IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 OP.No. 16935 of 2000(N) -------------------------------- PETITIONER: ------------------- THE GENERAL SECRETARY, MERCANTILE EMPLOYEES ASSOCIATION, NO.5-2183, INDIRA GANDHI ROAD, KOZHIKODE 1. BY ADV. SRI.P.RAMAKRISHNAN SMT.T.C.KRISHNA RESPONDENTS: ---------------------- 1. INDUSTRIAL TRIBUNAL , KOZHIKODE. 2. THE SECRETARY, KOZHIKODE SARVODAYA, SANGAM, KHADIGRAM, P.B. NO.216, CALICUT 673 001. BY ADV. SRI.V.V.SURENDRAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/01/2008, ALONG WITH OP NO. 24348 OF 2000 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.16935/2000 ORDER ON CMP. NO.27835/2000 IN OP. NO.16935/2000 DISMISSED 01.01.2008 SD/- S.SIRI JAGAN, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE AWARD OF THE IST RESPONDENT DT. 30.7.98. EXT.P2:- COPY OF THE AWARD OF THE IST RESPONDENT DT. 6.12.95. /TRUE COPY/ P.A. TO JUDGE tss S.SIRI JAGAN, J. ======================= O.P. Nos.16935 of 2000(N) and 24348 of 2000(N) ======================= Dated this the 1st day of January, 2008 JUDGMENT O.P. No. 16935/2000 is filed by the union in ID No.22/96 before the Industrial Tribunal, Kozhikode. O.P. No.24348/2000 is filed by the management in the same industrial dispute. Both are challenging those parts of the award passed in the said ID, which are respectively against them. The issue referred for adjudication was: "Whether the following 15 workers are eligible for permanency? S/S (1) Sreenivasan.K. (2) Kuttinarayanan.M. (3) Anilkumar.M.C. (4) Vinodkumar.C.T. (5) Sundaran.C. (6) Bhaskaran.K.M. (7) Kesavan.T.P. (8) Appukuttan.P.A. (9) Purushothaman.M.T. (10) Raveendran.K. (11) Kunjuraman.P. (12) Rajan.C. (13) Ahammed Kabeer.P.M. (14) Ushadevi.P.T. and (15) Sarojini.C." 2. In the ID, the management raised the contention that it is not an industry coming within the definition of industry in the Industrial Disputes Act. They also challenged the competency of the union to raise the dispute. The Tribunal after adjudication decided that the management is an industry and that the union is O.P. Nos.16935 of 2000(N) and 24348 of 2000(N) -2- competent to raise the dispute. Even before the adjudication of the reference started by the Tribunal, the management had already regularised services of worker numbers 1 to 11 with effect from 16.10.1995 and 2.10.1996. The union did not press the claim against the 12th workman. The Tribunal did not find it necessary to interfere with the relief already granted by the management to the first 11 workers. The Tribunal thereafter considered the claim of the workers 13 to 15 and directed the management to make the workers 13 to 15 permanent with effect from 1.1.1999. In the course of discussion of the issues involved in the industrial dispute, the Tribunal made an observation to the effect that workers of the management recruited temporarily should be made permanent at least after 5 years of continuous service. 3. The management is now challenging the award to the extent it holds that the management is an industry and to the extent that the Tribunal held that on completion of 5 years of continuous service workers are eligible to be made permanent. 4. The union on the other hand submits that after finding that they are eligible to be made permanent, the tribunal ought O.P. Nos.16935 of 2000(N) and 24348 of 2000(N) -3- to have directed the management to make the workers permanent on completion of 240 days of service with retrospective effect or at least from the date of raising the industrial dispute. They would point out that in Ext.P2 award in respect of a similarly placed employee, the very same Tribunal had adopted a different yardstick whereby the worker involved in that industrial dispute was directed to be confirmed with effect from the date from when the management made some regular appointments after the workmen entered service as temporary workmen. The contention of the union is that a uniform yardstick ought to have been adopted by the Tribunal while directing the management to make the workers permanent. 5. Regarding the Original Petition filed by the management, I am of the opinion that the Tribunal has rightly held that the management is an industry coming within the definition of the Industrial Disputes Act, taking into account the nature of the activities of the management. The direction that after 5 years every temporary employee should be made permanent also does not appear to be unreasonable, in view of the fact that as item 10 of the Vth schedule of the Industrial O.P. Nos.16935 of 2000(N) and 24348 of 2000(N) -4- Disputes Act, it is an unfair labour practice to employ workmen as temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen. Regarding the contention raised by the union also I am not satisfied that the Tribunal was unreasonable in fixing the date of permanency. The Tribunal has adopted a reasonable period for the same. From the award, I find that the industrial dispute was referred by order dated 16.8.1996 and the first 11 workers involved were made permanent from 16.10.1995 and 2.10.1996. In respect of the other workers also, taking into account their dates of first appointment and the date assigned by the Tribunal for being made permanent, I do not find that the criterion adopted by the Tribunal is invalid. In the above circumstances, I do not find any merit in O.P. No.16935/2000 as also. Accordingly, both the original petitions are dismissed. S.SIRI JAGAN, JUDGE jp