Karnataka High Court
Karnataka State Road Transport ... vs Labour Court And Ors. on 5 August, 1999
Equivalent citations: (2001)IILLJ597KANT
Author: A.V. Srinivasa Reddy
Bench: A.V. Srinivasa Reddy
JUDGMENT
1. This appeal is filed by the Karnataka State Road Transport Corporation assailing the order of the learned single Judge dismissing the writ petition.
2. The brief facts of the case are:
The fifth respondent was appointed as a badli worker on November 22, 1974. On account of certain misconduct committed by him, his name was removed from the list of badli workers on May 27, 1977.
The validity of the order was assailed by the workman before the Labour Court which by its order dated August 13, 1981 directed to restore the name of the fifth respondent in the list of badli workers. Assailing the said order, Writ Petition No. 7596/1982 was filed. The writ petition was dismissed on October 28, 1985 and Court directed that the fifth respondent is entitled to all the consequential benefits including reinstatement. Thereafter, workman's name was restored to Badli workers list on January 4, 1989. He reported for duty on April 5, 1989.
3. After joining into service, the respondent No. 5 filed a petition under Section 33-C(2) of the Industrial Disputes Act claiming monetary benefits from August 13, 1981 to April 5, 1989. The Labour Court granted a sum of Rs. 93, 502. 65 ps. Assailing the said order, present writ petition is filed. The learned single Judge dismissed the writ petition. Assailing that, present appeal is filed.
4. The learned counsel for the appellant contended that a badli worker is a temporary workman and he is not a regular employee therefore awarding the back wages and treating him as a regular employee is not proper. Further there is no direction for payment of back wages. The direction i.e. he is entitled for all consequential benefits does not include back wages. Therefore, he is not entitled for the back wages at all.
5. On the other hand, learned counsel for the respondent No. 5 contended that the workman's name was removed without fault from the badli workers list, otherwise he would have been regularised in 1 or 1 1/2 years later. As his name was removed, he was not regularised, he lost his continuous service and service benefits. Therefore, the learned single Judge was right in dismissing the writ petition. The contention that the badli worker is not entitled for the back-wages is not correct, there are no merits in the writ petition. The writ petition is liable to be dismissed.
6. In view of the above contentions, the first point that arises for consideration is, what is the nature of the tenure of the badli workman? To appreciate the above point, it is relevant to go through the regulations of the KSRTC.
7. The Karnataka State Road Transport Corporation (Cadre & Recruitment) Regulations, 1982 were issued vide, circular dated January 1, 1983. Regulation 9 deals with mode of selection. Regulation 9 (6) deals with the list of selected candidates prepared by the Selection Authority shall be equal to the number of existing vacancies plus vacancies that may arise over a period of one year from the date of publication as may be assessed by the Selection Authority. The Corporation may by resolution in exceptional cases extend the validity of any select list for a period not exceeding six months. Thus, the selection is made to fill-up the existing vacancies and further vacancies that may arise within one year. If selected candidate is not absorbed within one year, the list will lapse, unless the same is extended by six months. If in the extended period of six months he gets the job, he will be appointed otherwise after total period of one year six months the list lapses and the candidate has to get selected again.
8. Regulation 10 provides for procedure for appointment. Regulation 10 Clause (5) provides that a selected candidate waiting for being appointed regularly in accordance with the regulations may be appointed as a temporary employee before such regular appointment against a short term vacancy or as a substitute in place of regular employee under suspension pending enquiry or suspension as a measure of punishment or on leave for a period not less than one month but not exceeding three months. Further it also provides that a selected candidate is also liable to be engaged as badli worker on a day-to-day basis in any vacancy caused by the absence of any employee and he will be paid for the number of days he works as such either daily or once in a month. Regulation 11 contemplates a selected candidate appointed for the permanent post shall be put on probation for a period of two years. It can be extended at the discretion of the Appointing Authority. After satisfactory completion of probation he will be appointed regularly. If he is not found suitable, he may be terminated within the period of probation.
9. Thus by reading the above regulations, it is manifest that a selected list will be in force for a maximum period of 1 1/2 years thereafter candidate has to be selected again, if he is not appointed before the expiry of 1 1/2 years. In the present case, there is no dispute that the petitioner is appointed on November 22, 1974 and he was not absorbed within 1 1/2 year thereafter and ultimately his name was removed from the badli workers list on May 27, 1977. When it is challenged, the Labour Court directed to restore his name in the badli workers list and there is no direction to pay him the salary. It is a fact that in the writ petition this Court directed to reinstate him with all consequential benefits. Thereafter he filed petition under Section 33-C(2) of the Industrial Disputes Act claiming the salary from August 13, 1981 to April 5, 1989 on the ground, as soon as the Labour Court gave a direction he was entitled for the enlistment of his name in the badli workers list and for appointment. In that petition the Labour Court awarded a sum of Rs. 93,502. 62 ps. The learned single Judge dismissed the writ petition filed assailing the said order. Against that, the present appeal is filed.
7. The important question now to be considered is, whether the badli worker is a temporary employee to be engaged whenever there is work or is entitled for fall salary as a regular employee?
8. The place of badli worker was considered by the Supreme Court in the case Titaghur Paper Mills Co. Ltd. v. Their workmen . The Supreme Court was considering regarding the entitlement for production bonus in addition to the wages of the workers. The Court was considering whether the temporary and the badli workers are also entitled for such bonus. Considering the said question in para-34 of the judgment the Supreme Court in the judgment held 1959-II-LLJ-9 at pp. 25, 26:
"The Tribunals rejected the claim for extending the attendance bonus scheme to clerical staff, badli workers and temporary workers. They were of the view that these workmen stand on a different footing. For the clerical staff the reason given was that they enjoyed the advantage of the incremental scales which were till then denied to other categories of mill hands for whose benefit the attendance bonus scheme was introduced. As for the badli and temporary workers the Tribunal said that the scheme could not be applied to them on account of uncertainty of the tenure of their service. So far as the badli and temporary workers are concerned, the reason given by the Tribunals for treating them differently appears to us to justify their being excluded".
9. Thus, the Supreme Court has affirmed the view taken by the Tribunal that the badli workers and temporary workers stand on a different footing than the regular workmen and held that the denial of the bonus scheme to them is proper.
10. In the case of Lalappa Lingappa v. Laxmi Vishnu Textile Mills , the Supreme Court was considering the expression 'continuous service' as defined in Section 2(c) of the Payment of Gratuity Act, 1972. The Supreme Court while considering the meaning of 'Continuous Service' has also considered the status of the Badli workers and held that badli workers are not in uninterrupted service and therefore, they do not fall within the substantive part of the definition 'continuous service'. It is further held that a badli is one who is employed on the post of a permanent operative or probationer who is temporarily absent and it is not denied that the Management has got a separate register for the badli employees and that those who need work and when they call at the gate of the mills for work, such number of them are employed by the mills to fills up the vacancies of permanent operatives or probationers who are absent on a particular day either on account of illness or for any other cause. In the judgment it is observed as follows 1981-I-LLJ-308 at pp. 313, 314:
" 19. The report of the Badli Labour Enquiry Committee, Cotton Textile Industry, 1967, no doubt shows that the badli employees are an integral part of the textile industry and that they enjoy most of the benefits of the permanent employees; but there may not be any continuity of service as observed by this Court in the Delhi Cloth Mills case. The Badli employees are nothing but substitutes. They are like 'spare men' who are not employed while waiting for a job: Conlon v. Glasgow 36 Scott LR 652, Vallabhadas Kanji (P) Ltd. v. Esmail Koya, 1978 Lab IC 809 (Ker) taking the view to the contrary, do not appear to lay down a good law. Accordingly, we uphold the view that the badli employees are not covered by the substantive part of the definition of 'continuous service' in Section 2(c), but came within Explanation I and therefore, are not entitled to payment of gratuity for the badli period, i. e. in respect of the years in which there was no work allotted to them due to their failure to report to duty".
11. Thus the Supreme Court has held that the badli employees are not covered by the substantive part of the definition of 'continuous service' but they come within Explanation-I and therefore they are not entitled for payment of gratuity for the badli period i.e. in respect of the years in which there was no work allotted to them. Thus, it is manifest that a badli worker is not equivalent to the regular employee and not entitled for all benefits which the regular employee is entitled for unless a particular enactment or regulation provides for the same.
12. In the case of Prakash Cotton Mills Pvt. Ltd. v. Rashtriya Mills Mazdoor Sangh , the Supreme Court was considering whether the employees are entitled for the compensation when the mill is closed. In that case the question arose whether the Industrial Court was justified in directing payment of compensation to some of the badli workers and in the Judgment, it was observed as follows 1987-I-LLJ-97 at p. 101:
"It is not in dispute that Badli workmen get work only in the absence, temporary or otherwise of regular employees and that they do not have any guaranteed right of employment. Their names are not borne on the muster rolls of the establishment concerned. Indeed, a Badli workman has no right to claim employment in place of any absentee employee, in any particular case, if there be some jobs to be performed and the employee concerned is absent, the Company may take in a Badli workman for the purpose. Badli workmen are really casual employees without any right to be employed. It has been rightly submitted by the learned counsel for the appellant that the badli employees could not be said to have been deprived of any work to which they had no right and consequently, they are not entitled to any compensation for the closure and held that the badli worker is not entitled for the compensation when the mill is closed".
13. The Supreme Court in this case made clear that the badli worker is not on equal footing with the regular employee and is not entitled for all the benefits and he can only be employed in the absence of regular or temporary worker on the will of the employer and he has no right to the post.
14. In S. Govindaraju v. KSRTC a Division Bench of the Supreme Court considered the case of the badli worker of the Karnataka State Road Transport Corporation. The facts of that case are: the appellant workman was selected for appointment as Conductor in KSRTC and his name was placed in the selection list prepared by the Selection Committee and he was not given a regular appointment but he was appointed to work as Conductor in temporary vacancy and he continued to work for a period of more than 240 days. While he was working, his services were terminated on the ground that he is unsuitable for the post. The termination order further directed that the appellant would forfeit his chance for appointment in terms of selection and his name shall stand deleted from the select list. Assailing that, he filed the writ petition in the High Court. The single Judge rejected the writ petition and assailing that an appeal was filed before the Supreme Court. The Supreme Court held in that case that, the Regulations framed by the KSRTC are statutory in nature and the appellant was selected by the Selection Committee constituted under the aforesaid regulations and his name was included in the selection list prepared for the purpose of appointment as and when vacancy arises. It is also his case that, his name was also included in the list of badli workers and thereafter he was given employment, therefore the termination of his service is in violation of principles of natural justice and therefore allowed the writ petition.
15. The facts of the case shows that he was selected and appointed on temporary basis though his name was in the list of badli workers. It is not the case whether he was placed in the list of badli workers as in the present case. On the other hand, he was appointed as a temporary conductor, therefore in those circumstances the Supreme Court held that removal of his name from the selection list is bad and directed reinstatement with back wages.
16. In the present case, the fifth respondent though selected was appointed only as badli worker. As per Regulation 9 of the Regulations of the Corporation, the selection shall be made for that posts which are vacant and the vacancies going to arise within one year in future. The Regulations further provide that the said list will be valid for the maximum period of one year. Thus after 1 1/2 years the list will cease to have any validity. In the present case though the fifth respondent was appointed on November 22, 1974 he was not absorbed permanently on regular basis or as a temporary candidate as there was no vacancy and on May 27, 1977 he was removed from the list of temporary employees therefore, it cannot be said that he has got a right to continue in the list once the list ceased to exist as per the Regulations. Merely because he continued beyond 1 1/2 years does not give him a right unless he is again selected. However, the Labour Court directed to enlist him again in the badli workers list. That means, he will be continued as a badli worker and whenever there is vacancy he will be appointed on that basis. By giving direction that his name may be enlisted in the list of badli workers does not give him right to employment and backwages also. It is a fact that the single Judge in the earlier writ petition passed on order as follows: -
"In the circumstances, there is no merit in the writ petition. Therefore the writ petition is dismissed. The worker will be entitled to all consequential benefits including reinstatement".
17. 'All consequential benefits' has been interpreted according to the facts and circumstances of the case, whether an employee is entitled for the salary, allowance and increments on par with regular employees. According to the service rules and regulations, he will be entitled to all such benefits. If an employee is not entitled for any such benefits because of his tenure of office as a casual labourer or badli worker who cannot be treated as a regular employee, it cannot be presumed that he is entitled for the entire back-wages. Therefore, a badli worker whose name is just directed to be included in the badli workers list will not be entitled for all benefits and back-wages as per Regulation 9(1) of the Regulations. Once the list has been exhausted after 1 1/2 years unless a candidate is selected regularly he is not entitled to consider for appointment.
18. This is the legal position regarding the badli worker. Therefore, merely because a person is appointed as a badli worker, he will not get right to appointment unless the concerned Rules or Regulations provide that an appointment of badli worker will be deemed to be a regular appointment or after a badli worker is appointed and he works for sometime he will automatically be deemed to be absorbed, it cannot be said that the badli worker is entitled to be treated as a regular employee, when the regulations specially provide that the selection list lapses after 1 1/2 years. In the present case, the Labour Court directed to enlist his name in the list of badli workers. Thereafter in the writ petition filed by the Management assailing the said order, this Court directed to reinstate with all consequential benefits. Therefore, that order became final. Thereafter the fifth respondent filed petition under Section 33-C(2) of the Act on which Labour Court passed an award directing payment of the amount. That is now disputed. After the Labour Court passed an award to reinstate him, there was a stay granted by this Court to pay the salary from August 13, 1981 to April 5, 1989. The respondent claims that he is entitled for the wages equal to the regular employee. It is to be noticed that his selection has already lapsed even before his termination in the year 1977 and again as per the direction of the Labour Court he was directed to be reinstated. That order became final. Once the order states reinstatement, it is reinstatement as a badli worker. Therefore in case he would have been immediately taken as a badli worker he would have definitely got chance to work on the days when the regular employees are not available. When we asked the counsel for the Corporation, he stated that badli workers will get work on all the working days. Therefore, in view of the above fact, we think it just and proper to hold that the badli worker is entitled for salary of atleast 25 days after excluding holidays of the month and general holidays. Therefore, it is just and proper to direct the appellant-Corporation to pay him for every month 25 days salary as paid to a badli worker from August 13, 1981 to April 5, 1989 instead of paying Rs. 93,502. 65 ps.
19. The order of the learned single Judge and the Labour Court is partly modified and the appeal is partly allowed accordingly.