STATE OF KERALA Vs. MOHANAN

JUDGEMENT

(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 Tourism Department under the Kerala General Subordinate Service on daily wages can claim the benefit of S.25F of the Industrial Disputes Act. The petitioner was engaged on daily wages to work in the office of the 5th respondent, the Deputy Director, Department of Tourism Guest House, Ernakulam on different dates from 19th December 1987. He puts forward a contention that his service is liable to be regularised in the light of the provisions contained under S.25F 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 20th June 1990 is in violation of S.25F of the Industrial Disputes Act, 1947. Since the 5th respondent was not inclined to accede to his demand for reinstatement, petitioner wanted to raise an Industrial Dispute. The 5th respondent refused to participate in the conciliation proceedings initiated by the 3rd respondent taking the stand that no Industrial Dispute can be raised against the 5th respondent. The 3rd respondent sent failure report to the 2nd respondent under S.12(4) of the I.D. Act. Since no orders were passed by the 2nd respondent on the above report under S.12(5) of the I.D. Act, the writ petitioner approached this Court by filing O. P. No. 9577/91 seeking a writ of mandamus directing the 2nd respondent herein to refer the dispute to appropriate Labour Court or Industrial Tribunal. This Court directed the 2nd respondent to pass orders on petitioner's application. The 2nd respondent there upon referred the matter to the 1st respondent and under Ext. P-7 order the 1st respondent took the view that since the Tourism Department is a Government department it does not come under the purview of the I. D. Act, 1947 and there is no need to refer the matter for adjudication. The petitioner challenges the view thus taken by the 1st 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 S.2(j) of the Industrial Disputes Act, 1947 and the petitioner is a 'workman' as defined in S.2(s) of the said Act. Termination of the service of the petitioner is therefore an industrial dispute under S.2A, which is liable to be referred for adjudication to the Labour Court, or Industrial Tribunal under S.12(5). It is further contended by the petitioner that amendment to the Kerala Public Services Act by way of insertion of S.4 under 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 S.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 1 and 5 in the original petition. It is contended by the 1st respondent that the petitioner was employed as a trainee on daily wage basis from 19th February, 1987 to 12th June 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 1st respondent, the petitioner cannot rely on the decision of this Court in Umayammal v. Stale of Kerala 1982 KLT 829 , in view of the subsequent amendment brought to the Kerala Public Services Act. By introduction of S.4 cases like the petitioner are taken completely out of the purview of the Industrial Disputes Act. It is also contended by the 1st 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 5th respondent has stated in his counter affidavit that the petitioner's service was no longer required after 12th June, 1990 on account of the appointment of a permanent hand who had joined duty as per order No. E1-5702/86, dated 23rd May 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.