Karnataka High Court
Corporation Of City Of Gulbarga vs Karnataka Urban Water Supply & Anr on 8 January, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT KALABURAGI
DATED THIS THE 8TH DAY OF JANUARY, 2018
PRESENT
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
WRIT APPEAL No.200518/2016
C/W
C.C.C. No.200314/2016 (CIVIL)
IN WRIT APPEAL No.200518/2016:
BETWEEN
CORPORATION OF CITY OF GULBARGA
(NOW KALABURAGI HEREAFTER
REFERRED TO AS KALABURAGI)
THROUGH ITS COMMISSIONER,
MAIN ROAD, GULBARGA
(AND HEREAFTER REFERRED
AS KALABURAGI). ...APPELLANT
(BY SRI SANJAY M.JOSHI, ADVOCATE)
AND
1. KARNATAKA URBAN WATER SUPPLY AND
DRAINAGE BOARD
MISCELLANEOUS WORKERS UNION
GULBARGA, THROUGH ITS PRESIDENT
GULBARGA - 585 103.
2. KARNATAKA URBAN WATER SUPPLY
AND DRAINAGE BOARD
THROUGH ITS EXECUTIVE ENGINEER
GULBARGA - DIVISION
GULBARGA - 585 102. ...RESPONDENTS
(BY SRI P VILAS KUMAR, ADVOCATE FOR R-1
SRI CHAITANYA KUMAR, ADVOCATE FOR R-2)
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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ALLOW THE
WRIT APPEAL AND SET-ASIDE THE ORDER DATED 30.03.2015
PASSED IN WP No.81718/2009 BY THE LEARNED SINGLE
JUDGE, THE HON'BLE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH AND CONSEQUENTLY SETTING ASIDE THE
AWARD DATED 21.08.2008 PASSED BY THE LABOUR COURT,
KALABURGI, IN REF No.6/1997 VIDE ANNEXURE 'A' AND
RESTORE THE SAID JUDGMENT AND AWARD PASSED BY THE
LABOUR COURT, KALABURAGI, REJECTING THE REFERENCE
MADE TO IT BY THE GOVERNMENT OF KARNATAKA LABOUR
DEPARTMENT AND ETC.
IN C.C.C.No.200314/2016:
BETWEEN
KARNATAKA URBAN WATER SUPPLY
AND DRAINAGE BOARD
MISCELLANEOUS WORKERS UNION
GULBARGA, THROUGH ITS PRESIDENT. ...COMPLAINANT
(BY SRI B.K.PATIL, ADVOCATE)
AND
1. SRI R.V.PATIL
EXECUTIVE ENGINEER
KARNATAKA URBAN WATER SUPPLY
AND DRAINAGE BOARD, KALABURAGI
DIVISION, KALABURAGI.
2. SRI P SUNIL KUMAR
COMMISSIONER, CITY CORPORATION
KALABURAGI. ...ACCUSED
(BY SRI CHAITANYA KUMAR, ADVOCATE FOR A-1
SRI SANJAY.M JOSHI, ADVOCATE FOR A-2)
THIS CCC IS FILED UNDER ARTICLE 215 OF
CONSTITUTION OF INDIA READ WITH SECTIONS 11 & 12 OF
THE CONTEMPT OF COURTS ACT, PRAYING TO INITIATE
CONTEMPT PROCEEDINGS AGAINST THE ACCUSED FOR
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VIOLATING THE ORDER OF HON'BLE COURT PASSED IN W.P
No.81718/2009 DATED:30.03.2015 WHICH IS AT ANNEXURE-A
AND ORDER FOR TAKING ACTION AS DEEMED FIT INCLUDING
PUNISHING THE ACCUSED WITH IMPRISONMENT IN THE
INTEREST OF JUSTICE.
THE WRIT APPEAL AND CCC HAVING BEEN HEARD AND
RESERVED ON 13.10.2017 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
N.K.SUDHINDRARAO J., DELIVERED THE FOLLOWING.
JUDGMENT
This writ appeal along with CCC No. 200314/2016 are directed against the order passed in W.P.No.81718/2009(L-RES), filed by the Workers Union, wherein, the petition came to be allowed and this Court ordered for regularization of the services of 21 workmen with all consequential benefits of pecuniary and non pecuniary in the nature.
2. In this Connection, we find it necessary to take note of the preceding litigations - disputes among Union/ Corporation/ Board of Gulbarga. 4
3. It all started with the writ petition No.37298/2002 (L-RES), that was disposed on 22nd February 2007 preferred by the Corporation represented by its Commissioner against (1) Government of Karnataka, represented by Secretary Urban Development Department (2) Karnataka Water Supply and Drainage Board Workers Union, Gulbarga and (3) Karnataka Water Supply and Drainage Board Workers Union, Gulbarga, represented by the Executive Engineer, under Articles 226 and 227 of the Constitution, wherein, the petitioner sought for quashing of the order passed by the Labour Court on 18th March 2000 as per Annexure-B therein, filed in application No.23/2002, to declare the respondent- Union and its Members are not employees under the Petitioner/Corporation; and to declare they are not entitled for regularization of services and consequential benefits.
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The reference was made in Reference No.6/1997. The application was filed in Application No.23/2002 on 28th June 2002.
4. The dispute that was raised by Union before the Labour Court was for regularization of 120 workers both skilled and unskilled working in petitioner/Corporation.
5. The reliefs sought under the writ petition apart from the regularization of services are: minimum wages as per Minimum Wages Act; to deduct Provident Fund; to provide Uniform; Equal Wages for Equal Work; issue wage slips; weekly holiday and general holidays. Prior to the filing of writ petition and passing of the award by the Labour Court, conciliation took place between the Union and the Corporation. On the matter facing failure was referred to Labour 6 Court by the Government vide the said reference in REF NO. 6/1997.
6. The Labour Court treated the individual dispute as Industrial dispute, in view of the claim made by a workman. The Labour Court allowed the claim of the Union and directed the 3rd respondent -Board for (i) Reinstatement of the workman (ii) Backwages from 30.4.1996. The award was challenged by the 3rd respondent-Board in Writ Petition No.16178/2000, for quashing the award/order that directed for reinstatement with backwages. This Court, allowed the writ petition and remanded the matter to the Labour Court, as it found that opportunity provided by the Labour Court in earlier proceedings fell short of the required level and directed the Labour Court to decide the matter on merits.
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7. The Labour Court, in the proceedings after remand passed the order in favour of the workmen for
(i) regularization of services in a phased manner following the criterion of senior workmen in service;
(ii) Providing Uniform; (iii) Equal wages at par with the permanent employees and (iv) facilities of weekly and general holidays. Further, it ordered 50% of the workmen to work on a compensatory wage basis and wages to be disbursed on or before 5th day of every subsequent month for the previous month.
8. In the second phase of proceedings, the Labour Court considered the matter and passed the award finding that the workmen /Union claimed the status of the workmen who were working in the Board whose services were entrusted to the Corporation.
9. By virtue of the Government order dated 16th January 1996, the services of 120 workmen in 8 the Corporation were handedover or transferred to the Corporation. Thus, it was the claim of the Board that they were no longer the workmen under it. It was also contended that by communication dated 1.7.1999, 133 employees were made over to appellant-Municipal Corporation. The Corporation contended in the said proceeding that the services of the Members of the Union were never entrusted or transferred or assigned to the Corporation.
On the other hand, the further contention of the Corporation was that the employees-workmen were engaged by a Contractor and not by the Board. Thus, it was the firm ground of Corporation that at no point of time, the workmen worked as its employees. Thus, according to the Corporation there was no transfer of services.
10. The Corporation further contended that it got impleaded to the proceedings before the Labour Court 9 at the fag end of the proceedings and thus, had no benefit of full opportunity to present its case and the grounds on which rested upon. The Labour Court observed in its order-award to the effect that there was no presentation of documentary evidence and it was just oral evidence against oral evidence, oath against the oath and in the absence of relevant material or the circumstance paving way for conclusion regarding the existence of relationship between the Corporation and the workmen. Thus, the Labour Court rejected the reference that was made by the Government and passed the award. Thus, the result was that no question of regularization by virtue of the order-award passed by the Labour Court.
11. After the dismissal of the claim by the Labour Court by rejecting the reference of the Government, 21 workmen preferred writ petition before the learned Single Judge of this court in No.81718/2009. The 10 learned Single Judge observed that the Labour Court erred in rejecting the reference and held that there was existence of relationship between the Corporation and the workmen and the said workmen were entitled for regularization with consequential benefits and allowed the writ petition on 30-03-2015.
12. The learned counsel Sri.Sanjay M. Joshi, appearing for the appellant/Corporation submits that, there was no ground to allow the writ petition by the learned Single Judge and the relationship of Corporation and workmen was never established for the very reason that, there was no such relationship. It was further submitted by the learned counsel that the very claim of the workmen is in haphazard and ambiguous OA is that they went on making allegation against the Corporation instead of adducing any single material or document to establish the existence of jural relationship.
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13. The learned counsel Sri. Vilas Kumar, appearing for the workmen would submit that the very fact of reference of dispute by the Government to the Labour Court presupposes the existence of jural relationship. The learned counsel further submits that the employees-the petitioners were working under the Board and later being deputed to the Corporation. Thus they are the full fledged workmen.
14. Learned counsel for the Corporation would further submit that the employment if any held by the workmen cannot be suppressed whether by the appellant or by the workmen whether it is the matter of 21 or 133 workmen and thus there is no substance in the claim of the workmen and the appeal deserves to be allowed by setting aside the order passed by the learned Single Judge.
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15. The jural relationship of the employer and employees cannot be denied, if there are probabilities, materials and documents provided the said factors exist. It is to be remembered that not only the employer or the workmen who hold or possess documents substantiating the evidence regarding the jural relationship, as there will be connecting link with so many bodies, including the Government will be in possession of the connecting records regarding salary or wages; ESI Corporation- regarding medical treatment; Provident fund office - regarding the contribution made every month by the workmen; returns -statements being filed to the necessary authorities under relevant Labour Enactments.
It is further necessary to mention that the body which is held to be the employer in the proceeding is not an individual it is a Corporation wherein the Government will be holding the same and the 13 activities conducted by the Corporation cannot go beyond particular limit in the matter of administration and labour welfare. It is in this connection, the evidence of Executive Engineer or the Assistant Engineer cannot be the stamping authorities of conferring or identifying or recognizing the employment of a person. Thus the public servant or the head of the department, the Authority in-charge of the institution or its Representatives cannot hold the very higher responsibility of conferring or removing workman from employment. Thus, the Executive Engineer or the Assistant Engineer can only adduce oral evidence of the state of affairs or produce document if it is called for or required.
16. The doctrine of ultra vires which refers to beyond powers has also to be considered in respect of the statement made by Executive or Superior official or Officer of any Establishment or Undertaking or 14 Enterprise shall be within the limits of the powers or the vires. Per contra, they cannot make statements or declaration or give undertaking in breach of authority or put the Govt. in a state to bind to under doctrine of estoppel to confer a right or status to put the system itself under the mat of estoppel for the reason that the matter was referred to the Labour Court by the Government or the evidence of Executive Engineer or Assistant Engineer.
17. Insofar as Annexure-K relating to Bye laws/Rules and Regulations of the Workers Union which moved the application and the Government referring the same to the Labour Court cannot be concluded to be the by product of the existence of the jural relationship. The first writ petition 16178/2000, disposed of by this Court, did not confer or took away rights of either of the parties. On the other hand, found that the Labour Court has not granted full 15 opportunity to the parties and hence, remanded the matter. Thus, the appellant or respondent cannot claim the order passed in the writ petition as the source of conferring or vesting the rights on the parties. Thus, the impugned order which is passed in W.P.No.81718/2009 disposed on 30.03.2015 considered the submissions made by both the parties and found that the petitioners-workman 21 in number are entitled for regularization of service with consequential benefits.
18. The said order was passed by the learned Single Judge setting aside the order passed by the Labour Court which had rejected the reference having found the absence of jural relationship.
In this connection, during the arguments when a question was posed to the learned counsel for the appellant as to whether the list of employees - workman skilled and unskilled was filed by either of 16 the parties mentioning their status, in the proceedings under writ or present proceedings, it was submitted by the learned counsel for appellant that it has to be referred in the records maintained by the Labour Court in the proceedings connected to the present case. The learned counsel for the respondent also endorsed the said view. Thus, we felt that it was necessary to secure those records and after hearing the full submissions from both the sides the matter was reserved for Judgment and office was directed by us to secure the records from the Labour Court for the purpose of knowing about the list of the employees as contended by the respondent-Union. As it was the document which could have thrown light on the matter.
19. The records of the Labour Court was reported to have received on 13.10.2017 and in view of certain 17 queries, the official from the Corporation came and clarified on 08.12.2017.
It is necessary to mention that the stand took by the Board is that earlier to transfer of workmen to Corporation from the Board, the workers were engaged by the contractor and not by the Board. Incidentally, the appellant-Corporation has not produced document in its custody regarding the involvement of Contractor for outsourcing the workmen. This part of the case pertaining to the jural relationship has to be satisfied by both the parties as be it the Corporation or Board are not individual or private parties to think in terms of profit or loss. Both are under the control of Government. Head of the concerns are appointed by the Government. In this connection, the earlier contention regarding the working of 133 employees as contended by the respondent-Union being the workmen is not a simple 18 quote or a statement. On the other hand, it matters 133 families and their livelihood and their employment in the Organization, be it Board or Notification dated 1998 or the Corporation subsequent to notification.
20. As stated above, the records cannot be made to disappear even in case either of the parties are determined to destroy or to cause disappearance of it, besides, the official normally would not have personal interest in the same.
21. Insofar as the person in-charge of the Establishment be it Executive Engineer or Assistant Engineer are accountable and responsible if they make the statement on behalf of the concerned. Other than that they cannot go on binding the Government or employer through their irresponsible statement. Further, there cannot be a claim for promissory estoppel by an individual to seek estoppel against the 19 Government and expecting a particular stand that was held by its official. That apart, the employment is of such a nature which cannot exist without document, more particularly, when it relates to 133 persons. However, under the present proceedings 21. It is not a relation which could be notified, applied or extinguished by mere oral evidence without there being a document. Insofar as a person representing the establishment can do only of that aspect which he is competent and not otherwise.
22. Learned counsel for the appellant relied on the decision of the Apex Court in the case of Secretary to Government Commercial Taxes and Registration Department, Secretariat and anr Vs A. Singamuthu arising out of SLP(C) No.17702/2014 disposed on 07.03.2017. 20
23. The said case is in connection with the Government Notification dated 28.02.2006 issued by the Government of Tamil Nadu in G.O.Ms.No.22, wherein, the Government notified the Circular holding that employees who were on daily wages scheme and those completed 10 years of work experience as on 28.02.2006 were entitled for confirmation of the job. In the said case, the individual who claimed the benefit was part time employees who rendered 10 years of service as on 01.01.2006 claiming that he had completed 10 years experience as part time employee. There was a direct recruitment by the Tamil Nadu Public Service Commission wherein 308 posts were to be filled. Being aggrieved by the order of depriving him by the Government through denying the job opportunity preferred a writ petition before High Court of Tamil Nadu and sought for employment. The learned Single Judge directed the Inspector 21 General of Registration to extend the benefits of G.O.Ms.No.22 dated 28.02.2006. Being aggrieved by the order of the learned Single Judge, the appellant- department of Stamps and Registration, Tamil Nadu, preferred writ appeal against the order. During the pendency of the writ appeal vide proceedings 10425/A1/2012 dated 02.07.2002 the District Registrar appointed respondent and four others as full time employees in the post of Watchman by regularizing the services of respondent has been placed at Sub-Registrar, Uraiyur, Trichy. Writ appeal No.10425/A1/2012 was dismissed thereby confirming the order of learned Single Judge wherein the matter went before the Hon'ble Apex Court. The points are quite clear that the part time workers therein who had completed the criteria of completion of work experience with the department for 10 years as on 22 01.01.2006 and the order in the writ appeal was questioned.
24. The Apex Court considered the submissions of the appellant in SLP(C)No.17702/2014 regarding the huge financial loss that is going to occur by the wrong interpretation of the notification and the adverse and post implementation stage effects of such a kind of policy or order would seriously affect the very financial structure of State of Tamil Nadu. However, the learned counsel for respondents submitted before the Apex Court that the employees had the vested right of the benefits and they should be allowed to reap them instead of withholding on an incomplete and imaginary data. The Apex Court considered the submissions and the consequence of confirmation of services being transformed into a permanent considering the service of daily wages being completed of 10 years as on 01.01.2006 and also made elaborate assessment of 23 the nature of part term, full term and eligibility for confirmation.
Thus, it was held that part time employees do not fall within the meaning of full time employment. Even as daily wagers, if the employees had discharged the duties as full time employment they were entitled provided they fulfill the criteria of service experience. The other criterion is also that the concept of 240 days experience in an year being completed as daily wage worker with full time work. However, discharge of duties as a part time employee to an equivalent period cannot complete the required period of experience, giving regard to the aspect that the work that was discharged by part time employees was three hours a day. In the result, Special leave petition was allowed and the order passed in writ appeal was set aside.
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25. Insofar as the present case is concerned, we have carefully perused the contentions of the parties and also secured the records from the Labour Court. The state of affairs is such that in this case there is no symptom of even part time employment or full time employment. Further no list was produced by any one of the petitioner -workman if not all of them. Thus, the present case before us falls short of the level of the case discussed above, insofar as it does not bear the records consisting of the list of employees whether 133 or 21 or any number. There was no submission in connection with the other employees. Further there was no answer by the learned counsel Sri. Vilas Kumar, for the respondent-Union for the yardstick or criteria for the number of employees who are claiming confirmation. No material either from the Bank, Provident Fund, ESI, medical treatment, salary or wages, daily wages or muster rolls of any of the 25 respondent-claimants reflecting the existence of the relationship of employer and employee whether under the Board or the Corporation.
26. The learned Single Judge though has found the existence of the relationship and ordered for regularization of services of the respondent-workmen has not assigned the yardstick or basis or document or whether by the parties or by the outside agencies stated above. In the circumstances, we find the efficacy and legal force in the plea of the Corporation.
27. It is necessary to mention that there cannot be an issue of writ directing the Government or Body for regularization of services which tantamount to giving employment. In this connection, we have also perused the decisions passed by the Apex Court in the case of Secretary to Government. Commercial Taxes and Registration Department, Secretariat and anr Vs 26 A. Singamuthu and Uma Devi's case reported in 2006 (4) SCC 1. It is certain that if the entitled is disentitled or disentitled is made entitled in the matter of employment it would lead to chaos.
28. Insofar as contempt proceedings is concerned, the same was preferred by the respondent-workmen seeking action against the appellant for not having offered the confirmation or regularization of services despite being so ordered by this Court while disposing W.P.No.81718/2009 (L-RES).
29. The learned counsel for respondent- workmen would submit that when the order was in force, the respondents have violated the same willfully though it was in know of it. The learned counsel for appellant would submit that the appellant was relying on the legal position and that it was not the competent authority to confer employment. The order of the learned Single Judge passed on 30.03.2015, the 27 contempt petition was filed on 8.11.2016 and Writ Appeal was filed on 15.11.2016.
30. Moreover, the impugned order by learned Single Judge was passed on 30.03.2015, the writ appeal by the Corporation and the contempt petition was filed on 15.11.2016 and 8.11.2016. In this connection, in the light of the present writ appeal being preferred by the appellant-Corporation, the petition filed under Sections 11 and 12 of the Contempt of Courts Act, could not be disposed. The order of learned Single Judge in directing the appellant-Corporation for regularization of services was challenged before the Division Bench of this Court as stated above. Moreover, time limit for compliance was not prescribed. We find that there is no substance in the stand of the respondent-workmen that the appellant is guilty of contempt and hence, contempt proceedings have to be dropped.
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The order of the learned Sessions Judge has failed to note of the non existence of documents or oral evidence regarding the relationship of employee and the employer between the respondent union members and the appellant.
In the result, order of the learned Single Judge in W.P.No.81718/2009 dated 30-03-2015 is set aside. Consequently, writ appeal is allowed.
Contempt proceedings No.206314/2016 are dropped.
Sd/-
JUDGE Sd/-
JUDGE tsn*/SBN