IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 29293 of 1999(K)
1. V.P.JAYANARAYANAN
... Petitioner
Vs
1. THE INDUSTRIAL TRIBUNAL, KOLLAM
... Respondent
For Petitioner :SMT.LAKSHMI B.SHENOY
For Respondent :SRI.M.PATHROSE MATHAI
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :20/02/2007
O R D E R
Antony Dominic, J.
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O.P.No.29293 of 1999
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Dated this the 20th day of February, 2007.
JUDGMENT
The workman in I.D.No.34 of 1997 on the file of the Industrial
Tribunal, Kollam, which has rendered Ext.P4 award is the writ
petitioner. The issue referred for adjudication to the Tribunal was the
following:
“Whether the action of the management of Lord
Krishna Bank Ltd in terminating the services of
Sri.V.P.Jayanarayan, temporary clerk is legal and justified?
If not, to what relief the workman is entitled?”
The case of the workman was that he was employed as a Clerk in the
Lord Krishna Bank, Thiruvananthapuram Branch after being selected in
a test and interview conducted by the management Bank. According
to him, though he was appointed to a permanent vacancy, the Bank
had technically designated him as a temporary Clerk with the object of
depriving him the status and privileges of a permanent workman. It
is contended that he had continuous service from 15.3.1994 till
8.10.1994, but Management – Bank created artificial recordical breaks
OP 29293/99 -: 2 :-
in the service of the workman with the aforesaid intention. He
requested the Management – Bank to regularise his services as
permanent employee, since he was continuously working against a
permanent vacancy. Instead of considering the petitioner’s request
the Management – Bank retrenched the petitioner’s service in violation
of the provisions of Industrial Disputes Act and Awards and Bipartite
Settlements existing in the Banking industry. On the other hand, the
Management – Bank contended that there was some procedural delay
in making regular appointment to the clerical cadre in as much as they
needed permission of the Reserve Bank of India. It is stated that the
period of appointment was from 16.3.1994 to 7.6.1994, 15.6.1994 to
4.9.1994 and 10.9.1994 to 9.10.1994, and that the workman had
accepted the terms of appointment which enable the Bank to dispense
with his services at the expiry of the period specified in each of such
appointment orders, without any protest and that he also accepted the
termination notice. Bank contends that the termination does not
amount to retrenchment.
2. Before the Tribunal, the parties produced evidence, both oral
and documentary and finally the Tribunal by Ext.P4 award, held that
the action of the Management – Bank terminating the services of the
petitioner is legal. It is this award that is under challenge.
OP 29293/99 -: 3 :-
3. The essential question that required to be resolved was
whether the termination of the service of the workman would amount
to retrenchment as understood in the Industrial Disputes Act. Ext.W2
is the first appointment order issued to the workman. It is for a
period of 12 weeks and he had worked from 16.3.1994 to 7.6.1994.
Again by Ext.W4 order, he was appointed for a period of 12 weeks and
he had worked from 15.6.1994 to 4.9.1994, followed by Ext.W6 on
the basis of which he had worked from 1.9.1994 to 9.10.1994. The
Tribunal has taken note of Clause 1 of these orders,which clearly
stated that the appointments were temporary and that his services
were liable to be terminated at any time during the period of
appointment by giving 14 days notice. It was also stated that these
appointments will be purely temporary and for the periods mentioned
in those orders. The award discloses that the Tribunal has also taken
note of the fact that while working as a temporary Clerk as aforesaid,
the workman appeared for a test and interview for selection as
permanent Clerk in the Bank and failed to succeed in the selection
process, which he would not have done, had he been working
permanently as contended by the workman. The Tribunal has also
referred to the evidence tendered by the Regional Manager of the
Bank in which he has depoed that the Bank had to obtain permission
OP 29293/99 -: 4 :-
from the Reserve Bank of India before making appointments against
regular vacancies and that it was on account of the delay in this
respect that the appointment of the workman was made purely
temporary basis in order to take care of the exigencies of service.
Further the existence of separate procedure for selecting permanent
workman also was taken note of while concluding that the
appointment was only temporary. It is on the basis of the evidence as
above that the Tribunal entered the finding that the employment of the
workman was only temporary and the termination of such an
employment did not amount to retrenchment as provided in the
Industrial Disputes Act.
4. The Tribunal has also dealt with and answered the contention
of the workman that the Management had created artificial recordical
breaks on the strength of Exts.W2 to W6. The contention of the
petitioner that he was entitled to Sasthri Award and Bipartite
Settlement also has been dealt with by the Tribunal in paragraphs 12
and 13 and this also has been found against the workman. It was on
this basis that the Tribunal concluded that it is not a case of
retrenchment. The evidence as appreciated by the Tribunal, can only
lead to the conclusion that the workman was only a temporary
appointee and that period of appointment expired by expiry of the
OP 29293/99 -: 5 :-
period agreed. Such a case will not be covered by Section 2(oo) of the
Act and hence this will not make out a case of retrenchment and the
management cannot be faulted for terminating his services.
5. It is also to be taken note of that even if the case set up by
the workman is accepted that he had worked continuously on the basis
of the three appointment orders, even that period do not make out
240 days of employment, attracting the provisions of the Industrial
Disputes Act. Such being the factual situation, the workman has failed
to make out a case of retrenchment as envisaged in the Industrial
Disputes Act. If that be so, the termination of the petitioner’s service
did not warrant interference by the Tribunal and the award is to be
sustained.
5. For the aforesaid reasons, I agree with the finding of the
Tribunal and reject the contentions of the workman. In the result, the
award is sustained and the Writ Petition is dismissed. No order as to
costs.
Antony Dominic
Judge.
ess 20/2