Kerala High Court
Dr. Somerveli Memorial C.S.I. ... vs The Labour Court on 20 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
WP(C) NO. 31903 OF 2016
PETITIONER:
DR. SOMERVELI MEMORIAL C.S.I. MEDICAL COLLEGE
KARAKONAM, THIRUVANANTHAPURAM-695504,REPRESENTED BY
ITS DIRECTOR.
BY ADVS.
SMT.A.K.PREETHA
SRI.ANIL NARAYANAN
RESPONDENTS:
1 THE LABOUR COURT, KOLLAM
CIVIL STATION, CUTCHERY P.O.,KOLLAM - 691 013.
2 D. JACOBRAJ
MANNAMKONNAM ROADARIKATHU VEEDU, PALUKAL P.O,
KANYAKUMARI DISTRICT,TAMIL NADU, PIN. 629 170.
SRI.L.RAJESH NARAYAN
SRI.G.VENUGOPAL
G.P-SRI.K.M.FAISAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
15.9.2021, THE COURT ON 20.10.2021 DELIVERED THE FOLLOWING:
W.P.(C) 31903/2016 2
JUDGMENT
The petitioner is a Medical College in the private sector. The 2 nd
respondent-workman raised an industrial dispute against the petitioner
alleging illegal termination of his employment. The dispute was referred
for adjudication by the Labour Court, Kollam as I.D. No. 42/2011.
2.The case of the workman is that he was a security guard
appointed by the management at Dr.Somerveli Memorial C.S.I. Medical
College on 01.05.2003 initially on contract basis. The order of
appointment was given by the management fixing the terms and
conditions of service. While so, on 03.01.2005, he was employed on
daily wage basis. Later, from 03.01.2006 onwards, he began to work as
permanent employee at the Medical College. He was made a member in
the E.P.F. Scheme provided by the management with E.P.F Code
KR/TVM./ 16743/533 from March, 2008 onwards. On 12.04.2009, the
workman availed leave in connection with Easter. On the next day when
he reported for duty, he was prevented from joining duty. Thus, he was
denied of employment. No written order was served by the management
on the workman terminating his service. Later, he received a slip
acknowledging payment of his P.F. fund from the management in which
there was a scribbling to the effect that the management has removed
him from service. The workman has challenged the denial of
employment before the Labour Court; but did not claim reinstatement as
he had attained the age of superannuation. He claimed compensation of
Rs.14,10,000/- from the management.
3.The contention of the management is that although the workman
was their employee, he was not appointed on the basis of any order and
was appointed on daily wage basis according to the necessity when the
regular security guard was absent and such security guards engaged on
daily wage basis are not in the regular establishment of the management.
The workman was neither appointed on 01.05.2003 nor made permanent
on 03.01.2006. He commenced his work as a daily wage security guard
in the year 2008 only. Though the management admits that the worker
was made a member of the E.P.F. Scheme, that does not confer any
regular status of employee to the workman. The workman voluntarily
abandoned the work and the management is not responsible for the
same.
4. On consideration of facts and evidence, the Labour Court, by
Ext.P4 award, held that the management denied employment to the
workman without any reason and set aside the termination of service of
the workman. As the workman had attained the age of superannuation,
the Labour Court held that the workman is entitled to get full back
wages with attendant monetary benefits from the management from
13.04.2009 till the date of superannuation. The management was also
directed to pay an amount of Rs. 50,000/- (Rupees fifty thousand only)
as compensation for illegal termination of the workman under Section
11(A) of the Industrial Disputes Act, 1947 ('the Act' , for short).
5. The petitioner contends that Ext.P4 award is vitiated by non-
application of mind apparent on the face of the award and the Labour
Court failed to hold that the workman was not terminated from service;
but had abandoned the work. There is no justification in granting the
benefit of full back wages and compensation, in addition to the back
wages.
6. Heard the learned counsel for the petitioner and the learned
counsel for the second respondent.
7. The main contention of Smt. A.K. Preetha, the learned counsel
for the petitioner is that, the ingredients to attract the provisions of
Section 25F of the Act are not proved by the workman. The Labour
Court granted the benefits for mere asking and out of sympathy. Going
by the case of the workman, the date of termination from service is
12.04.2009. There is no evidence to show that he had worked
continuously for 240 days prior to 12.04.2009 to get the protection of
Section 25F of the Act. The burden to prove that he had worked
continuously for 240 days in twelve months preceding the alleged date
of termination from service on 12.04.2009 is on the workman. Smt.
A.K. Preetha also relied on the decisions reported in Surendranagar
District Panchayat and another v. Jethabhai Pitamberbhai [(2005) 8
SCC 450, R.M. Yellatti v. Asstt. Executive Engineer (2006) 1 SCC
106, Bhavnagar Municipal Corporation and others v. Jadeja
Govubha Chhanubha and another (2014) 16 SCC 130, Mohd. Ali v.
State of Himachal Pradesh and others (2018) 15 SCC 641, State of
Uttarakhand and others v. Sureshwati (2021) 3 SCC 108] to contend
that the onus is entirely on the workman to prove that he had worked
continuously for 240 days in twelve months preceding the alleged date
of termination from service.
8. Whether a person has worked for more than 240 days or not, is a
question of fact. This question was considered by the Labour Court and
on appreciation of evidence, it was held that the workman had worked
continuously for 240 days prior to 12.04.2009 in terms of Section 25-B
(2) (a) (ii) of the Act and his termination was illegal. Though the Labour
Court passed an order directing the management to produce the muster
roll-cum register of wages, the attendance and acquittance register from
2003 to 2008 and the E.P.F details of workers, the management did not
produce the same. The relevant portion of the Award is extracted
hereunder:-
"...The worker has produced two important documents which are
marked W2 and W2(a) and W3 and W3(a). W2 is the college
Magazine of C.S.I. Medical College of Dr. Somerveli Memorial
CSI Medical College, Karakonam. It is of the year 2005. In Page
No. 38 and 39 there is a colour photograph which is captioned as
"Your beloved staff'. There is a security guard in the photograph
who is none other than WW1, the worker. Management does not
deny the genuineness of Ext. W2 Magazine. Thus the magazine
and its photograph categorically prove that the worker was
working as Security Guard with the Management at least from
2005 onwards. Likewise, W3 is the College Magazine of the year
2007. W3(a) is the colour photograph occurring between pages
36 to 39. There is a colour photograph showing non-teaching
staff with Principal and Vice Principal. The solitary security
guard in the said photograph is none other than WW1 the worker.
This is also not denied by the management. Thus from the
evidence of the worker, the worker was in continuous service of
the management as its security guard at least from 2005 onwards.
It categorically proves that he was in service for more than 240
days as stipulated in Section 25B of the Industrial Disputes Act.
W4 is the E.P.F. slip issued by the authority given to the
management in favour of the worker. It contains the name of the
worker, his P.F. subscription and the name of the management. It
is with regard to the period 2008, 2009. However, there is writing
on the top of W4 stating that the worker is removed from
service."
9. On a perusal of Ext.P4 award, it can be seen that the workman
had discharged the onus to prove that he had worked continuously for
240 days prior to his termination on 12.04.2009. The workman had
sought the management to produce the muster roll-cum register of
wages, the attendance and acquittance register from 2003 to 2008 and
the E.P.F details of workers and though the Labour Court passed an
order directing the management to produce those documents, the
management did not produce the same. No doubt, the onus is entirely on
the workman to prove that he had worked continuously for 240 days in
twelve months preceding the alleged date of termination from service.
The workman entered the witness box and adduced evidence in support
of his claim and has discharged the burden of proving that he had
worked continuously for 240 days prior to 12.04.2009 in terms of
Section 25-B (2) (a) (ii) of the Act.
10. The Labour Court, on consideration of the facts and evidence,
came to the conclusion that the management denied employment to the
worker without any reasons. The Labour Court is right in observing that
even if the worker who was working from 2003 has abandoned the job,
the management is duty bound to inform him to join duty or else to face
consequence. I do not find any reason to interfere with the finding of the
Labour Court that the workman was denied of employment by the
management. The contention regarding the legality and propriety in
granting the benefit of full back wages, and compensation in addition to
the back wages is also not tenable as the Labour Court granted full back
wages with attendant monetary benefits to the workman considering the
circumstances whereby the worker was denied of his employment
without any reasons from 13-04-2009 onwards till superannuation,
whereas the amount of Rs.50,000/- was awarded as compensation for
illegal termination exercising the powers under Section 11-A of the Act.
There is no duplication, illegality or lack of jurisdiction in awarding
compensation in addition to back wages. Ext.P4 award cannot be said to
be perverse warranting interference by this Court and does not suffer
from non- application of mind.
The writ petition is dismissed. No order as to costs.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
APPENDIX OF WP(C) 31903/2016
PETITIONER'S EXHIBITS:
P1 TRUE COPY OF THE CLAIM STATEMENT FILED BY THE 2ND
RESPONDENT IN I.D.NO.42/2011.
P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE
PETITIONER IN I.D.NO.42/2011.
P3 TRUE COPY OF THE REJOINDER FILED BY THE 2ND RESPONDENT.
P4 TRUE COPY OF THE AWARD DATED 16.12.2015 IN ID
NO.42/2011.
spc/
