STATE OF KERALA Vs. C MOHANAN
HIGH COURT OF KERALA
STATE OF KERALA
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(1.)THE question involved in this appeal, at the instance of the State of Kerala, is whether an appointee to the post of driver in the Tourism department under the Kerala General Subordinate Service on daily wages can claim the benefit of Section 25-F of the Industrial Disputes Act. The petitioner was engaged on daily wages to work in the office of the fifth respondent, the Deputy Director, Department of Tourism Guest House, Ernakulam on different dates from December 19, 1987. He puts forward a contention that his service is liable to be regularised in the light of the provisions contained under Section 25-F of the Industrial Disputes Act as he had worked for more than 240 days continuously in an year. It is contended that termination of his service with effect from June 20, 1990 is in violation of Section 25-F of the Industrial Disputes Act, 1947. Since the fifth respondent was not inclined to accede to his demand for reinstatement, the petitioner wanted to raise an industrial dispute. The fifth respondent refused to participate in the conciliation proceedings initiated by the third respondent taking the stand that no industrial dispute can be raised against the fifth respondent. The third respondent sent failure report to the second respondent under Section 12 (4) of the Industrial Disputes Act. Since no orders were passed by the second respondent on the above report under Section 12 (5) of the Industrial Disputes Act, the writ petitioner approached this court by filing O. P. No. 9577 of 1991, seeking a writ of mandamus directing the second respondent herein to refer the dispute to the appropriate Labour Court or Industrial Tribunal. This court directed the second respondent to pass orders on the petitioner's application. The second respondent thereupon referred the matter to the first respondent and under exhibit P-7 order of the first respondent took the view that since the Tourism department is a Government department it does not come under the purview of the Industrial Disputes Act, 1947, and there is no need to refer the matter for adjudication. The petitioner challenges the view thus taken by the first respondent on his application for reference.
(2.)ACCORDING to the petitioner, the main functions of the Department of Tourism of Government of Kerala are to promote tourism in the State by developing tourist centres and providing amenities to the tourists. The activities of the department are nothing but systematic economic adventures. Therefore, it would come within the definition of the word "industry" under Section 2 (j) of the Industrial Disputes Act, 1947, and the petitioner is a "workman" as defined in Section 2 (s) of the said Act. Termination of the service of the petitioner is, therefore, an industrial dispute under Section 2-A, which is liable to be referred for adjudication to the Labour Court, or the Industrial Tribunal under Section 12 (5 ). It is further contended by the petitioner that amendment to the Kerala Public Services Act by way of insertion of Section 4 under the Act 4 of 1984, would not make any difference in the case of the petitioner regarding application of the provisions of the Industrial Disputes Act. He contended that since his appointment was on daily basis, it cannot be taken that he had been appointed to a public service or to a post in terms of Section 4 of the Kerala Public Services Act and, therefore, his case is governed by the provisions of the Industrial Disputes Act.
(3.)COUNTER-AFFIDAVITS were filed by respondents Nos. 1 and 5 in the original petition. It is contended by the first respondent that the petitioner was employed as a trainee on daily wage basis from February 19, 1987 to June 12, 1990 with breaks in between. The regular post could not be filled up in accordance with the special rules as there was no list of Public Service Commission available during that period. According to the first respondent, me petitioner cannot rely on the decision of this court in Umayammal v. State of Kerala (1983-ILLJ-267), in view of the subsequent amendment brought to the Kerala Public Services Act. By introduction of Section 4, cases like that of the petitioner are taken completely out of the purview of the Industrial Disputes Act. It is also contended by the first respondent that the tourism department is a Government department, its functions are sovereign functions and, therefore, it will not come within the definition of "industry" as contended by the petitioner. The fifth respondent has stated in his counter-affidavit that the petitioner's service was no longer required after June 12, 1990, on account of the appointment of a permanent hand who had joined duty as per order No. El-5702 of 1986, dated May 23, 1990, issued by the Director of Department of Tourism. It is further contended that the service conditions of those working in the Department of Tourism, Government of Kerala, are governed by the Kerala Civil Services Rules and not by the Industrial Disputes Act.
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