Kerala High Court
The Principal vs The Labour Court on 2 April, 2025
Author: Murali Purushothaman
Bench: Murali Purushothaman
OP(LC) NO. 2929 OF 2013 : 1 :
2025:KER:33129
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
WEDNESDAY, THE 2ND DAY OF APRIL 2025/12TH CHAITHRA, 1947
OP(LC) NO. 2929 OF 2013
AGAINST THE AWARD DATED 28.02.2013 IN ID NO.4 OF 2012
OF LABOUR COURT, KOZHIKODE
PETITIONERS:
1 THE PRINCIPAL
BHARATHIYA VIDYABHAVAN SCHOOL,
PERUMTHURUTHI, ELATHUR P.O., KOZHIKODE.
2 THE SECRETARY
BHARATHIYA VIDYABHAVAN, P.V.SAMI ROAD,
CHALAPPURAM (P.O), KOZHIKODE-673 002.
BY ADVS.
J.SURYA
SRI.U.K.DEVIDAS
SMT.DEVI.C.HARIDAS
SRI.PRINSUN PHILIP
V.KRISHNA MENON(K/000873/1990)
RESPONDENTS:
1 THE LABOUR COURT
KOZHIKODE-673 009.
2 K.J.PRASANNAN
S/O GOPALAN, 1/4574, C.D.A.
STAFF QUARTERS, BILATHIKULAM,
ERNAHIPALAM P.O., KOZHIKODE-673 006.
OP(LC) NO. 2929 OF 2013 : 2 :
2025:KER:33129
R2 BY ADV SRI.AVM.SALAHUDHEEN
THIS OP (LABOUR COURT) HAVING BEEN FINALLY HEARD
ON 02.04.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
The petitioners in this original petition are the Principal and the Secretary of Bharathiya Vidya Bhavan School, Kozhikode who are the Management in I.D. No.4 of 2012 before the Labour Court, Kozhikode. The 2nd respondent is the workman in the said dispute.
2. The 2nd respondent was appointed as a Gardener on probation in the school run by the Management, with effect from 01.07.2005, as per Ext. P5 order. He continued on probation without any order confirming his appointment, and his service was eventually terminated with effect from 01.04.2009 due to unsatisfactory performance.
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3. The 2nd respondent raised an industrial dispute, and the Government referred the matter for adjudication to the Labour Court, Kozhikode, under Section 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the I.D. Act'). The points referred for adjudication were as follows:
"1. Whether there is denial of employment to Sri. K.J. Prasannan, Gardener of Bharathiya Vidyabhavan School, Peruthuruti by the management of the institution?
2. If yes, what relief, Sri. K.J. Prasannan is entitled to?"
4. The 2nd respondent filed a claim statement and the Management filed written statement. It was contended by the workman that he was denied salary as per the Central Board of OP(LC) NO. 2929 OF 2013 : 5 : 2025:KER:33129 Secondary Education [CBSE] guidelines, and that he was not permitted to mark attendance from 01.04.2009 and thereby denied remuneration from that date. Accordingly, he prayed that he may be directed to be reinstated in the service of the Management with all attendant benefits, including continuity of service and arrears of salary.
5. The Management, in their written statement, contended that the school is not an industry and that the 2nd respondent does not fall within the purview of 'workman' as defined under the I.D. Act. It was stated that the 2 nd respondent was appointed as a Gardener on probation, and since his probation was not declared, he has no lien to permanent employment under the OP(LC) NO. 2929 OF 2013 : 6 : 2025:KER:33129 Management.
6. Before the Labour Court, the workman was examined as WW1 and Exts. W1 to W8 were marked on his side. Ext. W8 is the copy of the guideline issued by CBSE-Chapter VII - Service Rules for employees (Ext. P4 in the original petition). The Management examined the Secretary of the School as MW1 and Exts. M1 to M6 documents were marked on their side. Ext. M1 is a copy of the appointment letter (Ext. P5 in the original petition) and Ext. M3 (Ext. P3 in the original petition) is the copy of the Composite Provisional Affiliation letter of the CBSE. Ext. M4 is the copy of the service rules applicable to the employees of Bharatiya Vidya Bhavan in the Kerala region (Ext. P6 in the original petition). OP(LC) NO. 2929 OF 2013 : 7 :
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7. After hearing both sides, the Labour Court, as per Ext. P8 award, found that the school is affiliated to the CBSE, and that the conditions of service of the 2 nd respondent are governed by Ext. W8, the rules and regulations applicable to CBSE schools, and that Ext. M4 service rules do not apply to the 2nd respondent. The Labour Court found that the 2nd respondent was appointed in the School as per Ext. M1, and that his probation was extended as per Ext. M2 without assigning any reason and even in the year 2009, the Management kept him as a probationer without issuing any memo of charges all along the said period and there was no reason for extending his period of probation for years together. It was also noted that no order OP(LC) NO. 2929 OF 2013 : 8 : 2025:KER:33129 terminating his service was issued and the workman was arbitrarily denied employment by the Management. It was held that the Management violated the rules and regulations stipulated by the CBSE for the conduct of the school affiliated to them. The Labour Court found that the actions of the Management amounted to instances of unfair labour practices and that the workman is entitled to be reinstated in the service of the Management with all attendant benefits, including arrears of wages, strictly at par with the corresponding category of employees working in Kerala State Government Schools, with effect from 01.04.2009. Accordingly, an award was passed as follows:-
"In the result, the award in the case OP(LC) NO. 2929 OF 2013 : 9 : 2025:KER:33129 is passed as follows:
(1) The denial of employment to the workman Sri.K.J.Prasannan, Gardener of Bharathiya Vidyabhavan School, Peruthuruthi by the management institution is not justifiable.(2) The management Nos.1 and 2
are directed to reinstate the said workman Sri.K.J.Prasannan to the service of the management with continuity of service within 30 days from the date of pronouncement of this award, failing which, the workman Sri.K.J.Prasannan will be entitled to get salary at the rate as specified in this award from the management till he reinstated. (3) The workman Sri.K.J.Prasannan is entitled to get all arrears of wages/salary as specified supra from the management from 1.04.2009 onwards till he is reinstated."
8. The Management has filed this original OP(LC) NO. 2929 OF 2013 : 10 : 2025:KER:33129 petition challenging Ext. P8 award on various grounds. It is contended that the school was granted provisional affiliation by the CBSE as per Ext. M3 (Ext. P3) only with effect from 01.04.2012, and until then, the school was not a CBSE-affiliated institution and Ext. W8 (Ext. P4) CBSE rules had no application to the school for the period prior to 01.04.2012 and that, it is Ext. M4 (Ext. P6) service rules that is applicable to the employees of the school. It is further contended that the 2nd respondent superannuated from service on 14.10.2010 on attaining the age of 55 years, as per Ext. M4 (Ext. P6) rules, and therefore, the reference made by the appropriate Government regarding the denial of employment to the 2nd respondent OP(LC) NO. 2929 OF 2013 : 11 : 2025:KER:33129 after his superannuation is without jurisdiction. It is further contended that there is no order of confirmation of probation and that there cannot be any deemed confirmation of probation and in the absence of such confirmation, the 2 nd respondent cannot be treated as an employee of the school. It is stated that, being a probationer, he has no right or lien to the post of Gardener. It is also contended that the Labour Court has no jurisdiction to adjudicate whether the extension of probation of the 2nd respondent amounts to an unfair labour practice, as such an issue was not referred for adjudication by the Government.
9. Heard Sri. V. Krishna Menon, the learned counsel for the petitioners and Sri. A.V.M. Salahudheen, the learned counsel for the OP(LC) NO. 2929 OF 2013 : 12 : 2025:KER:33129 2nd respondent.
10. Sri. Krishna Menon would submit that, as evident from Ext. M3 (Ext. P3), the school obtained provisional affiliation from the CBSE for a period of three years, from 01.04.2012 to 31.03.2015. The alleged termination of the 2 nd respondent took effect from 01.04.2009, and as on that date, the service rules stipulated by the CBSE were not applicable to the school. It is contended that during the period of service of the 2nd respondent as a probationer, that is from 01.07.2005 to 01.04.2009, the school was not affiliated to CBSE. Sri. Krishna Menon has also filed a Memo dated 25.03.2025 producing the copy of the orders dated 20.05.2014, 20.08.2017 and 27.07.2021 issued by CBSE extending the OP(LC) NO. 2929 OF 2013 : 13 : 2025:KER:33129 period of provisional affiliation of the school. Sri. Krishna Menon relied on the decision of the Hon'ble Supreme Court in Management of the Express News papers (private) Ltd. Madurai v The Presiding Officer, Labour Court [AIR 1964 SC 806] to contend that an employee appointed on probation for a specific period continues to be on probation even after the period expires unless the employer confirms or terminates his service. The decision in Durgabai Deshmukh Memorial Sr. Sec. School & Another v Vasu Sena J.A.J & Another [(2019) 17 SCC 157] was also relied on to contend that continuation of service of a probationer beyond the period of probation does not amount to deemed confirmation of service. OP(LC) NO. 2929 OF 2013 : 14 :
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11. Sri. Salahudheen would contend that the applicability of the CBSE rules to the school was practically admitted by the Management before the Labour Court. It is further contended that the Labour Court on appreciating the evidence adduced came to the conclusion that the service rules applicable to the school is Ext. W8 (Ext. P4), the rules stipulated by CBSE and not Ext. M4 (Ext. P6) and the said findings on fact cannot be interfered with by this Court.
12. The relevant portion of Ext. W8 (Ext. P4) insofar as it pertains to the present case reads as follows:
"27. Probation
1. Except in the case of purely temporary vacancy or leave vacancy or for a specific post of temporary OP(LC) NO. 2929 OF 2013 : 15 : 2025:KER:33129 nature, every employee shall on initial appointment be on probation for a period of one year from the date of his/her joining the duties. The period of probation may be extended by the Managing Committee by a further period not exceeding one year. Services of an employee during probation may be terminated by the Managing Committee without assigning any reason by giving one month's notice in writing or one month's salary including all allowances.
2. If an employee desires to be relieved during the period of probation, it will be necessary for him to give one month's notice in writing or one month's salary including all allowances unless and otherwise the Managing Committee permits, relaxation under special circumstances."
28. Confirmation
1. If the work and conduct of an OP(LC) NO. 2929 OF 2013 : 16 : 2025:KER:33129 employee during the period of probation are found to be satisfactory, he/she will become eligible for confirmation on the expiry of the period of probation or the extended period of probation as the case may be, with effect from the date of expiry of the said period provided he/she fulfills the other requisite conditions.
2. The employee shall be informed of his confirmation within 3 months of the completion of probation period.
xxx xxx
30. Retirement
1. Notwithstanding anything
contained in these rules or otherwise every employee including Head of Institution shall retire from service on attaining the age of 60. However if the age of superannuation falls during the academic session, the concerned employee will retire at the end of the academic session.
Provided further that if such
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employee is a recipient of National/ State/CBSE Teachers Award, He may be considered for a further extension of service for two years after attaining the age of superannuation provided he is medically fit and is prepared to serve the school. The school managing committee after considering such case of extension of service, shall forward the details to the Board.
2. The managing Committee may grant extension as per rule of State/UT if the employee has no mental or physical disabilities and his/her service are beneficial to the institution.
3. The Board will be informed of such extension by the SMC."
13. The relevant portion of Ext. M4 (Ext. P6) insofar as it pertains to the present case reads as follows:
OP(LC) NO. 2929 OF 2013 : 18 :
2025:KER:33129 "Probation Every person appointed against a permanent vacancy shall be on probation for a period of one year.
But it shall be open to the Management to extend the period of probation by such further period, not exceeding one year, as may be deemed necessary. If the performance of the probationer is, in the opinion of the Management, not satisfactory, the service of the probationer may be terminated without assigning any reasons at the expiry of the period of probation or even earlier at the discretion of the Management. An employee on probation shall not be deemed to be confirmed in his post without a written order of confirmation by the Management."
Retirement An employee who is a non teaching staff shall retire on OP(LC) NO. 2929 OF 2013 : 19 : 2025:KER:33129 completion of fifty five years of age. In the case of a member of the teaching staff, he shall retire at the end of the academic year in which he completes fifty five years of age."
14. Ext. M3 (Ext. P3) would show that the school obtained sanction for 'Fresh Composite Provisional Affiliation' for Secondary School Examination from the CBSE for a period of three years from 01.04.2012 to 31.03.2015. The learned counsel for the petitioners has filed Memo dated 25.03.2025 producing copy of orders dated 20.05.2014, 20.08.2017 and 27.07.2021 issued by CBSE extending the period of provisional affiliation of the school beyond 31.03.2015. Thus, Ext. M3 (Ext. P3) shows that the school was granted provisional affiliation for OP(LC) NO. 2929 OF 2013 : 20 : 2025:KER:33129 the first time for a period of three years, commencing from 01.04.2012. There was no material on record before the Labour Court to come to the finding that the school was affiliated to CBSE prior to 01.04.2012. Ext. M3 (Ext. P3) does not indicate prior affiliation. Therefore, the finding of the Labour Court that, Ext. W8 (Ext. P4) service rules stipulated by CBSE, is applicable to the school cannot be sustained. Consequently, the finding that the 2 nd respondent is entitled to service benefits, including arrears of wages at par with the corresponding category of employees working in Kerala State Government schools, is also liable to be interfered with. The 2nd respondent would be governed by the service rules under Ext. M4 OP(LC) NO. 2929 OF 2013 : 21 : 2025:KER:33129 (Ext. P6).
15. The clause in Ext. M4 (Ext. P6) dealing with probation provides that a person appointed against a permanent vacancy in the school shall be on probation for a period of one year. It further states that the Management may extend the period of probation by such further period, not exceeding one year, as may be deemed necessary. If the performance of the probationer is not satisfactory, his service may be terminated. It also stipulates that an employee on probation shall not be deemed to be confirmed in the post without a written order of confirmation issued by the Management.
16. An employee cannot be continued in service indefinitely without a formal declaration OP(LC) NO. 2929 OF 2013 : 22 : 2025:KER:33129 of completion of probation. The Labour Court rightly observed that no reason was assigned by the Management for extending the probation period of the 2nd respondent. The 2nd respondent was appointed on 01.07.2005 on probation for a period of one year, and his probation was extended up to 01.04.2009, on which date he was refused permission to sign the attendance register. The 2nd respondent was in the service of the Management on probation for nearly four years and was denied employment on 01.04.2009 without assigning any reason. As rightly found by the Labour Court, this amounts to an unfair labour practice.
17. As regards the contention of the petitioners that there cannot be a reference OP(LC) NO. 2929 OF 2013 : 23 : 2025:KER:33129 concerning the denial of employment to the 2 nd respondent after his date of superannuation, I am of the view that the contention is without merit. The admitted date of birth of the 2 nd respondent is 15.10.1955 and his date of superannuation as per Ext. M4 (Ext.P6) is 14.10.2010. The reference order is dated 23.12.2011. The issue which the appropriate Government has referred for adjudication under Section 10(1)(c) of the I.D Act to the Labour Court pertains to the denial of employment to the workman by the Management. The dispute raised by the workman concerns the denial of employment, and the Government have rightly made a reference to the Labour Court for adjudication. The appropriate Government is competent to refer such a OP(LC) NO. 2929 OF 2013 : 24 : 2025:KER:33129 question for adjudication by the Labour Court even if the employee had superannuated from service. The right to adjudicate survives even if the employee superannuates, provided the cause of action, namely the denial of employment, arose before superannuation.
18. The petitioners further contend that the Labour Court has no jurisdiction to adjudicate whether the extension of the 2 nd respondent's probation amounts to an unfair labour practice, as such an issue was not specifically referred for adjudication by the Government. In my view, the finding of the Labour Court on this aspect is ancillary to the main issue referred for adjudication. Labour Courts and Industrial Tribunals can decide OP(LC) NO. 2929 OF 2013 : 25 : 2025:KER:33129 incidental and ancillary matters related to the main issue referred, to ensure a fair and complete adjudication of the dispute. The Labour Court has rightly found that keeping the 2 nd respondent on probation for several years amounts to unfair labour practice.
19. As per Ext. M4 (Ext. P6) Rules, the age of superannuation of the 2 nd respondent, a non teaching staff is 55 years. The 2 nd respondent attained the age of 55 years on 14.10.2010 and, therefore, cannot be ordered to be reinstated in service. However, he shall be entitled to back wages for the period from 01.04.2009 to 14.10.2010, which shall carry interest at the rate of 9% per annum. The back wages shall be calculated based on the last OP(LC) NO. 2929 OF 2013 : 26 : 2025:KER:33129 drawn wage. The arrears of back wages, along with accrued interest, shall be paid within two months from the date of receipt of a copy of this judgment.
The original petition is disposed of as above.
Sd/-
MURALI PURUSHOTHAMAN JUDGE sp/SB OP(LC) NO. 2929 OF 2013 : 27 : 2025:KER:33129 APPENDIX PETITIONER EXHIBITS EXHIBIT P1: TRUE COPY OF THE INTERIM ORDER DATED 29.9.2010.
EXHIBIT P2: TRUE COPY OF THE ORDER DATED 20/29-04- 2011.
EXHIBIT P3: TRUE COPY OF THE ORDER DATD 15.6.2012. EXHIBIT P4: TRUE COPY OF THE CHAPTER VII OF THE AFFILIATION BYE-LAWS OF THE CBSE. EXHIBIT P5: TRUE COPY OF THE APPOINTMENT ORDER DATED 26.7.2005.
EXHIBIT P6: TRUE COPY OF THE SERVICE RULES OF BHARATHIYA VIDYA BHAVAN EMPLOYEES OF THE KERALA REGION OF BHARATHIYA VIDYA BHAVAN.
EXHIBIT P7: TRUE COPY OF THE INTIMATION DATED 28.10.1999.
EXHIBIT P8: TRUE COPY OF THE AWARD DATED 28.2.2013. EXHIBIT P9: TRUE COPY OF THE EXISTING AND CORRESPONDING REVISED SCALES OF PAY.