Dismissed

K.P. Rajagopalan v. Renjith v v

Kerala HC25 Mar 2022WP(C)/25955/2021

Case brief

AI extract

What is this about?

Petitioners appealed the Labour Court's award reinstating a dismissed school secretary, arguing he was a managerial officer. The High Court rejected the claim that his designation excluded him from 'workmen' protection, dismissed the writ petition, and upheld the reinstatement order.

What did the court decide?

Writ petition dismissed; Labour Court award upholding reinstatement with continuity of service and back wages affirmed.

K.P. Rajagopalan Vs Renjith v v — Labour and Industrial Disputes | Kerala HC (2022)

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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 AMIT RAWAL

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FRIDAY, THE 25TH DAY OF MARCH 2022 / 4TH CHAITHRA, 1944
WP(C) NO. 25955 OF 2021

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PETITIONERS:

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1K.P. RAJAGOPALAN,
AGED 61 YEARS,
FORMER ADHOC COMMITTEE CONVENER, S/O. SANKARAN NAMBIAR,
AGED 61 YEARS, AD-HOC COMMITTEE CONVENER,
GAYATHRI VIDYA BHAVAN, VADAKARA, KOZHIKODE - 673104.

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2N. MOHANDAS,
AGED 56 YEARS,
S/O. AYYAPPAN NELLIKKAD, DISTRICT PRESIDENT,
BHARATHIYA VIDYA NIKETHAN, 13/281 A,
MANIYOTH BUILDING, KALLAI ROAD, KOZHIKODE - 67 3002,
RESIDING AT VELUTHEDATH HOUSE,
AREACODE VIA, MALAPPURAM - 673639.

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BY ADV T.G.RAJENDRAN

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RESPONDENTS:

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1RENJITH V.V.,
VADAKKE VADAKKEDATH, KEEZHAL P.O, VADAKARA - 673104.

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2 SUKUMARAN, SREERAGAM, KINARULLA KANDIYIL HOUSE, CHORODE EAST, VADAKRA P.O, KOZHIKODE - 673104.

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3 SUNIL KUMAR, PUTHUKANDY HOUSE, NADAKKUTHAZHA P.O, KARUMBAYIL, VADAKARA, KOZHIKODE - 673104.

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4THE LABOUR COURT,
KOZHIKODE, REPRESENTED BY ITS SECRETARY,
KOZHIKODE - 673571.

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BY ADVS.
SRI.JIMMY GEORGE, GOVERNMENT PLEADER
MATHEWS K. UTHUPPACHAN
P.V.ANOOP
PHIJO PRADEESH PHILIP
K.LAL MOHAN
M.P.PRIYESHKUMAR
K.V.SREERAJ

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WP(C) NO. 25955 OF 2021

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ABRAHAM KOLLINAL
TERRY V.JAMES
LILIN LAL

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OTHER PRESENT:

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JUSTINE JACOB, SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.02.2022, THE COURT ON 25.03.2022
DELIVERED THE FOLLOWING:

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WP(C) NO. 25955 OF 2021

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JUDGMENT

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Award of the Labour Court dated 16.03.2021 rendered in ID No. 60 of 2017 directing the reinstatement of the workman with continuity of service and full backwages and other benefits has been assailed in the present writ petition on behalf of the management. Petitioners are the former Adhoc Committee Convener of Gayathri Vidya Bhavan, Vadakara. Workman on 01.10.2010 was appointed as a clerk under the Gayathri Vidya Bhavan, initially was paid a salary of Rs.1500/- and later promoted as Secretary of the School. The entire school activities were managed by the first Management Adhoc Committee. On 31.08.2016 Management issued a letter to the Headmaster of the School not to permit the workman to attend the office and sign the attendance register. Thus, workman was not permitted to join, no provisions of Section 25 F of the Industrial Dispute Act, 1947 (hereinafter referred to as 'the Act', for short) were complied with. In fact there was some misappropriation by the former Secretary and some of his colleagues and

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WP(C) NO. 25955 OF 2021

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workman was made a scapegoat which compelled him to approach the Labour Court. The petitioners management appeared and raised the objection of maintainability of claim petition as the workman, being the Secretary, would not fall in the definition of 'workman' as defined in Section 2(s) of the Act. The salary was Rs.2,500/- per month and not Rs.6,500/-. Workman worked as the official secretary. The Secretary would not fall within the definition of managerial work and therefore the claim petition was liable to be dismissed. The Labour Court rejected the contention of the Management and allowed the industrial dispute by ordering the reinstatement as noticed above.

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Learned counsel appearing on behalf of the petitioners submitted that on plain and simple reading of the definition as per Section 2(s) the Act the workman as he was a Secretary, would not fall within that definition as employed in a managerial and administrative capacity. In other words, a person rendering a managerial or administrative work and draw wages exceeding

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WP(C) NO. 25955 OF 2021

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Rs.10,000/- would not fall within the definition of workmen. There was no denial of employment to the first respondent as he had abandoned the work. Question of termination of compliance of provisions of Section 25 F the Act would not arise. As per the letter dated 31.08.2016 produced by Ext.W3, the Management District Committee decided to remove the office secretary of the school due to financial irregularities. The Labour Court thus committed irregularity in ordering reinstatement.

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On the other hand, learned counsel

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representing the respondents submits that the designation and payment of the salary and nature of work are the easy criteria for understanding the definition of workmen. Even a Branch Manager of a chit fund found to

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be performing the duties as per the facts and circumstances of the case would definitely fall under the definition of workmen.

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In support of the aforementioned contention relied upon the judgment of this Court in T.Boby Francis Vs. Lucy Varghese and another (2016 (3) KHC 588)

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WP(C) NO. 25955 OF 2021

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and also the judgment of Honourable Supreme Court in Raj Kumar Dixit Vs. M/s. Vijay Kumar Gouri Shanker (2015) 9 SCC 345.

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I have heard learned counsel for the parties and appraised the paper books and of the view that there is no force or merit in the submission of the counsel representing the petitioners.

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The definition of workmen as per 2(s) of the Industrial Dispute Act, 1947 reads thus:

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"workmen" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Act in 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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WP(C) NO. 25955 OF 2021

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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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Its the own case of the management that the salary of the respondent No.1 was not Rs.6,500/- but Rs.2,500/-. Mere nomenclature would not come to the rescue of the management from excluding the purview of the applicability of the Industrial Dispute Act. The nature and the duties have to be considered. Averments in the writ petition and statement filed before the Labour Court would reveal that there was some kind of misappropriation. Even if it was so, the services of the workmen cannot be dismissed without holding the enquiry.

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The case of the management was that the workmen had never refused to attend the work but it was

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WP(C) NO. 25955 OF 2021

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a case of misappropriation, even for that purpose enquiry was sina qua non. Even the salary of respondent No.1 according to the statement of the management petitioners was Rs.2,500/- less than Rs.10,000/- . All the factors read in the mind of the Labour Court for ordering reinstatement. As regards the backwages there was a categoric assertion on behalf of the workman that he was not gainfully employed. That was enough for the workman and the onus thus shifted on the management to rebut but no evidence has been lent and accordingly awarding of the backwages is perfectly in accordance with law. In my view, the finding of the Labour Court is perfectly legal and justified and does not warrant interference under Article 226 of the Constitution of India.

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Writ petition is accordingly dismissed.

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Sd/-

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AMIT RAWAL
JUDGE

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vv

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WP(C) NO. 25955 OF 2021

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APPENDIX OF WP(C) 25955/2021

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PETITIONER EXHIBITS

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EXHIBIT P1CERTIFIED COPY OF THE AWARD OF THE
LABOUR COURT, KOZHIKODE IN ID NO.
60/17 DATED 16.03.2021.

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RESPONDENT EXHIBITS

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ANNEXURE R1TRUE COPY OF LETTER DATED 12.07.2021
SENT BY THE APPLICANT TO THE 1ST/2ND
RESPONDENT ALONG WITH PROOF OF SERVICE
AND RECEIPTS

K.P. Rajagopalan v. Renjith v v

Case brief

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K.P. Rajagopalan v. Renjith v v

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