IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 7TH JULY 2011 / 16TH ASHADHA 1933 WP(C).No. 28498 of 2007(P) ----------------------------------------- PETITIONER(S): ------------------------- M.K.ASHRAF, MADATHIL CHIRAYIL, NADUVATHU NAGAR P.O., CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.ASOK M.CHERIAN RESPONDENT(S): --------------------------- 1. PRESIDENT, AROOKUTTY SERVICE CO-OPERATIVE SOCIETY LTD., NO.1008, AROOKUTTY. 2. THE LABOUR COURT, KOLLAM. R1 BY ADV. SRIR.AZAD BABU R2 BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/05/2011, THE COURT ON 7/07/2011 DELIVERED THE FOLLOWING: Kss WPC.NO.28498/2007 P APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE DISABILITY CERTIFICATE ISSUED BY MEDICAL BOARD. P2: COPY OF THE AWARD DTD. 20/03/2007 IN I.D.57/03 OF THE LABOUR COURT, KOLLAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.28498 of 2007 ------------------------------- Dated this the 7th day of July, 2011 J U D G M E N T Ext.P2 award passed by the Labour Court, Kollam on 20.3.2007 answering the issue referred for adjudication against the employee and in favour of the employer is under challenge in this writ petition. The brief facts of the case are as follows:- 2. The petitioner herein, a person with disability, was engaged as a Collection Agent on commission basis in the Arookutty Service Co-operative Society Ltd. No.1008, Arookutty. Alleging that he was denied employment on 18.1.2003 when he reported for duty after a brief spell of illness from 6.1.2003 to 18.1.2003, the petitioner raised a dispute. The said issue was referred to the Labour Court for adjudication. The petitioner contended before the Labour Court that he could not attend to his duties from 6.1.2003 to 18.1.2003 as he was ill, that he reported for duty on 18.1.2003 with a medical certificate to explain his absence, but the Management denied him employment and in his place, two other persons were appointed. The Management contended that the petitioner absented from duty on his own will and there was no denial of employment. It was also contended that the petitioner was not appointed against any sanctioned post, that his engagement was not approved by the W.P.(C) No.28498 of 2007 2 authorities under the Kerala Co-operative Societies Act and therefore as he is not a regular employee of the society, he is not entitled to the reliefs prayed for. 3. In the Labour Court, the petitioner was examined as MW.1. On the side of the Management, though no witnesses were examined, Exts.M1 to M6 were marked. By the award impugned in the writ petition, the Labour Court held that the petitioner was not appointed to a sanctioned post and therefore the termination of his service cannot be considered as retrenchment. The Labour Court also held relying on the decision of the Apex Court in Secretary, State of Karnataka and others v. Umadevi (2006 (2) LLJ 722) that the petitioner who was working on commission basis has no right to seek reinstatement in service. Hence this writ petition challenging Ext.P2 award and seeking a declaration that the denial of employment to the petitioner is unjust and illegal and that he is entitled to be reinstated in service. 4. I heard Sri.Asok.M.Cherian, learned counsel appearing for the petitioner and Sri.Azad Babu, learned counsel appearing for the first respondent. I have also gone through the pleadings and the materials on record. Ext.M1 agreement dated 18.7.1998 produced before the Labour Court establishes the fact that the petitioner was W.P.(C) No.28498 of 2007 3 engaged as a Collection Agent on commission basis on 18.7.1998. Ext.M2 letter dated 31.3.2003 sent by the Joint Registrar of Co- operative Societies (General), Alappuzha to the petitioner discloses that after he was denied employment, he had complained to the Joint Registrar of Co-operative Societies by filing a representation dated 25.1.2003 and that in response to the said representation, the Joint Registrar of Co-operative Societies (General) had informed the petitioner that the post of Bill Collector is not a post which is sanctioned in the first respondent bank. In Ext.M4 letter dated 13.6.2001 submitted by the petitioner to the Secretary of the first respondent bank he had stated that on account of ill health, he is not in a position to work as Daily Deposit Collector. It is thus evident from the facts and the materials on record that the petitioner was only a Collection Agent working on commission basis and was not a regular employee of the first respondent bank. It is also evident from the materials on record that the post of Collection Agent is not a post sanctioned in the first respondent bank. 5. A learned single Judge of this Court has in Eranalloor Service Co-op. Bank Ltd. v. Labour Court & Others (1986 KLT 801) held that in order to avail the benefit of section 25F of the Industrial Disputes Act, 1947, the workman should establish that he W.P.(C) No.28498 of 2007 4 had a right to continue in service and his service was terminated without complying with the provisions of section 25 F. It was held that as the workman was not validly appointed, he is not entitled to the benefit of section 25F of the Industrial Disputes Act. The award passed by the Labour Court directing employee's reinstatement was accordingly set aside. The said decision was affirmed by a Division Bench of this Cout in W.A.No.524 of 1986. The same view was taken by another Division Bench of this Court has in Koodaranji Service Co-op. Bank Ltd. v. Lissy (1993 (2) KLT 706). 6. In the instant case, it is not in dispute that the post of Collection Agent was not a post sanctioned in the first respondent society. The appointment of the petitioner was not against a sanctioned post. He was engaged to work only on commission basis. Ext.M2 letter dated 31.3.2003 was sent by the Joint Registrar of Co- operative Societies (General), Alappuzha to the petitioner discloses the said fact. In such circumstances, even assuming that the petitioner's service was terminated without following the procedure prescribed in section 25F of the Industrial Disputes Act, as his appointment was not one validly made in terms of the relevant rules or to a sanctioned post, the petitioner cannot contend that the termination of his service amounts to retrenchment as defined in the W.P.(C) No.28498 of 2007 5 Industrial Disputes Act, 1947. Though the learned counsel for the petitioner contended that by Circular No.10 of 2005 dated 13.4.2005, the Registrar of Co-operative Societies had permitted service co- operative banks to regularise Deposit Collectors working on commission basis, that by itself will not lead to the inference that the petitioner's appointment was against a sanctioned post and was in order at the time when it was made. The decision to regularise Daily Deposit Collectors was taken only on 13.4.2005 long after the dispute involved in this instant case was referred to the Labour Court, Kollam for adjudication. Further, on the date on which the petitioner was denied employment, i.e., 18.1.2003, the Circular was not in force and the first respondent bank could not have regularised the petitioner in service. Such being the situation, I am of the opinion that the award passed by the Labour Court does not merit interference. I accordingly hold that there is no merit in the writ petition. The writ petition fails and is accordingly dismissed. P.N. RAVINDRAN, JUDGE. nj.