A. Somarajan vs B. Sanjayan
2021 Latest Caselaw 4811 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                  THE HONOURABLE MR. JUSTICE A.M.BADAR

    WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                        WP(C).No.811 OF 2021(B)


PETITIONER/S:

                A. SOMARAJAN,
                MANAGING DIRECTOR, SREE NARAYANA CENTRAL SCHOOL,
                ALYMKADAVU P.O, KARUNAGAPPALLY, KOLLAM DISTRICT

                BY ADVS.
                SRI.A.N.RAJAN BABU
                SRI.P.GOPALAKRISHNAN (MVA)
                SRI.A.R.EASWAR LAL

RESPONDENT/S:

      1         B. SANJAYAN,
                PALAMOOTTIL, PULIYOOR, VANCHI P.O, THODIYOOR,
                KARUNAGAPPALLY, KOLLAM 691 590

      2         P. RAMAKRISHNAN KURUP,
                SREEKRISHNA BHAVAN, AYANIVELKULANGARA NORTH, S.V
                MARKET P.O, KARUNAGAPPALLY, REPRESENTED BY SRI T.
                VENUGOPAL, GENERAL SECRETARY, KOLLAM DISTRICT MOTOR
                AND MECHANICAL WORKERS UNION, CITU BHAVAN,
                KOLLAM 691 013

      3         THE LABOUR COURT,
                KOLLAM 691 013



                R3 BY GP, POOJA SURENDRAN .

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.811 OF 2021

                                                2

                                       JUDGMENT

Dated this the 10th day of February 2021

Heard learned Counsel for the petitioner.

Learned Counsel for the petitioner argued that the

respondent workmen are retired employees of the

Kerala Road Transport Corporation and they were

employed by the petitioner after they were

superannuated from the service of the Kerala State

Road Transport Corporation. According to learned

Counsel for the petitioner, as the respondents were

employed after their retirement, and as at the time

of their termination by the petitioner they had

already crossed the age of superannuation, the

action of the petitioner cannot be termed as

retrenchment. According to learned Counsel for the

petitioner, therefore, the learned Labour Court errs

in passing the award which is impugned in the

instant case.

2. I have considered the submissions so

advanced.

WP(C).No.811 OF 2021

3. The respondents workmen have already attained

the age of 60 years and they were superannuated by

their ex-employer, i.e., Kerala State Road Transport

Corporation. Thereafter, they were engaged by the

petitioner as drivers. It is seen that,

subsequently, when the respondents were aged about

64 and 68 years, their service came to be terminated

by the petitioner in the light of the circular of

the Central Board of Secondary Education, which is

produced at Ext.P12. The Regional Officer of the

Central Board of Secondary Education had directed

the affiliated schools to retire the employees on

completing the age of 60 years.

4. In the case in hand, the petitioner had

employed the retired employees of the Kerala State

Road Transport Corporation as drivers and the

drivers were continued up to about 64 years of age.

Subsequently, they were terminated. In the light of

these facts, the learned Labour Court had directed

the petitioner to retrench the respondents workmen

by complying with the provisions of Section 25A of WP(C).No.811 OF 2021

the Industrial Dispute Act, having regard to their

service from 01.06.2012 to 16.06.2017, by paying

wages in lieu of notice and compensation equivalent

to 15 days average pay within one month from the

pronouncement of award. It was further directed

that on failure to comply this direction within

prescribed time, the amount shall carry interest at

the rate of 9% per annum from 16.06.2017.

5. Despite the fact that the respondents workmen

had attained age of superannuation, they were

recruited and subsequently they were superannuated

by their ex-employer. Respondents came to be

engaged by the petitioner as drivers despite the

fact that they were more than 60 years of age and

the petitioner had availed their service for a long

period of time after the respondents have crossed

the age of 60 years. Therefore, it cannot be said

that the action on the part of the petitioner in

terminating the services of the respondents is not a

retrenchment. It is not that the respondents have

attained the age of superannuation and therefore, WP(C).No.811 OF 2021

they came to be terminated. On the contrary,

learned Counsel for the petitioner submits that the

respondents were removed from service in the light

of the direction given by the Central Board of

Secondary Education contained in communication dated

14.03.2018, Ext.P12. Hence, the learned Labour

Court is perfectly justified in granting the relief

of directing the management to pay wages in lieu of

notice period, so also the retrenchment compensation

equivalent to 15 days average pay within one month

of pronouncement of award. It is relevant to note

that reinstatement is not ordered. I therefore, see

no reason to interfere with the impugned award in

the light of service extracted by the petitioner

management from respondents by engaging them even

after they had attained age of 60 years and making

them to work for a long period thereafter. WP(C).No.811 OF 2021

The petition is devoid of merits and the same is

therefore dismissed.

Sd/-

A.M.BADAR

JUDGE

uu

10.2.2021 WP(C).No.811 OF 2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 27-05-2017 FILED BY THE 1ST RESPONDENT BEFORE THE DISTRICT LABOUR OFFICER, KOLLAM

EXHIBIT P2 TRUE COPY OF THE ORDER NO. VII/2017 DATED 16-06-2017

EXHIBIT P3 TRUE COPY OF THE COMPLAINT DATED 12-06-2017 FILED BY THE KOLLAM DISTRICT MOTOR AND MECHANICAL WORKERS UNION BEFORE THE PETITIONER.

EXHIBIT P4 TRUE COPY OF THE LETTER DATED 12-06-2017 ISSUED BY THE GENERAL SECRETARY OF THE UNION BEFORE THE DISTRICT LABOUR OFFICER, KOLLAM

EXHIBIT P5 TRUE COPY OF THE G.O(RT) NO. 1242/2018/LBR DATED 30-10-2018 OF GOVERNMENT OF KERALA REFERRING THE DISPUTE FOR ADJUDICATION TO THE LABOUR COURT, KOLLAM.

EXHIBIT P6 TRUE COPY OF THE AWARD DATED 14-09-2020 IN I.D NO. 50/2018 OF THE LABOUR COURT, KOLLAM

EXHIBIT P7 TRUE COPY OF THE CLAIM PETITION NO. 62/2020 DATED 09-12-2020 FILED BY THE 1ST RESPONDENT BEFORE THE LABOUR COURT, KOLLAM

EXHIBIT P8 TRUE COPY OF THE CLAIM PETITION NO. 62/2020 DATED 09-12-2020 FILED BY THE 2ND RESPONDENT BEFORE THE LABOUR COURT, KOLLAM

EXHIBIT P9 TRUE COPY OF THE SUMMONS DATED 15-12-2010 ISSUED BY THE LABOUR COURT, KOLLAM TO THE 1ST RESPONDENT

EXHIBIT P10 TRUE COPY OF THE SUMMON DATED 15-12-2010 ISSUED BY THE LABOUR COURT, KOLLAM TO THE 2ND RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE COPY OF LAST EXTENSION ORDER OF AFFILIATION OF PETITIONER'S SCHOOL WITH C.B.S.E.

WP(C).No.811 OF 2021

EXHIBIT P12 TRUE COPY OF THE ORDER CBSE/ROTVM/COMPLIANCE 218 DATED 14TH MARCH 2018 REFERRING TO CIRCULAR NO.C.B.S.E./AFF/CIRCULAR/5/2016 DATED 20-12-2015.