Karnataka High Court
Ngef (Hubli) Ltd., vs S.N. Rayangoudar S/O. Naganagoudar on 12 February, 2016
Author: B.S Patil
Bench: B.S Patil
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12 t h DAY OF FEBRUARY 2016
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATI L
WRIT PETITION No.64703 of 2012 [L-TER]
BETWEEN:
NGEF (HUBLI) LTD.,
P.B. ROAD, RAYAPUR, DHARWAD
REPTD. BY ITS MANAGING DIRECTOR.
... PETITIONER
(By Sri. D L LADKHAN & N.M. HANSI ADVS.)
AND:
1. S.N. RAYANGOUDAR
S/O. NAGANAGOUDAR
AGE: 55 YEARS,
C/O. NGEF EMPLOYEES
ASSOCIATION, DHARWAD.
2. THE SECRETARY,
COMMERCIAL AND INDUSTRIAL CENTRE
VIKAS SOUDHA,
BANGALORE-1.
... RESPONDENTS
(By Sri.RAVI HEGDE ADV. FOR C/R1;
SRI.SHIVAPRABHU, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE IMPUGNED ORDER DTD.25.02.2012 PASSED BY THE
PRINCIPAL LABOUR COURT, HUBLI, IN REF No.83/2000 AT
ANNEXURE-G.
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This Writ Petition coming on for Preliminary Hearing, this
day the Court made the following:-
ORDER
N.G.E.F. (Hubli) Limited, a Government of Karnataka undertaking, has filed this Writ Petition, challenging the award dated 25 t h February 2012 passed by the Labour Court, Hubballi, thereby allowing the reference and directing the petitioner to regularise the services of claimant-workman with effect from 25 t h April 2000.
2. Facts involved in this case, stated in brief, are that petitioner was engaged as a casual employee (Helper) on 14 t h October 1987 in the establishment of petitioner. His services were terminated on 02 n d July 1988. The said termination was challenged by raising a dispute. The dispute was referred to Labour Court. The Labour Court, vide its award dated 24 t h July 1996, set aside the order of termination and directed his reinstatement holding that his retrenchment was not brought about by complying with mandatory provisions of the Industrial Disputes Act. :3:
3. The Management challenged this award of Labour Court in Writ Petition No.35191 of 1996. The Writ Petition was partly allowed on 04 t h September 1998 by reducing back-wages to 50%. It is necessary to notice here that during the pendency of writ petition, pursuant to the award passed by Labour Court and the interim order granted in the Writ Petition, the workman was reinstated into service.
4. Subsequently, the respondent-workman raised a dispute regarding his regularisation. Same was espoused by the Union, of which he was a member. Accordingly, the State Government referred the dispute to Labour Court, Hubballi, for adjudication. The point referred to Labour Court, of which we are now concerned is, 'whether the Management of NGEF (Hubli) Limited, Rayapura, Hubballi, was justified in not confirming Sri.S.N.Rayanagoudar in service with effect from 20 t h February 1987, and if not to what reliefs the claimant is entitled to'.
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5. In other words, the grievance of respondent-workman was that though he had worked from 14 t h October 1987 continuously as a Helper and had completed more than 13 years of service, he had not been regularised in his services and was not paid salary and wages equivalent to regular employees who were discharging similar work in the establishment. He had also contended that two employees by name Sri.P.D. Jagatap and Sri.V.V. Stavarmath had been made permanent and their services were regularised in the year 1991, although they had been appointed subsequent to respondent-workman.
6. Labour Court raised the following relevant issues relating to the claim made before it:
(i) 'Whether the workman proved that he was entitled to continuity of service?
(ii) Whether the workman proves that the management was bound to grant him continuity of service and regularistion of service? and
(iii) Whether the management proved that the workman was not entitled for all :5: benefits payable to a regular permanent employee?' The workman examined himself and produced 21 documents. The management examined two witnesses and produced 12 documents.
7. On consideration of the entire materials on record, the Labour Court has come to the conclusion that workman was employed at the first instance on 14 t h October 1987; though his services were terminated on 02 n d July 1988, in view of the award passed by the Labour Court on 24 t h July 1996, declaring the said termination as illegal, which award was subsequently confirmed by the High Court, pursuant to which, the workman continued in service, he had to be considered as a workman in continuous service of the employment; that, in terms of Item No.10 of Fifth Schedule of the Industrial Disputes Act, 1947, employing a workmen as "bad al is" / Casuals / Temporaries and continuing them as such for years, thereby, depriving them of the privileges of permanent workmen, amounted to unf air labour :6: prac tice and therefore, as the workman in the instant case had been continued as a casual employee, right from the year 1987 till the date of reference, action of the Management did amount to unf air l abour prac tice.
8. Labour Court, placing reliance on the judgment in the case of MAHARASHT RA ST AT E ROAD T RANSPORT CORPORAT ION AND ANOT HER versus CAST ERIBE RAJYA P.KARMACHAR I SANGHAT ANA AND OT HERS, 2009-IV-LLJ-286 (SC) and several other judgments, has held that the workman was entitled for the relief of regularisation as he was continuously made to work as a casual employee from 14 t h October 1987 onwards. Management was directed to regularise the services of the workman with effect from the date of reference i.e., 25 t h April 2000.
9. Principal contention urged by the learned counsel for petitioner is that judgment in MSRT C case (supra) did not lay down the correct legal position, inasmuch as Constitution Bench of the Apex Court in UMADEVI's case, which according to him, is applicable to the present case, clearly held that mere :7: length of service of an employee cannot entitle him to claim regularisation and where the employee is on contractual basis or for a fixed period, he cannot claim regularisation in the said post. In this regard, he has also placed reliance on the judgment of the Apex Court in the case of OFFIC IAL LIQUIDAT OR versus DAYANAND AND OT HERS, 2009-III-LLJ-335 (SC).
10. He also invites the attention of the Court to paragraphs 71, 92 and 95, to urge that the workman in the instant case was not entitled for either regularisation or for payment of equal p ay f or equal work.
11. Per con tra, learned counsel appearing for respondent No.1, Sri.Ravi Hegde, placed reliance on the recent judgment of the Apex Court in the case of UMRALA GRAM PANCHAYAT versus THE SECRETARY, MUNICIPAL EMPLOYEES UNION AND OTHERS, 2015 AIR SCW 2240 to contend that in similar circumstances, dealing with unf air labour prac tice resorted to by the Management, the Apex Court laid down that judgment :8: in UMADEVI's case had no application to such fact situation, where Industrial Tribunal had held that there was unf air labour prac tice in continuing the workman on casual basis for years and the directions issued by the Labour Court to regularise their service and give them equal pay could not be found fault with.
12. In the light of the respective contentions, I have examined the entire matter. On careful consideration of the pleadings, questions raised and the findings recorded by Labour Court, it is clear that the workman was engaged as a casual employee on 14 t h October 1987; he was illegally terminated on 02 n d July 1988. This forced him to raise an industrial dispute. The Labour Court directed his reinstatement vide award dated 24 t h July 1996. The said award was challenged before the High Court. The High Court reduced back-wages to 50%, but did not interfere with the directions regarding reinstatement. Though, he was reinstated during the pendency of the Writ Petition, his services were :9: continued as casual employee and therefore, the workman made demand seeking regularisation and payment of equal pay on par with other similarly placed employees, discharging similar work. The said request was not considered. The Union espoused his cause. Therefore, issue regarding unf air l abour prac tice and the resultant refusal to regularise his services and pay him equal wages was referred to the Labour Court by the State Government.
13. Labour Court on enquiry has found that there was indeed unf air l abour practice, to which the workman was a victim. By referring to the entire checkered history of the case fought by the workman, Labour Court has persuaded itself to hold that as case of unf air l abour prac tice had been made out and the employee had been subjected to work as a casu al e mployee for nearly thirteen years, he was ordered to be regularised and paid wages of regular employee.
14. On merits, no exception can be found to the findings recorded by the Labour Court. However, the legal question that requires careful consideration : 10 : is the contention of learned counsel for petitioner that in view of UMADEV I's Case, Labour Court had no power or jurisdiction to grant regularisation of services of a casual employee.
15. This contention cannot be accepted in the light of recent pronouncements of the Apex Court in the case of UMRALA GRAM PANCHAYAT versus THE SECRETARY, MUNICIPAL EMPLOYEES UNION AND OTHERS, 2015 AIR SCW 2240. In this case, Apex Court was dealing with a similar situation pertaining to unf air labour prac tice in continuing the employees on casual or temporary basis for years together. In paragraphs 14 to 17, the Apex Court has observed as under:
"14. Therefore, the learned single Judge as well as the Division Bench of the High Court have exercised the power under Articles 226 and 227 of the Constitution of India and have rightly held that the Labour Court has jurisdiction to decide the industrial dispute that has been referred to it by the Dy. Commissioner of Labour, Ahmedabad. Reliance has been placed upon the decision of : 11 : this Court in the case of Maharashtra State Road Transport Corporation and Anr. v. Casteribe Rajya P. Karmchari Sanghatana [(2009) 8 SCC 556], wherein it has been held thus:
"32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer."
Further, reliance has been placed upon the decision of this Court in the case of Durgapur Casual Workers Union v. Food Corporation of India, [(2014) 13 SCALE 644] wherein it has been held thus:
"19. Almost similar issue relating to unfair trade practice by employer and the effect of decision of Umadevi (3), [AIR 2006 SC 1806 : 2006 AIR SCW 1991] in the grant of relief was considered by this Court in Ajaypal Singh v. Haryana Warehousing : 12 : Corporation in Civil Appeal No. 6327 of 2014 decided on 9th July, 2014. In the said case, this Court observed and held as follows:
"20. The provisions of Industrial Disputes Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi's case. The issue pertaining to unfair labour practice was neither the subject matter for decision nor was it decided in Umadevi's case.
21. We have noticed that Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees....""
15. Thus, in the light of the above referred cases of this Court, it is amply clear that the judgments and orders of the High Court and the Award passed by the Labour Court are reasonable and the same have been arrived at in a just and fair manner.
16. The reliance placed by the learned senior counsel for the appellant upon the decision of this Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. [(2004) 4 : 13 : SCC 1], does not apply to the fact situation of the present case and the same cannot be accepted by us in the light of the cogent reasons arrived at by the courts below.
17. In view of the reasons stated supra and in the light of the facts and circumstances of the present case, we hold that the services of the concerned workmen are permanent in nature, since they have worked for more than 240 days in a calendar year from the date of their initial appointment, which is clear from the evidence on record. Therefore, not making their services permanent by the appellant- Panchayat is erroneous and also amounts to error in law. Hence, the same cannot be allowed to sustain in law."
16. In the light of the law laid down by the Apex Court, by referring to several judgments, including the judgment in UMADEVI's case and as the Labour Court has specifically recorded a finding that there was unf air labour prac tice on the part of the Management in continuing the employee on casual basis for years together, while directing his regularisation, I am of the view that award passed by : 14 : the Labour Court cannot be characterised as illegal or perverse or without jurisdiction so as to warrant interference by this Court in exercise of the writ jurisdiction. Ratio of the judgment of the Apex Court in UMRALA GRAM PANCHAYAT 's case applies to the facts of the present case. Hence, it cannot be said that Labour Court had no power to direct regularisation of the services of workman on the ground that his continued employment as casual employee for thirteen years resulted in unfair labour practice. UMADEV I's case has been referred to and explained by the Apex Court.
Hence, Writ Petition being devoid of merits is dismissed.
Sd/-
JUDGE RK/-