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V.Bhaskara Pillai vs State Of Kerala on 4 December, 2008

Kerala High Court
V.Bhaskara Pillai vs State Of Kerala on 4 December, 2008
       

  

  

 
 
  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.
                    ==================
                     W.P(C).No.12887 of 2005
                    ==================
           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

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