Allowed

Sreekumar.K v. the Managing Director

Kerala HC2 Nov 2018WA/23/2016

Case brief

AI extract

What is this about?

The High Court allowed the appeal, holding that the dismissal was invalid under Section 25F of the Industrial Disputes Act as notice and compensation were not served. The Court quashed the Labour Court award and ordered the corporation to reinstate the applicant as a casual employee, citing arbitrariness in the corporation's treatment of a similarly situated worker.

What did the court decide?

Labour Court award and Single Judge verdict set aside; writ appeal allowed; appellant entitled to appointment as temporary/casual employee with costs fixed at Rs. 30,000/-.

Sreekumar.K Vs the Managing Director — Service and Employment | Kerala HC (2018)

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[ CASE REPORTABLE]

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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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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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FRIDAY ,THE 02ND DAY OF NOVEMBER 2018 / 11TH KARTHIKA, 1940

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WA.No. 23 of 2016

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AGAINST THE JUDGMENT IN WPC 28189/2009 of HIGH COURT OF KERALA DATED 07-10-2015

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APPELLANT/PETITIONER:

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SREEKUMAR.K

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THERIYIL HOUSE, KUNNANADU, POZHANADU P.O, THIRUVANANTHAPURAM.

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BY ADV. SRI.T.RAJASEKHARAN NAIR

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RESPONDENTS/RESPONDENTS:

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1 THE MANAGING DIRECTOR

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K.T.D.C LTD, MASCOT SQUARE, THIRUVANANTHAPURAM 695 001.

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2 THE LABOUR COURT KOLLAM 690 001.

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BY ADVS. SRI.P.A.AHAMED, SC, KTDC LTD.

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R2 BY SR. GOVERNMENT PLEADER SRI. P.N. SANTHOSH

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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J U D G M E N T

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P.R.Ramachandra Menon, J.

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Interference declined by the learned Single Judge

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with regard to the challenge raised against Ext.P4

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award passed by the Labour Court, claiming

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reinstatement for having denied employment without complying with any of the provisions of the Industrial Disputes Act, particularly 25F, is the subject matter

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of this appeal.

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Heard Mr. Rajasekharan Nair, the learned

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counsel for the appellant as well as the learned

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Standing Counsel for the respondent Corporation.

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The gist of the factual matrix is that the

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appellant was serving the respondent Corporation, which is a 100% Government of Kerala undertaking, as a

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'Waiter' from 20.12.1990 on daily wages. The

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particulars of engagement have been given in Ext.P1

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Claim Statement. All of a sudden, his engagement was

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put to an end on 13.10.1997, without serving any notice

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or complying with the provisions of the Statute as

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aforesaid, which made him to raise a dispute. This came to be referred to the Labour Court, Kollam by the appropriate Government. The issue referred was whether

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Sri Sreekumar(the appellant)was entitled for

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reinstatement? If so, whether he is entitled for backwages from the date of termination from the service.

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Corporation filed Ext.P2 reply statement, virtually without raising any factual dispute except that he was

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not a permanent employee; that he was serving the

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institution as a 'waiter trainee' and such other aspects.

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The following issues were raised by the Labour

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Court as noted in paragraph 5 of Ext.P4 award:

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“1. Whether the workman was a permanent employee in the service of the Management.

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2. Whether the workman is entitled to be reinstated.

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3. Relief if any entitled to by the Workman.

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The evidence adduced before the Labour Court

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consists of the oral testimony given by the appellant as WW.1 and documents produced as W.1 to W3, (which are the certificates issued by the Management), besides Exts.M1 and M2 produced from the part of the management.

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After hearing both the sides, Ext.P4 award was passed, holding that the Workman was not appointed in the service of the Management by following the procedural formalities; that he was not a permanent employee; that he was not having continuous service of 'one year', by virtue of which his termination from service was legal and hence that he was not entitled to be reinstated in service or eligible for any other relief.

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The award was challenged before this Court in Writ Petition No.28189 of 2009. No counter affidavit

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was filed by the respondent Corporation. The assertion made before the Labour Court was repeated during the hearing held before the learned single Judge as well. Reference was made to the law declared by the Apex Court in Anoop Sharma vs. Executive Engineer, Public

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Health Division [ 2010 KHC 4273 = 2010 (5) SCC 497] as to the scope of Section 25F and Rameshkumar vs. State of Haryana [ 2010 KHC 4053], whereby it was held that in the case of termination of service of a casual employee, the point to be looked into is whether the continuous period of ' 240 days' within the 'preceding 12 months' stands satisfied or not. Bharat Sanchar

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Nigam Ltd. vs. Man Singh and others [2011 KHC 4995] was also cited, where it has been held that, if for any circumstance reinstatement was not possible, it could be compensated in terms of money.

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The evidence adduced before the Labour Court with specific reference to W1 Experience Certificate issued by the Management as to the engagement of the appellant as 'waiter' on daily wages as well as to the engagement of the appellant thereafter as a 'waiter trainee' for the period from 01.02.1992 to 01.02.1997 including W2 letter dated 21.08.1996 issued by the Management (as to the engagement of the appellant as a 'waiter trainee') was adverted to. The learned single judge accepted the finding and reasoning given by the

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Labour Court to the effect that the appellant had no continuous service, as stipulated, during the preceding 'one year' and hence was not entitled to have any relief. It was accordingly, that interference

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was declined and the writ petition was dismissed .

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At the very outset, it is to be noted that the idea and understanding of the Labour Court, that to get the benefit of Section 25F of the I.D. Act, it had to be established that the workman had continuous service of at least 'one year' before his termination from the service is not correct. The continuous service as defined under Section 25B of the I.D.Act postulates only satisfaction of '240 days' in the 'preceding 12 months'. Another mistake committed by by the Labour Court was with regard to raising of the 'issues' (paragraph 5 of the award). The first point raised by the Labour Court was whether the employee was a 'permanent employee' or not. It is never obligatory for the worker to satisfy the said requirement that he

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was a 'permanent employee', so as to attract the provisions of the Section 25F of the I.D Act. This is

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evident from the definition of the term ' workman ' under

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Section 2(s), Section 25B and Section 25F of the I.D.Act. The respondent Corporation admittedly did not

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serve any notice complying with the requirement of Section 25F of the I.D.Act and their case was only

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that, it was not necessary as the appellant was not a 'permanent employee'.

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During the course of hearing, the learned

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counsel for the respondent Corporation submits that the appellant did not have the requisite extent of 240 days of continuous service in the establishment. Absolutely

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no plea in this regard has been raised by the respondent anywhere in Ext.P2 written statement filed before the Labour Court. Their version, as given in paragraphs 4 and 5, is worthwhile to be extracted as given below:

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“4. The claimant/worker namely K. Sreekumar had submitted an application dated 30/1/95 to the Manager/HRD Marketing, K.T.D.C., Trivandrum for engaging him as Waiter Trainee. On the basis of this application the K.T.D.C. had engaged him as a waiter

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trainee on the monthly stipend of Rs.600/- for a period of one year vide Order NO.KTDC/HRD/Trainee/91dated 30.1.95. He was engaged in the Restaurant/ Beer Parlour, Kozhinjanpara, Palakkad first as per the HRD Training Scheme adopted by the Corporation.

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5. Before he was engaged as trainee, he was engaged as waiter on daily wages from 21.10.91 to 10.11.93 at Agasthya House, Neyyar Dam, Trivandrum which is one of the units under this Management. His engagement in this Agasthya House was purely on daily wages and it was also an intermittent engagement on daily wages during the period from 21/10/91 to 10/11/93. He was also engaged as casual worker/seasonal worker at Sabala Restaurant and Beer Parlour, Kovalam also. But none of these engagement was on permanent nature after adopting recruitment proceedings. As usual, the KTDC has engaged him as seasonal worker on daily wages purely on temporary basis to meet seasonal requirements of the tourists.”.

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The Apex Court has held in Ramesh Kumar vs.

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State of Haryana [ 2010 KHC 4053 = 2010 (2)SCC 543] that the question of reinstatement will be attracted, if sufficient materials are shown that the workman had completed 240 days in service and that it need not be a claim for regularisation. Reinstatement in such case would not be as a regular employee, but as a casual employee.The appellant had raised specific pleading in Ext.P1 claim statement as to the nature of engagement, also giving particulars as to the period of engagement, with reference to the various certificates issued to him by the Management, which was never doubted or disputed by the Management.

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The continuous engagement of the appellant from 20.12.1990, virtually for 7 years, was established with regard to which there is no dispute, but for disputing the 'permanency' and also that he was engaged as a 'waiter trainee' in '1995'. It also remains a fact that the respondent Corporation has conceded that the appellant was appointed as a 'waiter' and was continuing as such in the various units of the KTDC 'from 1990' onwards; whereas in the next breath,

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they say that he had submitted 'application' to be appointed as a 'waiter trainee' and accordingly, he was being engaged as a 'waiter trainee'. The paradoxical stand is discernible from paragraphs 4 and 5 of Ext.P2 written statement, extracted already. A person who was already appointed as a 'waiter' in 1990 would have gathered sufficient experience in this regard and when

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there was no case that his service was inadequate/defective in any manner, what made the respondent Corporation to engage him as a 'waiter trainee' in the year '1995' is not explained. The respondent corporation has failed to substantiate the circumstances, which can only be presumed as an attempt to defeat the rights and interests of the worker, as contended by the appellant. This unfortunately was omitted to be taken proper note of by the Labour Court and by the learned Single Judge of this Court as well. The finding and reasoning given by the Labour Court that the appellant was not a 'permanent employee' is not a ground to have weighed in the minds of the Labour Court and the learned Single Judge of this Court to

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decline the right of the appellant/workman to get reinstatement in terms of the provisions of the I.D.Act.

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There is an insinuation by the Labour Court in Ext.P4 award, that no step was taken by the workman to cause production of documents from the part of the Management. This does not hold much water, in so far as the nature and extent of engagement was specifically pleaded in the Claim Statement, which was never disputed by the Management. There was no case for the Management that the workman did not have the requisite extent of '240 days' of service in the 'preceding 12 months'. The certificates issued by the Management at different points of time, particularly W1, were simply ignored; more so, when the genuineness/authenticity was never disputed.

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The learned counsel for the respondent submits that the burden of proof is always on the employee to show that he was having continuous service of 240 days as envisaged under Section 25B of the Act. The learned counsel also places reliance on the decisions rendered

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by the Apex Court in Krishna Bhagya Jala Nigam Ltd. vs. Mohammed Rafi [ 2006 KHC 1837 ] , Ajnala Coop. Sugar Mills Ltd.vs. Sukhraj Singh [ 2009 KHC 7174 ] , Batala Coop.Sugar Mills Ltd.vs. Sowaran Singh [2005 KHC 1903] and that of a Division Bench of this Court in Anandan

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K. vs. State Bank of Travancore and others . [2016(5)KHC

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495] . There is no dispute with regard to the legal position. The question is whether the burden has been discharged by the appellant. As discussed above, the

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specific pleading raised by the appellant in Ext. P1 Claim Statement stands unrebutted. There is no case for the Management that the version given in Ext.P1 Claim statement was wrong in any manner. The appellant has given oral evidence as WW 1 in this regard. He had also produced documents/certificates issued by the Management (Exts.W1 to W3]. The factual position in this regard stands virtually conceded in paragraph 5 of Ext.P2 reply statement (extracted already). This being the position, the burden of proof stands discharged by the appellant and the decisions sought to be relied on by the respondent Corporation do not come to their

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rescue in any manner.

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The course pursued by the Labour Court, in

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particular, the way in which the dispute was approached by raising the basic issue as to whether the workman was a 'permanent employee or not' is strategically not correct. The Labour Court got misdirected itself in arriving at the finding, which is not supported by the reasoning given and hence cannot be approved under any circumstance. For the very same reason, we find that

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the verdict passed by the learned single Judge is not liable to be sustained. There was no case for the appellant that he was a 'permanent employee' and this being the position, if the termination of employment is bad in view of the mandate of Section 25F of the I.D. Act, it cannot but be said that he is liable to be reinstated. It is true that the workman cannot be

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reinstated as a 'permanent employee', but it should be as a 'casual employee', by virtue of the law declared by the Supreme Court in 2010 KHC 4053 (Ramesh Kumar

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vs. State of Haryana).

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The learned Standing Counsel for the

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respondent Corporation also made a submission to the effect that a casual employee does not come within the purview of 'workman' so as to enable him to get any benefit on retrenchment, in view of the ruling rendered by the Apex Court in Central Mine Planning and Design

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Institute Ltd. vs. Ramu Pasi and another [2006 KHC 37 ]. The dispute involved in the said case was with reference to the relevant provision in the Workmen's Compensation Act and the point examined by the Apex Court was whether the workman concerned was coming within the purview of Section 2(1)(n) of the said Act (which provision defines the term “workman”). Unlike this, Section 2(s) of the I.D. Act defines the term workmen in a different manner as given below:

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“2(s) “workman” means any person

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including an apprentice employed in any industry to do any manual, unskilled, skilled, technical,

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operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in

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relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person:

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(i)who is subject to the Air Force Act, 1950 (45 of 1950) or the Army Act, 1950 (46 of 1950) or the Navy Act 1957 (62 of 1957) or

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(ii) who is employed in the police service or as an officer or other employee of a prison; or

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(iii) who is employed mainly in a managerial or administrative capacity; or

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(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

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From this, it is quite evident that the

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definition of the term 'workman' under Section 2(s) of the I.D.Act includes a casual employee as well and hence the decision cited supra (in the context governed by the provisions of the Workmen's Compensation Act) is not at all attracted to the case in hand.

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The next question is whether consequential benefits, particularly the 'backwages' are payable. It has been held by the Apex Court on many an occasion,

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that payment of backwages is not automatic on reinstatement and that the Court can mould the relief. But before proceeding to consider this aspect, the nature and turn of events also require to be considered with reference to the course pursued in respect of other employees, who were similarly situated.

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The appellant has brought to the notice of

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this Court an exactly similar instance involving denial of employment to a person by name Unnikrishnan Nair, who joined the service as a 'waiter' in the respondent Corporation (after joining the service by the appellant). A dispute was raised on denial of

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employment, which came to be referred to the Industrial Tribunal, Kollam by the appropriate Government. After considering the rival pleadings and evidence on record, Annexure A7 award was passed, directing the workman to be reinstated in service with all consequential benefits. This was sought to be challenged by the respondent Corporation by filing W.P.(C)29136 of 2003 before this Court. When the matter came up for consideration, it was brought to the notice of the learned Single Judge that under similar circumstances, the respondent Corporation had given employment to another person as a 'fresh recruit' and that the writ petitioner would be satisfied, if similar benefit was given to him as well. The writ petition was accordingly

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disposed of, as per Annexure A9 judgment dated

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02.03.2016 in W.P.(C)No.29136 of 2003, directing the respondent Corporation to extend similar benefit, after declaring that the said writ petitioner was entitled to have similar treatment. It was accordingly, that the

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matter was considered by the Corporation, who passed Annexure A10 order dated 04.03.2016, extending relief

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to the aggrieved party by causing him to be appointed as a 'temporary employee'. The appellant in the instant case seeks for similar treatment, pointing out that the respondent Corporation might not be permitted to extend relief on pick and choose basis; more so since the respondent corporation is a 100% Government owned establishment and is supposed to act a a 'model employer'. We find considerable force in the said submission.

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When the matter came up for consideration before this Court earlier, we required the learned Standing Counsel for the respondent Corporation to get instruction as to whether the matter could be finalised as mentioned above, extending similar benefit. The learned Standing counsel, on the basis of the instructions, submits that the appellant in the instant case stands on a different footing and is not entitled to have any benefit, as flowing from Annexure A7, A9 and A10. The reason stated is that, in the case of Unnikrishnan Nair, he was directed to be reinstated by the Industrial Tribunal as per Annexure A7; whereas in

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the instant case, the Industrial dispute raised by the appellant was dismissed as per Ext.P4 award. The learned Standing Counsel further submits that the Labour Court does not have any power or jurisdiction to deal with a case of retrenchment, which power, according to him, is only vested with the Industrial Tribunal, by virtue of the entries in Second and Third Schedules respectively, in the I.D.Act. We find it extremely difficult to accept the said proposition as the statement made across the Bar is far from the track of the statute.

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The distinction sought to be made with

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reference to the award passed 'in favour ' of the worker concerned by Annexure A7/A9/A10 and Ext.P4 award passed by the Labour Court 'against' the appellant workman in the instant case, is rather puerile; which does not have any legal or factual basis. A comparative analysis of the data (available from the records) in respect of the appellant and the person by name Unnikrishnan Nair (covered by Annexures A7/A9/A10) is given below, for ready reference:

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Sreekumar (appellant	Unnikrishnan Nair
herein)	[covered by Annexures
[P1 Claim Statement-Not disputed]	A7/A9/A10]
Appointed as'Waiter' From 20.12.1990till 20.10.1991.	Apprentice from 01.12.1991 to 31.05.1993
01.02.1995 TO	Waiter from 01.06.1993
27.04.1995 as waiter trainee at KTDC Restaurant & Beer	to 31.08.1993
Parlour, Kozhinjamparam
28.04.1995 to	Waiter from 01.09.1993
14.09.1995 as waiter trainee at KTDC restaurant, Alappuzha	to 19.04.1994 (at Beer Parlour)
15.09.1995 to 18.05.1996 as waiter trainee at KTDC Restaurant & Beer Parlour Kazhakkoottom	Waiter at Mascat Hotel from 10.04.1994 to 11.05.1995
19.05.1996 to 20.08.1996 as waiter trainee at Agasthya House, Neyyar Dam.
21.08.1996 to 03.01.1997 as waiter trainee at Mascot Hotel, Thiruvananthapuram	Waiter trainee by order
04.01.1997 to	dated 12.09.1995
01.02.1997 as waiter trainee at the KTDC Restaurant & Beer Parlour,
Thiruvananthapuram

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02.02.1997 to 12.10.1997 as waiter trainee at the KTDC Restaurant & Beer Parlour, Thiruvananthapuram Termination from Termination from service on 13.10.1997 service on 31.12.1998

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From the above, we are of the view that denial of the benefit flowing from Ext.P9 and P10 to the appellant is an instance of patent arbitrariness and discrimination. This Court cannot but deprecate the stand of the respondent Corporation, who, even after suffering Ext.P9 judgment and passing Ext.P10 order (without raising any challenge in this regard), in the case of an identically situated person, seeks to deny such benefit to another similarly situated

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employee(appellant), that too, by wasting much time of this Court. In the said circumstance, this Court holds that Ext.P4 award passed by the Labour Court, Kollam and the verdict passed by the learned single Judge are

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liable to be set aside and they are set aside accordingly. It is declared that the appellant is

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entitled to be given appointment as ordered to be given in Ext.P9 judgment passed by the learned single Judge

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under similar circumstances and as given in Ext.P10 order passed by the respondent Corporation. The writ

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Appeal stands allowed with cost throughout, which we fix at a nominal level of Rs.10000/- in the Labour Court, Rs.10000/- in the writ petition and Rs.10000/in the Writ Appeal (in total, Rs.30000/-).The said

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amount shall be satisfied by the respondent Corporation

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to the appellant forthwith. Necessary orders, giving

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effect to this verdict shall be passed at the earliest, at any rate, within one month from the date

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of receipt of a copy of the judgment.

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Sd/- P.R. RAMACHANDRA MENON, JUDGE

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Sd/- DEVAN RAMACHANDRAN, JUDGE