Karnataka High Court
Sri. Subhash Chandra S/O Sanganna Meti vs The Assistant Executive Engineer on 28 October, 2010
Bench: N.Kumar, Subhash B Adi
IN TI-{E IAIIGITTI COUR'I'" OF' KARN/¥E'AKA
CIRC1.E'I'I' BENCH AT GULI-BARGA
If)A"I'EI__) TI--HS 'm1%: 25% my' OF OC'1'OBER
PRESENT Aw f" x
'1'H1a:H(.)N'BI.£«:MR.._JUs"1'ICE N _¥{14J:\'i':f§R '
THE HONBLE3 MR.(11;s'1_'1cT.tr§_, sL.if3A:%:As:33i.. ' T
WRIT APPEAL NO. 19207 C3I{'12.OO9 ;:.;«rrm; V
BETWEEN:
SRI. SUIBHASI--{Cl--'IANI)vi-{R._
s/0 SANGANNA Mm': " %
AGE:3O YEZARS V
OCC:NIL
R/O.K.I-1.13 <:c):,.<';'my'«-. '
LINGSUGUR _ _ . , -
DIs'i':RA1C1~m_JR." ...APPI:3LLAN'I'
[BY SRL 'P""\"r KL}K»:2xr-zfngijaf.)
AND:
1. THE AssV1.sv'rAN'-'1" I~:::>;[2:c«_:.1;~J"1'Iv£~: EN('I}E.N'EER
.~Z.--P.ENGENl£E'RI'N(I} sisL.II3v.r)1vIsI<':)N
.»4.i1.,1NC.;As1TJc;1JR . __
- 131351': R29..1(:1----11 IR.
" '1i%~i£:_ E:?E::'jtJ"--:f1xF1~: :~:N(;1N1:;1;~:R
._ Z.P;E1'€{}Ii\JI£'i%)f2EN('} I':)1'vEs1(i>N
"RAH: I«iI'LI'jE.% '. It . RES]--'()E\£'I') ENTS
{BY SR1. AMI31-2'1'KuMA1z1:.):~:sn1>AN1>14:., ADV. FORR---1)
' NQfI_'1c,z5:*'~1'('> R-2 s1'«:Rv1:~:1.>}
' 'I'1'1ise \-Vrif. Appeal iss ('flied m'1dcr Se-r(.tii01'1 4 of the
Ki1I'I'Ia.t'.£.1k£1 I-----ii§_>;I'3 Cmlri Am. 1.)1'e1._\/i1'1g{ to set 2.-zsi(:Ic the prcier
"'c{t.:04.1i.20()8 [)'c'I1SS(.'(1 in \?v'.I'.I\' h.713()/200'7[L--TEI'{) and the
' order of 1.11:' 1'<*i11si.z--1%c:11m1i' of ihc :1p}.)c'11m1i with cromirluity of
23%/, ..
service as per the awe.-1.1'd oI't.I'1e I;(1E:3<.)u1' Cou1'L. C}1.1lb211'g21 in
Ref.No.7/2004 (Kill) No.1E:S0/200]} v'i(ic Aru1.D.
This Writ Ap1..)e;.11 r;o11'1i:1;_§ on for 1'1ea1'i1"1g__§ §1"1is.~.__ day.
KUIVIAR J .. dc-'}1'.\='er<=-'d the i'(.)I1.<m-'§1'1g.3;: '
J U D G M E N '1'
This €1p1)(;3E1I is p1'efe1'red z1;_ge.Hi1e1s1
by the }ear1'1e(i Si11g;Ic: J1_.1(.'ig__;"e.
award by the I,z1E>()=_.:1V1*-..Q()1:;'i;..
reinstexliemem 0}' 1.1"; e ;i1}>})<;tE3e4-11%:
2. For the }')11§'}3r.:f~ac>A "<:') 1" parties are
referred to as' _ii:h_e.y 1 the Iearned
Singie JL1c1__gge;.~v V . é '
3';.Th_e for app0i1'1tment to the
post: of Gi*ad'1e:21Vte_ AI':Z._1:1;gi1":V1ee1" (BE. Mechallical) in the
0_f.:t1"1epe1.i'ii(.)'1*1e1*$. He was appoirlted 011 1.10.1997
_0"n_ »W.'g1fif;'.S E1.l'l(1 was c011t.i:m.1ed to work tiii
31.7.I9V9.9;'g,01e1 wllitth d;.1:<: his se1"v.i(*c.$ (".211ne to be
V'~..t£;1rmiix,;--1_1feci. 'l'here!'01*e. he 1*21ised an iI1dL1SI'I'ié11 dispute
Se<.:ti(.)1'e1 iO{4A] of 1I"1(: 111du.s:;11*ia.1 {)ispu11e.s Act.
.V (for s11(:)1*'1_ hc-:1'ei1'1z.1f1.e1" 1'(:fe1"1'e(i to as '(he Act').
eha.1}e1'1gir1g the saici c),r(.icr of 1':erm.i1'1e=1t'i0n on the grourld
L»
that t:.1i1e. said Iem1i11a1.i<m is c':(:)1n.1';:11"_\-' to Section 25%?' of
the Act. P(7'1itIi()11(.'I'S in the writ pc1'it'i011 filed ___t:1'zei1*
Courltm.' (-\()l'1{€'.\S'[(.:-\(i me (...ia.im. "1"I*'1e_\;* (::c_)m_endec.i
panehayat is not £5111 i1'1(:'h.1$1.1'_v and 111ercfc_.)re,:.~i3:13.ev:A(§f
not applicrable 2-uld the i,a1_)<_n..1r Cmarl. lmci :1<)"«'._j_ u1-:i§s5iit_§i'.ic3fi'e
to em.e1'1'ain the :-mid 21pp]ic':a1t'i('m;.». fie 'V
engaged on three works v1'z.. (:(,):3-.14st.1:f:.2e<:f'_idr1ef VEV'!;I".V:'ET§1i*;:Eg*&
at Bu.clCh1111.i \«'i.I12'1gg(:. \\»"]'1i('.h .\V2lf5 cE'ci)A11'1p1(-3t,ed "\vc;;u.i1ed =
up, therea£'t.er he xveuss cr1'}ge1gt>.{i "c111 at 'V
Hunur~"I'Lu*dgi \-'ilI£-1g_§('. whi(fI'1 _ 'a,1_:+3o__C()riip}ete<:IA._ iithen he
was engaged on NRW£%__{rt: I{§--_1.111;,-;;1p'1;1_1'eI-inLU viilage, which
is alse c1o111pi{§'i':.z;:d :3uj1c.I--.y\-"e.1.11ad 1p. 'l'11c1'ef('>1"<3, his services
were ncii'.__Li'i'.ieli25e<.'1_ veifit' elf "r.1_-16; "e()n1p1etio1'1 of the said work.
It is;r101; a c.e1;~:~e0f 1'e.17'-n1i1'1z11,i011. He was a1'3pointed as a
V"Gra'd11éit.§: _F;1'1.g_i11c?L*1" 011 1.10.I9'§)7 on daily wages and
""f.h'e':jef0ré';* 11:1"p}_g"' s(_)1.:_g1'r1 for (.1ismiss2.1,1 of the (*.ie1i1"n
petflionf .
4Vf"()1'1 1_.E'1e ;11*();'(~s3ai('1 §.)I(?a(1i1"1gj:_~5, the trizll 001.11-1
'iieetfideci the ("v'i('1('1'l('.(".. p;:s.~;:~';e.c"E an e:1war(.1 holcling that the
V' ""pe.t',i1ic)1'1c:1' is an E1:d1.1st.1"y zm<'E 'mo 1'(*.<;}_)011_('ie11.1'. has worked
'ix//'
COIlf.il'"l1,l()l.1S1.\-' 101- 1'11(.11'c 1.}"1.:111 240 days 111 2.1 year, his
termi1'121t.i.o11 f1*<1111 9111;.)1(:>y'111cr111" co11t:1*e"11'y to Se.c1:i0_11 25«
F 0f1;hc'-7 Act: e"11"1d U1t?l'("..f()l'('.. 1b1l0w111;2; V311-i(>1.1s 'j1..1c1gm:é:1'11.s
of the Apex C01.11*1" 2111111 the I----1iL,«_',>_;l'1 C0111"1".
app1i<?e11.i0111. (.1i1'('<?1.ml l"L'i1"1S12:1{.L'I}1Cl11 '11'1to M
rated Grz1dL.1211C. EZ1'1gi11(*C1*. }"I(.1\-xg'_r;:.V<%_1f, 111(1V1:1é1.e1.1fyV"Vb§f1:1c£11V
was dec1i11ec1. Ag;§g;{I'i('§\~'(':(.i by 1116-: Z-sfi1iid -.1;-11v;1.'1*-ri"=(1f__ 1:13:31
Lab0u1' C(>1,11'1.. 1.111' [:1(11.i1.i()1'1C.1fs p1'éfQ14'1=<:'.£1 .':11V.v'éx1"1.ifil
before this Cc:1111'1_. T111- I_ez'11'1-1é'(;€1,Si11g1s;jJ11dgeVFf'c111o\Vi11g
the judgmem 01" (203141 711-1 V "\?'.I_.P.N11."I'891Z5/2006
disposed of on 4*" N('1v'C:_1'11k1'e1ji:*2'()(§8»V:%_11{E1'ere it was held
that the H_F':E=:!V11('Th>éfIy§li. 1101 2111 i11d1.1st1y and
thsrefore. =1h€* 2;1pp]:ic21b_l13 to daily rated
emp1()yees1"--211'1c1 V21'1~soA'.1:'i'1'<;~... ~71-31111pi('1y@es of 11111:? P1.1b1i(: Works
I)€1}1.--j11'1.1T1e11t. '\'1\2}1.i«(?I'1 is 2111111 110 1,111' Zilla Pallcihayat Raj,
V"Engi_I1eibfi1.1g;A1_S1..1b~dix-'1s1o1'1 2-111d 1.i'1<-'.1'e1'(s11'e. he aliowed the
__'\21=ri_'1:"p§1.iV'1fi0'1"11._1:11.111 set 11.'-§§i(']('. 1111? :~;1ward of H16 I.,a.bc1111*
C01;1'11'&1:. Ag}§;1*i_§*\rc:('1 by 1.110 said 01*(:I<-11' ('1f1:1'1cr 1<.:£11'1'1cd Si1'1glc
J 133111561111. :;1pp('a;1I is filed. 'K #
5. Learned Counsel for the appellant, assailing the
order of the learned Single Judge contended that, when
the Labour Court relied on the judgment of V.
vs-- ARAJAPPA reported in AIR 1978 so 5437-endiV'e1ee1a,c' K "
Zilla Panchayat is an industry afterllnotileing g
judgment, the learned Sing1e>;l'udge"w'das notgji.;sAtified'*:in'i V
setting aside the award of thev'-biabogur l.I"4{eH also
contended that, the juddgrnent in
the matter of HAl?JIND£'4V3:ll'v:' 'dAe;tétzNJAB STATE
WAREHOUSINC? in 2010 sec
60 has held: V.
"If a rr.dn_ isvgdepriyed of his livelihood,
he deprived~--..'c;f "all"hiLs fundamental and
constitutional righisgeind for him the goal of
social ands-.economi'c justice, equality cfstatus
of oppor'tan.i.ty, the freedoms enshrined in
_ the "'Cons.titution remain illusory. Therefore,
"the"app'_roac.h of the courts must be compatible
. -(with. fthe faritstitutional philosophy of which
3 the Directive Principles of State Policy
"C--ons_titute an integral part and justice due to
the 'euorkrnan should not be denied by
V A. Verentertaining the specious and untenable
_ grounds putforward by the employer -- public
"or private."
6. in the said case. the Supreme Court was
dealing with the workman employed in the Punjab State
Warehousing Corporation as Work Charge
w.e.f. 5.3.1986. After seven months, the 9
Engineer of the Corporation gséues
3.10.1986 whereby he appointed
Munshi in the pay scale of for'~;of
three months. The san:'1'e.&_ order
dated 5.2.1987 and as Work
Munshi in the a period of
three months'. specified in the
second the appellant was
continued i.e., the date on which
the Mariaginga D_ireotor' of the corporation issued one
rnonth's iiotipoefipseelting to terminate his service by way
of' re't'1_'enc.fiinveii.t;2'" However, the implementation of that
_notice"----wa_;s stayed by the Punjab and liaryana High
in""Writ Petition No.8723 of 1988 filed by the
l_l_peap°pe1'lant. The writ petition was finally dismissed as
8 withdrawii with liberty to the appeilant to avail remedy
Hunder the industrial Disputes Act, 1947. After two
months, the Managing Director of the corporation
issued notice dated 26.11.1992 for retrenchment of.-the
appellant and 21 other workmen by giving
riionth's pay and ailowanees in lieu of notice it
requirement of Section 25F(a} ot'ltlhe'«Acl,:.t.
termination was challengedpiby on
ground that his service bv of." 'is
contrary to the mandate~~..of of
the Act and there has rule of last-
corrie-first--go jtiriiolr to him were
retained in on behalf of the
corporafiori. appellant's service
was terriiinated' "retrenchment because the
projects _on 'V 'J.v'l1lCl} he was employed had been
it was dddd also pleaded that the impugned
actiori after complying with Section 25-?' of
it _ the Act. V-Hovvever, it was not denied that persons junior
the appellant were retained in service. Therefore it
__j_.vvas'"r1ot a case of illegal termination, it was not a case of
'«l..:lv'iolat.ion of Section 25~F of the Act, but it was a case of
persons, who are junior to the appellant. were retained
\//i
at
whereas seniors were sent. home cor1t1'3.I"y to Sections
25-?' and 25~M of the Act. Therefore, the said judgment
has no application to the facts of this ease.
7. In the instant case. the case of the at
clearly set out in his claim under Setetion ".1 the
Act, which reads as under:
"There were vacancies"-gfor the'. post
Graduate Engineer [B.E.Mec_ha_nieaI) «in the
office of the respbndenis. " -Aécoordinglyyf the
workman applied "fo'r_Athe isaidjpost_ and he
was appointed as Graduate _E_ng.tneer (BE.
Mechanical} ' on 1 .10: 1' 997 _ daily "wages by
the respondents 'and a(:_o.}"itinued to
work tit1"»vheiIIVwas _'ret.".enc:_hed on 31.7.1999. The "Lst_e_ovhtrolled by the res pondenyt No". 2. g R." "I In supportof evidence he has deposed _ preparing the estimate, taking V rriea*s_u':'e:n.1e:1ts by visiting the spot and g "-recoi'd'in,gi:= the measurements and other works '--~..__direc~tect by the AEE. The respondent Nos.2 and, 3d are the superior officers of the jirst x T respondent. The respondents undertakes the "*-work of laying of roads, construction of buildings and water supply works. I was being paid R378/~ per day. The Engineer appointed on permanent basis discharging the similar nature of duty was getting salary of Rs.9 to I 0,000/-- per month. It was not getting 9 leave and other benefits like the permanent employee. I was doing the same amount of work as that of permanent employee. The Respondents engage the daily wage workers in order to save the wages as the pe1'maneri.t . employees shall have to be paid more salariill' 'A ;_. In the light of the aforesaid pleadings and_~i.he.:ievidiance at on record, it is clear that the resp:Q'nd:=ent:'Was on daily wage. He was paid":_R's.,?'8/2-'-pei' appointed in the post of Engi.neerf§ (BE. Mechanical]. In the" reply', f,the-lttV':ple'litioners have specifically stated"th_at, they in three projects, coi_npl.eted aided' therefore, for want of workajavhis -Litilized. Therefore, it is not a case of ret1"e.ne,h--rne«r__lit;« as the scheme of the work for which he \iras"leni'ployed was completed and his serxrilces *c_o~terrninus with the completion of the the aforesaid material, it is clear that the " a Mechanical Engineer. According to him, doing the work of preparing estimates and rneasurenients. in the light of these undisputed 10 facts, the questions as to whether the Workman IS entitled to protection under the Act and whether the Labour Court had jurisdiction to entertain under Section 10(4--~A) of the Act and reference was valid have to be looked-d"i'11i'0.
9. It is well settled thatflparties confer jurisdiction on a has come to our notice though the authorities like the objections contesting the objections filed are not effective objections help the claimant a practice to make the court'*--..he1p1ess7._ arguments are canvassed _that',""p1.ea_.vis not taken and therefore, this from going into the matter. After Corning acrossrll several such cases over the years, it is ltiistressilntg to note that in these cases, authorities have 'triotjiappointed competent Advocates. they do not have competent legal advice and the interest of the State and the public authorities have been very badly let down. if it ll we look into the aforesaid pleadings in the petition, the appellant cannot be construed as a workman at all. The Industrial Disputes Act is enacted to give protecti.o'n.l those poor section of persons, who are * engaged in manual labour. Certain1y"th.e fr_an1ersl.oflllaw did not envisage that Graduate Mechanical} have to be asuand given protection. Even': the relcord-dlshows that he was doing the and taking measur_eni'§.rit was that, the persons ijgrnanent basis were getting whereas, he was paid Rs.A78_/4¥per._.daayi works out to Rs.2,340/M V per rr;oi'ith. regard to the pleadings in the Case, the «work, is done, the object with which th_e"l"Iridus'tri_all.l'VV'i"'Jis13utes Act is enacted and the projects . in which the petitioner was engaged, in the absence of V' i.'s.Vai1y._'_p1ea of victimization and unfair labour practice.
- certainly, the appellant in this case would not fall within " definition of 'workman' as defined under Section 2(s) of the Act. Having regard to his educational i/ qualification, his status and the nature of work, Which according to him. is performed, moreover in_--the pleadings. it is specifically stated that. t.l'1e1"el:"'aferev.4 vacancies for the post of Graduate Engine-er ll Mechanical, he has applied for"mt.i'1e. it respondent being an instrumeritality fill up such posts without by issuing appropriate notificationslVa.:l.llllo"nAsuch'procedure is adopted. It is take advantage of a; by back door and interim order passed by continued for years, and thereafter " plead A it ~ ..y:_:l:pVs3/mpathetic considerations, misplaced coil-eep't'l' of' social justice. That is precisely by Constitutional Bench in the case lof:_S.ECRrlCTl{lR~lf';~':STATE OF KARNATAKA AND OTHERS ---- e vs-- 'i;rn4AcDEx;*i AND OTHERS reported in ILR 2006 KAR The industrial Disputes Act, the Constitution aividthe Service Law cannot be interpreted in isolation. itllis a problem of employment in Government or in an iristifumentality of the State. In all these institutions, 13 every one should have an equal opportunity in terms of the Constitution. Persons, who got into these employments by taking advantage, are doing injustice to the deserving persons and those---.,':pers,oris';l V' who are entitled to preferential""rights reservation. in t.hat background, iive case on hand, all that we thewappe'l_lant"'does not satisfy the definitiongof Act.
The respondent is not appointed for a scheme is completely "no place in that employr:ient._'di this Court has held that. they do "the definition of 'industry'. Of coiirse, seyeral'judgineiits are produced before us for these propositions. In fact, the Supreme .has""alsofdea1t with such matters, Where We have V . judgments both sides. But the latest trend appears .,t"o* be inlsuch cases where daily wagers are terminated it is contrary to Section 254?' of the Act, not to "order for reinstatement. They are paid monetary compensation, so that. it cannot be said that any kn.' injustice is done to the daily wagers. Keeping' in mind the facts of this case, the law declared by the apex Court as well as this Court in various judgments,"v:Ve.'arevv., satisfied from the material on record that it case where the benefit. of the Actjnas"to_b.e e::te'n.C_1ed--:tovl."'. the Engineering Graduate with the'.qualification~of Mechanical. In fact, in UMA case, "the Court was constrained 'because a temporary employee Worker is continued for term of his appointment to be absorbed in merely on the strength" V if the original appoiritmpent 'ways' not made by following a due process of jasfipenvisaged by the relevant rules. It is not Ao'plen__to to prevent regular recruitment at the V _instancefof"'te1nporary employees whose period of .employm'ent has come to an end or of ad hoc employees the Very nature of their appointment. do not C acquire any right. The High Courts acting under Article A 226 of the Constitution should not, ordinarily issue 15 directions for absorption, regularisation. or permanent continuance unless the recruitment. itself was made regularly and in terms of the constitutional sche'rnfea,.. Merely because an employee had continued under'eoviei9 of an order of the Court, which wemvhave as if "litigious employment" in the earlier': if judgment, he would not be enfitiedlltolllariy be Vi absorbed or made permanent in such cases. the High justified in issuing interimv ultimately the entitled to relief. it may relief in such a mariner that "prejudice will be cause to him, jwhereas ~.ar1"'interi1n direction to continue his wfiouldvvlllhold up the regular procedure for on the State the burden of paying it _ an eri1plcp'yee«:'who is really not required. , It is contended that UMA DEVFS case, was not the provisions of the Act. Therefore, that judgment has no assistance. Whether it is an I6 appointment under the Industrial Disputes Act or the Constitution or any other enactment. the principle is the same. As long as the claim is enforced against State or instrumentality of the State, the down in the aforesaid judgment applies 3"
At para--45, it has been observed "45. While directing~vs.that appointirnents, temporary or casual, be r_eg'ular.ised or. made permanent, the Cotirts are swayed thejabt that the person concerriealf worked for some time and in' __'_lfor a considerable ' lengthwojl' time'. is V-not"»'as if the person tE__5hoii;1is~sacceVpts? an 'engagement either temporary'_or"casual~in"nature; isnot aware of the nature».oj:Vhis' He accepts the errqjloyméfnt "open It may be true that he not__iri a'«positior[: to bargain ~ not at arrrfis . l€r1gtlt§Si.IlCe._2l'*-.h£f~ might have been searching V for somedeimployrrient so as to eke out his""liiJelihoocl and accepts whatever he «gets; But 'o--n_that ground alone, it would not beVappropriatellllto jettison the constitutional _ --.scheme._ of appointment and to take the view thatfia fjperson who has temporarily or "'casuaVlly.sgot employed should be directed to V"---be..__'con«tinued permanently. By doing so, it will'; be creating another mode of public it appointment which is not permissible. If the _ 'Court were to void a contractual employment ' "of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the Court to grant any relief t.o that employee. A total embargo on such casual or temporary employment is not 18
11. T his principle laid down by the Constitutionai Bench of the Supreme Court applies to all pu_'I__:_:l1c employments without any exception whether falls under the Industrial Disputes Actor statutory provisions. In the backgr'ound of the instant case. when the petitionerlwasl"appointe,d_ daily wager, though he is anVI£B:ri"gineer.i1i_g his services are utilizedin were completed, it" cannot be 25-F of the Act is violateg1.,«'::Liri the aforesaid judgment Judge held that, zilla at all and therefore, the provision' Disputes Act is not attracgtedi Labourtiourt had no jurisdiction to entertain they V"1'efe:fence_ much less pass an award directing continuity of service when admittedly I _ he was sjrilyda daily wager. Even the nature of work he ".i,wasi__periorming would not enable him to invoke the I provisions of the Industriai Disputes Act. He does not "fall within. the definition of 'workman' contained in Section 2(s) of the Act. Seen from any angle, we do not 19 see any jusiification to interfere with the order passed by the learned Single Judge.
Accordingly. the Writ Appeal is disr1'1issed.__ «' %%_ %mDG1a "
KNM/--