Karnataka High Court
Kumari Tanuja R Naik D/O Ramdas vs North West Karnataka Road on 5 July, 2023
Author: S G Pandit
Bench: S G Pandit
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NC: 2023:KHC-D:6744-DB
WA No. 100155 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 5TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
WRIT APPEAL NO. 100155 OF 2017 (L-KSRTC)
BETWEEN:
KUMARI TANUJA R. NAIK D/O. RAMDAS,
AGED ABOUT 42 YEARS,
EX-CONDUCTOR NO.1879,
R/O NEAR MALASADEVI TEMPLE,
BINAGA, KARWAR.
...APPELLANTS
(BY SRI RAVI HEGDE, ADVOCATE)
AND:
1. NORTH WEST KARNATAKA ROAD,
TRANSPORT CORPORATION,
SHIVAKUMAR CENTRAL OFFICES, HUBLI (HUBBALLI),
HIREMATH REPRESENTED BY ITS CHIEF LAW OFFICER.
Digitally signed by
SHIVAKUMAR
2. THE DIVISIONAL CONTROLLER,
HIREMATH
Location: High Court
NWKRTC, SIRSI DIVISION
of Karnataka, Dharwad
Date: 2023.07.11 SIRSI, DIST:UTTARA KANNADA.
15:27:48 +0530
...RESPONDENTS
(BY SRI SHIVAKUMAR S. BADAWADAGI, ADVOCATE)
THIS WRIT APPEAL FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT 1961, PRAYING TO SET ASIDE
THE ORDER PASSED IN W.P.NO.7993/08 (L-KSRTC) DATED:
02.07.2015 AND CONSEQUENTLY CONFIRM THE AWARD
PASSED BY THE LABOUR COURT IN KID No.76/02 DT.16/1/08.
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NC: 2023:KHC-D:6744-DB
WA No. 100155 of 2017
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
S G PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant working as Trainee Conductor in the respondent-North West Karnataka Road Transport Corporation (for short 'the Corporation') is before this Court under Section 4 of the Karnataka High Court Act, 1961, (for short 'the Act') questioning the correctness and legality of the order dated 02.07.2015 passed in W.P.No.7993/2008 by which the writ petition filed by the respondent/Management was allowed and order dated 16.01.2008 passed in KID No.76/2002 is set aside.
2. Heard Sri Ravi Hegde, learned counsel for the appellant and Sri Shivakumar S. Badawadagi, learned counsel for the respondents. Perused the writ appeal papers.
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NC: 2023:KHC-D:6744-DB WA No. 100155 of 2017
3. It is the case of the appellant that she was appointed as Trainee Conductor in the respondent- Corporation on 22.01.1999 and while she was working as such articles of charges dated 01.07.1999 was issued alleging non-issuance of tickets to certain passengers. Thereafter enquiry was conducted and based on the enquiry report, order dated 17.11.2001 was passed dismissing the appellant from service. The appellant is said to have filed an appeal before the appellate authority, which came to be dismissed. Thereafter, the appellant filed claim petition under Section 10-A of the Industrial Disputes Act (for short 'the I D Act') before the Additional Labour Court at Hubli. The Labour Court by award dated 16.01.2008 allowed the claim petition by setting aside the order of dismissal dated 17.11.2001 and directed the respondent/Management to reinstate the appellant into service. Aggrieved by the said award, the respondent management preferred Writ Petition No.7993/2008. The learned Single Judge by order -4- NC: 2023:KHC-D:6744-DB WA No. 100155 of 2017 dated 02.07.2015 allowed the writ petition of respondent/Corporation and set aside the award dated 16.01.2008 passed by the Labour Court in KID No.76/2002, challenging the same the present appeal is preferred.
4. Sri Ravi Hegde, learned counsel for the appellant would contend that the learned Single Judge committed an error in allowing the writ petition filed by the respondent/Corporation without framing the issue with regard to status of the appellant. Learned counsel would submit that counsel failed to examine as to whether the appellant was working as permanent employee or as Trainee Conductor. Learned counsel would submit that appellant would fall within the definition of workman as defined under Section 2(s) of the I.D. Act, Therefore, the learned Single Judge was not right in allowing the writ petition. Further learned counsel would submit that the question as to whether a person was a workman -5- NC: 2023:KHC-D:6744-DB WA No. 100155 of 2017 or not is a pure question of fact and the learned Single Judge failed to examine the same looking into the material on record. In that regard, learned counsel places reliance on the decision of the Hon'ble Apex Court in DEVINDER SINGH Vs. MUNICIPAL COUNCIL, SANAUR reported in (2011) 6 SCC 584 and MAHAJAN BOREWELL COMPANY VS. SRI RAJARAM BHAT AND ANOTHER reported in ILR 1998 KAR 172.
5. Per contra, learned counsel for the respondent/Corporation supports the judgment of the learned Single Judge and submits that appellant was working in the Corporation as a Trainee Conductor and she would not fall within the definition of 'workman' under Section 2(s) of the I.D. Act. Since the appellant was working as a Trainee Conductor no enquiry was necessary, but the Corporation conducted enquiry and charge levelled against the appellant was proved. Thus he submits -6- NC: 2023:KHC-D:6744-DB WA No. 100155 of 2017 that learned Single Judge rightly took note of decision of the Division Bench of this Court, wherein this Court has held that Trainee Conductors are not 'Corporation Servants' and if he/she is not a 'Corporation Servant', he would not be a 'workman' and not entitled to relief under the I.D. Act. Learned counsel also places reliance on the judgment dated 02.08.2021 in W.A.No.100556/2015 (L-KSRTC) wherein it is held that Trainee Conductor/Driver cannot be construed as 'workman'. Thus he prays for dismissal of the appeal.
6. Having heard the learned counsel for the parties and on perusal of the appeal papers, the only point that falls for consideration is as to :
"Whether the impugned order calls for interference by this Court?"
Answer to the above point would be in the negative for the following reasons:-
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NC: 2023:KHC-D:6744-DB WA No. 100155 of 2017 a. A Co-ordinate Bench of this Court in W.A.No.No.100369/2014 dated 18.08.2014 has held that a Trainee Conductor is not a Corporation Servant and would not be entitled to relief under the Industrial Disputes Act. Relevant paragraph 5 reads as follows :-
5. Indisputably, appellant was called upon to undergo training as a conductor when his name was included in the selected list of conductors.
Sub Regulation (1) of Regulation 10 of the KSRTC (Cadre and Recruitment) Regulation (for short 'C and R Regulations') disentitles a person in the select list to appointment to a vacant post of conductor. Inotherwords, appellant's name though found in the selected list, is not a Corporation Servant entitled to an order of appointment to a vacant post of conductor. Appellant was directed to report for training programme. On his failure to report for training in liable to have his name removed from the list of conductors on training in terms of Regulation 12/2) of the Regulations. Therefore, appellant cannot claim a right to an appointment to the vacant post of conductor before successful completion of training as required by C & R Regulations'. In the absence of an order of appointment to the vacant post of conductor, appellant did not fall within the definition of the term "Corporation Servant' under the KSRTC Servants (C&D) Regulations, 1971. Appellant being a Trainee conductor, therefore, is not a corporation servant'. It is needless to state that if -8- NC: 2023:KHC-D:6744-DB WA No. 100155 of 2017 the appellant is not a corporation servant' is not a workman, hence not entitled to a relief under the I.D.Act, which aspect is not considered by the Labour Court.
b. Thereafter similar view is expresses by another Co-ordinate Bench in W.A.No.100556/2015 dated 02.08.2021, whereby the same view is taken. c. In the case on hand, the appellant herself was before the Labour Court stating that she was appointed as Trainee Conductor in the respondent/Corporation on 22.01.1999. No material on record either before the Labour Court or before this Court is produced to establish that the appellant/petitioner was subsequently absorbed as Conductor or to establish that she was permanent employee or workman. As observed by the Division Bench of this Court in MAHAJAN BOREWELL COMPANY's case, the question as to whether a particular person is a 'permanent employee/workman or not' is a pure question of fact. Burden is on the person, who approaches the Court or Tribunal to -9- NC: 2023:KHC-D:6744-DB WA No. 100155 of 2017 establish initially that he/she is a 'workman' within the definition of Section 2(s) of the I.D.Act. In the case on hand, when the case of the appellant/petitioner is that she is a Trainee Conductor, the question of framing issue with regard to status of the petitioner would not arise. When the question of fact is arrived at by the learned Single Judge based on the material placed on record, normally the appellate Court would not upset the finding of fact. Learned counsel has placed reliance on the decision of DEVINDER SINGH case cited supra contending that to determine whether a person is a workman or not, it would be necessary to examine certain criteria such as source of employment, method of recruitment, terms and conditions of employment/contract of service, quantum of wages/ pay and mode of payment. In the instant case, the question as to whether the appellant/petitioner was 'workman' would not arise, when she herself pleads that she was appointed as Trainee Conductor and
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NC: 2023:KHC-D:6744-DB WA No. 100155 of 2017 there is no material to establish that she was absorbed as workman subsequently or she was regularly recruited in a subsequent recruitment process.
7. We do not find any error in the order passed by the learned Single Judge, where in the learned Single Judge followed the decision of the Division Bench of this Court in W.A.No.No.100369/2014 dated 02.07./2014 cited supra and allowed the writ petition. No ground is made out to interfere with the order of the learned Single Judge.
8. Accordingly, the appeal stands dismissed. It is open for the petitioner/appellant to avail any other remedy available in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE NG List No.: 1 Sl No.: 57