Cochin International Aviation Services Ltd. and Cochin International Airport Limited v. K.P. Baiju and Labour Court, Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945 ``` ``` WP(C) NO. 11939 OF 2015 ``` ## **`PETITIONERS:`** ``` 1COCHIN INTERNATIONAL AVIATION SERVICES LTD. KOCHI AIRPORT P.O., NEDUMBASSERY, PIN - 683111 REPRESENTED BY ITS MANAGING DIRECTOR,MR.R.VENKITESWARAN. ``` ``` 2COCHIN INTERNATIONAL AIRPORT LIMITED KOCHI AIRPORT P.O., NEDUMBASSERY PIN - 683111 REPRESENTED BY ITS DEPUTY GENERAL MANAGER (HR)MR.V.JAYARAJAN. ``` ``` BY ADVS. SRI.P.BENNY THOMAS SRI.D.PREM KAMATH ``` ## **`RESPONDENTS:`** ``` 1K.P.BAIJU KANDAYIL HOUSE, PALLIAMKARA, HMT COLONY P.O., KALAMASSERY, ERNAKULAM - 683 503. ``` ``` 2LABOUR COURT, ERNAKULAM, OFFICE OF THE LABOUR COURT, NEAR HIGH COURT, ERNAKULAM,KOCHI - 682 031. ``` ``` BY ADVS. SMT.INDULEKHA JOSEPH SRI.A.JAYASANKAR SRI.MANU GOVIND SRI.C.V.MANUVILSAN JUSTIN JACOB,SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 11939 OF 2015 -2- ``` ## **`JUDGMENT`** 1. The present writ petition is directed against the award of the Labour Court dated 27.01.2015 rendered in I.D.No.14 of 2013. Respondent workman was employed with the petitioner as driver on contract basis with effect from 20.04.2009, for a period of 179 days. On cessation of the contract, was re-employed on 23.10.2009 for another period of 179 days. On 26.04.2010, was regularly appointed as peon cum driver. The management realising that the appointment was not in conformity with the recruitment rules, terminated his services vide order dated 11.01.2013. The said termination was challenged by seeking a reference of dispute from the Government. Dispute was referred to the Labour Court for adjudication. Before the Labour Court respondent workman stated about the employment on different occasions with consolidated wages of Rs.5000/- (Rupees Five thousand only) and Rs.10,000/(Rupees Ten thousand only) per month and thereafter ``` WP(C) NO. 11939 OF 2015 -3- ``` regular employment in the pay scale of Rs.7000-30010500. It was contended that there was violation of provisions of Section 25F of the Industrial Dispute Act as no prior notice or retrenchment compensation was ever served. 2. Management contested the aforementioned claim petition on the ground that it is 100% subsidiary of the management company. The appointment was not in terms of the recruitment rules of the management, for taking the employment no proper notice was notified inviting the applications for different posts, thus such appointment would be a back door entry. Since the parties were at variance, learned Labour Court framed the following issues: - “1. Whether the termination of service of Sri.Baiju K.P., driver cum peon, Cochin International Aviation Services Limited, Kochi Airport P.O., Nedumbassery, by the second management from 11.1.2013 is proper and justified? 2. If not, whether he is entitled to be ``` WP(C) NO. 11939 OF 2015 -4- ``` ## reinstated and/or any other relief?” 3. Petitioner management examined the witness as MW1 before the Labour Court and brought on record documents as Exts.M1 to M9. On the other hand workman examined himself and brought on record documentary evidence Exts.W1 to W5 i.e., the copy of the appointment order dated 20.04.2009, 30.10.2009 and 26.04.2010, order dated 20.05.2011termination order and notice issued by second management regarding the meeting of the Board of Directors. The labour court on the basis of the evidence and appreciation of law found that the termination was unjustified and ordered reinstatement with full back-wages. 4. Learned counsel appearing on behalf of the petitioner management in support of the grounds taken in the petition submitted that the Labour Court failed to take into consideration that the appointment of the workman was in violation of the Kerala Recruitment Rules as the post was never notified nor any applications ``` WP(C) NO. 11939 OF 2015 -5- ``` for appointment were called for as required under the rules. No diving test or written test much less interview was conducted in relation to the employment. Workman was over aged at the time of the appointment and not qualified. Provisions of Section 25F of the I.D.Act, in such circumstances would not be applicable as his appointment had fallen under the provisions of Section 2(oo) of the I.D.Act. In support of the contention relied upon the judgment of the Division Bench of this Court in **G.Thankamani Vs. The Managing Directors K.S.C.S.C. Limited** in W.A.No.1789 of 2002. It was a case where the award of the Labour Court was set aside by the learned Single Judge by holding that the reinstatement in service could not have been ordered as there was no relationship of employer and employee. Moreover in case the appointment is made against the recruitment rules, it will tantamount to depriving the aspirants for consideration for appointment. The judgment of Patna High Court relied upon by the labour ``` WP(C) NO. 11939 OF 2015 -6- ``` court had been overruled by the Full Bench of that Court itself. 5. On the other hand learned counsel appearing on behalf of the respondent workman submitted that the order of termination per se was illegal and arbitrary. Even if the recruitment of the workman was without adherence to the recruitment rules, though no provision of the rules have been cited, an opportunity of hearing before terminating the service was required to be complied with. There cannot be any ground for granting compensation as the workman has not become over aged. Findings of fact based upon the preponderance of the evidence and as well as appreciation of law cannot be interdicted as sought to be projected. 6. I have heard learned counsel for the parties and appraised the paper book. 7. The facts with regard to the two contractual employment on 20.04.2009 and 23.10.2009 are not disputed much less the regular employment on ``` WP(C) NO. 11939 OF 2015 -7- ``` 26.04.2012. Respondent workman continued to discharge the duties till the termination order was issued on 11.1.2013. It is settled law that the recruitment of a workman against regular vacancy on a particular pay scale, even if the appointment was found to be lacking compliance of certain Rules, an opportunity of hearing much less in the shape of show cause notice ought to have been issued. This is precisely what the Labour Court has found holding the termination to be bad in law. 8. I am of the view that the finding of the Labour Court on this ground is perfectly legal and justified and do not call for interference. As regards the awarding of backwages no evidence has been brought on record that the workman during the period of termination was gainfully employed. Rather on the other side, this Court had protected the financial interest of the workman by passing an order under Section 17B of the Industrial Dispute Act. Learned counsel for the workman also apprised that as per the contents of letter addressed by ``` WP(C) NO. 11939 OF 2015 -8- ``` the workman to the management reveal that he was taken back in the employment. 9. Paragraph Nos.5 and 10 of the judgment relied upon by the petitioner reads as under: “5. The Kerala State Civil Supplies Corporation Limited is fully owned by the Government of Kerala. It is an instrumentality of the State. As such, the Corporation is bound by the mandates of Articles 14 and 16 of the Constitution of India. It goes without saying that the Corporation can make appointments to the services of the Corporation only in accordance with the principles contained in Articles 14 and 16 of the Constitution of India in so far as all citizens seeking employment under the Corporation are entitled to have equal opportunity to be considered for such appointments. Admittedly, the workman was not employed after complying with any procedure whatsoever ensuring equal opportunity to the countless unemployed persons who also may be entitled to be considered for such appointment. That being so, the appointment/engagement of the appellant-workman, if any, itself is ab initio void and she cannot sustain any claim based on such illegal appointment. Xxxxxxxx ``` WP(C) NO. 11939 OF 2015 -9- ``` ## xxxxxxxx 10. A Division Bench of this Court in the decision of Koodarani Service Co-op. Bank Ltd. v. Lissy, 1993 (2) KLT 706, dealt with a similar question wherein a Clerk was appointed in a Service Co-operative Bank on daily wages without complying with the procedure prescribed under the statutory rules. The employees raised an industrial dispute claiming violation of the provisions of the I.D. Act which ended in an award directing her reinstatement, which was upheld by a learned Single Judge. In that judgment, in paragraph 6, this Court held as follows: 6. In Workman v. Bangalore W.C. & S. Mills Co. (MANU/SC/0412/1962: AIR 1962 SC 1363), the Supreme Court took the view that termination of service of workmen when the employer has no option in law to continue them in service is not retrenchment. Their Lordships observed: - It seems to us that a service cannot be said to be terminated unless it was capable of being continued. If it is not capable of being continued, that is to say, in the same manner in which it had been going on before, and it is therefore, brought to an ``` WP(C) NO. 11939 OF 2015 -10- ``` end, that is not a termination of the service. This statement of law applied on all fours to the facts before us. The services of Smt. Lissy as Clerk on daily wages was not capable of being continued. Her services were terminated because she could not be continued in the same manner in which she was engaged earlier. It was as a result of such supervening impossibility the bank was compelled to terminate her services. Such termination of service cannot amount to retrenchment as defined in the Act. Further, dealing with the contention of the workman in that case, which is similar to those in this case, the Division Bench, in paragraph 9 of the judgment, held as follows: 9. Learned counsel representing Smt. Lissy submitted that even if the appointment of his client is vitiated, she should still be regarded as a workman, as a matter of fact since she has worked in the bank for nearly six years. We are not impressed with this argument. Her appointment was against the statutory rules. She cannot be continued in the post held by her. The management is having no volition to continue her in the service as ``` WP(C) NO. 11939 OF 2015 -11- ``` daily rated employee. In these situations, we are clear in our mind that the termination of service of Smt. Lissy cannot be considered as retrenchment as defined in the Act. The result, therefore, is that the Labour Court was clearly in error in directing the bank to reinstate Smt. Lissy as Clerk. We are of opinion that the said judgment applied on all force to the facts of this case. In the above circumstances, we are in full agreement with the impugned judgment of the learned Single Judge and are of the opinion that the appellant-workman is not entitled to any reliefs in the industrial dispute. Accordingly, the learned Single Judge was perfectly correct in setting aside the award. Therefore, the writ appeal deserves to be dismissed and we do so. But, in the circumstances of the case, we delete the direction of the learned Single Judge directing the appellant-workman to pay costs of Rs. 2,000/-.” The ratio culled in paragraph Nos.5 and 10 of the cited judgment reveals that an opportunity was given to the workman-therein before taking action. However the facts herein are different and therefore the said ratio would not be applicable. ``` WP(C) NO. 11939 OF 2015 -12- ``` 10. Accordingly, I do not find any justification warranting interference while exercising the power under Article 226 of the Constitution of India to form a different opinion than the one arrived at by the trial court. Writ petition sans merit, it is dismissed. ``` Sd/- AMIT RAWAL JUDGE ``` ``` vv ``` ``` WP(C) NO. 11939 OF 2015 -13- ``` ## **`APPENDIX OF WP(C) 11939/2015`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1EXT.P-1: TRUE COPY OF THE CLAIM STATEMENT DATED 20.5.2013 FILED BY THE IST RESPONDENT BEFORE THE 2ND RESPONDENT IN I.D.NO.14 OF 2013 ``` ``` EXHIBIT P2EXT.P-2: TRUE COPY OF THE WRITTEN STATEMENT DATED 10.9.2013 FILED BY THE IST PETITIONER BEFORE THE 2ND RESPONDENT IN I.D.NO.14 OF 2013. ``` ``` EXHIBIT P3EXT.P-3: TRUE COPY OF THE AWARD DATED 27.1.2015 PASSED BY THE 2ND RESPONDENT IN I.D.NO.14 OF 2013. ``` ``` RESPONDENTS EXHIBITS ``` ``` EXHIBIT R1(a)TRUE COPY OF THE PAYMENT SLIP ISSUED BY THE 2ND PETITIONER TO THE RESPONDENT FOR THE MONTH OF JUNE, 2012 ```