Partly allowed

Dr.T.K.Jayarajan v. Reshma

Kerala HC11 Jan 2023WP(C)/11445/2021

Case brief

AI extract

What is this about?

Writ petition challenging Labour Court award ordering reinstatement of a workman with back wages. High Court held management failed to prove contractual nature of employment. Court modified award by replacing reinstatement with compensation of Rs. 2,50,000.

What did the court decide?

Compensation of Rs. 2,50,000 awarded to respondent in lieu of reinstatement; petitioner directed to pay within two months.

Dr.T.K.Jayarajan Vs Reshma — Labour and Industrial Disputes | Kerala HC (2023)

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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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WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944

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WP(C) NO. 11445 OF 2021

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PETITIONERS:

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1DR.T.K.JAYARAJAN
AGED 83 YEARS

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P V S HOSPITAL, NEAR RAILWAY STATION,
KOZHIKODE 673 002 RESIDING AT KALPAKA,
THALI, KOZHIKODE 673 002

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ADDL.2DR.JAIKISH JAYARAJ
S/O.LATE T.K. JAYARAJ,

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AGED 51 YEARS,

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MANAGING DIRECTOR, M/S.PVS HOSPITAL PVT. LTD,
RAILWAY STATION ROAD, KOZHIKODE 673 002

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(IS IMPLEADED AS PER ORDER DATED 11.01.2023 IN I.A NO.1
OF 2022)

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BY ADV T.G.RAJENDRAN

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RESPONDENTS:

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1 RESHMA ANDINTAKATHU VEEDU, ARAKKINAR P.O, MARAD BEACH, KOZHIKODE 673 028

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2 THE LABOUR COURT, KOZHIKODE 673 028

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 11445 OF 2021

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JUDGMENT

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The award of the Labour Court Ext.P1 rendered in I.D.No.74/2017 preferred by the respondent – workman is under challenge on behalf of the petitioner management.

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The case set out by the workman before the Labour Court was that she was appointed as OPD assistant in the management of the hospital in March, 2011, on a monthly salary of Rs.2,000/- and thereafter was posted for internship under Dr.Gokulan, Gastroenterology Department. During the service, she got married and availed maternity leave. Concerned HR manager had not been treating the respondent – workman properly and had been indulging into making allegation of incompetency to perform the duties. Finally, on 27.05.2017, was informed that the contract periods ended on 31.5.2017. Petitioner – management contested the case of the workman and stated that her appointment was purely contractual and as per the provisions of Section 2(oo), the Labour Court did not have the jurisdiction to entertain the case as it was not the case of retrenchment as provided under Section 25(f) of the Industrial Dispute Act. Even the duties discharged

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WP(C) NO. 11445 OF 2021

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were not to the satisfaction of the management.

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Since the parties were at variance, the Labour Court framed three issues. Both the parties lead the evidence, workman examined herself as WW1, one witness was examined as WW2 and brought on record Ext.W1 to W4 and E xt.X1, C1, C2 whereas the management also brought on record Ext.M1 to M5 by examining one of the directors as MW1.

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4. Labour Court on preponderance of evidence found that the management had not been able to make out the case enumerating the conditions prescribed under Section 2(oo) of the Industrial Dispute Act, i.e., the employment of the workman was contractual and therefore, ordered for reinstatement of the workman without back wages.

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Learned counsel appearing on behalf of the petitioner submitted that the award of the Labour Court attempts to fastening the employee who had not been discharging duties diligently and to the satisfaction of the management. It was not a case of retrenchment but non-continuation of the contract. In such circumstances, the management could always terminate the

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WP(C) NO. 11445 OF 2021

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services of the workman as per the provisions referred to in Section 2(oo) of the Industrial Dispute Act. Moreover, the workman remained on leave for delivery of two children and had not been diligently discharging the duties which affected the work of the management.

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Matter was adjourned to many dates but there was no representation on behalf of the workman, despite service. Accordingly, I proceed to decide the case. Heard the learned counsel for the petitioner and appraised the paper book.

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The attempt of the management to prove that the employment of the respondent - workman was contractual has not been believed by the Labour Court in the absence of any proof much less the muster roll and attendance reg ister. Though an allegation of assigning the duties of marking attendance to somebody else was levelled against the workman, but the explanation given by her was accepted by the management. That could not be a ground for initiating the retrenchment proceedings. If it all, fo r the sake of adjudication, the workman had discharged the duties for a period of five years, it was incumbent upon the management to hold an enquiry by serving a charge sheet and

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WP(C) NO. 11445 OF 2021

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thereafter pass an order in accordance with law. In the absence of the same, the Labour Court rightly found that the management failed to prove the nature of employment of the workman. Since there has been discord between the management and the workman, the order of the Labour Court resulting into fastening the workman which, in my view, ought not to have been done, instead compensation should be paid as per the judgment of the Supreme Court in B.S.N.L v. Bhurumal (2014) 7 SCC 177 .

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Accordingly, I modify the award of the Labour Court and order that compensation of Rs.2,50,000/- be paid to the respondent - workman in lieu of reinstatement. Award is modified to that extent and writ petition is allowed in part. Petitioner is directed to offer the payment of Rs.2,50,000/- within a period of two months of receipt of copy of this judgment.

Sd/-

AMIT RAWAL

JUDGE

nak

WP(C) NO. 11445 OF 2021

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APPENDIX OF WP(C) 11445/2021

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PETITIONER EXHIBITS

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Exhibit P1COPY OF THE AWARD DATED 1-12-2020 IN ID
NO. 74/2017
Exhibit P2COPY OF THE CONTRACT OF EMPLOYMENT ISSUED
BY PVS HOSPITAL DATED 1-06-2016.

Dr.T.K.Jayarajan v. Reshma

Case brief

What is this about?

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Dr.T.K.Jayarajan v. Reshma

Case brief

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