE MONTH OF OCTOBER 2016.

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....2/-

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WP(C).No. 7745 of 2017 (P)

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EXT.P3(G)	COMPUTER COPY OF THE EMPLOYEE/EMPLOYER CONTRIBUTION OF THE DAILY WAGED EMPLOYEES OF THE THIRD RESPONDENT INCLUDING THE PETITIONERS FOR THE MONTH OF NOVEMBER 2016.
EXT.P3(H)	COMPUTER COPY OF THE EMPLOYEE/EMPLOYER CONTRIBUTION OF THE DAILY WAGED EMPLOYEES OF THE THIRD RESPONDENT INCLUDING THE PETITIONERS FOR THE MONTH OF DECEMBER 2016.
EXT.P4	A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 13/02/2017 SUBMITTED BY THE FIRST PETITIONER TO THE FIRST RESPONDENT.
EXT.P5	A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 13/02/2017 SUBMITTED BY THE SECOND PETITIONER TO THE FIRST RESPONDENT.
EXT.P6	A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 13/02/2017 SUBMITTED BY THE THIRD PETITIONER TO THE FIRST RESPONDENT.
EXT.P7	A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 13/02/2017 SUBMITTED BY THE FOURTH PETITIONER TO THE FIRST RESPONDENT.

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EXT.P8	A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 13/02/2017 SUBMITTED BY THE FIFTH PETITIONER TO THE FIRST RESPONDENT.
EXT.P9	A TRUE PHOTOCOPY OF THE LETTER NO.GLM/C/933/16 DATED 06/09/2016 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER OF GRAMALEKSHMI MUDRALAYAM, KANCHIKKODE TOGETHER WITH THE LIST OF REGULARIZED EMPLOYEES.

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RESPONDENT'S EXHIBITS:-

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EXT.R2A COPY OF THE GO(MS) NO.42/17/LSGD DATED 20/02/2017.

//TRUE COPY//

P.S. TO JUDGE

rs.

A.K.JAYASANKARAN NAMBIAR, J.

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W.P.(C) No.7745 of 2017

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- - - - Dated this the 8^th day of August, 2017

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JUDGMENT

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The petitioners, who are five in number, are stated to be daily wage employees of the 3^rd respondent establishment, which is a printing press established under the 2^nd respondent Society. In the writ petition, they are aggrieved by the alleged illegal termination from services, which they allege was not even communicated to them in writing. It is stated that, on 07.02.2017, the Secretary of the 3^rd respondent institution intimated all the petitioners not to attend the job from 08.02.2017, and they were allegedly prevented from doing the work that they were continuously doing without any break for the last several years. The direction of the Secretary of the 3^rd respondent is impugned, alleging the same to be a retrenchment for the purposes of the Industrial Disputes Act. The prayer in the writ petition is for a direction to the respondents to continue to engage the petitioners in their respective posts on daily wage basis, till regular hands are appointed by a due process of selection. There is a further prayer to direct the respondents not to engage any other person as daily wage workers in the place of the petitioners.

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When the matter came up for admission, this Court had,

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W.P.(c).No.7745 of 2017 : 2 :

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by an interim order dated 08.03.2017, permitted the petitioners to continue in service as daily wage workers and also directed that no steps would be taken by the respondents to fill up the vacancies caused by termination of services of the petitioners. The said interim order continues to be in force, even today.

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A counter affidavit has been filed on behalf of the 2^nd respondent, wherein the stand taken is that the petitioners are all persons, who were appointed on daily wage basis and inasmuch as they do not have a right to continue in service, except if they are regularly appointed pursuant to a selection conducted in accordance with the recruitment rules prevailing in the organisation, the prayers in the writ petition cannot be granted.

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I have heard the learned counsel for the petitioner, the learned counsel for the respondents and the learned Government Pleader for the official respondents of the state.

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On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find from a perusal of the averments in the writ petition that it is not in dispute that the petitioners' initial appointment under the respondents was as daily

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W.P.(c).No.7745 of 2017 : 3 :

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wage workers. The decision of the Supreme Court in Secretary, State of Karnatak and others v. Umadevi and others [(2006) 4

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SCC] clearly establishes that the petitioners do not have a right to claim regularisation in service, and hence, the said prayer sought for by the petitioners in the writ petition cannot be granted. I note in this connection that the contention of the petitioners is essentially that the termination of their services amounts to a retrenchment, within the meaning of the term under Section 2(oo) of the Industrial Disputes Act. Inasmuch as the case of the petitioner is one that is traceable to the rights under the Industrial Disputes Act, by virtue of the decision of the Supreme Court in Premier Automobiles Ltd. v. Kamlekar

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Sahntaram Wadke [(1976 1 SCC 496] , the adjudication of the rights of the petitioners would necessarily have to be before the courts established under the Industrial Disputes Act. Thus, without prejudice to the right of the petitioners to move an Industrial Court for an adjudication of the dispute, the writ petition in its challenge against the illegal termination of services of the petitioners, is dismissed.

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Sd/-

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A.K.JAYASANKARAN NAMBIAR JUDGE

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sm/

Sundhar S.P. v. State of Kerala

Case brief

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Sundhar S.P. v. State of Kerala

Case brief

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