[Cites 31, Cited by 0]
Kerala High Court
C.Rajendran vs Central Government Labour Court on 2 December, 2025
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
1
2025:KER:92688
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 2ND DAY OF DECEMBER 2025 / 11TH AGRAHAYANA, 1947
WP(C) NO. 32084 OF 2006
PETITIONER:
CANARA BANK REPRESENTED BY
DEPUTY GENERAL MANAGER,
CIRCLE OFFICE, THIRUVANANTHAPURAM.
BY ADVS.
SHRI.M.GOPIKRISHNAN NAMBIAR
SHRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
SHRI.PAULOSE C. ABRAHAM
SHRI.RAJA KANNAN
SRI.JAI MOHAN
RESPONDENTS:
1 C.RAJENDRAN, CHETTIPARAMBIL,
THEKKUMBAGOM, THRIPUNITHURA, ERNAKULAM.
2 THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL CUM LABOUR COURT, 38/377, 8-3 KARITHALA, LINE,
KARSHAKA ROAD, ERNAKULAM, REPRESENTED BY ITS SECRETARY.
BY ADVS.
SRI.C.ANIL KUMAR
SMT.BINDHYA JOSE
SMT.A.K.PREETHA
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
2
2025:KER:92688
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2025,
ALONG WITH WP(C).13062/2007, 33809/2006, THE COURT ON 02.12.2025, DELIVERED
THE FOLLOWING:
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
3
2025:KER:92688
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 2ND DAY OF DECEMBER 2025 / 11TH AGRAHAYANA, 1947
WP(C) NO. 33809 OF 2006
PETITIONER:
C.RAJENDRAN
CHETTIPARAMBIL HOUSE, THEKKUMBHAGAM,, TRIPUNITHURA,
ERNAKULAM DISTRICT.
BY ADVS.
SRI.C.ANIL KUMAR
SMT.A.K.PREETHA
RESPONDENTS:
1 CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
ERNAKULAM, KOCHI-14.
2 THE DEPUTY GENERAL MANAGER
CANARA BANK, STAFF SECTION (W), CIVIL OFFICE,
THIRUVANANTHAPURAM.
BY ADV SHRI.C.DINESH, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2025,
ALONG WITH WP(C).32084/2006 AND CONNECTED CASES, THE COURT ON 02.12.2025,
DELIVERED THE FOLLOWING:
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
4
2025:KER:92688
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 2ND DAY OF DECEMBER 2025 / 11TH AGRAHAYANA, 1947
WP(C) NO. 13062 OF 2007
PETITIONER:
CANARA BANK, REPRESENTED BY DEPUTY GENERAL MANAGER, H R M
SECTION, CIRCLE OFFICE, THIRUVANANTHAPURAM.
BY ADVS.
SHRI.M.GOPIKRISHNAN NAMBIAR
SHRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
SHRI.PAULOSE C. ABRAHAM
SHRI.RAJA KANNAN
SRI.JAI MOHAN
RESPONDENTS:
1 A.K.PANKAJAKSHAN
PUTHENVEETTIL HOUSE, CHETHRAPINNY HOUSE, THRISSUR.
2 THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL CUM LABOUR COURT, 38/377, 8-3,, KARITHALA LINE,
KARSHAKA ROAD, ERNAKULAM,, REPRESENTED BY ITS SECRETARY.
BY ADVS.
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2025,
ALONG WITH WP(C).32084/2006 AND CONNECTED CASES, THE COURT ON 02.12.2025,
DELIVERED THE FOLLOWING:
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
5
2025:KER:92688
CR
JUDGMENT
[WP(C) Nos.32084/2006, 33809/2006, 13062/2007]
Dated this the 2nd day of December, 2025
1. Since common questions arise in these Writ Petitions, these
Writ Petitions are disposed of by a common judgment.
2. W.P.(C) Nos.32084/2006 & 33809/2006 arise from the Award of
the Central Industrial Tribunal cum Labour Court, Ernakulam,
dated 31.08.2006 in I.D. No.24/2006. W.P.(C) No.32084/2006 is
filed by the Management and W.P.(C) No.33809/2006 is filed by
the Workman in the said I.D. W.P.(C) No.13062/2007 arises
from the Award of the Central Industrial Tribunal cum Labour
Court, Ernakulam, dated 07.12.2006 in I.D. No.42/2006.
W.P.(C) No.13062/2007 is filed by the Management in the said
I.D. The Workmen, C. Rajendran in I.D. No.24/2006 and A.K.
Pankajakshan in I.D. No.42/2006 had been working as deposit
collectors of the Management Bank at its Thrippunithura and
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13062 OF 2007
2025:KER:92688
Kodungallur branches, respectively.
3. In I.D. No.24/2006, the reference made by the Central
Government under Section 10(1)(d) of the Industrial Disputes
Act, 1947 (for short, 'ID Act'), for adjudication is whether non-
renewal of contract amounts to denial of employment; whether
the service of the Workman was terminated by the
Management, and if terminated, whether the termination is legal
or not, and if not, what are the reliefs the Workman is entitled to.
In I.D. No.42/2006, the reference for adjudication is whether the
action of the Management in terminating the services of the
Workman, Deposit Collector, is legal and justifiable, and if not,
what reliefs the Workman is entitled to.
4. In both the Industrial Disputes, the Industrial Tribunal found that
the termination of the services of the Workmen is not legal. In
I.D. No.24/2006, it is ordered that the Workman is entitled to the
benefits under Section 25-F of the ID Act. In I.D. No.42/2006, it
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
2025:KER:92688
is ordered that the Workman is entitled to be reinstated with
back wages on the basis of the average remuneration paid by
way of commission in the year preceding his termination; that
he is entitled to continuity of service and other benefits, if any,
and that he is entitled to cost.
5. The Management filed the Writ Petition challenging the Awards
passed by the Industrial Tribunal and to dismiss the claims of
the Workmen. The Workman in I.D. No.24/2006 filed the Writ
Petition challenging the Award to the extent to which it refused
to order reinstatement of the Workman with back wages.
6. Parties are referred to in accordance with their status before the
Industrial Tribunal for convenience.
7. I heard the learned Counsel for the Management in these Writ
Petitions, Adv. Sri. Jai Mohan, the learned Counsel for the
Workman in I.D. No.24/2006, Smt. Devika Mohan and the
learned Counsel for the Workman in I.D. No.42/2006, Sri.
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
2025:KER:92688
Thomas P. Kuruvila.
8. The learned Counsel for the Management contended that even
though Article 137 of the Limitation Act, 1963, is not applicable
to the Industrial Disputes, it is well settled that the Industrial
Tribunal/Labour Court should not entertain stale claims. The
Workmen were engaged by the Management only till the year
1994. The Industrial Dispute was raised only in the year 2002
and 2003 after a lapse of nearly 8 years. The Workmen did not
offer any sufficient explanation for the delay in raising the
Industrial Dispute. The long delay in raising the Industrial
Dispute by itself caused prejudice to the Management. There
was no employer-employee relationship between the
Management and the Workmen. They were engaged as Deposit
Collectors with remuneration as commission on the deposits for
a particular Deposit Scheme by the name of Bala Kshema
Deposit (BKD). They were known as Bala Kshema Deposit
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
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Agents. The relationship between the Management and the
Workmen was that of a Principal - Agent relationship. There
was absolutely no intention or contemplation either on the part
of the Workmen or on the part of the Management that such
engagement shall culminate in employment of the Workmen in
the service of the Bank. Originally, the father of the Workman in
I.D. No.24/2006 had been working as a collection agent under
the BKD Scheme. The said Workman used to help the father,
and when his father became too ill, the said Workman was
engaged as a Bala Kshema Deposit Agent as per the
Agreement entered into between the said Workman and the
Management. The duties of Bala Kshema Deposit Agent were
specifically informed to the said Workman as per the Letter
dated 30.10.1989 with effect from 01.04.1989. In the case of
Workman in I.D. No.42/2006, he was initially engaged as
Deposit Collector for the collection of Nitya Nidhi Deposit (NND)
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
2025:KER:92688
Scheme and BKD Deposits as per the Agreement dated
08.10.1977. Later, as per the Agreement dated 19.09.1991, the
said Workman was authorised to act as Deposit Collector only
for the BKD Scheme. During the year 1993 - 1994, the
Management took a policy decision not to open any new
account under the BKD Scheme with effect from 01.06.1994.
The Management issued Circular No.109/1994 dated
19.04.1994, communicating the policy decision. However,
accounts opened up to 31.05.1994 were continued till their due
dates as per the terms and conditions of the BKD Scheme. On
the maturity of the deposits existing as on the date of closure of
the Scheme, no further agency work was available to the
Workmen, and thereafter they ceased to be the agents of the
Management, and the purpose of the contract entered into
between the Management and the Workmen came to an end.
The Workmen also understood the same, and hence the
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13062 OF 2007
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Workmen requested payment of the amount lying in his credit in
the Bala Kshema Agents Contributory Welfare Fund introduced
by the Bank and the same was paid. There was no denial of
employment and there was no employer-employee relationship
between the Management and the Workmen. The relationship
between the Management and the Workmen was purely based
on contract and was in the nature of Principal and Agent. They
lost their work on the expiry of the contract consequent to the
discontinuance of the Deposit Scheme with respect to which
they were engaged. There was no termination of service at all.
It is not retrenchment within the meaning of Section 2(oo) of the
ID Act as the Exclusion Clause (bb) of Section 2(oo) is clearly
applicable. Even though in one case, the reference includes a
question whether there was termination of service or not, the
same was not answered by the Tribunal. Since there was no
retrenchment, Section 25-F of the ID Act is not applicable to the
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13062 OF 2007
2025:KER:92688
Workmen. The jurisdiction of the Tribunal is limited to the points
specifically referred for its adjudication and to matters incidental
thereto, but the Tribunal went beyond the terms of reference and
even introduced its own case which were not pleaded by the
Workmen. Learned Counsel cited the decisions of the Hon'ble
Supreme Court in Indian Banks Association v. Workmen of Syndicate
Bank and Others [(2001) 3 SCC 36], Ajaib Singh v. Sirhind Cooperative
Marketing-cum-Processing Service Society Limited and Another [(1999)
6 SCC 82], Nedungadi Bank Ltd. v. K.P. Madhavankutty and Others
[(2000) 2 SCC 455], Assistant Executive Engineer, Karnataka v.
Shivalinga [(2002) 10 SCC 167], Assistant Engineer, CAD, Kota v. Dhan
Kunwar [(2006) 5 SCC 481], U.P. State Road Transport Corporation v.
Ram Singh and Another [(2008) 17 SCC 627], S.M. Nilajkar and Others v.
Telecom District Manager, Karnataka [(2003) 4 SCC 27], Hariprasad
Shivshanker Shukla and Another v. A.D. Divelkar and Others [1957 SCR
121], Municipal Council, Samrala v. Raj Kumar [(2006) 3 SCC 81], Pottery
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
2025:KER:92688
Mazdoor Panchayat v. Perfect Pottery Co. Ltd. and Another [(1979) 3 SCC
762], Executive Engineer, ZP Engg. Divn. and Another v. Digambara Rao
and Others [(2004) 8 SCC 262], Shankar Chakravarti v. Britannia Biscuit
Co. Ltd. and Another [(1979) 3 SCC 371], Municipal Committee, Tauru v.
Harpal Singh and Another [(1998) 5 SCC 635], General Manager,
Electrical Rengali Hydro Electric Project, Orissa and Others v. Giridhari
Sahu and Others [(2019) 10 SCC 695], J.K. Synthetics Ltd. v. K.P. Agrawal
and Another [(2007) 2 SCC 433], Talwara Cooperative Credit and Service
Society Ltd. v. Sushil Kumar [(2008) 9 SCC 486], Jagbir Singh v. Haryana
State Agriculture Marketing Board and Another [(2009) 15 SCC 327],
and the decisions of this Court in Union of India and Others v. K.V.
Baby and Another [(1999) 1 LLJ 1290] and Kerala State Electricity Board
Ltd. v. The Kerala State Electricity Appellate Authority [2025:KER:65568]
in support of his contentions.
9. The learned Counsel for the Workman in I.D. No.24/2006
contended that Article 137 of the Limitation Act is not applicable
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
2025:KER:92688
to the proceedings under the ID Act. A Reference under the ID
Act could be dismissed as a stale claim only if the Management
pleads and proves that the Management is prejudiced by the
delay. There was no such pleading and proof from the side of
the Management. The delay is well explained by the Workmen.
It is well settled by the decision of the Hon'ble Supreme Court
in Indian Banks Association (supra) that deposit collectors are
Workmen within the meaning of Section 2(s) of the ID Act. The
appointment of the said Workman was not for any definite
period. Even though the Management contended that the
Contract is for a definite period, no such Contract was produced.
In the identical Agreement produced as Ext.P1 in the Writ
Petition also, no time period is prescribed for the contract. Even
if the Management had discontinued any deposit scheme, the
Management could have employed the Workmen in other
Deposit Schemes that are continued by the Bank. There was no
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
2025:KER:92688
expiry of the contract requiring renewal of the contract, and
hence the Exclusion Clause (bb) of Section 2(oo) of the ID Act
is not attracted. The termination of service of the Workman
amounts to retrenchment within the meaning of Section 2(oo) of
the ID Act. Since the retrenchment is illegal, the Tribunal ought
to have ordered reinstatement with back wages. The learned
Counsel cited the decision of the Hon'ble Supreme Court in M/s
Hindustan Steel Ltd. v. Presiding Officer, Labour Court, Orissa and
Others [(1976) 4 SCC 222] to the effect that retrenchment as defined
under Section 2(oo) of the ID Act is intended not to include
termination of service by efflux of time in terms of the agreement
between the parties.
10. The learned Counsel for the Workman in I.D. No.42/2006
advanced arguments supporting the contentions of the learned
Counsel for the Workman in I.D. No.24/2006. It is further
contended that the Workman was waiting for the verdict in the
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
2025:KER:92688
Indian Banks Association (supra) to raise the dispute. The delay is
well explained by the Workman. The Workman was appointed
as Deposit Collector for both the BKD and NND Schemes as
per two separate Agreements dated 08.10.1977 produced as
Exts.P1 and P2 in the Writ Petition. Ext.P3 dated 19.09.1991
was executed, superseding Ext.P1 Agreement with respect to
the BKD scheme alone. It does not mean that the Ext.P2
Agreement with respect to the NND Scheme was discontinued.
There was no evidence before the Tribunal that the NND
Scheme was discontinued by the Management. Ext.P4
Circular would reveal that the Management has discontinued
only the BKD Scheme. At any rate, the Management could
have allowed the Workman to continue under the NND
Scheme. The Management illegally terminated the service of
the Workman. The Tribunal was fully justified in ordering the
reinstatement of the Workman with back wages. The learned
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13062 OF 2007
2025:KER:92688
Counsel cited the decision of this Court in State Bank of India,
represented by its Assistant General Manager (HR) v. Controlling
Authority and Others [2024 SCC OnLine Ker 6458] to show that on
discontinuance of a Deposit Scheme by the State Bank of
India, the Deposit Collectors therein were offered appointment
as peons. Learned Counsel cited the decision of this Court in
The Deputy General Manager, Canara Bank v. The General Secretary,
All Kerala Bank's Deposit Collector's Association, Kozhikkode, and
Another [2016 SCC OnLine Ker 20274], in which the Indian Banks
Association (supra) is followed.
11. I have considered the rival contentions.
12. In view of the decision of the Hon'ble Supreme Court in Indian
Banks Association (supra), it is well settled that the Deposit
Collectors are Workmen within the meaning of Section 2(s) of
the ID Act. It is held that the Deposit Collectors are not regular
employees of the Bank; that they, nevertheless, are workers
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
2025:KER:92688
within the meaning of the term as defined in the Industrial
Disputes Act; that there is clearly a relationship of master and
servant between the Deposit Collectors and the Bank
concerned.
13. The next question to be answered is whether the references
are liable to be rejected on account of delay. In Ajaib Singh
(supra), the Hon'ble Supreme Court held that the provisions of
Article 137 of the Schedule to Limitation Act, 1963, are not
applicable to the proceedings under the ID Act and that the
relief under the ID Act cannot be denied to the Workman merely
on the ground of delay; that the plea of delay if raised by the
employer is required to be proved as a matter of fact by
showing the real prejudice and not as a merely hypothetical
defence; that no reference to the labour court can be generally
questioned on the ground of delay alone; that even in a case
where the delay is shown to be existing, the tribunal, labour
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
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court or board, dealing with the case can appropriately mould
the relief by declining to grant back wages to the Workman till
the date he raised the demand regarding his illegal
retrenchment/termination or dismissal; that the Court may also
in appropriate cases direct the payment of part of the back
wages instead of full back wages. In Nedungadi Bank Ltd. (supra),
the Hon'ble Supreme Court held that law does not prescribe
any time-limit for the appropriate Government to exercise its
powers under Section 10 of the ID Act; that it is not that this
power can be exercised at any point of time and to revive
matters which had since been settled; that power is to be
exercised reasonably and in a rational manner; that there
appears to us to be no rational basis on which the Central
Government has exercised powers in this case after lapse of
about seven years of order dismissing the respondent from
service; that at the time reference was made no industrial
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
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dispute existed or could be even said to have been
apprehended; that a dispute which is stale could not be the
subject matter of reference under Section 10 of the ID Act; and
that as to when a dispute can be said to be stale would depend
on the facts and circumstances of each case. In Shivalinga
(supra), the Hon'ble Supreme Court restored the award of the
Labour Court rejecting the reference on the ground of delay
after reversing the judgment of the High Court setting aside the
award, finding that the delay of 9 years would be fatal to the
case; that the Labour Court noticed that it would be impossible
to maintain records for such a long period and place them
before the Labour Court and that a situation of that nature
would render the claim to have become stale. In Dhan Kunwar
(supra), the Hon'ble Supreme Court held that so far as delay in
seeking the reference is concerned, no formula of universal
application can be laid down. In U.P. State Road Transport
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
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Corporation (supra), the Hon'ble Supreme Court found that in
several decisions it is held that while delay cannot by itself be
sufficient reason to reject an industrial dispute, nevertheless
the delay cannot be unreasonable; that the Labour Court
should not have entertained the industrial dispute given the
enormous delay; that the reason for diligence and promptness
lies in the fact that the records pertaining to an employee might
have been destroyed and it would be difficult to obtain
witnesses who would be competent to give evidence so many
years later if the Labour Court wishes to hold a further enquiry
into the matter; that the delay of 13 years is unreasonable and
that the mere fact that the respondent was making repeated
representations would not justify his raising the issue before
the Labour Court after 13 years.
14. In the cases at hand, there is delay of nearly 8 years in raising
the dispute. There is no limitation period for the proceedings
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13062 OF 2007
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under the ID Act. Article 137 of the Limitation Act is not
applicable. The question is whether the claim is a stale claim
or not. The Management has not pleaded and proved any
prejudice on account of the delay. The Management had no
case that on account of the delay, it could not produce any
evidence to substantiate its case. Hence, I find that the delay
in raising the disputes is not fatal to the claim and does not
make the claim stale. The Tribunal is fully justified in holding
that the claims are not time-barred and stale. Of course, the
period of delay is to be taken into consideration while moulding
the reliefs, in case the termination is found illegal.
15. The next contention of the learned Counsel for the
Management is that there was no termination of service and
that before considering the question whether the termination is
legal or not, the Tribunal ought to have considered the question
of whether there was termination of service or not. In I.D.
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13062 OF 2007
2025:KER:92688
No.24/2006, one of the questions for reference is whether the
service of the Workman was terminated by the Management.
It is true that the Tribunal did not consider this question. If the
Tribunal failed to answer one of the questions referred, in
normal case, the matter is liable to be remanded to the Tribunal
for considering the said question. But considering the fact that
the Industrial Disputes are of the years 2002-2003, I think it is
better for this Court to consider whether such a question really
arises in the matter for consideration. The question whether the
service of the Workman was terminated by the Management is
included in the reference of only one case. The contention of
the learned Counsel for the Management is that there was no
termination of service since their service came to an end on the
expiry of the contract consequent to discontinuance of the
Deposit Scheme. I am unable to accept the said contention.
Even if the service of the Workman came to an end on account
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13062 OF 2007
2025:KER:92688
of expiry of the contract or by discontinuance of the Deposit
Scheme in which the Workman was working, it amounts to
termination of service. Once it is admitted or proved that the
Workman was in the service of the Management before his
discontinuance, whatever be the reason for his discontinuance,
it is a termination of service. Hence, I am of the view that there
is no need to remand the matter to the Tribunal for considering
this question, as this question does not really arise for
consideration and the Management is not in any way
prejudiced on account of the non-consideration of the same.
16.The next contention of the learned Counsel for the
Management is that the Tribunal wrongly fixed the burden on
the Management to disprove that the Workmen did not work for
a continuous period of 240 days in a year. Learned Counsel
cited the decision in Shankar Chakravarti (supra) in support of his
contention. The Hon'ble Supreme Court held that any party
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13062 OF 2007
2025:KER:92688
appearing before it must make a claim or demur the claim of
the other side and when there is a burden upon it to prove or
establish the fact so as to invite a decision in its favour, it has
to lead the evidence; that Obligation to lead evidence to
establish an allegation made by the party is on the party
making the allegation; that the test would be who would fail if
no evidence is led; that it must seek an opportunity to lead
evidence and lead evidence; a contention to substantiate
which evidence is necessary has to be pleaded; that if there is
no pleading raising a contention there is no question of
substantiating such a non-existing contention by evidence; that
it is well-settled that allegation which is not pleaded, even if
there is evidence in support of it, cannot be examined because
the other side has no notice of it and if entertained it would
tantamount to granting an unfair advantage to the first
mentioned party; that the rules of fair play demand that where
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13062 OF 2007
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a party seeks to establish a contention which if proved would
be sufficient to deny relief to the opposite side, such a
contention has to be specifically pleaded and then proved; that
if there is no pleading there is no question to proving something
which is not pleaded and that it is very elementary. In the case
at hand, there was ample evidence before the Tribunal that the
Workmen had worked for more than one year. The contract
dated 08.10.1977 in the case of the Workman in I.D.
No.42/2006 and the Letter of appointment dated 30.10.1989
with effect from 01.04.1989 in the case of the Workman in I.D.
No.24/2006 are admitted by the Management. The specific
contention of the Management is that they worked till the
discontinuance of the Deposit Scheme in the year 1994. It is
well settled that the strict rules of pleadings and evidence are
not applicable to the proceedings before the Labour Court and
Industrial Tribunal. Hence, contention regarding the burden of
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13062 OF 2007
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proof raised by the Counsel for the Management is
unsustainable.
17. Then the next question to be considered is whether the
termination of service of the Workmen amounts to
retrenchment within the meaning of Section 2(oo) of the ID Act.
As per Section 2(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, excluding those mentioned in Clauses (a)
to (c) therein. The contention of the learned Counsel for the
Management is that the case of the Workmen would come
under the Exclusion Clause (bb) of Section 2(oo). Exclusion
Clause (bb) covers 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
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
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in that behalf contained therein.
18. In M/s Hindustan Steel Ltd. (supra) cited by the learned Counsel
for the Workman in I.D. No.24/2006 is to the effect that
retrenchment as defined under Section 2(oo) of the ID Act is
intended not to include termination of service by efflux of time
in terms of the agreement between the parties. But as rightly
pointed out by the learned Counsel for the Management, the
said decision was rendered before the insertion of the
Exclusion Clause (bb) to Section 2(oo).
19.In S.M. Nilajkar (supra), the Hon'ble Supreme Court explained the
term retrenchment as follows:
"12. "Retrenchment" in its ordinary connotation is discharge of
labour as surplus though the business or work itself is continued.
It is well settled by a catena of decisions that labour laws being
beneficial pieces of legislation are to be interpreted in favour of
the beneficiaries in case of doubt or where it is possible to take
WPC Nos.32084&33809 OF 2006 &
13062 OF 2007
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two views of a provision. It is also well settled that the Parliament
has employed the expression "the termination by the employer
of the service of a Workman for any reason whatsoever" while
defining the term "retrenchment", which is suggestive of the
legislative intent to assign the term 'retrenchment' a meaning
wider than what it is understood to have in common parlance.
There are four exceptions carved out of the artificially extended
meaning of the term "retrenchment", and therefore, termination
of service of a Workman so long as it is attributable to the act of
the employer would fall within the meaning of "retrenchment"
dehors the reason for termination. To be excepted from within
the meaning of "retrenchment" the termination of service must
fall within one of the four excepted categories. A termination of
service which does not fall within the categories (a), (b), (bb) and
(c) would fall within the meaning of "retrenchment".
13. The termination of service of a Workman engaged in a
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13062 OF 2007
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scheme or project may not amount to retrenchment within the
meaning of sub-clause (bb) subject to the following conditions
being satisfied:
(i) that the Workman was employed in a project or scheme of
temporary duration;
(ii) the employment was on a contract, and not as a daily - wager
simpliciter, which provided inter alia that the employment shall
come to an end on the expiry of the scheme or project;
(iii) the employment came to an end simultaneously with the
termination of the scheme or project and consistently with the
terms of the contract; and
(iv) the Workman ought to have been apprised or made aware
of the abovesaid terms by the employer at the commencement
of employment."
20.The contention of the learned Counsel for the Management is
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13062 OF 2007
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that all the conditions laid down in Paragraph 13 above are
satisfied in this case, and hence the termination of service of the
Workmen engaged in the BKD Scheme is covered under
Exclusion Clause (bb) and hence it will not amount to
retrenchment within the meaning of Section 2(oo) of the ID Act.
Learned Counsel further invited my attention to Paragraph 16 of
the said decision in which the Hon'ble Supreme Court referred
to its own decision in Hariprasad Shivshanker Shukla (supra) in
which it is held that 'retrenchment' as defined in Section 2(oo)
and as used in Section 25-F has no wider meaning than the
ordinary accepted connotation of the word, that is, discharge of
surplus labour or staff by the employer for any reason
whatsoever otherwise than by way of punishment inflicted in
disciplinary action; and that retrenchment was held to have no
application where the services of all Workmen were terminated
by the employer on a real and bona fide closure of business or
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13062 OF 2007
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on the business or undertaking being taken over by another
employer. The Hon'ble Supreme Court held that the above-said
view of the law taken by the Supreme Court resulted in
promulgation of the Industrial Disputes (Amendment)
Ordinance, 1957 with effect from 27.04.1957, later on replaced
by an Act of Parliament (Act 18 of 1957) with effect from
06.06.1957 whereby Section 25-FF and Section 25-FFF were
introduced in the body of the Industrial Disputes Act, 1957; that
Section 25-FFF deals with closing down of undertakings; that
the term 'undertaking' is not defined in the Act; that the relevant
provisions use the term 'industry'; that undertaking is a concept
narrower than industry; that an undertaking may be a part of the
whole, that is, the industry; that it carries a restricted meaning;
that with this amendment it is clear that closure of a project or
scheme by the State Government would be covered by closing
down of an undertaking within the meaning of Section 25-FFF;
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13062 OF 2007
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that the Workman would therefore be entitled to notice and
compensation in accordance with the provisions of Section 25-
F though the right of employer to close the undertaking for any
reason whatsoever cannot be questioned; that the undertaking
having been closed on account of unavoidable circumstances
beyond the control of the employer, i.e., by its own force as it
was designed and destined to have a limited life only, the
compensation payable to the Workman under clause (b) of
Section 25-F shall not exceed his average pay for three months.
S.M. Nilajkar (supra) is followed in Municipal Council, Samrala (supra).
The recitals in the Contracts executed by the Management and
the Workmen do not show that the Deposit Scheme was for a
temporary period. It shows that the contract shall remain in force
until otherwise terminated by the Bank at its discretion. It does
not state anything about the expiry of the scheme or consequent
termination of employment. Since the expiry of the scheme and
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13062 OF 2007
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consequent loss of employment were not contemplated at the
time of executing the contracts, there is no question of the
Workmen being aware of such things. I am of the view that the
aforesaid conditions laid down by the Hon'ble Supreme Court
are not satisfied in the cases at hand to come under the
Exclusion Clause (bb) of Section 2(oo) of the ID Act. In view of
the aforesaid decision, closure of a deposit scheme by the
Management would be covered by closing down of the
undertaking within the meaning of Section 25-FFF and the
Workmen is entitled to get notice and compensation under
Section 25-F of the ID Act. Hence, the Workman in I.D.
No.24/2006 is only entitled to get notice and compensation
under Section 25-F of the ID Act since the BKD Scheme in which
he was working was discontinued by the Management. He is not
entitled to get reinstatement with back wages as, so far as he is
concerned, discontinuance of BKD Scheme amounts to closure
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13062 OF 2007
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of undertaking. But in the case of the Workman in I.D.
No.42/2006, he was originally working in two Deposit Schemes
as per the separate Contracts dated 08.10.1977. Later, Contract
dated 08.10.1977 with respect to BKD Scheme was substituted
with the Contract dated 19.09.1991. The contention of the
learned Counsel for the Management is that the execution of
Contract dated 19.09.1991 only for the BKD Scheme would
prove that Contract dated 08.10.1977 for the NND Scheme
came to an end. I am unable to accept the said contention.
Contract dated 08.10.1977 for NND Scheme does not provide
any time period. There is nothing on record to prove that
Contract dated 08.10.1977 for the NND Scheme was terminated
by the Management. In such a case, it could only be inferred
that the Workman in I.D. No.42/2006 was illegally denied work
under NND Scheme. Even though the Management produced a
Circular for the new NND Scheme it does not show that the
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13062 OF 2007
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existing NND Scheme is stopped. Denial of work was not on
account of the stoppage of the Scheme. The Tribunal rightly
ordered reinstatement. But while ordering back wages, the
Tribunal failed to take into consideration the delay in raising the
dispute by the Workman. The Tribunal should not have ordered
back wages for the period covered by the delay in raising the
Industrial Dispute by the Workman. In view of the aforesaid
decisions of the Hon'ble Supreme Court discussed while
considering the question of limitation, the period of delay has to
be taken into consideration while moulding the reliefs to the
Workman. The exact date from which the Workman was denied
work is not there in evidence. It appears from the Circular dated
19.04.1994 discontinuing BKD Deposits that the Deposits
opened up to 31.05.1994 would continue up to the maturity of
the deposits. Even though the Management contended that the
service of the Workman was discontinued with effect from
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13062 OF 2007
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December 1993, there is no evidence for that. The Workman in
I.D. No.24/2006 complained to the District Labour Officer,
alleging denial of employment only on 21.07.2002. The
Workman in I.D..No.42/2006 complained to the District Labour
Officer, alleging denial of employment only on 05.12.2003. The
Management is not in any way responsible for the delay caused
by the Workmen in raising the dispute. The Workmen ought to
have raised the dispute within a reasonable time. The
Management could not be ordered to pay back wages for the
period of delay in raising the Industrial Dispute caused by the
Workmen. Hence, whichever be the date of denial of work, in
case of unreasonable delay on the part of raising the dispute,
the Management could be ordered to pay back wages only from
the date of raising the dispute before the District Labour Officer.
21. The decision of the Hon'ble Supreme Court in J.K. Synthetics Ltd.
(supra) is cited to substantiate the point that back wages are no
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13062 OF 2007
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longer considered to be an automatic or natural consequence of
reinstatement. In the decision of the Hon'ble Supreme Court in
Giridhari Sahu (supra) cited by the Counsel for the Management,
the dictum is to the effect that the Labour Court or the Industrial
Tribunal is the final court of facts, but if a finding of fact is
perverse or if the same is not based on legal evidence the High
Court exercising a power either under Article 226 or under
Article 227 of the Constitution can go into the question of fact
decided by the Labour Court or the Tribunal; that a finding of
fact which is not supported by any evidence would be perverse
and in fact would constitute an error of law enabling the writ
court to interfere; and that if the overwhelming weight of the
evidence does not support the finding, it would render the
decision amendable to certiorari jurisdiction. In Municipal
Committee, Tauru (supra), cited by the Counsel for the
Management, the Hon'ble Supreme Court held that there is no
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13062 OF 2007
2025:KER:92688
substantial justice when the Court or Tribunal gives relief to a
Workman which is on a basis that is totally contrary to the basis
upon which he approached it, which, indeed, is the employer's
case. Substantial justice must be done both to the employer and
the employees. In Talwara Cooperative Credit and Service Society Ltd.
(supra) cited by the Counsel for the Management, the Hon'ble
Supreme Court held that the grant of a relief of reinstatement, it
is trite, is not automatic; that grant of back wages is also not
automatic; that the Industrial Courts while exercising their power
under Section 11-A of the Industrial Disputes Act, 1947, are
required to strike a balance in a situation of this nature; that for
the said purpose, certain relevant factors, as for example,
nature of service, the mode and manner of recruitment, viz.,
whether the appointment had been made in accordance with the
statutory rules so far as a public sector undertaking is
concerned, etc., should be taken into consideration. In Jagbir
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13062 OF 2007
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Singh (supra), the Hon'ble Supreme Court held that earlier view
of this Court articulated in many decisions reflected the legal
position that if the termination of an employee was found to be
illegal, the relief of reinstatement with full back wages would
ordinarily follow; that however, in recent past, there has been a
shift in the legal position and in long line of cases, this Court has
consistently taken the view that relief by way of reinstatement
with back wages is not automatic and may be wholly
inappropriate in a given fact situation even though the
termination of an employee is in contravention to the prescribed
procedure; and that compensation instead of reinstatement has
been held to meet the ends of justice. Referring to Uttaranchal
Forest Development Corpn. v. M. C. Joshi [(2007) 9 SCC 353], it is
further held that relief of reinstatement with full back wages were
not being granted automatically only because it would be lawful
to do so, and several factors have to be considered, a few of
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13062 OF 2007
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them being whether the appointment of the Workman had been
made in terms of statutory rules and the delay in raising the
industrial dispute. In view of these settled propositions of law, I
find that there is perversity in the award of the Tribunal in I.D.
No.42/2006 to the extent to which it granted back wages for the
period from the date of denial of work to the date of complaint
to the District Labour Officer. In order to strike a balance and
ensure substantial justice between the parties, taking into
account the totality of the facts and circumstances of the case,
I am of the view that the order of reinstatement with back wages
ordered by the Tribunal in I.D. No.42/2006 is liable to be
modified with reinstatement with back wages from 05.12.2003
calculated on the basis of the average remuneration paid by way
of commission to the Workman in the year preceding his
termination.
22. Accordingly, W.P.(C) Nos.32084/2006 and 33809/2006 are
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13062 OF 2007
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dismissed, confirming the Award dated 31.08.2006 in I.D.
No.24/2006. W.P.(C) No.13062/2007 is allowed in part
modifying the Award dated 07.12.2006 in I.D. No.42/2006 by
substituting the order of reinstatement with back wages
calculated on the basis of the average remuneration paid by way
of commission to the Workman in the year preceding his
termination with reinstatement with back wages from
05.12.2003 calculated on the basis of the average remuneration
paid by way of commission to the Workman in the year
preceding his termination.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
jma
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13062 OF 2007
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APPENDIX OF WP(C) NO. 32084 OF 2006
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE AGREEMENT DATED 19/9/1991
Exhibit P2 TRUE COPY OF THE CIRCULAR NO. 109/1994 DATED
19/4/1995
Exhibit P3 TRUE COPY OF THE PETITION FILED BY THE 1ST
RESPONDENT DATED 21/7/2002
Exhibit P4 TRUE COPY OF THE LETTER IN 2ND RESPONDENT
14/08/2003
Exhibit P5 TRUE COPY OF THE CLIENT'S STATEMENT ID NO. 42/2003
LABOUR COURT CENTRAL, ERNAKULAM DATED 30/11/2003
Exhibit P6 TRUE COPY OF THE REPLY STATEMENT FILED BY THE
PETITIONER ID NO. 42/2003 DATED 10/7/2004
Exhibit P7 TRUE COPY OF THE AWARD PASSED BY THE 2ND RESPONDENT
DATED 31/8/2006
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APPENDIX OF WP(C) NO. 33809 OF 2006
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE AWARD DATED 31.8.2006 PASSED BY
THE CENTRAL GOVERNMENT LABOUR COURT IN
I.D.24/2006.
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13062 OF 2007
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APPENDIX OF WP(C) NO. 13062 OF 2007
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE AGREEMENT BETWEEN PETITIONER AND
1ST RESPONDENT REGARDING NND AGENCY
Exhibit P2 TRUE COPY OF THE AGREEMENT BETWEEN PETITIONER AND
1ST RESPONDENT REGARDING BKD AGENCY
Exhibit P3 TRUE COPY OF THE AGREEMENT DATED 19.09.1991
BETWEEN THE PETITIONER AND 1ST RESPONDENT
Exhibit P4 CIRCULAR BEARING NO.109/94 DATED 19.04.94 ISSUED
BY THE BANK
Exhibit P5 TRUE COPY OF THE CLAIM STATEMENT NO.ID 42/03 FILED
BY THE 1ST RESPONDENT.
Exhibit P6 TRUE COPY OF THE REPLY STATEMENT DATED 10.07.2004
IN I.D.NO.42/06 FILED BY THE PETITIONER.
Exhibit P7 TRUE COPY OF THE AWARD PASSED BY THE 2ND RESPONDENT
TRIBUNAL DATED 07.12.2006.
