A. Abhilash v. The Management of Travancore Titanium Products Ltd., Kochuveli, Thiruvananthapuram & The Managing Director, Travancore Titanium Products Ltd., Kochuveli, Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 6TH DAY OF MARCH 2014/15TH PHALGUNA, 1935 ## **O.P.(LC).No.975 of 2011 (O)** ------------------------------------------------- AGAINST THE AWARD IN I.D.No.22/2009 DATED 27.07.2010 OF THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ERNAKULAM. --------- PETITIONER:- --------------------- A.ABHILASH, ABHILASH BHAVAN, THOMBODU, ARASUMPARAMB, NEDUMANGADU P.O., TRIVANDRUM DISTRICT. BY ADV. SRI.SANU.S.PANICKER. RESPONDENTS:- ------------------------- 1. THE MANAGEMENT OF TRAVANCORE TITANIUM PRODUCTS LTD., KOCHUVELI, THIRUVANANTHAPURAM, REP. BY ITS SECRETARY. 2. THE MANAGING DIRECTOR, TRAVANCORE TITANIUM PRODUCTS LTD, KOCHUVELI, THIRUVANANTHAPURAM. R1 & R2 BY ADVS. SRI.K.ANAND (SENIOR ADVOCATE) SMT.LATHA KRISHNAN. THIS OP (LABOUR COURT) HAVING BEEN FINALLY HEARD ON 06-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(LC).No.975 of 2011 (O) -------------------------------------- ## **APPENDIX** PETITIONER'S EXHIBITS:------------------------------------- EXT.P1 PHOTO COPY OF AWARD DATED 27.7.2010 PASSED BY THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, ERNAKULAM IN I.D.NO.22 OF 2009. RESPONDENT'S EXHIBITS:- ---------------------------------------NIL. vku/- ( true copy ) K.Vinod Chandran, J. **------------------------------** O.P.(LC).No.975 of 2011-O **-------------------------------** Dated this the 06[th] day of March, 2014 ## **JUDGMENT** The petitioner challenges the award of the Central Government Industrial Tribunal (for brevity “Industrial Tribunal”), which was concerned with the reference as to whether the action of the management in terminating the services of the petitioner, from the canteen services of the management, was justified or not. 2. The brief facts are that the petitioner's father was working in the management-Company and he was dismissed from service, for habitual absence, in 2003. After the dismissal, the father of the petitioner died on 31.03.2004. The petitioner's mother then made an application for getting an employment for the petitioner under the dying-in-harness scheme. The management-Company, however, informed the petitioner's mother that no scheme was applicable in the case of the petitioner, since the petitioner's father, at the time of his death, was not in the employment of the Company. Subsequently, however, on the direction of the OP(LC).No.975 of 2011-B - 2 - Government, at the request of the petitioner's mother, the petitioner was appointed as a contract employee in the canteen. The appointment was continued, according to the petitioner, for more than 240 days with artificial break in service. Subsequently, the petitioner alleges, that he was terminated from the service by not renewing the contract and, hence, he is entitled to reinstatement or in the alternative, retrenchment compensation. 3. The management, however, disputed the claim of the petitioner, asserting that the petitioner is not entitled to any manner of compassionate appointment. The contention of the management was that the petitioner was employed initially on a contract basis on the direction of the Government and the said contract stood terminated on the expiry of the term. Subsequently, he made an application and again he was appointed as a contract employee. This continued for certain periods and eventually he was appointed for 89 days, when he did not turn up for work. The petitioner, in fact, requested for 10 days time to join duty and then approached the Government for regularisation. In the context of the petitioner - 3 - OP(LC).No.975 of 2011-B having not turned up for duty, it cannot be said that there was even cessation of the contractual employment, since it was on his own volition the petitioner abandoned employment. 4. The Industrial Tribunal examined the documents produced by the workman and the management, respectively as Exhibits W-1 to W-11 and M-1 to M-24. The Industrial Tribunal found that the direction of the Government was to offer employment to the petitioner-workman on contract basis, as a special case, on compassionate ground. The petitioner was offered employment initially for 179 days. On the expiry of the said term, the petitioner again made an application, by the consideration of which the petitioner was again offered employment for another 179 days. Admittedly this continued for various periods and eventually when the petitioner was offered 89 days employment, he sought for ten days time to join duty. The petitioner also is found to have not reported for work even after ten days. In fact, such finding has been entered by the Tribunal on the basis of the answer given by the petitioner in cross-examination. - 4 - OP(LC).No.975 of 2011-B 5. The learned counsel for the petitioner would contend that a compassionate appointment could not be a contract appointment and the Hon'ble Supreme Court in **Union of India v. Ramchander [(2005) 9 SCC 365]** has deprecated the practise of employing persons with artificial break in service. 6. What comes to fore, in the instant case, is that the petitioner's father, admittedly, was dismissed from service prior to his death. The petitioner's father, hence, was not in harness at the time of his death and no compassionate appointment as per an approved scheme could be extended to the petitioner. The petitioner's appointment also, though on compassionate grounds, was not in accordance with a valid scheme applicable to the employees of the management. The application made under the scheme was rejected by the Company on valid grounds. The appointment then made, was only on the direction of the Government, which indicates that the contractual appointment was directed by the Government on compassionate grounds. The use of the word “compassion”, alone, would not make the appointment as OP(LC).No.975 of 2011-B - 5 - one made under a properly framed scheme. 7. The decision of the Hon'ble Supreme Court is not applicable in so far as the petitioner, admittedly, had not joined when he was last offered a contractual engagement. The Industrial Tribunal also has clearly found that the subsequent appointments on contract basis made by the management-Company was on the basis of the specific request made by the petitioner. The requests made by the petitioner were produced before the Tribunal. Though the petitioner in his deposition contended that he was forced to make such representation, the Tribunal found that there was no such pleading in the claim statement or the rejoinder. It was also found that there was no obligation on the management to employ the petitioner and the same was done only due to the letter of the State Government, which merely directed a compassionate treatment to be extended. 8. The learned counsel for the petitioner has a further contention that there was no contract as such or an independent contractor to carry on the statutory canteen as provided in the - 6 - OP(LC).No.975 of 2011-B Factories Act. This contention is only to be noticed to be rejected. There is a request made by the petitioner, a consequent offer by the Company and an acceptance by the petitioner. 9. In the circumstances, this Court finds that the Award of the Industrial Tribunal is perfectly in order and there is no illegality in the same. The reference made by the Government with respect to the justifiability of the termination of the petitioner was rightly affirmed by the Industrial Tribunal, in favour of the management. Original Petition stands dismissed. No costs. Sd/K.Vinod Chandran, Judge vku. ( true copy )