Karnataka High Court
The President vs The General Manager on 28 May, 2018
Author: A.S.Bopanna
Bench: A.S. Bopanna
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2018
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
W.P.Nos.48984/2013 (L-TER)
AND 56039-56161/2013 (L-TER)
BETWEEN:
THE PRESIDENT,
BHARTIYA DOORSAMPARKA HAKHA
DINAGOLI NAUKARA SANGHA,
FLEX PAI NAZAR,
MANGALORE 575 001.
... PETITIONER
(BY SRI. SARAT CHANDRA BIJAI), ADV.)
AND:
THE GENERAL MANAGER,
B.S.N.L. DAKSHINA KANNADA
TELECOM DISTRICT,
TELECOM HOUSE ROAD,
MANGALORE-575 001.
... RESPONDENT
(BY SRI. Y. HARIPRASAD, CGC)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE AWARD DATED 21.11.2011 ON
THE FILE OF CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL / LABOUR COURT i.e. ANNEXURE-A IN
REJECTING THE SAID REFERENCE AND FURTHER
CONSEQUENTIALLY BE PLEASED TO ORDER TO ALLOW
THE SAID REFERENCE.
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THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING 'B' GROUP, THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The petitioner is before this court assailing the award dated 21.11.2011 passed in C.R. No.84/2001 by the Central Government Industrial Tribunal/ Labour Court, Bangalore ('CGIT' for short).
2. The petitioner herein representing the employees in respect of whom the issue was raised seeking regularization of their services, at the first instance approached the Central Administrative Tribunal. Considering the issue relating to the claim as made was by the 139 workers, the matter was ultimately taken up under the provisions of the Industrial Disputes Act and the conciliation having failed, the dispute was referred to the CGIT. The dispute that was referred for consideration reads as under;
"whether the action of the General Manager, BSNL, Telecom District, Dakshina Kannada, Mangalore in stopping 139 workers whose names are furnished in Annexure 'G' from work without -3- complying with the provision of law after extracting work for years together during 1992 to 1996 is justified? If not to what relief the said workmen are entitled?"
3. The respondent herein being notified had filed the objection statement disputing the claim put- forth by the petitioner and in that light, the CGIT had recorded the evidence of the parties and through the award dated 21.11.2011 has rejected the claim of the petitioner. The petitioner therefore claiming to be aggrieved by the same is before this court. The respondent has filed the objection statement seeking to sustain the award passed by the Labour Court.
4. In the light of the rival pleadings, I have heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the petition papers.
5. Contentions have been urged by the learned counsel for the petitioner seeking to contend that the workmen concerned whose cause has been represented by the petitioner had all discharged their services for -4- more than 240 days in a year during the period 1992 to 1996, were entitled to be regularized and the appropriate benefits to be extended to them. In that light, the learned counsel for the petitioner would refer to the evidence as placed by the petitioner before the court below. It is pointed out that the management though had disputed the claim of the petitioner and had filed the counter statement, no documents were produced by them to dispute the claim as put-forth by the petitioner on behalf of the workmen.
6. It is submitted that, apart from the oral evidence of the Assistant General Manager who was examined as MW-1, there is no other evidence available on record. It is contended that the petitioner as the first party before the CGIT had on behalf of the workmen examined WW-1 and had relied upon the documents at Exs.W-1 to W-80. In that light, it is contended that the CGIT without referring to the documents in detail and examining the claim as put-forth on behalf of each workman having completed more than 240 days of -5- service has only arrived at the conclusion that the petitioner has not made out a case as provided under Section 25F of the Industrial Disputes Act by referring to the documents at Exs.W-8 to W-30 and holding that the petitioner has not proved that the workmen had worked for 240 days.
7. The learned counsel for the respondent having referred to the award passed by the CGIT and objection statement filed before this court would seek to sustain the award on the ground that though the claim of the petitioner is that the workmen regarding whom the dispute had been raised had worked between the period 1992 and 1996, none of the workmen had completed the period of 240 days continuously in a year. Therefore, it is contended that the consideration as made by the Tribunal is justified.
8. In the above background, though it is seen that the award as passed by the CGIT is exhaustive, the crux of the findings as rendered by the CGIT as referred to by the learned counsel for the petitioner is contained -6- in para-6 of the award. The consideration therein is that though the documents at Exs.W-8 to W-30 suggest that the services of the workmen concerned had been engaged by the respondent, it is held that it is not demonstrated that they have worked continuously for a period of 240 days in a year. If the said finding as rendered by the CGIT is taken into consideration, what is necessary to be taken note is that the document at Ex. W-66, a copy of which is produced at Annexure - Y to the petition, would refer to the details of some of the workmen on whose behalf also the respondent has raised the dispute and from the said document, it would indicate the number of days worked by them during the different years from 1992 to 1996. At least some of the workmen have completed the period of 240 days as depicted therein. In that regard, a reference to the details as available for the year 1995 would indicate that most of the workmen indicated therein have completed the period of 240 days in that year. That aspect of the matter has not received consideration by the CGIT.
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9. That apart, as already noticed, the case of the respondent throughout, including the averments in the objection statement filed before this court is that, the workmen had worked during the period 1992 to 1996, but had not worked continuously during the said period and had worked only for some period during the said years. When such contention is taken by the respondent and the respondent is the custodian of the records and in that circumstance, when the petitioner has discharged the initial burden by producing the documents namely, the receipts which has been referred to by the CGIT and also as rightly pointed out by the learned counsel for the petitioner when the petitioner had called upon the respondent to produce the records during the proceedings of the conciliation and the respondent had not produced the same, such burden in any event before the CGIT was also on the respondent to be discharged. If in that circumstance, when the respondent urges the contention that the workmen have worked only for some period and not for more than 240 days in a year, it was also incumbent on -8- the part of the respondent to produce the register/muster roll and demonstrate the actual number of days for which each of the workmen had worked.
10. In that background, consideration is required to be made by the CGIT with reference to each of the workmen with regard to whom the dispute has been raised and arrive at a conclusion as to whether at least some of them have completed the said period and the nature of benefit that is required to be extended, keeping in view the period, the lapse in time and also the present age of such workmen so as to mould the relief that is to be granted to such workmen. Therefore in such circumstance, when an appropriate consideration to that effect has not been made by the CGIT and further in that circumstance, the factual determination based on the documents is required to be made by the CGIT, the appropriate course for this court would be to set aside the award dated 21.11.2011 and remit the matter to the CGIT to take note of these -9- aspects and in the event the respondent not producing any documents even at that stage the CGIT shall consider as to whether any adverse inference is to be drawn and thereafter a decision is to be taken in accordance with law.
11. Accordingly, the award dated 21.11.2011 is set aside. The matter is remitted to the CGIT to keep in view the above observations and also take into consideration all aspects of the matter and take a fresh decision in accordance with law. Considering the fact that the matter had been pending for a long while, the CGIT shall make all efforts to conclude the proceedings in an expeditious manner, but in any event within six months from the date of which the Presiding Officer takes charge of the CGIT.
Petitions are disposed of accordingly.
Sd/-
JUDGE Snc