The petitioner challenges Ext.P10 order of the labour court. The brief facts are that, the first respondent herein was appointed under the petitioner, which is a non-trading company, originally constituted under the Travancore Company Regulations 1092 and now regulated by the Kerala Non-trading Companies Act, 1961. 2. The first respondent was appointed as a Warden in the N.S.S.Medical Mission Hospital, Pandalam and then transferred to Kummannor Hospital, Kottayam under the same management, with promotion as Laboratory Assistant and then promoted as Senior Sanitary Inspector. While, first respondent was so continuing, the petitioner had, under a scheme of the Government of India, decided to start a Health Workers' Training School, which was to be attached to the NSS Medical Mission Hospital, Kummannur.
3. As per the scheme approved by the Government of India, one of the pre-conditions was, the appointment of staff in accordance with the pattern approved by the Government of India. As per the said pattern, a Senior Sanitary Inspector had to be appointed in the training school. The petitioner, hence, appointed the first respondent to that post, under the Training School. Admittedly, there was grant-in-aid and the petitioner was reimbursed the salary paid, to the employees in the Health Workers' Training School.
4. The first respondent attained the age of 55 in the year 1996, but, however, superannuation of the employees of the petitioner was, at the age of 60. Petitioner continued under the school, to which he had been appointed.
5. Later on, by Ext.P4, since grant-in-aid was issued by the State Government, the State Government wrote to the petitioner that the pay given to the employees in the training school was at par with that of the State Government and hence, the employees could not be given a better dispensation in the matter of retirement age. The petitioner society, took it to be a direction to terminate all employees above the age of 55 years. The first respondent too, was terminated in purported compliance of the direction of the Government, as per Ext.P5. The first respondent raised a dispute, which was referred to the Industrial Tribunal, Idukki. The reference was answered in favour of the first respondent granting him the back wages of the salary and benefits entitled to him, from the date of termination, till attainment of 60 years of age. The petitioner challenges the same.
6. The first contention taken by the petitioner is that, the first respondent is not a workman, as defined under the Industrial Dispute Act, 1947 (for short, 'Act of 1947') since even as per the claim statement, the first respondent is stated to have taken classes in the Training School. The first respondent, however, refuted the said contention, on the ground that what was stated in the claim statement was a mere enumeration of the duties in the Training School. In fact, the first respondent was a Sanitary Inspector in the petitioner society, who by the normal connotation of the designation could only be a workman under the Act of 1947. The contention of the learned counsel appearing for the first respondent is that, despite the duties assigned to him in the Training School, the fact that, he was an employee of the petitioner society itself would indicate that his functions could not change merely for reason of having taken classes; which duty he was obliged to discharge on the basis of his appointment to that particular post, in which grant-in-aid was received by the petitioner society. That alone would not decide the status as a workman under the Act of 1947, is the argument.
7. Admittedly, the first respondent was an employee of the petitioner society and was continuing as a Senior Sanitary Inspector when the training school was commenced and the petitioner appointed thereat, to comply with the conditions for obtaining grant-in-aid from the Government. That can only be taken as an arrangement made, for complying with the conditions of the Central Government, which alone would facilitate the grant-in-aid being released to the petitioner society. The mere fact that, while the first respondent was continued as a Senior Sanitary Inspector under the Training School, would not deviate from the fact that the first respondent was in fact an employee of the petitioner.
8. The petitioner society has an alternate contention insofar as the Training School itself having been stopped in 2000, immediately after the termination of the petitioner. However, even if, such closure was effected, it does not in any manner affect with the employment of the first respondent with the petitioner society. The lien, the first respondent had in such employment would continue and the superannuation date of the first respondent has to be taken as the superannuation date for the employees of the petitioner society. The first respondent's posting in the Training School was not a fresh appointment. It was in the nature of a deputation made, in the exigency of the situation. In such circumstance, the closure of the establishment is of no consequence.
9. Be that as it may, on closure of the establishment the grant-in-aid also ceases, and the first respondent cannot claim wages as provided to a Senior Sanitary Inspector in the Training School, or under the Government since the employment in the school was under a specific scheme and the salary paid was at par with the government scale of pay only by reason of the grant-in- aid. This again cannot detract from the fact that the first respondent would be entitled to the pay and benefits as applicable to a Senior Sanitary Inspector in the original employment of the petitioner society. It is also clear that Ext.P10 award does not indicate any scale of pay as such, when ordinary back wages. It is hence, clarified that the pay entitled to the petitioner as per the award, would not be at the pay scale applicable to the Senior Sanitary Inspector in the Training School, as reimbursed by the government by grant-in-aid, but, only the pay scale applicable to the Senior Sanitary Inspector in the employment of the petitioner society.
The writ petition would stand dismissed with the above clarification. The parties are left to suffer their respective costs.
AMV/28/11/ Sd/-
K.VINOD CHANDRAN, JUDGE