IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 W.A.No. 2211 of 2009 ----------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.12696/2008 Dated 03/07/2009 I.D.79/2004 of INDUSTRIAL TRIBUNAL, ALAPPUZHA .................... APPELLANT / PETITIONER: ------------------------------------------- DON BOSCO HOSPITAL, NORTH PARAVUR REPRESENTED BY ITS DIRECTOR, FR.SAJU KANICHUKUNNATH, AGED 38 YEARS, SON OF K.V.ZAVIER, RESIDING AT DIRECTORS' QUARTERS, DON BOSCO HOSPITAL, NORTH PARAVUR. BY ADV. SRI.B.ASHOK SHENOY SRI.SHIJU VARGHEESE RESPONDENTS/RESPONDENTS: ---------------------------------------------------- 1. C.A.REENA, VALIYARA HOUSE, III/161, THOTTAKKATTUKARA, NEAR MATCH WORKS, ALUVA-8. 2. INDUSTRIAL TRIBUNAL, ALAPPUZHA. BY ADV.SRI.K.S.MADHUSOODANAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.BANNURMATH, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.2211 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October 2010 JUDGMENT A.K.BASHEER, J. Ext.P6 award passed by the Industrial Tribunal, Alappuzha was challenged by the appellant/employer before the learned Single Judge contending inter alia that the order of reinstatement of the workman in service with continuity of service, full back wages and all other attendant benefits was illegal and vitiated. 2. However, the learned Single Judge repelled the above contention and concurred with the view taken by the Industrial Tribunal in all respects except as regards full back wages. The learned Judge held that respondent No.1/employee would be entitled to get only 25% back wages. The above judgment of the learned Single Judge is impugned in this appeal by the employer. 3. The case of the employee before the Tribunal was that she had been working in the management – hospital as an X-ray technician-cum- E.C.G technician with effect from April 20, 1998 till July 15, 2003 continuously and uninterruptedly. She contended that her services were terminated by the management in an arbitrary and illegal manner and without any justifiable reasons. She, therefore, sought reinstatement with full back wages and all other attendant benefits. W.A.No.2211 OF 2009 :: 2 :: 4. Appellant/management contended that the employee was engaged as a trainee in Advanced X-ray Techniques and Ultra Scan Course with effect from April 20, 1998 and that she worked in the establishment only in that capacity. On expiry of her training period and also in view of her request made on health grounds, she discontinued her training period from August 27, 1999. Thereafter, she was again allowed to join the establishment as a trainee with effect from July 2, 2001 on a monthly stipend of Rs.1,050/- for a period of one year. After expiry of the above training period, she was again allowed to rejoin the establishment as an X- ray Assistant trainee on a monthly stipend of Rs.1,100/- with effect from July 16, 2002. According to the management, she did not show any marked improvement in her job and therefore the management was not inclined to extend the period of training any further. Thus, on expiry of the training period on July 15, 2003 she was not entitled to continue further. In short, the contention of the appellant/management was that she was not entitled to get an order of reinstatement in service as a workman, since she never did enjoy such a status. 5. The Tribunal repelled the above contention after evaluating the oral and documentary evidence adduced by the parties. It was noticed by the Tribunal that Ext.W1 clearly revealed that the employee had obtained her Diploma in Diagnostic Radiology Technology (DDRT) in July 1994. W.A.No.2211 OF 2009 :: 3 :: Ext.W2 showed that she had completed her X-ray training during 1995- 1996 from Mar Augustine Jubilee Hospital and Ext.W3 revealed that she had worked as an X-ray Technician-cum-E.C.G Technician in Jishy Hospital, Mundanvelli during 1996-1998. More importantly, Ext.W4, letter of appointment issued by the Director of the appellant/management, unambiguously showed that respondent No.1 was appointed on a monthly salary of Rs.900/-. But curiously on the day when respondent No.1 joined duty, the management issued Ext.W5 stating that she was taken as a trainee in the establishment. The salary offered in Ext.W4 was split up as Rs.600/- towards stipend and Rs.300/- towards travelling allowance. The Tribunal, after considering the totality of the facts and circumstances and also the oral testimony of MW1 that appellant/establishment had never conducted any training course in Advanced X-ray Techniques and Ultra Scan Course in its institution, held that the attempt of the management was apparently to deny the employee her legitimate statutory benefits. 6. We have carefully perused the award passed by the Tribunal. In our view, the Tribunal has adverted to all the relevant aspects of the matter and come to the right conclusion that the case set up by the management that the employee was taken as a trainee and not as an X-ray Technician is wholly untenable. The learned Single Judge has reconsidered the matter within the permissible limits enjoined under W.A.No.2211 OF 2009 :: 4 :: Articles 226 and 227 of the Constitution of India. In that process, the learned Judge found that it may not be just and proper to direct the management to pay the full back wages to the respondent/employee. The award passed by the Tribunal has been accordingly modified and the quantum of back wages reduced to 25%. Having regard to the entire facts and circumstances, the view taken by the learned Single Judge, in our view, is eminently just and proper. 7. Sri.Ashok B. Shenoy, learned counsel for the appellant, has invited our attention to a few decisions of the apex court in support of his contention that a trainee will not be entitled to get the benefit of the Industrial Disputes Act, 1947. In U.P. State Electricity Board V. Sri.Shiv Mohan Singh and another [AIR 2004 SC 5009] , the question that came up for consideration was the scope and ambit of Apprentices Act, 1961 vis-a-vis the U.P.Industrial Disputes Act, 1947. After an elaborate consideration of the relevant provisions under the two enactments referred to above and particularly, the factual matrix involved in the case on hand, their Lordships held that the employer has no statutory liability to give employment to an apprentice. It was further held that non-registration of the contract of apprenticeship will automatically nullify the same. We are afraid the above decision will not come to the aid of the appellant in any manner. W.A.No.2211 OF 2009 :: 5 :: 8. In the decision in Mukesh K Tripathi V. Senior Divisional Manager, L.I.C and others [AIR 2004 SC 4179] also the question that arose was whether the appellant who was appointed as Apprentice Development Officer in Life Insurance Corporation would be entitled to be treated as a workman. The apex court held that a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 must establish that he was employed in the establishment for the purpose of doing any work contemplated in the definition. After considering the evidence on record in the said case their Lordships held that the appellant/employee had failed to establish that he was a workman. 9. As has been noticed already, the evidence on record in this case will clearly establish that respondent/employee had specifically pleaded and proved that she had been working in the establishment as an X-ray Technician. The letter of appointment, Ext.W4, clearly established that the engagement of respondent No.1 was not as a trainee, but as an X-ray Technician. The testimony of the witness on the side of the management also clearly established that there was no facility in the hospital to impart training in X-ray and ECG techniques. 10. In National Small Industries Corporation Ltd. V. Lakshminaranan (2007) 1 SCC 214 , the question that came up for consideration before the apex court was whether in the facts and W.A.No.2211 OF 2009 :: 6 :: circumstances of the case, the respondent workman was entitled to get reinstatement. After analyzing the entire evidence on record, the apex court held that the respondent/workman would not be entitled to get the benefit of the provisions contained in the Industrial Disputes Act. The above finding was entered purely on the basis of the evidence available in the case. Having carefully perused the above judgment we are of the view that the appellant will not get any assistance from the said judgment. 11. Learned counsel has invited our attention to a decision in J.K.Synthetics V. K.P.Agarwal and another (2007) 2 SCC 433, in which the question that arose for consideration was the quantum of back wages and other service benefits that an employee would be entitled to get on reinstatement. In the facts and circumstances, we are of the view that this decision also will not come to the aid of the appellant in as much as the learned Single Judge has in fact restricted the quantum of backwages to only 25%. 12. Thus, on an over all consideration of the entire facts and circumstances of the case, we do not find any reason to interfere with Ext.P6 award passed by the Tribunal. There is absolutely no perversity or material irregularity in the reasoning adopted by the Tribunal. The evidence adduced by the parties was analysed and appreciated by the Tribunal in a proper and legal manner. The Tribunal noticed that the W.A.No.2211 OF 2009 :: 7 :: management had not produced any material to show that any training course was being conducted in the institution. The evidence of the witness examined by the management was by itself fatal to its case in this regard. He stated that no training was being imparted in x-ray and ECG techniques in the institution. Further, the standing order (Ext.M20) revealed that trainees' were being taken not for giving training but for meeting their man power requirements. Significantly, Exts.W1 to W3 clearly established that respondent/employee had already completed the period of training after obtaining Diploma in the subject. All these and other facts and circumstances persuaded the Tribunal to come to the conclusion that the respondent was working as an X-ray Technician-cum-E.C.G. Technician in the appellant/hospital. The learned Single Judge also has, after a careful examination, concurred with the above view. In the above facts and circumstances, we do not find any merit in any of the contentions raised by the appellant. The appeal fails and it is accordingly dismissed. (S.R.BANNURMATH) CHIEF JUSTICE (A.K.BASHEER) JUDGE jes