The President, Kumbla Merchants Welfare Co-operative Society v SMT. P. SHAILAJA and The Presiding Officer, Labour Court, Kannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 20TH DAY OF JANUARY 2014/30TH POUSHA, 1935** ## **WP(C).No. 21113 of 2010 (L)** **---------------------------ID NO.37/2005 OF LABOUR COURT, KANNUR ...** **PETITIONER(S):** **--------------------------** **THE PRESIDENT, KUMBLA MERCHANTS WELFARE CO-OPERATIVE SOCIETY, PO KUMBLA, KASARGODE DISTRICT.** **BY ADVS.SRI.JAWAHAR JOSE SMT.CISSY JAWAHAR** **RESPONDENT(S):** **----------------------------** **1. SMT. P.SHAILAJA, W/O. D.P.KESHAVAN, MUNGILA VEEDU, KOTTEKKAR, PO KUMBLA, KASARGODE DISTRICT-671 321.** **2. THE PRESIDING OFFICER, THE LABOUR COURT, KANNUR.** **R1 BY ADVS. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR R2 BY SR.GOVERNMENT PLEADER SMT.SAREENA GEORGE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/11/2013, THE COURT ON 20/01/2014 DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.21113/2010 (L)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF AWARD.** - **P2: COPY OF APPOINTMENT LETTER DTD. 4/07/2001.** - **P3: COPY OF ORDER DTD. 20/04/2001.** - **P4: COPY OF ORDER DTD. 18/10/2006.** - **P5: COPY OF ORDER DTD. 6/12/2008.** - **P6: COPY OF THE INFORMATION RECEIVED BY THE PETITIONER FROM LIC OF INDIA DTD. 25/11/2011.** ## **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **P.S.TO JUDGE** **==> picture [20 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> Kss<br>**----- End of picture text -----**<br> ## **A.V.RAMAKRISHNA PILLAI, J** --------------------------------------------- W.P.(C) No.21113 of 2010 --------------------------------------------Dated this the 20[th] day of January, 2014 ## **JUDGMENT** Under challenge in this writ petition is Ext.P1 award passed by the Labour Court, Kannur in I.D.No.37/2005 whereby the Labour Court declared that the dismissal of the first respondent was not justifiable and that she is entitled for reinstatement with backwages with effect from 26.12.2001 at the rate of 50% on her last drawn salary. 2. The case of the first respondent was that she was working as Secretary in the petitioner Society on 30.6.1993, though no appointment letter was issued to her in the year 1993. However, on 4.7.2001, she received a letter from the society appointing her as Secretary and she was directed to take charge on 10.7.2001 after depositing a sum of Rs.10,000/-. On 26.12.2001, she was denied employment without any reason and salary was not paid since 10.7.2001. The industrial dispute was referred to the Labour Court by the government for answering WPC No.21113 of 2010 2 the question whether the dismissal of the first respondent was justified and if not to what relief she is entitled. 3. The petitioner Society contended that the workman was not working in the Society as pleaded since 1993. She was appointed as temporary Secretary vide order dated 4.7.2001 and she took charge on 10.7.2001. At the time of joining, she deposited an amount of Rs.10,000/- as cash security and she worked only for one month. She was thereafter terminated from service because of her unauthorised absence. The said fact was intimated to her while she came to the office on 26.12.2001. On that day, a termination letter was also served on her and she accepted the said letter. Thereafter, she never attended duties in the office of the society. The workman never asked for return of security deposit and hence the same was not refunded. The workman was thereafter gainfully employed as an office staff in a private firm at Kumbla and she is drawing salary from there. Therefore, the petitioner prayed for rejection of the claim. 4. The Labour Court, on the basis of the evidence consisting of the oral testimony of WW1 and Exts.W1, W2 and M1 to M3, directed reinstatement of the first respondent with WPC No.21113 of 2010 3 back wages with effect from 26.12.2001 at the rate of 50% of her last drawn salary. Thus, the petitioner has come up before this Court. 5. Arguments have been heard. 6. Copy of the letter of appointment of the first respondent is marked as Ext.P2. As per Ext.P2, she was appointed on 4.7.2001. The same was exhibited as Ext.W1 before the Tribunal. Ext.P2 shows that the first respondent was appointed as a temporary employee in the society. It is a settled principle that the temporary employee cannot have a lien for the period she worked. 7. In the present case, the first respondent accepted the employment knowing that her service is temporary. According to the petitioner, the first respondent worked only for one month in the society and thereafter she was unauthorisedly absent. The said case of the society is more probable going by the evidence of the workman itself as it is highly unbelievable that the workman worked in the society without salary for nearly 4½ months. 8. It was also pointed out by the learned counsel for the petitioner that the Management has already appointed permanent secretary for the Society and therefore, the first WPC No.21113 of 2010 4 respondent, who was originally appointed as temporary employee in the society, cannot now be reinstated as Secretary of the Society. As per the staff pattern of the society, there can only be one Secretary for the society as seen from Ext.P3. 9. Going by Ext.P3 document, it can be seen that the society actually started its functioning in the year 2001 which would cut the root of the workman's case that she was employed since 1993. 10. It was further pointed out by the learned counsel for the petitioner that the workman had earlier approached the co-operative department seeking for her reinstatement and by order dated 18.10.2006, the Joint Registrar of Co-operative Societies found that the workman was appointed without following the procedure prescribed in the co-operative department. Though the workman filed an appeal against the same before the Government, the same was rejected by Ext.P5. 11. In this context, the learned counsel for the petitioner invited my attention to three decisions. The first one is **Koodaranji Service Co-op.Bank Ltd.** v **Lissy** (1993 (2) KLT 706) where this court refused to recognise the WPC No.21113 of 2010 5 appointment made by a co-operative society against the statutory rules. In that case, the services of an employee were terminated on the basis of the instructions issued by the higher authorities. Further, it was held that the termination of service cannot be considered as retrenchment. 12. The other decision relied on by the learned counsel for the petitioner was the decision of the Apex Court in **(B.T.Krishnamurthy** v **Sri.Basaveswara Education Society and others)** (2013) 4 SCC 490, where the respondent was appointed as temporary/part-time Lecturer in the college. The court observed that there cannot be any legitimate expectation for his continuing in the service. 13. The third decision relied on by the learned counsel for the petitioner is the decision of this Court in **Ulahannan K.M.** v **Labour Court and another** (1996(3) ILR 766). In that case, this Court held that the Secretary of a Co-operative Bank who was in full charge of executive administration was not a workman. 14. In the instant case, the workman accepted the employment knowing that her service is temporary and she worked only for one month. The Management has already appointed a permanent Secretary in the Society. The Joint WPC No.21113 of 2010 6 Registrar of Co-operative Societies also found that the workman was appointed without following the procedure prescribed in the co-operative department. The combined effect of these would take this Court to the conclusion that the Labour Court has erred in directing the petitioner to reinstate the first respondent in service with backwages. In the result, this writ petition is allowed. Ext.P1 is quashed. It is declared that the first respondent cannot be reinstated as an employee in the petitioner society and that she is not entitled for backwages as ordered. **sd/- A.V.RAMAKRISHNA PILLAI JUDGE** css/ true copy P.S.TO JUDGE