Thumboor Service Co-operative Bank Ltd. v. Industrial Tribunal, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941** ## **WP(C).No.24014 OF 2010(B)** **AGAINST THE AWARD IN ID 89/2007 OF INDUSTRIAL TRIBUNAL, PALAKKAD** ## **PETITIONER:** **THUMBOOR SERVICE CO-OP.BANK LTD. NO.359, P.O.THUMBOOR, THRISSUR DISTRICT,, REPRESENTED BY ITS SECRETARY, -DO- -DO-** **BY ADV. SRI.K.G.BALASUBRAMANIAN** ## **RESPONDENTS:** |**1**|**P.R.SUBRAN**| |---|---| ||**S/O.RAMAN,**| ||**PERUMPULLY HOUSE, KOPRAKKALAM,,**| ||**P.O.MANAKKULANGARA, VIA KODAKARA,**| ||**THRISSUR DISTRICT.**| |**2**|**THE INDUSTRIAL TRIBUNAL PALAKKAD.**| |**3**|**STATE OF KERALA**| ||**REPRESENTED BY SECRETARY,**| ||**MINISTRY OF LABOUR,, THIRUVANANTHAPURAM.**| ||**BY ADV. SRI.A.JAYASANKAR**| ||**BY ADV. SRI.MANU GOVIND**| ||**SRI.RON BASTIAN, GOVT. PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) No.24014 OF 2010(B)** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 29[th] day of October, 2019**_ The Thumboor Service Co-operative Bank Limited has filed this writ petition under Article 226 of the Constitution of India challenging the Award in ID No.89/2007 dated 16.03.2010 of the Industrial Tribunal, Palakkad. 2. The 1[st] respondent claimed before the Industrial Tribunal that he had been working as Sweeper under the petitioner - Society since 1981 and the management of the petitioner denied him employment from 14.01.2006 onwards. The 1[st] respondent was being paid ₹300/- per month. The 1[st] respondent contended that he was the only worker belonging to Scheduled Tribe and denial of employment to him was only for the reason that he demanded higher wages. The 1[st] respondent contended before the Industrial Tribunal that he is **WP(C) No.24014 OF 2010(B)** **3** entitled to reinstatement in service with back wages. 3. The petitioner opposed the claim of the 1[st] respondent stating that there is no post of Sweeper in the Society and the 1[st] respondent had not worked in the establishment nor he was paid wages as per the attendance register and wage register. The 1[st] respondent was engaged in some other works like news paper distribution, curry sale, sweeping in Thumboor Lord Krishna Bank, etc. The 1[st] respondent used to sweep the office premises of the petitioner according to his convenience. When he found it difficult to carry out his work, he voluntarily discontinued the work. The issue is a case of abandonment of service and not retrenchment. 4. The Industrial Tribunal examined MW1 on the part of the management and WW1 and WW2 on the part of the workman. Exts.M1 to M11 documents were marked by the petitioner and Exts.W1 to W8 were marked on behalf of the 1[st] respondent. The Industrial Tribunal, after considering the evidence before it, held that a part-time employee is also a **WP(C) No.24014 OF 2010(B)** **4** workman as defined under Section 2(s) of the Industrial Disputes Act. The service of the petitioner in the establishment is proved. The allegation of continuous unauthorised absence made by the petitioner is not proved and the petitioner could not substantiate such allegation. There is no legal evidence before the Tribunal to that effect. In such circumstances, the Tribunal held that denial of employment to the workman on the allegation of unauthorised absence is unjustified. Consequently, the Tribunal passed an Award holding that the 1[st] respondent is entitled to the relief of reinstatement with continuity of service. The back wages payable to the 1[st] respondent were restricted to ₹5,000/-. It is impugning the said Award of the Industrial Tribunal that the petitioner is before this Court. 5. Learned counsel for the petitioner argued that a reference to the Industrial Court in respect of the dispute was unwarranted and for resolution of such dispute, the provisions of Kerala Co-operative Societies Act alone could have been invoked. The counsel further pointed out that the Tribunal **WP(C) No.24014 OF 2010(B)** **5** ignored the fact that the rules relating to the Co-operative societies as applicable to the petitioner do not permit appointment of part-time Sweeper. Since there is no post of part-time Sweeper in the petitioner Bank, the Tribunal ought not have granted relief of reinstatement to the 1[st] respondent. Learned counsel further argued that mere payment of wages to the 1[st] respondent cannot confer any right of continued employment. The learned counsel also relied on the judgment of the Apex Court in _**Uttaranchal Forest Hospital Trust v. Dinesh Kumar** [(2008) 1 SCC 542]_ to press the point that in the case of part-time employees, the relief of reinstatement need not be ordered by the Industrial courts. The Industrial Tribunal ought to have held that it had no jurisdiction to entertain and adjudicate the dispute, in view of constitution of arbitration court under the Kerala Co-operative Societies Act. 6. The learned counsel for the 1[st] respondent, on the other hand, contended that the jurisdiction of the Industrial **WP(C) No.24014 OF 2010(B)** **6** court to adjudicate the service dispute in respect of the employees of Co-operative societies in Kerala is upheld in the judgment in _**K.A. Annamma v. The Secretary, Cochin Co-operative Hospital Society Ltd.** [(2018) 2 SCC 729]_ and in view of the said judgment of the Apex Court, there can be no questioning of jurisdiction of the Industrial court to adjudicate the issue. As regards the part-time nature of employment, the learned counsel for the 1[st] respondent contended that it is admitted and it is also established that the 1[st] respondent was working under the petitioner establishment since 1981. The allegation of abandonment of service made by the petitioner itself would show that his employment was recognised. Since the allegation of abandonment of service on the part of the 1[st] respondent is negatived by the Tribunal, it was only just and proper for the Tribunal to order reinstatement. Actually, the 1[st] respondent is eligible for full back wages since the Tribunal has found the allegation of abandonment of service as disproved. However, the workman has been allowed only back wages to the tune of **WP(C) No.24014 OF 2010(B)** **7** ₹5,000/-. There is no reason to interfere with the Award of the Tribunal, contended the learned counsel for the 1[st] respondent. 7. I have considered the arguments raised on behalf of either side. In view of the judgment in _**K.A. Annamma** (supra)_ , the maintainability of industrial dispute in respect of the issue agitated by the 1[st] respondent is settled. It cannot be said that Industrial courts have no jurisdiction to adjudicate disputes concerning employees of Co-operative Societies who fall under the definition of 'workman' under Section 2(s) of the Industrial Disputes Act. Therefore, the argument of the petitioner in that regard is liable to be rejected. 8. The petitioner has a further case that since the post of Sweeper is not a sanctioned post as far as the petitioner-society is concerned, the Tribunal ought not have directed reinstatement of the 1[st] respondent to a non-existing post. Such direction will create administrative difficulties to the petitioner-society. But, from the evidence, it can be seen **WP(C) No.24014 OF 2010(B)** **8** that the 1[st] respondent was, in fact, engaged as part-time Sweeper since 1981. It can be legally presumed that an institution like a society cannot function without the service of a Sweeper, whether part-time or full time. The Kerala Co-operative Societies Act and the Rules have made provisions for appointment of contingent employees to carry out such works. If the petitioner has engaged the 1[st] respondent as Sweeper without there being a sanctioned post of Sweeper, the 1[st] respondent cannot be blamed. It is for the petitioner to seek appropriate permission from the Government for approval of engagement of the 1[st] respondent as part-time Sweeper. At any rate, the petitioner cannot be heard to contend that since there is no sanctioned post, the Industrial Tribunal ought not have ordered reinstatement. The counsel for the 1[st] respondent states that in spite of the Award of the Tribunal, the workman has not been reinstated. 9. In the facts and circumstances of the case as stated above, I do not find any reason to interfere with the **WP(C) No.24014 OF 2010(B)** **9** impugned Ext.P1 Award in ID No.89/2007 of the Industrial Tribunal, Palakkad. The 1[st] respondent has filed petition under Section 17B of the Industrial Disputes Act. It is made clear that the petitioner will be liable to pay wages under Section 17B to the 1[st] respondent, from 02.08.2010 to this date, apart from the amount awarded by the Tribunal. Writ petition is disposed of as above. Sd/- **N. NAGARESH, JUDGE** aks/29.10.2019 **WP(C) No.24014 OF 2010(B)** **10** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **P1 TRUE COPY OF THE AWARD OF THE 2ND RESPONDENT IN ID NO.89/2007 DATED 16.3.2010.**