The Management of the Ambanad Estate, Kollam District v. The General Secretary, Tenmala Valley Estate Workers Union (AITUC) and The Labour Court, Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **MONDAY, THE 31ST DAY OF OCTOBER 2016/9TH KARTHIKA, 1938** **WP(C).No. 4233 of 2005 (D) ---------------------------** **PETITIONER:** - **-----------** **THE MANAGEMENT OF THE AMBANAD ESTATE, KALTHURUTHY POST, KOLLAM DISTRICT, REPRESENTED BY THE MANAGER.** **BY SRI.U.K.RAMAKRISHNAN (SENIOR ADVOCATE) ADVS.SRI.SANDEEP.E. SMT.UMA GOPINATH SMT.P.VIJAYAMMA** **RESPONDENT(S):** ## **--------------** **1. THE GENERAL SECRETARY, TENMALA VALLEY ESTATE WORKERS UNION (AITUC), KALTHURUTTY POST, KOLLAM DISTRICT.** **2. THE LABOUR COURT, KOLLAM.** **R1 BY ADVS. SRI.A.JAYASANKAR** **SRI.MANU GOVIND R2 BY GOVERNMENT PLEADER SMT.PRINCY XAVIER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 4233 of 2005 (D) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **-----------------------** **P1 : TRUE COPY OF THE APPOINTMENT ORDER DATED 7.4.1993. P2 : TRUE COPY OF THE ORDER 28.3.1994. P3 : TRUE COPY OF THE ORDER DATED 16.3.1995. P4 : TRUE COPY OF THE ORDER DATED 29.3.1996. P5 : TRUE COPY OF THE AWARD DATED 7.8.2004 PASSED BY THE 2ND RESPONDENT IN I.D.NO.31/1997.** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------** **EXT.R1A: COPY OF CERTIFICATE DATED 6.10.05 ISSUED BY SECRETARY, ARYANKAVU GRAMA PANCHAYATH. EXT.R1B : COPY OF CERTIFICATE DATED 15.12.05 ISSUED BY SECRETARY ARYANKAVU GRAMA PANCHAYATH. //TRUE COPY// P.S. TO JUDGE** **mbr/** ## **P.V.ASHA, J.** ## **W.P.(C) No.4233 of 2005** ## **Dated this the 31[st] day of October, 2016** ## **JUDGMENT** Ext.P5 award of the Labour Court, Ernakulam in ID No.39/1997 is under challenge in this writ petition. The facts leading to the case are as follows: 2. One Sri.Mathaikutty who was working as Supervisor was denied employment. The first respondent, took up the matter for adjudication and two issues were referred which are as follows: - _A. Whether the illegal extension of probation of Sri.Mathaikutty, Supervisor, by the management is justifiable?_ - _B. Whether the denial of employment to Sri.Mathaikutty, Supervisor, Ambanadu estate is justifiable? If not the reliefs which he is entitled to?_ 3. The management as well as the Union filed statement. According to the Union, Sri.Mathaikutty had joined under the management as a general worker in Anachady Division. While continuing as such, he was appointed as temporary Supervisor with effect from 1.4.1993 on probation. His probation was not extended and he was denied employment with effect from 1.5.1996, while his juniors were confirmed as regular supervisors. Thereupon the Union took up the matter alleging that he was victimised for his activities of a trade union. 4. The case of the petitioner-management is that the workman W.P.(C) No.4233 of 2005 **==> picture [14 x 9] intentionally omitted <==** was appointed as temporary supervisor as per Ext.P1 order dated 7.4.1993, on conditions specified in the order. This was followed by Ext.P2 order dated 28.3.1994 and Ext.P3 order dated 16.3.1995 by which he was again appointed as temporary supervisor for one year each for the period from 1.4.1994 and 1.4.1995 respectively. Whileso, management issued Ext.P4 order dated 29.3.1996, stated to be in continuation of the earlier orders, extending the period of his appointment for six months from 1.4.1996, which was stated to be on the basis of his application. That appointment was also subject to the very same conditions as in the earlier orders. According to the management, he ceased to be in employment automatically, from 30.9.1996 on expiry of the period of appointment in Ext.P4. 5. Before the Labour Court, evidence was adduced by both sides. It has come out in evidence that the worker joined the management as a general worker in the year 1984. The Labour Court considered the issue as to the justifiability of the refusal to extend the probation of Sri.Mathaikutty and as to his entitlement for reinstatement. Referring to various documents produced and the evidence adduced, Labour Court found that the appointment as temporary supervisor was made while Sri.Mathaikutty was working as a general worker from 1984 onwards which was admitted by the management. On the strength of W.P.(C) No.4233 of 2005 **==> picture [14 x 9] intentionally omitted <==** the document Ext.W3, the Labour Court found that the management themselves had admitted as per the said certificate that the workman had 7 years experience as temporary supervisor in the year 1993. The Labour Court also referred to Ext.W4 series relating to remittance made in the Provident Fund account for the period from 1995-96. More over from the testimony of MW1, it was also found that the worker had been working since the year 1984 as a temporary workman. Therefore, the contention raised by the management that the workman was only a temporary employee/contract worker was discarded. Since it was found that he was denied employment from 1.10.1996, without giving any benefit of retrenchment, Labour Court held that the workman was entitled to be reinstated as a general worker. It was found that if at all his work as supervisor was not satisfactory his service as a general worker was never found so. Accordingly, it was found that even though the workman did not have any right to get his probation extended he was entitled to continue as general worker and hence the denial of employment to him was unjustified. Accordingly, it was directed that he should be reinstated with effect from 1.10.1996 with all benefits. It is submitted that the workman has already attained the age of superannuation in the year 2012. W.P.(C) No.4233 of 2005 **==> picture [14 x 9] intentionally omitted <==** 6. The management has filed this writ petition mainly on the ground that the Labour Court went beyond the issues referred to it for adjudication. It is pointed out that the issue referred for adjudication was with respect to the extension of probation of Sri.Mathaikutty as 'Supervisor' as well as the denial of employment to Sri.Mathaikutty as 'Supervisor' and therefore the Labour Court ought not have adjudicated any issue relating to the employment of general worker and it erred in directing re-instatement as general workman, when the only issue for consideration was extension of probation as Supervisor and denial of employment to him as Supervisor. It was argued that the trade union which was representing the workman never sought correction of the reference and in that event the findings of the Labour Court relating to his entitlement as a General Worker is without jurisdiction. 7. On the other hand, the learned counsel for the workman pointed out that the Labour Court passed the award on the basis of the evidence adduced and in view of the reference in the matter regarding the reliefs which can be granted to the workman. The Labour Court was very well having jurisdiction to adjudicate issue regarding reliefs which can be granted to the workman. 8. I have considered the contentions raised on either side. W.P.(C) No.4233 of 2005 **==> picture [14 x 9] intentionally omitted <==** Sri.Krishna Menon placed reliance on the judgment in _**U.P.State Textile Corpn. Ltd. v. Suresh Kumar** [2011-III-LLJ-19 (SC)]_ in which the appointment of the workman was for a fixed period. In paragraph 4 of that judgment, the Apex Court held that when the appointment itself was for a fixed period of three years, no relief could have been granted by the High Court since the same was found to be a contract appointment and there was no stigma in the termination of the service. Similarly the judgment of the apex court dated 3.1.1996 in State of _**Himachal Pradesh V. Ashwani Kumar and others**_ was also relied on. In that judgment the apex court was considering the claim of a temporary employee who was denied employment when the project was closed on account of non-availability of funds. The apex court found that the appointment itself was for a project and when the project was closed, the employee did not have any vested right either to get regularized or to continue in the same post. Similarly in the judgment of the apex court in _**Chief Commissioner Income Tax, Bhopal and others v. Leena Jain and others** [2007 (113) FLR 315],_ the apex court was considering the question of regularization of a data entry operator who was employed on contract basis. Relying on the judgment in _**Umadevi's**_ case, the apex court held that the person who is getting engagement on contract basis, without any proper W.P.(C) No.4233 of 2005 **==> picture [14 x 9] intentionally omitted <==** selection cannot have any legitimate expectation for continuing in the said employment and he cannot have any valid claim against his retrenchment or denial of employment. 9. What is to be considered in this case is whether the Labour Court exceeded its jurisdiction by the terms of reference. I have already found that the issues referred for adjudication were regarding the extension of probation and denial of employment. It is true that the workman was described as “Sri.Mathaikutty, Supervisor” in both the issues referred for adjudication. It is relevant to note that as contended by the learned counsel for the respondents that along with the second issue the Labour Court was to consider the other reliefs, if any, which the workman was entitled to. 10. When a workman is described in his designation, at the time of his disengagement/denial of employment, when the issue was taken up, it cannot be said that denial of employment to him in that post alone can be considered by the Labour Court. As far as the issue is concerned, the extension of probation can be only in respect of the appointment as supervisor since probation was not extended as supervisor. At the same time, when it was seen that and it was admitted by the management that the workman was employed as general worker since the year 1984 and they had also given a W.P.(C) No.4233 of 2005 **==> picture [14 x 9] intentionally omitted <==** certificate to him that he had seven years of service as supervisor also in addition to that it cannot be said that the Labour Court could not have considered the question of denial of employment with the workman. 11. From the orders of appointment produced by the petitioner, it can be seen that the management had assured wages to a job differential of Rs.1.45/- per day over and above the general worker's wage rate applicable in the division in which he was employed. In Ext.P1 order it was made clear that the appointment was for a period of one year from 1.4.1993 subject to the conditions stipulated therein. It was stated that his service would be terminated/reverted to the old category in case he was not found suitable or his performance was unsatisfactory. Apart from this, it was further stated that his performance would be on observation and after a period of one year he may be considered for probationary supervisor. Condition No.5 was that the temporary appointment would automatically be ceased unless otherwise an order was given in writing. More over condition No.1 in the order of appointment reads as follows: _“During the period of your Temporary Appointment, if you are found unsuitable or your performance noticed unsatisfactory, your employment as a Temporary Supervisor will be terminated/reverted to your old category with immediate effect, without notice”._ In that background, the contention raised by the petitioner that the W.P.(C) No.4233 of 2005 **==> picture [14 x 9] intentionally omitted <==** Labour Court ought not have looked into the denial of employment to the workman over and above the issue referred does not merit consideration. The Labour Court considered the issue seeing that the workman was denied employment not only as supervisor but also as a general worker. 12. The award has been passed on the basis of the materials on record. The management's witness admitted that the order of appointment as temporary supervisor was while the workman was in service as a general worker and he had been working in that estate from 1984 onwards, apart from admitting his experience as Supervisor from 1993 by certifying the same. The judgments relied on by the learned counsel for the petitioner cannot be applied in the factual circumstances of this case. In the above circumstances, I do not find any merit in the writ petition. The writ petition is dismissed. **Sd/-** **P.V.ASHA JUDGE** rkc