Dr. Somerveli Memorial CSI Medical College Karakonam, Thiruvananthapuram v. Labour Court Kollam and D. Jacob Raj

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **WEDNESDAY, THE 20[TH] 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 W.P.(C) 31903/2016 3 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 W.P.(C) 31903/2016 4 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 nonapplication 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 W.P.(C) 31903/2016 5 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** W.P.(C) 31903/2016 6 **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 W.P.(C) 31903/2016 7 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 W.P.(C) 31903/2016 8 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. W.P.(C) 31903/2016 9 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 W.P.(C) 31903/2016 10 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** W.P.(C) 31903/2016 11 ## **APPENDIX OF WP(C) 31903/2016** |**PETITIONER'S EXHIBITS:**|**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/**