IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12887 of 2005(H)
1. V.BHASKARA PILLAI, MANAGING PARTNER,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. INDUSTRIAL TRIBUNAL,
3. SMT. A.P.SHYLAJAKUMARI,
For Petitioner :SRI.B.RAGUNATHAN
For Respondent :SRI.S.MOHAMMED AL RAFI
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :04/12/2008
O R D E R
S.SIRI JAGAN, J.
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W.P(C).No.12887 of 2005
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Dated this the 4th day of December, 2008
J U D G M E N T
The management in I.D.No.10/2000 before the Industrial
Tribunal, Kollam, is the petitioner in this writ petition. He is
challenging Ext.P8 award in that industrial dispute. The issues
referred for adjudication were:
“(i) Whether the denial of employment to Smt.A.P.Shailaja kumari,
Accounts Asst. is justifiable ?
(ii) If not, what is the relief entitled to her?”
2. Before the Tribunal the workman claimed that she was
working as Accounts Assistant in the management hotel from
20.12.1993 onwards upto 31.3.1999 on which date she was
denied employment without assigning any reason. She further
submitted that although she was appointed in a permanent post
continuously from 20.12.1993, after 31.3.1997, the management
converted the appointment into a contract appointment for two
years and thereafter on 31.3.1999, she was relieved from service
without any reason. According to the workman, this was a ploy of
the management to deny the benefits due to her under the
Industrial Disputes Act. The workman, therefore, claimed
reinstatement in service with backwages. The management took
the contention that the appointment of the petitioner was purely
w.p.c.12887/05 2
a contractual one for a period of two years and the workman was
relieved from service on expiry of the period of contract.
Therefore, going by Section 2(oo) of the Industrial Disputes Act,
such appointment is outside the purview of “retrenchment” and
therefore, the workman cannot claim any relief against the
management.
3. The workman relied on two certificates issued by the
management regarding her service, which are Exts.P6 and P7
produced in this writ petition and marked as Exts.W2 and W3 in
the Industrial Dispute. By Ext.P6 issued by the management,
they certified that the workman had worked in the management
hotel as Accounts Assistant (Ad hoc) for the period from
20.12.1993 to 31.3.1997. On the same date, another certificate,
Ext.P7, was issued certifying that the workman had worked in the
management hotel as Accounts Assistant (on contract) for two
years from 1.4.1997 to 31.3.1999 and that on expiry of contract,
she was relieved on 31.3.1999. The workman contended that
going by those certificates, the workman was in continuous
service for the whole period, which would go to show that after
31.3.1997 the management adopted a ploy to covert the regular
appointment into a contract appointment. This was denied by the
w.p.c.12887/05 3
management contending that the workman worked in the
management hotel only for the period from 1.4.1997 to
31.3.1999 and the other certificate for the previous period was
obtained by threat and coercion by the husband of the workman.
4. The Tribunal considered the evidence in detail. Since
there was no dispute regarding issuance of Exts.P6 and P7
certificates by the management, the Tribunal found that the
workman was actually a permanent employee of the
management hotel. The Tribunal also came to the finding that
the post is still existing. Accordingly, the Tribunal came to the
conclusion that the workman was a permanent employee of the
management hotel and her services were terminated without
complying with the provisions of Section 25F of the Industrial
Disputes Act. On that finding the Tribunal directed the
management to reinstate the workman in service with attendant
benefits. That award is under challenge before me.
5. The contention of the petitioner is that Ext.P8 award is
against the evidence in the case. According to the counsel for the
petitioner-management, the management had sufficiently proved
the fact that the appointment of the workman was purely
contractual for a specified period and on expiry of the period of
w.p.c.12887/05 4
contract, she was relieved from service. That being so, there is no
question of retrenchment, since contractual appointments are
excluded from the purview of the definition of “retrenchment”
under Section 2(oo) of the Industrial Disputes Act, is the
contention raised. Therefore, according to the counsel for the
management, the action of the management was perfectly
justified and the workman was not entitled to any benefits in the
industrial dispute.
6. The contentions of the petitioner are opposed by the
counsel for the workman. He would submit that the documents
produced by the workman would prove that the workman was
continuously in service from 1.4.1997 to 31.3.1999. The
conversion of the permanent appointment into that of a contract
appointment was a ploy adopted by the management to deny
legal benefits due to the workman so as to enable the
management to terminate her services. Under the Industrial
Disputes Act a person having 240 days of continuous service in an
year can be retrenched from service only in accordance with the
provisions of Section 25F of the Industrial Disputes Act, which
admittedly has not been complied with by the management.
Therefore, the counsel for the workman supports Ext.P8 award.
w.p.c.12887/05 5
7. I have considered the rival contentions in detail.
8. The fact that Exts.P6 and P7 certificates were issued
by them is not disputed by the management. Going by those
certificates, the workman had continuous service from
20.12.1993 to 31.3.1999. Although the management took the
stand that Ext.P6 was issued under threat and coercion of the
husband of the workman, the Tribunal did not accept the same.
The Tribunal found that such a contention was never taken by the
management in their written statement. Therefore, the Tribunal
disbelieved that contention of the management. I cannot say that
such finding of the Tribunal is in any way perverse. Once that is
accepted, it remains a fact that the workman was in continuous
service of the management from 20.12.1993 to 31.3.1999. If that
be so, the conversion of that appointment in between as a
contract appointment is clearly with ulterior motive. I cannot
accept the contention of the counsel for the management that
once an appointment is for a specific period, automatically such
appointment is taken out from the purview of Section 2(oo). If
such a contention is accepted, then any unscrupulous employer
can appoint regular workmen on contract basis and escape the
consequences of the termination of services under the Industrial
w.p.c.12887/05 6
Disputes Act, which cannot be the legislative intention behind
Section 2(oo). The question as to whether an appointment is
contract appointment or not has to be decided depending on the
nature of the work. If the work is of a regular nature, the fact
that the management appointed the workman for specific period
does not enable the management to relieve the workman after
the period of appointment without complying with the provisions
of the Industrial Disputes Act, if the post and the work still exist.
Only if the work also ceases after the specified period, the
services of the workman can be terminated on expiry of the
contract period. Here the Tribunal has come to the finding that
the post is still existing. That being so, clearly the object of
converting the appointment into a contract appointment was for
the purpose of denying the workman her benefits under the
Industrial Disputes Act. That being so, I do not find any merit in
the challenge against Ext.P8 award. Accordingly, the original
petition is dismissed.
9. The learned counsel for the management submits that
on 31.3.2005 the petitioner-management sold of the hotel and
therefore, there is no establishment owned by the petitioner to
reinstate the workman. I am of opinion that I am not called upon
w.p.c.12887/05 7
to decide that question in so far as what is challenged before me
is only the award. It is for the parties to work out their remedies
appropriately in accordance with law.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
