Kerala High Court
Kerala Medical Services ... vs Preetha T.S on 9 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BADAR
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
OP(LC).No.5 OF 2021
AGAINST THE AWARD IN ID 41/2017 DTD. 10.3.20 OF LABOUR COURT,
KOZHIKODE
PETITIONERS:
1 KERALA MEDICAL SERVICES CORPORATION LTD.
(REPRESENTED BY ITS MANAGING DIRECTOR), HEAD OFFICE
BEHIND WOMEN AND CHILDREN HOSPITAL, P.O.THYCAUD,
THIRUVANANTHAPURAM, PIN-695014.
2 THE MANAGING DIRECTOR,
KERALA MEDICAL SERVICES CORPORATION LTD., HEAD OFFICE
BEHIND WOMEN AND CHILDREN HOSPITAL, P.O.THYCAUD,
THIRUVANANTHAPURAM, PIN-695014.
3 THE DEPOT MANAGER,
KARUNYA MEDICAL DEPOT, KERALA MEDICAL SERVICES
CORPORATION LTD., MALAPARAMBA, KOZHIKODE, PIN-673009.
BY ADV. SHRI.M.AJAY
RESPONDENTS:
1 PREETHA T.S.
RAVEENDRA NIVAS, KATTILPARAMBA, MALAPARAMBA P.O.,
KOZHIKODE, PIN-673009.
2 THE LABOUR COURT,
KOZHIKODE, B-BLOCK, CIVIL STATION, WAYANAD ROAD,
ERANHIPPALAM, KOZHIKODE, PIN-673020.
THIS OP (LABOUR COURT) HAVING COME UP FOR ADMISSION ON
09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P (LC) No.5/2021 2
JUDGMENT
Dated this the 9th day of April 2021
Heard the learned counsel appearing for petitioners.
2. Learned counsel appearing for petitioners drew my
attention to the contract for appointment at Ext.P2 dated
22.02.2014 entered into between the petitioner-employer and the
1st respondent-workman for the period from 22.02.2014 to
21.02.2015. Thereafter my attention is also drawn to the contract
of employment at Ext.P5 dated 01.04.2015 for the period from
01.04.2015 to 30.03.2016. Learned counsel for petitioners
accepted the fact that the 1 st respondent was in employment with
them from 22.02.2014 to 01.09.2016 with a break of only one day
during that period. It is argued that according to the terms of
contract, the 1st respondent was to be terminated at any time by
the competent authority of the petitioner-Corporation if she is
found guilty of any insubordination, misconduct etc. or if it is
proved beyond doubt that the Corporation has incurred loss,
damage etc. due to willful act of the 1 st respondent so also if the
1st respondent is incapable of discharging the duties upto the
desired level assigned to the post for which she bound to do
according to the job demand.
3. Learned counsel for the petitioners has not disputed the
fact that after the second contract, Ext.P5 which was for the
period from 01.04.2015 to 30.03.2016, there was no formal
contract entered into between the parties and the 1 st respondent
continued thereafter till she was terminated on 01.09.2016. With
this, it is argued that, as termination of the 1 st respondent was on
expiry of the contract period and as the contract was not renewed,
same cannot be termed as 'retrenchment' within the meaning of
the said term. The contractual period is required to be exempted
from the definition of the term 'retrenchment'.
4. I have considered the submissions so advanced and also
perused the materials placed before me including the Award
passed by the learned Labour Court as well as contracts at Exts.P2
and P5 which are stated to be marked as Exts.M3 and M6 before
the learned Labour Court. At this juncture, it is apposite to quote
the observations of the learned Labour Court recorded in the
Award after due appreciation of evidence of the parties.
Paragraph 13 of the impugned Award needs reproduction and it
reads thus:
"13. The evidence tendered by MWI, the Managing
Director would show that though the dispensation of
service of the work woman was prima facie by way of
non-renewal of contract of employment virtually the
dispensation of service was for the reason that in her
performance appraisal for the period ending with
31.08.2016 she did not secure the sufficient grade more
than 60% as it is stated in Ext.M10 that the workman
and others obtained below 60% scoring. It is significant
to note that incorporation of such a condition and clause
i.e, to secure a minimum score in the performance
appraisal does not find a place in Ext.M2 appointment
order dated 12.02.2014, Ext.M3 agreement
dated 22.02.2014 and Ext.M6 agreement dated
01.04.2015. To bind a party to a condition in a
contract/agreement the same should find a place in the
contract/agreement executed between the parties. Had
there been such a clause in the agreement to the effect
that minimum score in the performance appraisal
would be a pre-condition for the renewal of contract of
employment definitely the workman would have been
bound by the same. As stated above, no such
contract/agreement incorporating such a condition are
seen executed between the parties. The exemptions
provided to S.2(00) of the Industrial Disputes Act
1947 will not cover the performance appraisal conducted
by the management establishment. The fact that the
workwoman did not secure a cut off grade or
score is not itself is a reason for retrenchment. If that be
so, it can safely be concluded that the dispensation of
service of the workwoman was not in terms
of contractual agreement entered into between the
parties, nor saved by clause (bb) of S.2(00) of the I.D.
Act. Therefore, it can be found that the dispensation
of service of the workman qualifies the termination as
one of retrenchment within the meaning of S.2 (00) of
Industrial Disputes Act, 1947".
5. Section 2(oo) of the Industrial Disputes Act, 1947 defines
the term 'retrenchment' and it reads thus:
(oo) "retrenchment means the termination by the
employer of the service of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment
between the employer and the workman concerned
contains a stipulation in that behalf; or
(bb) termination of the service of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c) termination of the service of a workman on the
ground of continued ill-health".
A perusal of the definition of the term 'retrenchment' makes it
clear that termination of service of workman as a result of non-
renewal of contract of employment between the employer and
workman concerned on its expiry or of such contract being
terminated under a stipulation in that behalf contained therein
does not amount to retrenchment.
6. In the case in hand, the 1st respondent was continued
upto 01.09.2016 after the second contractual period running from
01.04.2015 to 30.03.2016 (Ext.P5). Thus it cannot be said that
the employment of the 1st respondent with petitioners was
governed by any contract at the time of her termination with effect
from 01.09.2016. In September 2016, the relationship as master
and servant/ employer and employee between the parties was not
governed by any contract of employment. There is no document
evidencing this fact which is duly signed by the 1 st respondent-
workman. Therefore, I find no merit in the contention of the
learned counsel for petitioners that the services of the
1st respondent-workman were terminated as per the stipulation
contained in the contract of employment entered into between the
parties. Further I see no merit in the contention of the learned
counsel for petitioners that there was extension to the contract of
employment for want of any evidence on that aspect much less
any documentary evidence showing the fact that petitioners had
continued contract of employment of the 1st respondent with
approval of the 1st respondent subsequently to the period from
30.03.2016. There is no iota of evidence to show that the
1st respondent/workman has further agreed to any terms and
conditions for extension of contract for the period after
30.03.2016. It is attempted to submit that the 1 st respondent's
performance was not upto the mark as per the performance
appraisal report. If that is so, then, certainly, termination of the
1st respondent is stigmatic termination. Neither the 1 st respondent
was served with any notice nor any enquiry was held to show that
the 1st respondent is guilty of unsatisfactory performance.
In the light of these observations, it cannot be said that the
impugned Award suffers from any perversity or illegality. There is
no scope for interference in the Award passed by the learned
Labour Court which is based on the evidence adduced by the
parties on record.
This original petition as such is devoid of merit and the same
is accordingly dismissed.
Sd/-
A.M.BADAR
JUDGE
smp
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE COMMUNICATION OF THE
SECOND PETITIONER, KMSCL/ADMIN/25/2012
DATED 12.02.2014.
EXHIBIT P2 A TRUE COPY OF THE CONTRACT FOR APPOINTMENT
WITH THE FIRST RESPONDENT AND THE KMSCL FOR
THE PERIOD 22.02.2014 TO 21.02.2015 DATED
22.02.2014.
EXHIBIT P3 A TRUE EXTRACT OF RESOLUTION NO.41.09.
EXHIBIT P4 A TRUE COPY OF THE ORDER ISSUED BY THE
SECOND PETITIONER ORDER
NO.KMSCL/ADMIN/10/2014 DATED 18.03.2015.
EXHIBIT P4(a) A TRUE ENGLISH TRANSLATION OF EXHIBIT P4.
EXHIBIT P5 A TRUE COPY OF THE AGREEMENT BETWEEN THE
KMSCL AND THE FIRST RESPONDENT DATED
01.04.2015.
EXHIBIT P6 A TRUE COPY OF THE CIRCULAR OF THE SECOND
PETITIONER KMSCL/HR/429/2016 DATED
18.03.2016.
EXHIBIT P6(a) A TRUE ENGLISH TRANSLATION OF EXHIBIT P6.
EXHIBIT P7 A TRUE COPY OF THE PERFORMANCE APPRAISAL
REPORT OF THE FIRST RESPONDENT FOR THE
PERIOD 01.04.2015 TO 30.03.2016.
EXHIBIT P7(a) A TRUE ENGLISH TRANSLATION OF EXHIBIT P7.
EXHIBIT P8 A TRUE COPY OF THE ORDER
NO.KMSCL/HR/429/2016 ISSUED BY THE SECOND
PETITIONER DATED 31.05.2016.
EXHIBIT P8(a) A TRUE ENGLISH TRANSLATION OF EXHIBIT P8.
EXHIBIT P9 A TRUE COPY OF THE PERFORMANCE APPRAISAL
REPORT OF THE FIRST RESPONDENT FOR THE
PERIOD ENDING 31.08.2016.
EXHIBIT P9(a) A TRUE ENGLISH TRANSLATION OF EXHIBIT P9.
EXHIBIT P10 A TRUE COPY OF THE APPLICATION FILED BY THE
FIRST RESPONDENT UNDER S.2A(2) OF THE ID
ACT BEFORE THE SECOND RESPONDENT DATED
11.05.2017.
EXHIBIT P10(a) A TRUE ENGLISH TRANSLATION OF EXHIBIT P10.
EXHIBIT P11 A TRUE COPY OF THE REPLY AFFIDAVIT FILED BY
THE KMSCL BEFORE THE SECOND RESPONDENT
DATED 25.10.2018.
EXHIBIT P11(a) A TRUE ENGLISH TRANSLATION OF EXHIBIT P11.
EXHIBIT P12 A TRUE COPY OF THE REJOINDER FILED BY THE
FIRST RESPONDENT DATED 02.05.2018.
EXHIBIT P12(a) A TRUE ENGLISH TRANSLATION OF EXHIBIT P12.
EXHIBIT P13 A TRUE COPY OF THE AWARD OF THE SECOND
RESPONDENT IN ID 41/17 DATED 10.03.2020.
RESPONDENTS' EXHIBITS: NIL.
True Copy
P.S to Judge
smp
