Dismissed

Raji K., v. State of Kerala

Kerala HC31 May 2022WP(C)/17540/2022

Case brief

AI extract

What is this about?

This writ petition challenged a Labour Court award denying employment to a casual display worker who failed to resume duty after a leave leave extended through the pandemic. The petitioner sought a change of opinion, arguing replacement with another contractual employee was unjustified. The High Court dismissed the writ, upholding the Labour Court's view that replacing a contractual employee with

What did the court decide?

None. The High Court dismissed the writ petition.

Raji K., Vs State of Kerala — Labour and Industrial Disputes | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL TUESDAY, THE 31^ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944 WP(C) NO. 17540 OF 2022

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PETITIONER/S:

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RAJI K., AGED 50 YEARS W/O. BALAKRISHNAN, RESIDING AT ARAPPUKUZHIYIL HOUSE, P.O.EDAKKARA, CHELANNUR, KOZHIKODE TALUK , KOZHIKODE DISTRICT.

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BY ADVS. P.K.RAMKUMAR ANITHA MENON

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF LABOUR, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN -695001. 2 THE MANAGING DIRECTOR, SUPPLYCO LIMITED, MAVELI BHAVAN, GANDHI NAGAR, KOCHI ERNAKULAM DISTRICT, KERALA, PIN -68 2020. 3 THE ASSISTANT MANAGER, CIVIL SUPPLIES CORPORATION, TALUK DEPOT, KOYILANDY, KOZHIKODE DISTRICT, PIN -673 305. 4 THE OUTLET MANAGER, SUPPLYCO SUPERMARKET, BALUSSERI, KOZHIKODE DISTRICT, PIN -673 612. 5 THE LABOUR COURT, KOZHIKODE, P.O. CHEROOTY ROAD, CALICUT, KOZHIKODE DISTRICT , PIN- 673 001. 6 REENA A.M., AGED 42 YEARS FATHERS NAME NOT KNOWN TO THE PETITIONER, ASARIKUNNATH HOUSE, PO VAKAYAD, THRIKUTTISSERI, WORKING AS DISPLAY WORKER SUPPLYCO SUPER MARKET, JAYABUILDING,POST OFFICE ROAD, BALUSSERI PO, BALUSSERI, KOZHIKODE DISTRICT, PIN -673 612.

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OTHER PRESENT:

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SR GP SRI SUNIL V K , SMT MOLLY JACOB SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 17540 OF 2022

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JUDGMENT

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Petitioner was working as a display worker as daily wage employee. Petitioner availed leave from 1.2.2020 to 26.4.2020 and when came back to rejoin the duty was not permitted instead denied the job. Petitioner, preceding the year of the termination, worked for more than 240 days and uninterruptedly, except for artificial break down of two days after the expiry of 89 days. Instead of the petitioner, the 6^th respondent had been appointed. There was a dispute; petitioner sought a reference under Section 10 of the Industrial Disputes Act,1947 and the matter was referred to the labour court. Before the labour court, the following reference was raised to be adjudicated by the court:

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“Whether the denial of employment to Smt. Raji K., Display worker by the management of Supply Co. Supermarket, Jaya Building Post office Road, Balussery is justifiable or not? If not, what relief she is entitled to get?

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The management in the written statement stated that the worker was given a temporary employment on daily wages for intermittent period on the basis of the circulars of Supplyco. Kerala State Civil Supplies Corporation is an undertaking owned by the

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WP(C) NO. 17540 OF 2022

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Government of Kerala and to be represented by the Managing Director. As per the directives of the Supplyco no temporary employee can be retained beyond 89 days, therefore the workman never worked more than 89 days continuously. Contractual appointments are given only on temporary basis until Public Service Commission hands are appointed. The worker did not join the duty after January 2020. Assistant salesman was appointed through (Public Service Commission) and hence there was no necessity for any other employee in Balussery outlet of the Supplyco. The workers appointed on temporary daily wage basis have no lien for the post as their appointment was subject to the orders and circulars of the Supplyco. Since the parties were at variance, the learned trial court framed the following two issues:

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• Whether the denial of employment to the workman by the management establishment is justifiable or not.

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• If not, what relief she is entitled to.

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The workman examined herself as WW1 and brought on record Exts.W1 to W5 whereas the management examined one witness but no exhibits were marked. The case of the workman before the labour court was that she approached the Outlet Manager after availing the leave from the period 1.2.2020 to 26.4.2020 for resuming work, but

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WP(C) NO. 17540 OF 2022

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was denied employment. It was a case of retrenchment without complying the provisions of Section 25(f) of the Industrial Disputes Act. No temporary employee could be replaced with another set of temporary employees.

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Learned counsel for the workman submits that the date of

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the marriage of the daughter was 16.4.2020 and due to COVID 19 pandemic, marriage was postponed to 1.6.2020 and after six days of the marriage, approached the management for resuming the work but denied the employment.

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The management stated before the labour court that the workman had availed the leave of 127 days. They were constrained to appoint another person in place of the workman as no intimation of extension of the leave received.

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Counsel for the petitioner submitted that the respondents cannot adopt the policy of pick and choose and replace the petitioner with another set of contractual employees as it defies to the judgment of the Hon'ble Supreme Court.

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I have heard the learned counsel for the petitioner and appraised the paper book. Concededly the appointment of the petitioner was contractual. As per the provisions of the Industrial Disputes Act, 1947, the termination would fall under definition of

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WP(C) NO. 17540 OF 2022

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Section 2(oo)(bb). It was not a case of punishment or absence from duty without taking leave that the management was c onstrained in not permitting the petitioner to join. No enquiry was required to be initiated in case of a contractual employee. Therefore it could not have been a case of retrenchment under Section 25-F of the Industrial disputes Act 1947. On cessation of the work and non joining, the vacancy would arise and the employment was through public service commission. I am in agreement with the arguments that the contractual employee cannot be replaced with another contractual employee but in the instant case respondent No.6 has been employed through Public Service Commission which cannot be equated as contractual employment, thus the award of the labour court is perfectly justified and do not warrant any interference under Article 226 of the constitution of India to form a different opinion than the one arrived at. Writ petition is dismissed.

Sd/-

sab

AMIT RAWAL

JUDGE

WP(C) NO. 17540 OF 2022

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APPENDIX OF WP(C) 17540/2022

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PETITIONER EXHIBITS

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Exhibit P1 TRUE COPY OF THE AWARD PASSED BY LABOUR COURT KOZHIKODE IN ID.32/2021 DATED 22.2.22. Exhibit P2 TRUE COPY OF THE PETITIONER'S BANK ACCOUNT DETAILS FOR RECEIVING WAGES FROM 2.2.17 TO 5.2.2020. Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 16.6.2020 SUBMITTED BY PETITIONER BEFORE 3RD RESPONDENT.

Raji K., v. State of Kerala

Case brief

What is this about?

What did the court decide?

Raji K., v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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