Chinmaya Vidyalaya Kannankulangara, Thrippunithura v. P.K. Geetha Devi Pallattu Padinjuare Puthenpura Chemmannathukara and The Labour Court, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **& THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 18TH DAY OF FEBRUARY 2016/29TH MAGHA, 1937** **WA.No. 199 of 2016 () IN WP(C).22192/2009 -------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 22192/2009 of HIGH COURT OF KERALA DATED 22-12-2015** **APPELLANT(S):** **------------** **CHINMAYA VIDYALAYA KANNANKULANGARA, THRIPPUNITHURA REPRENTED BY ITS SECRETARY SANTHA BALAKRISHNAN (EXPIRED) (NOW REPRESENTED BY SHRI MK KUTTAPPAN MENON (TRUSTEE OF CHINMAYA MISSION EDUCATIONAL AND CULTURAL TRUST - GREATER COCHIN)** **BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR** **SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS** **RESPONDENT(S):** - **--------------** **1. MRS.P.K.GEETHA DEVI PALLATTU PADINJARE PUTHENPURA CHEMMANATHUKARA, VAIKOM PIN-686 606** **2. THE LABOUR COURT, ERNAKULAM - 682 031.** **R BY GOVERNMENT PLEADER MR JOSEPH GEORGE R BY SRI.PAULSON C.VARGHESE** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18-02-2016 ALONG WITH W.A.NO.229 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **kkj** **K.SURENDRA MOHAN & P.V.ASHA, JJ. --------------------------------------------W.A. Nos.199 & 229 of 2016 ---------------------------------------------Dated this the 18[th] day of February, 2015** ## **J U D G M E N T** ## Surendra Mohan, J. Both these appeals are directed against the common judgment of the learned Single Judge dismissing WP(C) Nos.22192 and 18264 of 2009. As per the judgment under appeal, the Award of the Labour Court ordering reinstatement of the first respondent to the School has been confirmed. 2. The short facts necessary for our purpose are the following:- The first respondent was an employee of the appellant. She raised an industrial dispute alleging denial of the employment. The dispute was referred to the second respondent Labour Court. The first respondent submitted her claim statement contending that she was employed as Typist in the establishment of the appellant and that her services were continuous and uninterrupted since the date -:2:- ## W.A. Nos.199 & 229 of 2016 of her initial appointment, 01.08.1996. The appellant is an educational institution where there are more than three thousand students and more than 120 employees including teachers and other non teaching staff. Though it is a scheduled employment under the Minimum Wages Act, the first respondent was paid only a salary of 2,250/- per₹ month. The first respondent had availed maternity leave during the period from 1.4.2000 to 30.06.2000 but was denied her eligible salary for the said period. She complains that various other benefits like earned leave etc. were also denied to her. It was alleged that when her representations proved to be futile, she had approached the Labour Court. She was terminated on the date on which a notice from the Lower Court was received by the appellant. A further allegation was that a new Typist was appointed in her place on the very next day. According to the first respondent, her termination was without any notice, conduct of an enquiry or initiation of any other disciplinary action against her. Therefore, she claimed reinstatement in -:3:- ## W.A. Nos.199 & 229 of 2016 service. 3. The claim of the first respondent was disputed by the appellant. Her claim of continuous service from 01.08.1996 was disputed. The case of the appellant was that, though the first respondent was appointed initially on 01.08.1996 the said appointment was only up to 31.10.1996. Her employment was later on extended up to 31.03.1997. A fresh order was issued on 30.04.1997 appointing her for a period of one year. Thereafter, she was appointed for various spells from 01.06.1998 to 31.05.1999 and from 01.07.2000 to 31.05.2001. Thereafter, no fresh appointment order was issued. It was therefore contended that, the petitioner's employment was neither continuous nor uninterrupted. According to the appellant, her service was only a contract appointment that was terminated on the expiry of the term of her contract. The allegation of non payment of minimum wages as well as maternity benefits were denied. According to the appellant, her services were necessary only when the office was functioning from Layam -:4:- ## W.A. Nos.199 & 229 of 2016 Road, Tripunithura. The appellant had shifted their establishment to Kannamkulangara where they are having a permanent typist. The services of the first respondent was not required after the establishment was shifted to Kannamkulangara. It was for the said reason that, her appointment was not renewed. 4. The Labour Court took evidence on the above contentions, examined one witness on the side of the Management and the first respondent in support of her case. Documents M1 to M4, W1 to W3 were also marked. On an appreciation of the evidence on record, the Labour Court came to the conclusion that though the employment of the first respondent was spread over a period of about five years in broken spells, she had been in continuous employment for more than 240 days. Therefore, she was entitled to all the benefits of a permanent employee. It was found that, the denial of employment to the first respondent was without any justification since the first respondent was not gainfully employed elsewhere. It was held that she was ## -:5:- ## W.A. Nos.199 & 229 of 2016 entitled to reinstatement in service with full back wages including continuity in service. The appellant unsuccessfully challenged the Award of the Labour Court in the Writ Petitions referred to above. 5. Elaborate contentions were advanced before the learned Single Judge. The learned Judge considered the rival contentions, relied on various decisions on the point and found that the Award of the Labour Court was justified in the circumstances. The appellant is aggrieved by the order of the learned Single Judge. 6. According to Advocate Benny P.Thomas who appears for the appellant, it is clear from exhibits P1 to P5 which are the appointment orders of the first respondent, that she had been appointed only for the periods specified therein. She had accepted the employment, specifically accepting the terms contained in exhibit P1 to P5. She was appointed only on a consolidated payment subject to the terms and conditions stipulated in the appointment orders. Though it is true that, her appointment was being extended ## -:6:- ## W.A. Nos.199 & 229 of 2016 periodically, but her ultimate termination was only because of the fact that her appointment was not extended further. In view of the above, it is contended that this is a case in which her termination does not answer the contention of retrenchment contained in Section 2(oo)(bb) of the Industrial Disputes Act, 1947. Reliance is also placed on the decision of the Apex Court in **Municipal Council, Samrala v. Sukhwinder Kaur** [(2006) 6 SCC 516] in support of the above contention. The first respondent having admitted to the fact that she was employed only for a definite and specified period, according to the learned counsel, is not entitled to turn around and claim that she had been appointed on permanent basis. The concept of retrenchment is available only in the case of a permanent employee. Therefore, it is contended that both the Labour Court and the learned Single Judge seriously erred in directing the first respondent to be reinstated in service. 7. Advocate Paulson C. Varghese appears for the first respondent. According to the learned counsel, though ## -:7:- ## W.A. Nos.199 & 229 of 2016 the appointment of the first respondent was only for a specified period, the fact remains that she was being continuously employed though on the basis of successive appointment orders issued. Exhibits P1 to P5 are referred to point out that, immediately on the next day of the expiry of the term of the appointment order, a fresh appointment order was issued. The first respondent being an employee had no choice except to accede to the terms and conditions stipulated by the appellant in her appointment orders. It is contended that, the normal practice of the appellant was to continue an employee for a period of three years on the basis of successive appointment orders and thereafter, to absorb them permanently. In the case of the first respondent, only for the reason that she had raised a complaint regarding denial of her maternity benefits, she was not made permanent. Reference is made to the deposition of MW1, the Secretary of the appellant to point out that, according to the Witness, the first respondent had not been absorbed into another post only for the reason that ## -:8:- ## W.A. Nos.199 & 229 of 2016 she was not fit. According to the learned counsel, the need of a Typist was a necessity for the appellant considering the fact that the same was an educational establishment with more than three thousand students and 120 staff members. The action of the appellant in retaining the first respondent as a temporary employee for a period of five years by the device of issuing fresh appointment orders after the termination of the term of each appointment order is nothing but an unfair trade practice as set out in the schedule 5 of the Industrial Disputes Act. It is contended that, the Labour Court has correctly found that the first respondent having worked for more than 240 days continuously, she was entitled to the benefits available to a permanent employee. For the above reason, it is contended that no interference with the proceedings as sought for by the appellant is called for. It is further pointed out that, in the present case, though it is contended by the appellant that the appointment was a contractual one no evidence in support of the above contention was produced by the -:9:- ## W.A. Nos.199 & 229 of 2016 Management. Though the first respondent had sought for the production of the records that the establishment was bound to maintain under the various Statutes, such documents were also not produced. Absolutely no evidence to show that another Typist was appointed in the place of the first respondent was also available. According to the counsel, the Labour Court has found that another person had been appointed in the place of the first respondent. The counsel has placed reliance on the decision in **Devinder Singh v. Municipal Council, Sanaur** [(2011) 6 SCC 584] to contend that the claim of protection under Section 2(oo)(bb) is an aspect that has to be proved by the management by producing evidence. 8. Heard. A perusal of exhibits P1 to P5 shows that, the first respondent had been working in the establishment of the appellant from the year 1996 onwards. She had worked up to 31.05.2001. It is not in dispute that her services had not been extended from 01.06.2001. It is true that, exhibits P1 to P5 are worded in such a way as to give ## -:10:- ## W.A. Nos.199 & 229 of 2016 an impression that the first respondent was being appointed only for short spells subject to the conditions stipulated therein. However, the fact remains that she had been continuously working, with her employment being renewed from the very next day. Of course, there are instances where break in service has also occurred. However, she is seen to have been working continuously for more than 240 days, during the period 2000-01. It is also a fact that, she was being continuously employed over a period spanning about five years. The indication is clear that, the requirement of the appointment of a typist was not of a temporary nature, but that, the first respondent was being employed on the basis of separate orders. It was for the said reason that, the Labour Court has come to a conclusion that since she had worked for more than 240 days, she was entitled to the service benefits of a permanent employee. The Labour Court was also swayed by the fact that the management had not produced any material or evidence to substantiate its contention that, the appointment of the first ## -:11:- ## W.A. Nos.199 & 229 of 2016 respondent was contractual in nature. The learned counsel for the appellant has strenuously contended that, exhibits P1 to P5 are contracts and therefore, the first respondent should be held bound by the terms thereof. 9. We are conscious of the fact that, the first respondent is only a Typist and in circumstances where employment is scarce, it is trite that a person seeking employment would be forced to accede to such conditions, under similar circumstances, in the hope of ultimately obtaining a permanent employment. It cannot therefore be taken that she had accepted the employment willingly acceding to the fact that the term of her employment was only limited and that she would be terminated on the expiry thereof. As the factual circumstances reveal the conduct of the management, in continuing to extend the term of her appointment with effect from the next day of expiry of the stipulated term, clearly shows that, there was no intention to terminate the employment in accordance with the terms of exhibits P1 to P5. In addition is the fact that, according ## -:12:- ## W.A. Nos.199 & 229 of 2016 to the first respondent, another person has been appointed as Typist in her place. Though the said fact, is disputed by the appellant, the Labour Court has found that another person has been appointed in her place. The above being the position, we are not satisfied that the decision of the Apex Court in **Municipal Council, Samrala v. Sukhwinder Kaur** [(2006) 6 SCC 516] applies to the facts of the present case. In the said case, we notice that the appointment was made by the Municipal Council for short spells over a total period of 18 months during which the incumbent was appointed as a Clerk. In sharp contrast, in the present case, the first respondent had been working for a long duration of about eight years. Any employment that continues for such a long period of time cannot be described as temporary. It is also a fact, as held by the Labour Court that, there is no evidence on the side of the Management to prove the contractual nature of the appointment or that the services of the first respondent were not required after 1.6.2001. ## -:13:- W.A. Nos.199 & 229 of 2016 10. We notice that, both the Labour Court as well as the learned Single Judge have considered the various contentions in the proper perspective. We find no infirmity in the judgment or in the Award requiring an interference in appeal. For the foregoing reasons, the judgment of the learned Single Judge is confirmed. These Writ Appeals are accordingly dismissed. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **P.V.ASHA JUDGE** kkj