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CochIn Malleables (Private) Ltd. Vs. Its workmen (represented by CochIn Malleables Workers' Union and CochIn Malleables Employees' Union) and Ors. (12.02.1969 - KERHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1970)ILLJ122Ker
AppellantCochIn Malleables (Private) Ltd.
Respondentits workmen (represented by CochIn Malleables Workers' Union and CochIn Malleables Employees' Union)
Excerpt:
- - but the question for determination in this case is something entirely different, if the termination of these workmen was not bona fide, if it was done with ulterior motives and for no reasons demanding the interest of the industry, and it was a case where the management chose for reasons of its own to send away workmen whom it did not like, it would be a case of mala fide termination of service, and would be liable to be set aside in an industrial adjudication. though it was alleged that the termination was made in the best interest of the industry, and the work of these persons being unsatisfactory, absolutely no material was placed before the labour court to justify the said allegation......of 43 workmen in the service of the appellant. this dispute was pending adjudication as industrial dispute no. 32 of 1963 before the industrial tribunal, ernakulam. then the appellant by a notice dated 17 september 1963 terminated the service of 41 out of the 43 workmen with effect from 1 october 1963, in purported exercise of its power under its standing orders, a copy of which is ex. f. 3. respondent 1, again raised a dispute on this matter; and it was referred by the government to the labour court (kerala state), quilon, who is respondent 2 in this appeal. this reference is industrial dispute no. 11 of 1964.2. before the labour court, respondent 1 contended that the above workmen were dis-charged from service without any reasonable cause; that 33 among them had more than.....
Judgment:

M.U. Isaak, J.

1. This is an appeal from the judgment of a learned Judge of this Court in Original Petition No. 515 of 1966. The appellant is the petitioner, the Cochin Malleables (Private), Ltd. There was an industrial dispute between the appellant and its workmen represented by respondent 1, in which one of the issues was the confirmation of 43 workmen in the service of the appellant. This dispute was pending adjudication as Industrial Dispute No. 32 of 1963 before the industrial tribunal, Ernakulam. Then the appellant by a notice dated 17 September 1963 terminated the service of 41 out of the 43 workmen with effect from 1 October 1963, in purported exercise of its power under its standing orders, a copy of which is Ex. F. 3. Respondent 1, again raised a dispute on this matter; and it was referred by the Government to the labour court (Kerala State), Quilon, who is respondent 2 in this appeal. This reference is Industrial Dispute No. 11 of 1964.

2. Before the labour court, respondent 1 contended that the above workmen were dis-charged from service without any reasonable cause; that 33 among them had more than 240 days of service and they were entitled to be treated as permanent under Ex. P. 3; that the remaining 8 workmen were probationers entitled under Ex. P. 3 for one full year of probationary service; that the termination of their service was before the completion of the said period, and was, therefore, illegal; that, when the aforesaid 41 workmen were discharged from service, persons who Joined the service much later than some of the discharged workmen were retained in service ; that the appellant was also recruiting fresh hands in the place of discharged workmen; that the termination of service of these 41 workmen was to indirectly deprive them of the benefits they had claimed in Industrial Dispute No. 32 of 1963: that these workmen were discharged from service without any bona fides and with ulterior motives and it amounted to victimization and unfair labour practice. The appellant denied the above charges. Regarding the eight probationers, the appellant contended that they were not entitled under Ex. P. 3 for one year's service, and that their service was liable to be terminated at any time. Regarding the remaining 33 workmen, the appellant Contended that 7 among them were casual workers, liable to be discharged at any time, and that the remaining 26 were temporary workers liable under Ex. P. 3 to be discharged from service at any time without even notice. The appellant also contended that no ground whatsoever need be stated for terminating the service of such workmen, and added that in this case, their service was terminated, as it was found as a matter of fact uasatisfactory. Ths allegation that Junior hands were retained and that new persons were being employed in the place of the discharged workmen was not denied by the appellant. The labour court upheld the contentions of respondent 1, and found that the termination of service of the above workmen was capricious, arbitrary and unjustified. Accordingly it directed that the 33 workmen should be reinstated in service, and the 8 probationers should be given their wages from the date of termination of service till 17 October 1963. This is the date when they would complete one year of service; and thus they would get wages for sixteen days. The question whether the 33 temporary workmen would be entitled to back-wages was left open, as that claim would in the opinion of the labour court depend on the decision in Industrial Dispute No. 32 of 1963 on their demand for permanency. The original petition was filed to quash the above award. The learned single Judge held that; the labour court's decision that the 33 workmen were temporary and the 8 probationers ware entitled to one year's service was right, that the termination of their Service was contrary to the terms and conditions of Ex. P. 3, the standing orders, and that the said decision did not, therefore, require any interference.

3. The learned Counsel for the appellant contended before us that under Ex. P. 3, the probationers are not entitled to one year's service, and they are liable to be sent away at any time. He also submitted that under Ex. P. 3, the service of temporary workmen can be terminated at any time without even notice. The learned Counsel, therefore, submitted that the finding of the learned Judge that the discharge of these 41 workmen was contrary to the standing orders cannot be sustained. We agree with the learned Counsel; but the question for determination in this case is something entirely different, if the termination of these workmen was not bona fide, if it was done with ulterior motives and for no reasons demanding the interest of the industry, and it was a case where the management chose for reasons of its own to send away workmen whom it did not like, it would be a case of mala fide termination of service, and would be liable to be set aside in an industrial adjudication. There was a controversy at the bar as to the burden of proof on this question. On the facts of this case, It is unnecessary for us to deal with that matter. Regarding the probationers, there were only sixteen days more for them to complete their ordinary period of one year's service. Begirding the 33 temporary men, it was not disputed that persons Junior to them were retained in service, and some new workmen were also recruited after the termination of service of these 33 persons. Though it was alleged that the termination was made in the best interest of the industry, and the work of these persons being unsatisfactory, absolutely no material was placed before the labour court to justify the said allegation. The most important circumstance is that the termination was made in the face of the adjudication pending before the industrial tribunal on the claim of these workmen for permanency. The inference is irresistible, in these circumstances, that the termination of the service of these 41 workmen was not bona fide, and that it was done with ulterior motives. The finding of the labour court in this respect is not, therefore, liable to attack. The result is that this appeal fails and it is dismissed with costs.


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