Karnataka High Court
The Executive Engineer vs Smt Clatilda Rego on 25 February, 2013
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 25TH DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
WRIT PETITION NO.5043 OF 2007(L-TER)
C/W
WRIT PETITION NOS.6753/07, 30960/11, 5040/07,
11715/07, 4226/06 & 35189/2011(L-TER)
WP.NO.5043/2007:
BETWEEN:
1. The Executive Engineer
No.4, Bhadra Yadadande Nala
Division, Bhadravathi.
2. The Secretary W.R.D.O.(Water
Resources Development Organisation)
Government of Karnataka
M.S.Building,
Bangalore.
3. The Chief Engineer
Karnataka Irrigation Corporation
Limited, Sagar Road, Gopala,
Shimoga City.
4. The Executive Engineer
B.R.L.B.C., Military Camp,
Bhadravathi.
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5. The Asst. Executive Engineer
Thunga Anicut Sub-Division,
Near Sacred Heard Church,
B.H.Road,
Shimoga. ...PETITIONERS
(By Smt.Manjula R.Kamdolli, HCGP)
AND:
1. Smt.Clatilda Rego
D/o Anthony Rego
Major, Arya Durgammanakeri
B.H.Road, Shimoga.
2. Smt.H.P.Lalitha
D/o H.B.Prabhakara
(Stamp-vendor), Major,
2nd parallel road,
Durgigudi, Shimoga. ...RESPONDENTS
(By Sri M.Subramany Bhat, Advocate for M/s.Subba
Rao & Co., Advocates for C/R1 & R2)
*****
This Writ Petition filed under articles 226 and 227
of the Constitution of India praying to quash the
judgment and award passed by the Labour Court,
Mangalore in Case No.I.D.R.No.208/1987 dated
306.2006 vide Annexure-A by allowing this writ petition.
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WP.NO.6753/2007
BETWEEN:
1. Smt.Clotilda Rego
D/o Anthony Rego
Aged about 45 years,
Residing at Arya Durgammanakeri
B.H.Road, Shimoga.
2. Smt.H.P.Lalitha
D/o H.B.Prabhakara
Aged about 48 years
Residing at 2nd parallel road,
Durgigudi, Shimoga. ...PETITIONERS
(By Sri M.Subramany Bhat, Advocate for M/s.Subba
Rao & Co., Advocates)
AND:
1. The Executive Engineer
No.4, Bhadra Yadadande Nala
Division, Bhadravathi.
2. The Secretary W.R.D.O.(Water
Resources Development Organisation)
Government of Karnataka
M.S.Building,
Bangalore.
3. The Chief Engineer
Karnataka Irrigation Corporation
Limited, Sagar Road, Gopala,
Shimoga City.
4. The Executive Engineer
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B.R.L.B.C., Military Camp,
Bhadravathi.
5. The Asst. Executive Engineer
Thunga Anicut Sub-Division,
Near Sacred Heard Church,
B.H.Road,
Shimoga. ...PETITIONERS
(By Smt.Manjula R.Kamdolli, HCGP)
*******
This Writ Petition filed under articles 226 and 227
of the Constitution of India praying to quash the award
dated 3.6.2006 in REF.No.208/1987 passed by the
Presiding Officer, Labour Court, Mangalore
(Annexure-M) to the extent of denial of Back wages, as
the same suffers from errors which are apparent on the
face of the record.
WP.NO.30960/2011:
BETWEEN:
1. The Asst.Executive Engineer
No.1, Sub-Division (PWD),
Mysore.
2. The State of Karnataka
Represented by Secretary,
Department of Irrigation,
M.S.Building,
Bangalore.
3. The Chief Engineer
Public Works Department, (C&B)
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K.R.Circle,
Bangalore. ...PETITIONERS
(By Smt.Manjula R.Kamdolli, HCGP)
AND:
Smt.Blessy
C/o Loaders & General,
Workers Mazoor Sangha,
No.40, II Cross,
II Stage, Gayathripuram,
Mysore - 560 019. ...RESPONDENT
******
This Writ Petition filed under articles 226 of the
Constitution of India praying to quash the award dated
16.8.2010 in REF.No.404/2000 passed by the Labour
Court, Mysore Vide Annexure-A.
WP.NO.5040/2007:
BETWEEN:
1. The Asst.Executive Engineer
BRL Sub-Division No.1,
B.R.Project, Shimoga District.
2. The Secretary to Government
Irrigation Department,
M.S.Building,
Bangalore - 560 001. ...PETITIONERS
(By Smt.Manjula R.Kamdolli, HCGP)
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AND:
Sri B.Yathiraju
Major,
S/o B.Eshwarappa
Honnali, Bhadravathi Taluk,
Shimoga District. ...RESPONDENTS
(By Sri Mukkannappa, Advocate)
*****
This Writ Petition filed under articles 226 and 227
of the Constitution of India praying to quash the
judgment and award dated 27.2.2006 passed by the
Labour Court, D.K., Mangalore in I.D.R.No.31/1994
vide Annexure-A by allowing this writ petition.
WP.NO.11715/2007:
BETWEEN:
1. The Asst.Executive Engineer
P.W.D. Sub-Division, Bagalkot,
Bagalkot.
2. The Secretary to Department of
Public Works,
Government of Karnataka,
Bangalore - 01.
3. The Chief Engineer
Department of Public Works,
Government of Karnataka,
K.R.Circle,
Bangalore. ...PETITIONERS
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(By Smt.Manjula R.Kamdolli, HCGP)
AND:
Shivaputrappa
S/o Mahadevappa Ganigar
Age:Major, Occ:Nil,
R/o Bagalkot,
C/o Sri V.G.Kulkarni, Advocate
Bagalkot Road,
Bijapur. ...RESPONDENT
(By Sri R.B.Annappanavar, Advocate)
******
This Writ Petition filed under articles 226 and 227
of the Constitution of India praying to quash the
judgment and award order dated 17.6.2006 passed by
the Labour Court, Bijapur in REF.No.95/1999 vide
Annexure-A by the allowing this writ petition.
WP.NO.4226/2006:
BETWEEN:
1. The Asst.Executive Engineer
Zilla Panchayath
Engineering Sub-Division,
T.Narasipura,
T.Narasipura Taluk,
Mysore District.
2. The State of Karnataka
Represented by Rural Development
And Panchayath Raj Department,
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M.S.Building, Bangalore - 560 001.
...PETITIONERS
(By Smt.Manjula R.Kamdolli, HCGP)
AND:
Mudduraj
S/o late Ningappa
C/o Muddayya
H.K.279, 2nd Main Road,
Raghavendranagar,
Near J.S.School,
Mysore. ...RESPONDENT
(By Sri Muniyappa & Sri S.Kalyan Basavaraj, Advocates)
******
This Writ Petition filed under articles 226 and 227
of the Constitution of India praying to set aside the
award dated 9.11.2005 (At Annexure-A) passed by the
Labour Court, Mysore in I.I.D.No.171/2002, and further
reject the reference itself as not maintainable.
WP.NO.35189/2011:
BETWEEN:
1. The Principal
Govt., C.P.C. Polytechnic
Bangalore Road,
Mysore.
2. The State of Karnataka
Represented by its Secretary,
Department of Education,
M.S.Building,
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Bangalore - 560 001. ...PETITIONERS
(By Smt.Manjula R.Kamdolli, HCGP)
AND:
Sri M.N.Raghu
S/o Narasaiah
No.87, B.D.Block,
Rajendranagar,
Mysore. ...RESPONDENT
(By Sri Mukkannappa, Advocate)
******
This Writ Petition filed under articles 226 of the
Constitution of India praying to quash the award dated
2.8.2010 in REF.No.14/02 passed by the Labour Court,
Mysore Vide Annexure-A.
These Writ Petitions coming on for final hearing
this day, the Court made the following:-
ORDER
Writ Petition No. 5043/2007, has been filed by the State questioning the award dated 30.06.2006, in I.D.R. No.208/1987, passed by the Labour Court, Mangalore, wherein it had ordered reinstatement of the workman without backwages and continuity of services, etc. 10 Writ Petition No.6753/2007, has been filed by the claimant aggrieved by the award dated 3.6.2006 in REF.No.208/1987 passed by the Presiding Officer, Labour Court, Mangalore (Annexure-M), wherein the reinstatement was ordered without backwages, and the petitioner pleads for grant of complete backwages.
Writ Petition No.30960/2011, has been filed by the state questioning the award dated 16.08.2010, in Ref. No.404/2000, passed by the Labour Court, Mysore wherein it had ordered reinstatement of the workman without backwages and continuity of services, etc. Writ Petition No.5040/2007, has been filed by the state questioning the award dated 27.2.2006, in I.D.R. No.31/1994, passed by the Labour Court, D.K., Mangalore wherein it had ordered reinstatement of the workman without backwages and continuity of services, etc. 11 Writ Petition No.11715/2007, has been filed by the state questioning the award dated 17.6.2006, in REF.No.95/1999 passed by the Labour Court, Bijapur, wherein it had ordered reinstatement of the workman without backwages and continuity of services, etc. Writ Petition No.4226/2006, has been filed by the state questioning the award dated 09.11.2005 in I.I.D.No.171/2002, passed by the Labour Court, Mysore, wherein it had ordered reinstatement of the workman without backwages and continuity of services, etc. Writ Petition No.35189/2011, has been filed by the state questioning the award dated 02.08.2010 in REF.No.14/02 passed by the Labour Court, Mysore, wherein it had ordered reinstatement of the workman without backwages and continuity of services, etc. 12
2. In all these petitions, the common question of law that would arise for consideration is as to: Whether the respondents could be defined as a 'workman' and the petitioners could be considered as an industry, in terms of the Industrial Disputes Act 1947?
3. The contention of the State is that it discharges sovereign functions and therefore the respondents cannot be said to be workmen nor can the petitioners be considered as an 'industry' as both are defined under the Industrial Disputes Act, 1947. It is therefore contended that the order of the Labour Court suffers from an inherent lack of jurisdiction. That it could not have entertained such a plea nor can any relief be granted to the respondents.
4. On the other hand, Shri. M. Subramanya Bhat, learned counsel appearing for the respondents, defends the impugned order by placing reliance on the order of 13 the Division Bench of this Court dated 17.10.1997, in Writ Appeal Nos.6750/1997 and connected matters. He contends that the Assistant Executive Engineer in the aforesaid cases was held to be an industry. Therefore, the same relief requires to be granted herein also.
5. Further, the learned Government Advocate places reliance on the judgment reported in (2005) 5 SCC 1, in the case of State of Uttar Pradesh vs. Jai Bir Singh, by placing reliance on para - 38, wherein it was held that the petitioner is not an industry in terms of the Act and hence, no relief can be granted.
6. Heard the learned counsels on the limited question, as to whether the writ petitions can be considered with regard to the Industrial Disputes Act, 1947 in terms of the definition of an 'industry' and 'workmen' and consequently whether the petitions could be considered on merits thereof?
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7. The Hon'ble Supreme Court in the aforesaid judgment sought to draw attention of the sovereign functions of the State. That the State is obliged to discharge its constitutional obligations and therefore such functions would be sovereign in nature. That when a sovereign function is sought to be performed by the State, it cannot be considered as an 'industry'.
8. Therefore, the said question as to whether the irrigation department or any other department of the State would constitute an industry in terms of the Industrial Dispute Act 1947, has since been placed for consideration before a larger bench of the Hon'ble Supreme Court.
9. Under these circumstances, it would be highly inappropriate for this Court to record a finding as to whether the petitioner herein, namely, the Irrigation department or any other department would constitute 15 an industry or not. It is an issue that has been seized by the Hon'ble Supreme Court. Therefore, it is suffice to say that the answer to such a question which would be decided by the Hon'ble Supreme Court, would stand applicable to the parties herein. In the event it is held that the petitioner can be considered as an industry, then necessarily the petition would have to be considered so far as the merits of the claim of the workmen are considered. Therefore, the said question can be considered only after the disposal of the petitions by the Hon'ble Supreme Court.
10. Further the learned counsel for the workmen relies on the judgment reported in 2003 (1) LLJ 507, in the case of Krishi Utpadan Mandi Samiti through its Secretary, Anand Nagar vs. Arvind Chaubey and Another, by placing reliance on para - 2 of the judgment, he contends that the contentions regarding the maintainability of the petition on the ground 16 whether the appellants are industry or not, cannot be raised for the first time before the Labour Court or the High Court.
11. I have considered the said judgment. What is narrated in para - 2 of the judgment is a narration by the Hon'ble Supreme Court with regard to the contention and facts of the case therein. It is stated that the High Court held against the appellant on the ground that the contention whether the appellant was an industry or not was not canvassed before the Industrial Tribunal. Therefore, the petition was dismissed, since the appellant could not canvass such a ground in a higher forum.
12. Considering the judgment, I'am of the considered view, that firstly, the contention narrated in para - 2 of the aforesaid judgment is with regard to the facts and circumstances of the case therein. Even 17 otherwise, any order of an authority cannot be sustained if there is an inherent lack of jurisdiction. If the order has to be sustained, the authority must possess a jurisdiction and a power under Law. If there is no jurisdication, then the order of the authority would be non-est. It is an issue that a higher forum could also consider. The question of jurisdiction is also an issue that the Court or Tribunal should have considered in order to hold that it possesses jurisdiction or power to consider such a petition. Hence, the submission of the counsel for the workmen on this ground is unsustainable.
13. Under these circumstances, I'am of the considered view that rendering any finding so far as the merits are considered would be wholly inappropriate in view of the matter being considered by the Hon'ble Supreme Court. Consequently, the writ petitions are disposed off with the following observations: 18
That any order that would be passed by the Hon'ble Supreme Court in the matter being referred to a larger bench would stand applicable to the petitioners herein so far as the definition of an 'industry' or a 'workman' is concerned. In the event the judgment would go against the petitioner, namely, the State, necessarily the contention of the workmen so far as the merits of the petitions are concerned would require to be considered.
14. Under these circumstances, when the Labour Court has passed an order for reinstatement along with backwages etc., unless the orders are kept in abeyance, the same are liable to be executed. In the light of the aforesaid reasoning, it would be a miscarriage of justice if the order of the Labour Court is executed. In the light of the reasoning stated herein above and also in view of the fact that the judgment of the Hon'ble Supreme Court is awaited, it is only just and necessary that the 19 order of the Labour Court be kept in abeyance till the judgment is delivered by the Hon'ble Supreme Court.
15. For the aforesaid reasons:
i) the award dated 30.06.2006, passed in I.D.R. No.208/1987, by the Labour Court, Mangalore, in Writ Petition No.5043/2007.
ii) the award dated 3.6.2006 passed in REF.No.208/1987 by the Presiding Officer, Labour Court, Mangalore, in Writ Petition No.6753/2007.
iii) the award dated 16.08.2010, passed in Ref.
No.404/2000, by the Labour Court, Mysore, in Writ Petition No.30960/2011.
iii) the award dated 27.2.2006, passed in I.D.R. No.31/1994, by the Labour Court, D.K., Mangalore in Writ Petition No.5040/2007.
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iv) the award dated 17.6.2006, passed in
REF.No.95/1999 by the Labour Court,
Bijapur, in Writ Petition No.11715/2007.
v) the award dated 9.11.2005 passed in I.I.D.No.171/2002, by the Labour Court, Mysore, in Writ Petition No.4226/2006.
vi) the award dated 2.8.2010 passed in REF.No.14/02 by the Labour Court, Mysore, in Writ Petition No.35189/2011, are kept in abeyance till the disposal of the matter before the Hon'ble Supreme Court of India as noted herein above.
The writ petitions are disposed off in the aforesaid terms.
Sd/-
JUDGE JJ