Manoharan C.D. v. The Managing Director, O.E.N. India Limited, ElectroGiri, Mulamthuruthy; The Assistant General Manager (HRD), O.E.N. India Limited, ElectroGiri, Mulamthuruthy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:-** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938** **O.P.(LC).No.3451 of 2012 (O)** **----------------------------------------** **AGAINST THE AWARD IN I.D.NO.33/2010 DATED 31.07.2012 OF LABOUR COURT, ERNAKULAM.** **------------** **PETITIONER(S):-** **---------------** **MANOHARAN C.D., CHEERANATHU PARAMBIL VEEDU, THALAKKODU P.O., MULAMTHURUTHY.** **BY ADV. SRI.SUNIL KUMAR A.G.** **RESPONDENT(S):-** **----------------** **1. THE MANAGING DIRECTOR, O.E.N. INDIA LIMITED, ELECTROGIRI, MULAMTHURUTHY, ERNAKULAM DISTRICT - 682 314. 2. THE ASSISTANT GENERAL MANAGER (HRD), O.E.N. INDIA LIMITED, ELECTROGIRI, MULAMTHURUTHY, ERNAKULAM DISTRICT - 682 314.** **R1 & R2 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI.** **THIS OP (LABOUR COURT) HAVING BEEN FINALLY HEARD ON 20-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(LC) NO.3451 OF 2012-O.** **APPENDIX** **PETITIONER(S) EXHIBITS:------------------------** **EXHIBIT-P1- TRUE COPY OF THE CLAIM PETITION. EXHIBIT-P2- TRUE COPY OF THE WRITTEN STATEMENT. EXHIBIT-P3- TRUE COPY OF THE AWARD DATED 31/07/2012.** **RESPONDENTS' EXHIBITS:-----------------------NIL.** **Vku/-** **[ true copy ]** ## K. Vinod Chandran, J ---------------------------------------O.P.(LC) No.3451 of 2012-O ---------------------------------------Dated this the 20[th] day of September, 2016 ## **JUDGMENT** The workman in an industrial dispute seek for reinstatement with full backwages; the denial of which, in the award produced at Exhibit P3, is challenged in the writ petition. 2. The issue referred was whether the denial of employment to the workman was justified. The workman contended that while he was working in the management, he was removed from service, along with seven other employees, without proper notice. The workman sought to establish his employment by production of the identity card issued by the Employees' State Insurance Corporation [for brevity “ESI Corporation”] and the annual statement for the year 2008-09 issued from the Employees' Provident Fund Organisation [for brevity “EPFO”]. It was also contended that despite an agreement to take back the workman in the conciliation talk, the management having reinstated the workman, again after three days, terminated him. There was no - 2 - OP(LC) No.3451 of 2012 enquiry conducted; nor any notice issued and he was prevented from entering into the Company premises, was the contention. 3. The management filed a written statement denying the regular employment of the workman and claimed that the workman was a contract employee supplied through a labour supply contractor. The maintainability of the reference itself was questioned on the ground that the labour contractor was not impleaded. The management specifically disputed the description of the employee as a casual employee in the reference order, contending that the Government had no power to confer such a description on the employee when the issue itself is one open for adjudication. As to the engagement of the workman, it was contended that the labour contractor was engaged only to supply persons to carry on odd jobs as and when required. In the wake of global economic recession,the financial condition of the management deteriorated and many of its activities were curtailed; which resulted in discontinuing the trainees and some employees even in the executive cadre. The management had also approached the State Government for laying down permanent workmen even, which however was refused by the State OP(LC) No.3451 of 2012 - 3 - Government. It was in such circumstances that the contract was also terminated. 4. The first question raised by the Labour Court was as to the status of the workman. It was found that the workman had been engaged in the management-establishment and he was terminated along with seven other employees. It was also admitted by the management that the workman was taken back on a conciliation and after three days, the workman had been again terminated. The Labour Court relied on Exhibits W1 and W2, the Identity Card issued by the ESI Corporation and the Annual Statement for the year 2008-09 issued by the EPF Organisation, to find that there is an employer-employee relationship. Though the said documents could be said to establish an engagement in the Company, it is trite that the enrolment with the ESI Corporation and the EPF Organisation cannot essentially lead to a conclusion that there was a regular-permanent employment of the workman. 5. The management had produced certain documents to establish the nature of the employment asserted by them, being that of a contract employee. The files relating to the conciliation were also OP(LC) No.3451 of 2012 - 4 - called and marked as Exhibit X1. The contractor, who is said to have been awarded the contract, was also found to be one among the eight workmen who raised a dispute before the Labour Officer. It was also seen from the agreement produced as Exhibit M1 that the contractor, who styled himself as a workman before the Conciliation Officer; had signed an agreement with the management for executing the contract work. The Labour Court, looking at the agreement and the ESI Card of the workman, found that both were of the same date. In such circumstance, the Labour Court found that it cannot be said that the workman was one engaged by the contractor, since an ESI Card would have been issued only after the contract was commenced. This Court does not find any reason to interfere with the said finding. 6. Exhibits M7 and M8 were the wage statement of contractor workers produced by the contractor, which indicated the name of the workman and one of the persons who had to be paid wages by the contractor. In this context, the workman had asserted that the wages paid to him was directly by the management and not by the contractor. He also claimed that there were pay slips issued by OP(LC) No.3451 of 2012 - 5 - the Finance Manager and he had copies of such pay slips. The Labour Court noticed that none of such pay slips were produced. The Labour Court found that Exhibits M1, M4, M7 and M8 were sham documents and that the management failed to establish that the workman was a contract employee. The conclusion was that the workman was a daily wager, drawing Rs.225/- per day as wages and he was working under the management itself and not under a contractor. There is no infirmity in the said finding; but it has to be emphasised that there was no regular appointment or employment of the workman found, which is a very relevant factor in considering the extent of relief. 7. On examining the question of relief to be granted, the Labour Court found that the claim of the workman that he joined the service of the establishment on 08.02.2002 and worked till December, 2008 was not disputed by the management. The ESI Card and the PF Statement also indicated the employment from 04.11.2002 and on the ground that there was denial of employment, a compensation of Rs.30,000/- [Rupees thirty thousand] was granted. OP(LC) No.3451 of 2012 - 6 - 8. The petitioner-workman contends that there is no reason why reinstatement was not ordered with full backwages and also relies on the decisions of the Hon'ble Supreme Court reported in _**General Manager, Haryana Roadways v. Rudhan Singh**_ **[AIR 2005 SC 3966],** _**Kanpur Electricity Supply Co. Ltd. v. Shamim Mirza**_ **[(2009) 1 SCC 20]** and _**Devinder Singh v. Municipal Council, Sanaur**_ **[(2011) 6 SCC 584].** 9. _**Rudhan Singh**_ was a case in which the terminated Workman was ordered to be reinstated with 50% back-wages. Though the management had taken a contention in the written statement that the workman was engaged on a contract, the Hon'ble Supreme Court found that the issue was not urged before the Labour Court or the High Court and no evidence was led to that end. The reinstatement ordered by the Labour Court was upheld but the order to pay 50% back-wages was reversed. The Hon'ble Supreme Court considered the factors which would be relevant in deciding on award of back-wages and emphasised on two such factors being the term of employment and the nature of employment. With respect to the term of employment the Hon'ble Supreme Court held that if the OP(LC) No.3451 of 2012 - 7 - terminated Workman was employed for a considerable period then keeping in view the age and qualification and the possibility of his having obtained another employment would have to be kept in mind when deciding on back-wages. Similarly a regular employment of permanent character also entitles an award of back-wages as compared to a short or intermittent daily wage employment. _**Shamim Mirza**_ also was a case in which the award of reinstatement with back-wages was affirmed by the High Court with modification as to the back-wages confining it 50%. The management urged contract employment which however was not proved. Though the reinstatement was upheld the order of back-wages even to the extent of 50% was set aside following _**Rudhan Singh.**_ Going by the principle declared in both the above decisions it goes without saying that the petitioner herein would not be entitled to back wages even if a reinstatement is ordered, since the engagement was a daily wager and the nature of employment was not permanent. 10. _**Devinder Singh**_ was a case in which the the award of reinstatement with backwages, set aside by the High Court, was restored by the Ho'nble Supreme Court. The terminated employee OP(LC) No.3451 of 2012 ## - 8 - was appointed to tide over a situation, were the engagement of a person was expedient and there was a ban of appointments ordered by the state government. The employee was appointed and continued for 2 years, but was terminated only for reason of the higher authorities having not approved the said appointment. It was in such circumstance that the Hon'ble Supreme Court directed reinstatement of the terminated employee with full back wages, specifying that the High Court had failed to notice the peculiar facts in the case when it said that the appointment of the employee was not a regular one; made following the due process for recruitment. The facts are quite distinct and the principle laid down therein would have no application in the present case. 11. The question of reinstatement in the case of a daily wager has been held to be not proper in _**Jagbir Singh v. Haryana State Agriculture Marketing Board & Another**_ **[(2009) 15 SCC 327]** _**.**_ The Hon'ble Supreme Court has also held that in such cases it would be proper if a just compensation is awarded; if the termination is found to be illegal. Even going by the decisions relied on by the workman, it could only be said that on the finding of denial of OP(LC) No.3451 of 2012 - 9 - employment, reinstatement and award of backwages is not automatic. Various factors have to be considered in finding an employee to be validly entitled to reinstatement and backwages. The finding of the Labour Court itself was that the employee was engaged as a daily wager, with daily wages of Rs.225/-. The specific contention of the management was that such engagement was on a daily wage basis not not continuous. There is nothing to prove a continuous employment having been made of the workman. True, the ESI Card is issued in the year 2002 and the statements produced of the EPF Organisation is of the year 2008-09. That does not establish a continuous employment from 2002 to 2008. In any event, since it is not a regular-permanent employment, there could be no reinstatement ordered and at best the workman would be entitled to only a retrenchment compensation under Section 25F of the ID Act and that would be half month's salary for every completed year of continuous service and one month's notice pay. Even if the entire period claimed by the workman is counted for determining the compensation, the same, under Section 25F, would be far lesser than the compensation awarded if the daily wages is computed at OP(LC) No.3451 of 2012 - 10 - Rs.225/- as found by the Labour Court. Further, Section 25F would be applicable only in the case of a continuous employment; which the workman had to establish, but failed so to do. In such circumstance, this Court does not find any reason to interfere with the relief granted in the award. The writ petition fails and it is accordingly dismissed. No costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]