Karnataka High Court
Mr. Yogeesha T N vs Management Of on 7 February, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.23259/2018 (L-RES)
BETWEEN:
MR. YOGEESHA T.N.
AGED ABOUT 33 YEARS,
S/O. NARASIMHA MURTHY T.S.
SADANA BADAVANE,
BELAGUMBA (P) ROAD,
TUMKUR - 572 104. ... PETITIONER
(BY SRI T.S. ANANTHARAM, ADVOCATE)
AND:
MANAGEMENT OF
M/S. KENNAMETAL INDIA LTD.,
8/9TH MILE, TUMKUR ROAD,
BENGALURU - 560 073. ... RESPONDENT
(BY SRI S.N. MURTHY, SENIOR ADVOCATE A/W
SRI SOMASHEKAR, ADVOCATE (V.C.))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE AWARD
DATED 8TH DAY OF MARCH 2018 OF THE 1ST ADDITIONAL LABOUR
COURT BENGALURU IN ID NO.02/2016 AT ANNEXURE-N AND DIRECT
THE RESPONDENT MANAGEMENT TO REINSTATE THE PETITIONER WITH
CONTINUITY OF SERVICE FULL BACK WAGES AND ALL OTHER
CONSEQUENTIAL BENEFITS; CALL FOR THE RECORDS FROM THE 1ST
ADDITIONAL LABOUR COURT BENGALURU IN CONNECTION WITH THE
AWARD DATED 8TH DAY OF MARCH 2018 IN ID NO.02/2016.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON
16/01/2024 FOR ORDERS AND COMING FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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ORDER
The petitioner was appointed as an operator "on
temporary basis" on 25.09.2010 for a fixed period of twenty
four months, renewal of engagement for a further period of
one year with effect from 2012 to 2013 was served on the
petitioner.
2. The respondent-management issued another
letter of extension of the employment of the petitioner as
operator on 01.09.2015 on temporary basis for a further
period of twelve months, i.e., from 01/10/2015 to
30/09/2016, the petitioner though acknowledged the letter
of extension of employment did not continue his services
with the respondent-management and stayed away from
work with effect from 12.10.2015 without obtaining any
leave.
3. The respondent-company wrote letter to the
petitioner for his full and final settlement. After the period of
nearly three and a half months, the petitioner addressed a
letter dated 29.01.2016 claiming that though the petitioner
had reported to duty in the respondent-company, the
respondent - company has not given work. The respondent-
company replied and stated that the petitioner has not
reported to duty as contended by the petitioner and has
remained silent for three and a half months without giving a
single representation.
4. The petitioner raised dispute before the I Addl.
Labour Court ("Labour Court" for short) alleging refusal of
employment by the respondent - company claiming
reinstatement with full back wages and other consequential
benefits since his refusal of employment by respondents with
effect from 14.10.2015.
5. The respondent-company appeared and filed
counter statement, inter alia, disputing that the company
had stopped the services by way of termination/refusal of
employment with effect from 14.10.2015 with valid or proper
reasons. The respondent-company contended that the
petitioner has continuously remained absent from work
without obtaining any leave and the respondent-company, at
no point of time, prohibited the petitioner from attending
work from 12.10.2015. The company contended that the
petitioner did not accept the renewal letter dated
01.09.2015, which clearly shows that the petitioner was not
interested in continuing his employment in the respondent-
company. The Labour Court framed three issues, which
reads as under:
"1. Whether the first party proves that the second
party management has illegally refused him
employment with effect from 14.10.2015?
2. Whether the second party management proves
that the first party is not a permanent employee
of the second party?
3. To what relief the first party is entitled?"
6. The Labour Court by the impugned order held that
the petitioner has failed to prove that the management has
illegally refused employment with effect from 14.10.2015.
7. That the management proved that the petitioner
is not a permanent employee of the second party and by the
impugned order dismissed the claim statement filed by the
workman under Section 10(4-A) of the Industrial Disputes
(Karnataka Amendment) Act, 1988.
8. Heard Sri T.S.Anantharam, learned counsel for
the petitioner and Sri S.N. Murthy, learned senior counsel for
the respondent and perused the material on record.
9. Having heard learned counsel for the parties, the
only point that arises for consideration is,
"Whether the Labour Court was justified in rejecting
the claim statement of the petitioner and, whether the
management has illegally refused employment with
effect from 14.10.2015?"
10. Learned counsel appearing for the petitioner
would contend that the petitioner was refused employment
and the same is evident from Annexure - "E".
11. The petitioner was appointed as an operator "on
temporary basis" for a fixed term as per the letter of
engagement (Annexure - "A"), which reads as under:
"Sub: Letter of Engagement as "Operator" on
Temporary Basis for a Fixed Term
With reference to your application dated 2 August
2010 and the subsequent interview you had with us,
we are pleased to engage you as an "Operator" on a
Temporary Basis in Kennametal India Limited
(hereinafter "Company") for a fixed term period on the
following terms and conditions.
1. Nature of Engagement:
1.1 Your engagement will be for a fixed term period
of 24 months on a "Temporary basis". Your
engagement shall automatically come to an end
at the expiry of 24 months as stipulated above.
During the period of your engagement as
aforesaid, your services are liable to be
determined prior to 24 months by giving one
month's advance notice in writing or salary in
lieu thereof by either party. However, if your
services are terminated for misconduct, you are
liable to be dismissed without notice or payment
in lieu of notice.
1.2 Your termination from service at the end of the
temporary engagement term of 24 months and
or at any time before the said date shall be a
termination falling under Section 2(oo) (bb) of
the Industrial Disputes Act, 1947."
12. The petitioner has put his signature to the
appointment order accepting the employment on terms and
conditions stated therein. The terms of the engagement was
for a fixed period of 24 months "on temporary basis" and the
engagement would automatically come to an end after expiry
of 24 months as stipulated in the engagement letter.
Further, it stated that during the period of engagement, the
services are liable to be determined prior to 24 months by
giving one month's advance notice in writing or salary in lieu
thereof by either parties. If the services are terminated for
misconduct, he was liable to be dismissed without notice or
payment in lieu of notice. Further the terms and conditions
stated that the termination from service at the end of
temporary engagement term of 24 months or at any time
before the said date shall be terminated falling under Section
2(oo)(bb) of the ID Act. On two occasions, the letter of
engagement dated 25.09.2010 was extended for a further
period of one year. On 01/09/2015, letter was issued stating
that his term expires on 30/09/2015, and the work which he
was engaged needs to be continued for some more time and
as such, for a fixed term of engagement was renewed for a
further period of one year from 01.10.2015 to 30.09.2016
and it was made clear that all other terms and conditions of
engagement stipulated in the letter would continue to bind
the petitioner and the company. The letter of extension was
served upon the petitioner and the same is not in dispute on
24.09.2015, another letter was issued stating that the salary
of the petitioner has been revised with effect from
01.10.2015. This being the state of affairs, after receipt of
the letter of extension on 01.09.2015, having not reported to
duty by the petitioner, the management issued notice on
04.10.2015, stating that, though the letter issued by the
company on 01.09.2015 extending the service as an
operator on temporary basis for a fixed term was received,
but did not acknowledge the receipt and as taken as
acceptance of terms and conditions and it appears that the
petitioner is not interested in continuing with the work as an
operator on temporary basis for a fixed period and the
absence of him from 12.10.2015 without obtaining leave or
permission, shows that he was no longer interested to
continue to work with the company and that he has
voluntarily abandoned employment.
13. This being the state of affairs, after issuance of
notice by the company, the petitioner did not turn up for
nearly three and a half months, it is only in the month of
January, 2016, letter was replied to the termination/refusal
of employment stating that he has not voluntarily abandoned
his job, as he stated that he was asked to continue year after
year as a temporary employee under the guise of Section
2(oo)(bb) of the ID Act and the action of the management
being not correct and since he demanded for absorption of
his employment on permanent rules of the company, it is the
case of refusal of employment with effect from 14.10.2015.
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It is relevant to note that, appointment of the petitioner was
purely on temporary basis as is clearly evident from the
terms of the engagement. It is clear that the petitioner was
appointed for a specific period and the services were to be
terminated before expiry of the term period as stated in the
engagement. Mere completion of the period of employment
on temporary basis, does not confer any right on the
petitioner to claim appointment. The fact remains that the
company had extended the appointment of the petitioner as
operator on temporary basis for another fixed period and the
petitioner was not happy with the extension of period of
employment as temporary employee and demanded for
absorption of employment on permanent rules of the
company. Having regard to the clear terms of his
appointment order, which has been accepted by signing, the
petitioner is not entitled to bring his employment comes to
an end on temporary employment.
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14. The Apex Court in the case of Birla VXL Ltd. vs.
State of Punjab and others1 at para No.7 has held as
under:
"7. The real question is whether the third
respondent had a claim to employment beyond 31-12-
1984. Having regard to the clear terms of his
appointment order, which he accepted by signing at
the foot thereof, the appellant was entitled to bring his
employment to an end at the conclusion of the period
of temporary employment. The letter stating that the
third respondent's services would come to an end on
31-12-1984 did not say that the services were being
terminated because of any misconduct. There was no
stigma whatever cast by that letter. The High Court
was not, in the circumstances, warranted in
concluding that the services had been terminated
because of the third respondent's misconduct and
upholding his reinstatement with full back wages."
15. The other contention of the petitioner is that the
company has refused employment to the petitioner by
terminating his service under the guise of refusal of
employment immediately after two days from the date of
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serving the renewal letter and the petitioner has completed
five years and twelve days service continuously. When the
petitioner was employed on contract basis only, putting
contract end by an employer, not a dismissal from service.
Working for 250 days, benefit thereof is not available to the
petitioner as his service was purely contractual and
termination of his contract does not amount to retrenchment
and does not attract compliance with Section 25F of the ID
Act. The Apex Court, in the case of Karnataka Handloom
Development Corporation Ltd. vs. Sri Mahadeva
Laxman Raval2, held at para Nos.21 and 22 as under:
"21. The Division Bench of the High Court in
the instant case relied upon the decision in S.M.
Nilajkar case, which, in our opinion, has no
application because in that case no period was
indicated and the only indication was the temporary
nature of engagement. We have already reproduced
the terms and conditions of appointment in the case
on hand, in all the orders of engagement specific
periods and the amount of honorarium also been
(2006) 13 SCC 15
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mentioned. Therefore, in our view, the High Court's
order does suffer from infirmity.
22. Learned senior counsel appearing for the
Corporation placed reliance on the decision of this
Court in Secy., State of Karnataka v. Umadevi (3) and
(Constitution Bench), paras 45 and 47 of the
judgment. P.K. Balasubramanyan, J. speaking for the
Bench has observed as follows: (SCC pp. 37-39)
"45. x x x
47. When a person enters a temporary
employment or gets engagement as a contractual or
casual worker and the engagement is not based on a
proper selection as recognized by the relevant rules or
procedure, he is aware of the consequences of the
appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of
legitimate expectation for being confirmed in the post
when an appointment to the post could be made only
by following a proper procedure for selection and in
cases concerned, in consultation with the Public
Service Commission. Therefore, the theory of
legitimate expectation cannot be successfully
advanced by temporary, contractual or casual
employees. It cannot also be held that the State has
held out any promise while engaging these persons
either to continue them where they are or to make
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them permanent. The State cannot constitutionally
make such a promise. It is also obvious that the
theory cannot be invoked to seek a positive relief of
being made permanent in the post."
16. The provisions of Section 25F of the ID Act did not
apply to the petitioner in any manner as the petitioner has
not been in continuous service for a period of 240 days
immediately preceding the year from the date of termination
of the services. There is no material on record to indicate
that the terms of contract was in any manner a colourable
exercise of power to deprive the petitioner of her right of
regular employment. The petitioner who was appointed on a
temporary basis cannot agitate the same in alleging that
compliance of Section 25F of the ID Act has not been made,
the termination of the petitioner was issued notice stating
that his term has been extended for another period of one
year on temporary basis for a fixed term, the that too after
completion of the term. The extension has not been accepted
by the petitioner. Management left with no option, than to
hold that the petitioner is not willing to join the work and his
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absence has to be taken as unauthorized absence without
obtaining leave or permission.
17. The material on record also indicates that, even
assuming that the management has refused employment,
the unexplained on the part of petitioner for three and a half
months to reply to the notice dated 14.10.2015 clearly
indicates the petitioner's intention of voluntarily
abandonment of service. The petitioner having not accepted
the renewal letter dated 01.09.2015 which clearly indicates
that the petitioner is not interested in continuing his
employment in the respondent - company and the
contention of the petitioner that the letter dated 14.10.2015
that was issued to the petitioner by the respondent
management, it is clear that the management terminated his
service from 14.10.2015, though he worked continuously
from 01.10.2010 to 12.02.2015 is totally incorrect. The
petitioner has, on his own accord, stayed from away from
work without seeking permission or obtaining any leave of
absence with effect from 12.10.2015 and the Labour Court,
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on the evidence and the material placed before it, has rightly
arrived at a conclusion that the provision of Sections 25F and
25G of the ID Act are not applicable to the present facts and
circumstances of this case.
18. The decisions relied by the petitioner in the case
of Western India Match Co. Ltd. vs. The Third
Industrial Tribunal, West Bengal and others3 was a
situation where the employee fell ill and applied for leave,
the Court in the said circumstances held that, when an
employee is on leave, he cannot be called upon to discharge
his duty and cannot be termed as abandonment of service.
In Om Prakash (Dead) by LR's. vs. Presiding Officer,
Labour Court, Tohtak and another4, the Apex Court has
held that even if the service of the employee is put on end on
the ground of abandonment of service, it must be in terms of
the standing orders and that in the said case, there is no
compliance with the terms of the standing orders. In Shiv
(1978) 1 SCC 154
(2002) 10 SCC 412
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Kumar vs. Hansita5, the employee was declined duties and
thereafter management illegally and unjustifiably terminated
the employee and in the circumstances, the Apex Court held
that abandonment of service is a question of intention which
can be gathered from the totality of the facts and
circumstances of each case. There has to be a clear
evidence on record to show that despite grant of reasonable
opportunity to the employee by the management, he failed
to join back his duties without any sufficient reasons and
therefore in the absence of any such cogent and convincing
evidence, voluntarily abandonment on the part of the
employee cannot be readily inferred.
19. In Tamil Nadu Industrial Co-operative Bank
(TAICO Bank), Rep. Managing Director vs. R. Alex Sues
and another6, abandonment cannot be established by the
management and therefore, management could not have
dispensed without complying with the procedure of Section
Laws (DLH) 2010 5 56, High Court of Delhi
2020-IV-LLJ-65 (Mad)
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25F of the ID Act. In Eagle Hunter Solutions Limited vs.
Sh. Prem Chand7, onus to prove the abandonment is by the
management. The case of the respondent-management that
the petitioner has voluntarily abandoned the service and
having continuously remained absent unauthorisedly and
after the lapse of three and a half months a letter has been
addressed stating that the termination is incorrect. The
material on record indicates that the respondent-company
has not refused employment to the petitioner and though the
letter dated 14.10.2015 was served on the petitioner, the
petitioner did not come forward to join the services and
accordingly, all his accounts has been settled in full. The
petitioner cannot claim an employment as a matter of right
in light of the clear terms of appointment order.
20. In the result, the point framed for consideration is
answered in favour of the respondent-management and this
court pass the following:
2018-IV-LLJ-506 (Del) LNIND 2018 DEL 4148 High Court of Delhi
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ORDER
(i) Writ petition is dismissed.
(ii) Impugned order passed by the Labour Court
stands confirmed.
SD/-
JUDGE
S*
