Kerala Medical Services ... vs Santhosh T.S
2021 Latest Caselaw 11659 Ker

               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.6 OF 2021

   AGAINST THE AWARD IN ID 40/17 DTD.10.03.20 OF HON'BLE LABOUR
                         COURT, KOZHIKODE.


PETITIONERS:

         1     KERALA MEDICAL SERVICES CORPORATION LTD.
               REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE,
               BEHIND WOMEN & CHILDREN HOSPITAL,
               P.O. THYCAUD, THIRUVANANTHAPURAM,
               PIN - 695 014.

         2     THE MANAGING DIRECTOR, KERALA MEDICAL SERVICES
               CORPORATION LTD., HEAD OFFICE, BEHIND WOMEN &
               CHILDREN HOSPITAL, P.O. THYCAUD, THIRUVANANTHAPURAM,
               PIN - 695 014.

         3     THE DEPOT MANAGER, KARUNYA MEDICAL DEPOT, KERALA
               MEDICAL SERVICES CORPORATION LTD., MALAPARAMBA,
               KOZHIKODE, PIN - 673 009.

               BY ADV. SHRI.M.AJAY


RESPONDENTS:

         1     SANTHOSH T.S.,
               SAPNA, CHELANNUR P.O., KOZHIKODE, PIN - 673 616.

         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.6/2021                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 order at Ext.P2 dated 11.12.2013 issued to the

1st respondent-workman appointing the workman with petitioners

on contract basis for a period of one year. 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

1st respondent was in employment with them from 22.12.2013 to

01.09.2016 with a break of only one day during that period.

3. 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 he 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 1st respondent so also if the 1 st respondent is incapable

of discharging the duties upto the desired level assigned to the

post for which he bound to do according to the job demand.

4. 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 he 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'.

5. 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 the appointment

order at Ext.P2 and contract at P5 which are stated to be marked

as Exts.M2 and M5 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 15 of the impugned Award

needs reproduction and it reads thus:

"15. The evidence tendered by MWI would show that though the dispensation of service of the workman was prima facie by way of non-renewal of contract of employment

virtually the dispensation of service was for the reason that in his performance appraisal for the period 2016-17 he did not secure the sufficient grade more than 60% as it is stated in Ext.M8 that the workman and others obtained below 60% scoring. It is pertinent 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.M5 agreement executed between the parties. 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 workman 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 workman 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".

6. 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.

7. 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 his 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 NOTIFICATION, KMSCL/ADMIN/25/2012 DATED 23.09.13 WITH TRANSLATION.

EXHIBIT P2 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE SECOND PETITIONER, KMSCL/ADMN/25/2012 DTD.11.12.13.

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 KMSCL 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 ORDER No.KMSCL/ADMN/42/2014 DTD.22.7.16.

EXHIBIT P10 A TRUE COPY OF THE PERFORMANCE APPRAISAL REPORT OF THE FIRST RESPONDENT FOR THE PERIOD 1.6.16 TO 31.08.2016.

EXHIBIT P11 A TRUE COPY OF THE COMMUNICATION FROM THE DEPOT IN-CHARGE, KARUNYA MEDICINE DEPOT, KOZHIKODE TO THE DEPUTY MANAGER, CPS SALES,

KMSCL DTD.6.4.16.

EXHIBIT P11(a) A TRUE ENGLISH TRANSLATION OF EXHIBIT P11.

EXHIBIT P12 A TRUE COPY OF THE EXPLANATION LETTER OF THE 1ST RESPONDENT DTD.5.4.16.

EXHIBIT P12(a) A TRUE ENGLISH TRANSLATION OF EXHIBIT P12.

EXHIBIT P13 A TRUE COPY OF THE APPLICATION FILED BY THE FIRST RESPONDENT UNDER S.2 A(2)(3) OF THE ID ACT BEFORE THE 2ND RESPONDENT DTD.11.5.17.

EXHIBIT P13(a) A TRUE ENGLISH TRANSLATION OF EXHIBIT P13.

EXHIBIT P14 A TRUE COPY OF THE REPLY FILED BY 3RD AND 2ND PETITIONERS BEFORE 2ND RESPONDENT DTD.4.4.18.

EXHIBIT P14(a) A TRUE ENGLISH TRANSLATION OF EXHIBIT P14.

EXHIBIT P15 A TRUE COPY OF THE REJOINDER FILED BY THE FIRST RESPONDENT BEFORE THE 2ND RESPONDENT DTD.2.5.18.

EXHIBIT P15(a) A TRUE ENGLISH TRANSLATION OF EXHIBIT P15.

EXHIBIT P16 A TRUE COPY OF THE AWARD OF THE SECOND RESPONDENT IN ID 40/17 DTD.10.3.20

EXHIBIT P17 A TRUE COPY OF THE CLAIM PETITION 18/21 FILED BY THE FIRST RESPONDENT BEFORE THE SECOND RESPONDENT DTD.29.1.21.

RESPONDENTS' EXHIBITS: NIL.

True Copy

P.S to Judge

smp