IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 OP.No. 39055 of 2002(Y) ---------------------------------- PETITIONER(S): ------------------------ LIFE INSURANCE CORPORATION OF INDIA, A BODY CORPORATE ESTABLISHED AND FUNCTIONING UNDER THE LIC OF INDIA ACT (ACT XXXI OF 1956) HAVING ITS CENTRALOFFICE AT "YOGAKSHEMA",JEEVAN BIMA MARG,BOMBAY, DIVL.OFFICE AT "JEEVANPRAKSH" ERNAKULAM REP.BY ITS MANAGER (L & HPF) DIVL.OFFICE, BY MR.M.PATHROSE MATTHAI, SENIOR ADVOCATE BY ADV. MR.R.S.KALKURA RESPONDENT(S): -------------------------- 1. USHAKUMARI,KIZHAKUMKARA MODIYIL, ERUMAKARA P.O. EDAYARANMALA. 2. N,.SURESHKUMAR,PULICKILATHU HOUSE, KITTYARKANDAM, PRAKASH P.O. IDUKKI. 3. MAYA.C. THARIYAPARAMBU NIKARATHU KODAMTHURUTHU,KUTHIYATHODU P.O.,CHERTHALA, ALAPUZHA. 4. ARAVINDAN UNNITHN, LAKSHMI VILASOM, PANDANAD P.O. CHENGANNUR,KERALA. 5. GIRIJAKUMARI,KAKKANATTU HOUSE, CHEMMANATHUKARA P.O. VAIKOM, KOTTAYAM. 6. JYOTHI G.PRABHU, KIZHAKEDATHU HOUSE, KAVUMBHAGOM P.O,. THIRUVALLA, ALLEPPEY. OP. NO.39055/2002 7. UNION OF INDIA,REPRESENTDED BY SECRETARY MINISTRY OF LABOUR,GOVT . OF INDIA, SHRAM,, MANTRALAYAM, NEW DELHI. 8. THE INDUSTRIAL TRIBUNAL, ALAPPUZHA. BY R1 TO R6 BY ADVS . MR. ASOK M.CHERIAN, MR.B.ASHOK SHENOY, MR.SANTHOSH G. PRABHU. R7 BY MR.D.KISHORE, ADDL.CGSC THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON 10/07/2009 DELIVERED THE FOLLOWING: OP. NO.39055/2002 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LETTER DT. 4.10.97 ISSUED BY THE PETITIONER TO THE IST RESPONDENT. P2:- COPY OF THE LETTER DTD. 20.2.98 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT. P3:- COPY OF THE LETTER DTD. 12.3.97 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT. P4:- COPY OF THE LETTER DTD. 7.10.97 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT. P5:- COPY OF THE LETTER DTD. 21.4.98 ISSUED BY THE PETITIONER TO THE 5TH RESPONDENT. P6:- COPY OF THE LETTER DTD. 29.11.07 ISSUED BY THE PETITIONER TO THE 6TH RESPONDENT. P7:- COPY OF THE COMMUNICATION DTD. 16.8.02. P8:- COPY OF THE COMMON AWARD IN ID 64, 65, 68,69,70 AND 71. P9:- COPY OF THE RELEVANT PAGES OF STAFF REGULATION 1960 DT. NIL. P10:- COPY OF THE LIFE INSURANCE CORPORATION OF INDIA (EMPLOYMENT OF TEMPORARY STAFF ® INSTRUCTION, 1993, DT. 28.6.93. P11:- COPY OF THE LIC RECRUITMENT (OF CLASS III AND CLASS IV STAFF ® INSTRUCTION 1993 DTD. 25.2.93. P12:- LIC RECRUITMENT ( OF CLASS III AND CLASS IV STAFF) INSTRUCTION, 1979, DTD. 27.11.79. TRUE COPY P.S. TO JUDGE TSS V.K.MOHANAN, J. ---------------------------------------- O.P. No.39055 OF 2002 ---------------------------------------- Dated, the 10th day of July 2009 JUDGMENT The Life Insurance Corporation of India represented by its Manager (L& HPF), Divisional Office, Ernakulam is the petitioner (in short, 'the LIC' for reference) which preferred this writ petition challenging Ext.P8 award passed by the Industrial Tribunal - the 8th respondent herein. It is also prayed for a declaration that Ext.P8 award is grossly illegal and wrong, and, to issue a writ of certiorari quashing Ext.P8 award dated 16.8.2002. 2. Exts. P1 to P6 are appointment orders issued by the LIC appointing respondents 1 to 6 as Assistants in various branches in the temporary vacancies for a certain period specifically noted in the respective appointment orders. Respondents 1 to 6 raised industrial disputes which were referred to the Industrial Tribunal, Alappuzha, by the Government of India, the 7th respondent herein, under section 10 of the Industrial Disputes Act (hereinafter referred OP39055/02 -:2:- for short,'the I.D.Act' only). The references were taken on file as I.D.Nos.64/99, 65/99, 68/99, 69/99, 70/99 and 71/99. The Tribunal considered all the above disputes together since the issues referred for adjudication were same and the contentions raised were also identical. During trial, common evidence was adduced, common arguments were heard and the I.D. cases were disposed of by a common award. In all these cases, by the common award, the Tribunal has found that the termination of workmen in all these cases were mere camouflage just to deny the protection ensured in the Industrial Dispute Act, especially in Section 25F and 25 G of the I.D.Act. It is also held that the management cannot invoke the provision contemplated in Section 2(oo)(bb) of the I.D.Act for the termination effected in all those cases and thus declared that all the terminations effected are ab initio void. On the basis of the above finding and declaration, reliefs were granted in each cases separately but such reliefs are more or less same. In all those cases, it is held that the workmen would be deemed in service till their services are validly OP39055/02 -:3:- terminated by the management. It is the above award challenged in this writ petition on various factual and legal grounds. 3. A brief facts, that led to the disputes which are worth and relevant for appreciating the legal contentions advanced , and for proper consideration of the issues involved in this case, are as follows: The Ist respondent was appointed and engaged as temporary Assistant in the Divisional Office, Kottiyam from 8.10.97 to 9.12.98 and her service was terminated on 1.12.98. The 2nd respondent was appointed and engaged as temporary Assistant in the branch at Mundakkayam for the period from 26.2.1998 to 5.4.98 and according to the LIC, when the work was completed, he was posted in BSU department from 6.4.98 to 10.6.98 and thereafter posted in the Mundakkayam Branch office from 16.6.98 to 30.11.98 and the service was finally terminated on 30.11.98. Similarly, the 3rd respondent was appointed and engaged from 15.3.97 to 12.6.97 and after a short beak of 4 days, the 3rd respondent was again OP39055/02 -:4:- appointed for the period from 16.6.97 to 30.11.98. The 4th respondent was appointed and engaged for the period from 14.10.97 to 10.2.98 and subsequently for the period from 26.2.98 to 25.4.98 and thereafter his services were also terminated. The 5th respondent was appointed and engaged on temporary basis from 25.4.98 to 20.11.98. Similarly, the 6th respondent was appointed and engaged on temporary basis from 3.12.97 to 5.3.98 and her service was also terminated on completion of the said period. Respondents 1 to 6 had raised industrial disputes alleging wrongful retrenchment from the service of the LIC and sought reinstatement. The industrial disputes raised by respondents 1 to 6 were I.D.Nos.64/99, 65/99, 68/99, 69/99,70/99 and 71/99 respectively. In all these cases, the issue referred was as to “ whether the action of the management in terminating the service of the workmen was justified? If not, what relief the workmen entitled to ?” Respondents 1 to 6 filed claim statements before the Tribunal. The claim was on the basis of OP39055/02 -:5:- the Sections 25F and 25H of the I.D.Act and also requested for regularization of their services. It is also contended that the acts of the petitioner are illegal , unjust and vitiated by mala fide and void ab initio, and also claimed for the reinstatement with full back wages and continuity of services. 4. Against the claim statements preferred by the workmen, the petitioner management filed reply statement stating that the appointments of the workmen were on contract and purely on temporary basis, to clear the backlog work which was existing at the time of the appointment. According to the management, the appointments of the workmen, as evidenced by the appointment orders itself, were on temporary basis and their employment would be governed by the provisions of the Life Insurance corporation of India (Employment of Temporary Staff & Instructions) Rules 1993, ( for short as “Rules” and “LIC Act”) respectively. It is also the specific contention of the petitioner management that the appointments were only contractual and purely on adhoc basis and therefore, the OP39055/02 -:6:- workmen are not entitled to get other benefits on account of their employment. According to the management/petitioner, the appointment would automatically cease on the expiry of the period or at any time prior thereto if the petitioner/management decides to terminate the service without assigning any reason and therefore, there is no retrenchment so as to attract Section 25-F of the I.D.Act. During the enquiry in the Tribunal, from the side of the management, one witness was examined as MW1. Besides the above, documentary evidence such as M1 to M21 were marked. From the side of the workmen, one Exhibit was produced as W1. Except the case of I.D.No.70/99, in all other cases, one witness each was examined from the side of the workmen as WW1 who is none other than the workman concerned. Thus, the Tribunal after considering the entire materials and evidence on record, and also after considering the various legal provisions, and the authorities cited before it, passed the final award, Ext.P8 dated 20.7.2002, which was published as per Ext.P7 notification. OP39055/02 -:7:- 5. Challenging the above award, the petitioner preferred this writ petition reiterating the contention taken before the Tribunal. According to the LIC, under Regulation 8 of the LIC (Staff) Regulations, they can employ staff in Classes III and IV on a temporary basis subject to such general or special directions as may be issued by the Chairman of the corporation from time to time. According to the petitioner, under the sub-regulation (2) of Regulation 8, no person so appointed on temporary basis shall only by reason of such appointment be entitled to absorption in service of the Corporation or claim preference for recruitment to any post. In order to substantiate the contention before this Court, the petitioner has produced Exts.P1 to P6 which are the appointment orders with respect to respondents 1 to 6. The specific grounds raised in this writ petition is to the effect that respondents 1 to 6 are bound by Regulation 8 and as such, the provisions of the I.D.Act were not applicable to the respondents with respect to matters covered by Section 48(2) (cc) of the LIC Act. According to the petitioner, the OP39055/02 -:8:- respondents are not retrenched employees, since they are governed by Regulation 8 of the Regulation. Therefore, the Tribunal is wrong in not holding that the respondents were appointed purely under Regulation 8 of the LIC (Staff) Regulation (hereinafter referred for short as “Regulation” only) and that the provisions of ID Act were excluded to the extent covered by the said Regulation. It is also contended that in view of the amendment brought to the ID Act, 1947, the matters covered by the Rules that brought under section 48 (2)(c) read with Section 48 (2) (cc) excluded the application of the provisions of the ID.Act or any other Act. It is also contended that though the respondents worked for a short period or they were continued to be appointed from time to time on adhoc basis, they cannot claim regularization in service as there is no rule in the LIC for regularization of adhoc employees and, especially, when Regulation 8(2) prohibits absorption in service. It is also the contention of the LIC that when statutory rules are made for recruitment, appointments shall be only in accordance with the rules and OP39055/02 -:9:- therefore, persons like respondents 1 to 6 who were appointed for a short span cannot be regularaised. 6. I have heard the learned senior counsel Sri M.Pathrose Mathai, appearing for the petitioner as well as Sri B.Ashok Shenoy, the learned counsel appearing for respondents 1 to 6. I have also perused the materials on record. 7. In the foregone paragraphs, I have already referred certain facts connected with the appointment of respondents 1 to 6. Exts.P1 to P6 are the appointment orders of respondents 1 to 6 issued by the petitioner which would show that their appointments were provisional basis and for a particular period, and the workmen were again appointed on expiry of the term of appointment but after short break. In order to appreciate the contentions advanced by both the petitioner as well as respondents 1 to 6, and the finding of the Tribunal, some more inevitable facts and evidence are required, which need serious consideration and proper appreciation. OP39055/02 -:10:- 8. Ext.M1 produced before the Tribunal is nothing but Ext.P10 which is the scheme in force in the LIC which is a guideline issued as per circular dated 28.6.93 by the Central office of the LIC. The Tribunal in its award quoted certain portions of the said circular and the Tribunal has found that the temporary appointments in respect of staff in Class III can be made in three contingencies such as : “(i) Permanent vacancies pending recruitment of staff on regular basis; (ii) vacancies arising out of absence on maternity leave by a regular female employee or when the regular employee proceeds on sick leave for a period exceeding one month; (iii) Adhoc vacancies sanctioned by the Zonal Manager to cope up with the work of a seasonal nature.” (emphasis supplied) When the management witness was examined as MW1, he had deposed that the last permanent recruitment in the LIC was done in the year 1993. According to him, after that, whenever there was requirements, temporary appointments OP39055/02 -:11:- were resorted to. While appreciating the evidence of MW1, the Tribunal has found that MW1 had no case that all these temporary appointments were not because of any maternity leave of female employee or sick leave of any other regular workman or even to fill up the adhoc vacancies sanctioned by the zonal manager to cope up with the work of seasonal nature. It is also brought on evidence that Exts.M18 to 21 are temporary appointment registers which will show that irrespective of any particular season, temporary appointments were being made almost on regularly throughout the year. The Tribunal further observed after perusing the record that the only difference is that the duration for such appointments were from one month to three months at a time. Thereafter only extensions. So it is found that these temporary appointments were made not to meet any workload of any season or to fill up a gap that occurred due to the maternity leave or sick leave. Thus the Tribunal has rightly concluded that these temporary appointments were made only because of the non-availability or regularly recruited candidates in the OP39055/02 -:12:- select list. The Tribunal has also found that the posts occupied by the workmen concerned were of permanent nature and they could have been continued in the same post till the new recruits come. From the above facts, it is crystal clear that the LIC of India carry on its business and management using temporary appointees without conducting any recruitment process and making appointment to the regular post after 1993. It is on the basis of the above materials and finding, the Tribunal held that in order to avert any kind of claim for regularization or absorption in service, the management was creating artificial break in the service of workmen and they were also very particular that as far as possible, no workman should have the minimum 240 days of continuous service in a preceding 12 months to stake claims under Section 25-F of the I.D.Act. The Tribunal, after considering the evidence of MW1, has held that the system of temporary appointment continued even in the year 2000, and there is no select list for enabling the management corporation to make regular appointment. The Tribunal took OP39055/02 -:13:- a view that no sanctity need be given to the contractual appointments of these workmen, and further , held that the management was not within their right to terminate the services of the workmen on expiry of period of contract of employment. Thus the Tribunal has categorically found that the termination were mere camouflage just to deny the protection ensured in the Industrial Dispute Act, especially, in Section 25-F and 25-G, and the management cannot invoke the provision contemplated in Section 2(00)(bb) of the ID Act for this kind of termination. 9. Now I shall consider the contentions advanced by both the counsels for the petitioner as well as the respondents under the above factual and legal premises: 10. Sri M.Pathrose Mathai, the learned senior counsel appearing for the petitioner, in his persuasive argument, advanced two fold contentions to assail the findings of the Tribunal and its award. The first contention is based upon the factual inputs available in this case. According to him, as evidenced by Exts.P1 to P6, respondents 1 to 6 were OP39055/02 -:14:- appointed on contract basis for a definite period temporarily and such factual inputs attract section 2(00)(bb) of the I.D.Act and the termination of respondents 1 to 6 will not come within the purview of “retrenchment ” and therefore, section 25F, 25- G and 25-H are not at all attracted and hence, the finding of the Tribunal is factually incorrect and legally unsustainable. The learned counsel invited my attention to Section 2(00) and (bb) of the I.D.Act which says: “(oo)“retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include- (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation on that behalf contained therein; or} So, according to the learned counsel, as evidenced by Exts.P1 OP39055/02 -:15:- to P6, the appointment of the workmen was for a particular period and the services were terminated on the expiry of such contract . It is submitted that in the appointment orders itself it is stated their tenure of office and the termination was not for non-renewal of contract of employment. So, the termination in the present case will come within the exclusive clauses of Section 2(oo) retrenchment, namely, Section 2(oo) (bb). Thus, the termination of the respondents 1 to 6 are not retrenchment and hence the petitioner corporation cannot be held liable under sections 25-F, 25-G and 25H. 11. Besides the above provisions of the I.D.Act, the learned counsel also invited my attention to the LIC of India (Staff) Regulations 1960. Regulation 8(1) reads: “8(1) Notwithstanding anything contained in these Regulations, a Managing Director, Executive Director (Personnel), a Zonal Manager or a Divisional Manager may employ staff in Classes III and IV on a temporary basis subject to such general or special directions as may be issued by the Chairman from time to time. (2) No person appointed under sub-regulation (1) shall only by reason of such appointment be entitled to absorption in the service of the Corporation or claim OP39055/02 -:16:- preference for recruitment to any post.” The learned counsel also invited my attention to Ext.P10 “Instructions”, which is none other than Ext.M1 marked in the Award. Ext.P10 instructions are issued by the Chairman in terms of clause 4 of the Regulation. Thus the learned counsel submitted that the appointment orders like Exts.P1 to P6 were issued strictly in accordance with Ext.P10 and also Regulation 8 of the Regulations. Such provisions enable the LIC to make appointment on temporary basis for a limited period and such contractual appointment envisages automatic termination from work. Therefore, such terminations are protected Section 2(oo)(bb), and those termination will not amount to retrenchment. In support of the above contention, the learned counsel relied on the decisions reported in Punjab SEB v. Sudesh Kumar Puri (2007 (2) SCC 428); Municipal Council, Samrala v. Sukhwinder Kaur (2006(6) SCC 516); Jayabharath Printers v. Suresh Kumar (2000 (1) KLJ 1028); M.Venugopal v. Divnl. Manager, LIC of India, Machilipatanam (AIR 1994 SC 1343) OP39055/02 -:17:- 12. Another legal contention stressed by the senior counsel for the petitioner is that the Tribunal has exceeded its jurisdiction and passed the award and hence it is perse illegal. According to the learned counsel, the observation, finding and direction issued by the Tribunal as per the award amount to overriding effect of the LIC Act , Rules, Regulations and Instructions issued by the Chairman of LIC. It is the case of the learned counsel that the LIC is created through special enactment and its function and business are governed by the provisions of such Act and Rules framed thereunder. The Regulations and Instructions are issued under the provisions of the Act and Rules. Therefore, according to the learned counsel, the provisions of the I.D.Act has no application as the same are excluded by the provisions of the LIC Act, Rules, Regulation and Instruction. Therefore, the finding of the Tribunal that the workmen are entitled to get the benefit of Section 25-F and 25-H of the I.D.Act is illegal and unwarranted. 13. The learned counsel invited my attention to various OP39055/02 -:18:- sections of the LIC Act 1956. According him, section 23 of the Act provides that the Corporation may employ number of persons as it thinks fit for the purpose of enabling to discharge its function under the Act. Section 48 of the Act enables the Central Government to make rules to carry out the purposes of the said Act. Similarly, it is pointed out that Section 49 of the LIC Act 1956 authorize the Corporation to make Regulations. Thus, According to the learned counsel , the rules framed under section 48(2)(c) read with Sect.48 (2) (cc) and the Regulations made under section 49 has got independent existence not withstanding any other law including the I.D.Act. Thus, according to the learned counsel, appointment of respondents 1 to 6 as per Exts.P1 to P6 are purely on temporary basis and the same was done in exercise of the powers vested upon the petitioner under Regulation 8 of the Regulations which formed as per Section 49 of the Act and hence the provision of ID Act has no application. According to the learned counsel, the Tribunal overlooked the above provisions and in effect, the direction issued by the Tribunal OP39055/02 -:19:- has an overriding effect over the above legal provisions for which the Tribunal has no jurisdiction. In support of this contention, the learned counsel cited the following decisions. A.V.Nachiane & Anr. v. Union of India (AIR 1982 SC 1126); M.Venugopal v. Divnl.Manager,LIC of India, Machilipatnam (AIR 1994 SC 1343); Mrs. Asha Ramachandran v. Ambekar (AIR 1994 SC 2148); T.Full Time Temp. LIC EMP W.ASSN. v. S.D.M, LIC (1993 (1) LLJ (Mad.)1030). 14. On the other hand, Sri B.Ashok Shenoy, the counsel appearing for respondents 1 to 6, the workmen, vehemently argued supporting the finding and Ext.P8 award of the Tribunal. According to the learned counsel, the Tribunal has not exceeded its jurisdiction and the direction issued is in conformity with the provisions contained in Ext.P10 Instruction of the Chairman of the LIC and Regulation 8 of the Regulations and rightly in accordance with the provisions contained in the I.D.Act. The learned counsel submitted that the Tribunal has specifically declined the request of the workmen for regularization in the service of the LIC. OP39055/02 -:20:- According to the learned counsel, the observation of the Tribunal is that the termination of respondents 1 to 6 from the service of the petitioner is not in accordance with the Section 25-F and therefore, till their services are terminated, in accordance with a valid retrenchment order, they can continue under the petitioner LIC. According to the learned counsel, there is no conflict between the provisions of the I.D.Act and the provisions of LIC Act, Rules, Regulations and Ext.P10 instruction. The learned counsel submitted that the Tribunal has come into such conclusion after analysing the evidence and materials on record and after considering the various provisions of law, the Regulations, guidelines which are relevant in the matter. It is also the contention of the learned counsel that the order of the Tribunal is not against the provisions of the Regulation or Ext.P10 instruction or the LIC Act. The learned counsel pointed out that the approach made by the petitioner LIC appointing respondents 1 to 6 regularly but on temporary basis with intervening short break, is impermissible in law. Such a practice is seriously criticized OP39055/02 -:21:- through various judicial pronouncements. The finding of the Tribunal also is to that effect and thus, the