IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 WA.No. 1350 of 2011() --------------------- AGAINST THE JUDGEMENT IN WPC.28498/2007 Dated 07/07/2011 .................... APPELLANT/ PETITIONER ------------------- M.K.ASHRAF, MADATHIL CHIRAYIL, NADUVATHU NAGAR P.O., CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.ASOK M.CHERIAN SRI.SANTHOSH G. PRABHU SRI.S.KANNAN SRI.K.SASIKUMAR SMT.K.S.SANGEETHA RESPONDENTS/ RESPONDENTS --------------------- 1. PRESIDENT, AROOKUTTY SERVICE CO-OPERATIVE SOCIETY LTD., NO.1008, AROOKUTTY. 2. THE LABOUR COURT, KOLLAM. ADV.SRI.AZAD BABU FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2011, THE COURT ON 14/10/2011 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. ------------------------------------------ W.A.No.1350 OF 2011 ------------------------------------------- Dated this the 14th day of October, 2011 J U D G M E N T ~~~~~~~~~~~ P.S.Gopinathan, J. The appellant is the petitioner in W.P.(C) No.28498/2007. The appellant was working on commission basis as a Collection Agent in a Society of which the 1st respondent is the President. Since 27.6.1998 he was working so on the basis of an agreement which was marked as M1 before the 2nd respondent Labour Court, Kollam. Alleging that the appellant failed to attend the duties from 6.1.2003 to 18.1.2003, agreement was terminated. Though the appellant applied to excuse his absence by stating that his failure to attend the work was on medical grounds, he could not succeed to convince the 1st respondent. Upon raising an industrial dispute, the matter was referred to the 2nd respondent, Labour Court, as ID 57/2003. 2. The 2nd respondent after due enquiry arrived at a finding that the appellant was working on commission basis W.A.No.1350/2011 2 under the Contract and that there was no appointment to any specific post. Having due regard to the nature of the claim with reference to precedents reported in Secretary, State of Karnataka and others v. Umadevi [2006(2) LLJ 722], Indian Drugs & Pharmaceuticals Ltd. v. Workman [2007 (1) LLJ 580], State of Uttar Pradesh & Anr. v. Kaushal Kishore Shukla [1991 (1) SCC 691] and Narayana v. Tilak Raj [AIR 2003 (SC) 2658], the 2nd respondent answered the reference against the appellant by Ext.P2 award. Assailing Ext.P2, the Writ Petition was preferred under Article 226 of the Constitution of India. The learned Single Judge, giving reliance to the rulings of this Court in Eranalloor Service Co-operative Bank Ltd. v. Labour Court and Others [1986 KLT 801] , Koodaranji Service Co-op. Bank Ltd. v. Lissy [1993(2) KLT 706] and another judgment of this Court in W.A.No.524/1986, dismissed the Writ Petition with a specific finding that there was no appointment to the post sanctioned and that the appellant was working only on commission basis and therefore, there was no termination of the service of the appellant or retrenchment warranting procedures prescribed under Section 25F of the Industrial Disputes Act. Consequently, W.A.No.1350/2011 3 the Writ Petition was dismissed, as against which, this appeal was preferred. 3. We have heard Adv. Sri.Asok M.Cherian, the learned counsel appearing for the appellant as well as Adv. Sri.R.Azad Babu, the learned standing counsel for the respondents. 4. The appellant has no case that the appellant was appointed to a sanctioned post or that he was a regularly paid employee of the 1st respondent. It is not in dispute that the appellant was engaged as a Collection Agent on commission basis under M1 agreement produced before the 2nd respondent. Such being the status of the appellant regarding his relationship with the 1st respondent, it cannot be said that the appellant was a workman, the service of whom can be terminated only in compliance to the provisions under the Industrial Disputes Act. In this view of the matter, we find no merit in the appeal. The learned counsel for the appellant referring to Circular No.10/2005 dated 13.4.2005 issued by the Registrar of Co- operative Societies submitted that by that Circular, Co-operative W.A.No.1350/2011 4 Societies were permitted to regularise Daily Deposit Collectors and that if the agreement was not terminated, the appellant would have been regularised. It is not in dispute that the above Circular is much long after the date of termination of M1 agreement. As on the date of the above Circular, the appellant was no way be working under the 1st respondent so as to claim regularisation. We find no reason to interfere with Ext.P2 award. The learned Single Judge was right in dismissing the Writ Petition. The Writ Appeal is devoid of merits. In the result, the Writ Appeal is dismissed. No costs. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) ps/11/11