Karnataka High Court
Falcon Tyres Ltd vs The Assistant Labour Commissioner on 25 July, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.5685 OF 2013
AND
WRIT PETITION NOs.12605-12609 OF 2013 (L-RES)
BETWEEN:
FALCON TYRES LTD.,
K.R.S.ROAD, METAGALLI
MYSORE - 570 016
REPRESENTED BY ITS
ASSOCIATE VICE PRESIDENT (HR&A)
AND FACTORY MANAGER
SRI.S.GANGADHARAIAH.
...PETITIONER
(BY: SRI. SOMASHEKAR, FOR
M/S.MURTHY ASSOCIATES, ADVOCATES)
AND:
1. THE ASSISTANT LABOUR COMMISSIONER &
AUTHORITY UNDER KARNATAKA PAYMENT OF
SUBSISTANCE ALLOWANCE ACT
MYSORE DIVISION, MYSORE - 570 016.
2. SRI.NARASIMHARAJ URS
S/O SRI.RAMARAJE URS
AGED ABOUT 33 YEARS.
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3. SRI.SINGRI GOWDA
FATHER'S NAME NOT KNOWN
MAJOR.
4. SRI.RAJASHEKAR CHAKRAPALI
FATHER'S NAME NOT KNOWN
MAJOR.
5. SRI.GOVARDHAN
FATHER'S NAME NOT KNOWN
MAJOR.
6. SRI.GIRISH
FATHER'S NAME NOT KNOWN
MAJOR.
7. SRI.RAVIKUMAR
FATHER'S NAME NOT KNOWN
MAJOR.
RESPONDENTS 2 TO 7
C/O.THE PRESIDENT
FALCON TYRES BADLI KARMIKARA SANGHA
NO.627, FIRST CROSS, NAALA BEEDI
100 FEET ROAD, K.R. MOHALLA
MYSORE - 570 024.
...RESPONDENTS
(BYSMT.KAVITHA.H.C, HCGP FOR R-1
SRI.K.N.SUBBA RAO, SENIOR COUNSEL FOR
M/S. SUBBA RAO & CO, ADVS., FOR R-2 TO R-7)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED ORDER DATED: 15.12.2012 AT
ANNEXURE-Y PASSED BY THE FIRST RESPONDENT.
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THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner-company is engaged in manufacture of tyres employing around 1200 permanent employees and about 300 badli workmen. The badli employees are engaged when the permanent employees are either on leave or absent. They will be paid the minimum of pay scale of the permanent employees with allowances. The badli workmen are not entitled for other benefits to which a permanent workman is entitled to under various labour laws and settlement. The badli workman has no statutory right to the post and his engagement on any day depends on leave or absence of the permanent employees. Hence, engagement of badli workman on a particular day is also not definite and not assured. The petitioner-company has got its certified Standing Orders and a copy of the same is produced at Annexure-A. Clause 3(vi) 4 of the certified Standing Order defines badli workman. The respondent Nos. 2 to 7 are badli workmen in the petitioner- company.
The badli workmen resorted to illegal and unjust strike from 04.11.201. In this regard, notice dated 10.11.2010 was put up on the notice board directing the badli workers to call off their strike and resume work. The badli workmen were directed to report to duty by giving an undertaking. Hundreds of badli workers reported for duty by giving the undertaking. But respondent Nos. 2 to 7 did not give any undertaking and also did not report for duty. The petitioner- company has also issued paper publications and also public notices insisting the badli workers to resume for duty on or before 10.11.2010. One such copy is also produced and the notification further restricted respondent Nos. 2 to 7 since enquiry is pending against them. Pending enquiry, though these respondents stated that they are also ready to report and resume their duty, it was rejected since departmental 5 enquiry was pending against them. That being the case, respondent Nos. 2 to 7 approached the Assistant Labour Commissioner and The Assistant Commissioner by order dated 15.12.2012 directed the petitioner-company to pay Rs.1,90,476/- to each of the respondents towards subsistence allowance for suspension period. The said order is at Annexure-Y. Challenging the same, the petitioner- company has preferred this petition.
2. The grounds urged by the petitioner-company is that at the relevant point of time, the respondent Nos. 2 to 7 were not in job and they were not eligible for any subsistence allowance. Including respondent Nos. 2 to 7 all the badli workers were issued notice insisting them to resume their duty on or before 10.11.2010/12.11.2010. These respondents have not chosen to report for duty and others have restored and resumed to duty by placing the unconditional apology and Annexures -C1 and C2 are such 6 undertakings. Since the respondent Nos. 2 to 7 were not kept under suspension, they are not paid any subsistence allowance. Further learned counsel submitted that since the respondent Nos. 2 to 7 are badli workers, they do not get the status of a statutory nature as of other permanent employees. They will be working in the place of permanent employees. Under these circumstances, they do not get any status or character of permanent employees and they could be denied of their job at any point of time.
3. In support of his submission learned counsel for the petitioner-company relied on paragraph No.6 of the decision rendered by the Hon'ble High Court of Bombay reported in 2003-I-LLJ in W.P. Nos. 294, 265 and 330/1995 dated 01.02.2002 in the case of "Transport Manager and Another Vs. Vilas Sanu Deokar and Others" and submitted that "Badli worker is required to present himself for work and it is only if work is available that the employer 7 would first have to consider allotting work to those persons whose names figure in the badli register. The Badli workers can be made permanent workers if they have completed the required number of days in service as stipulated under the certified Standing Orders and on the basis of the seniority- cum-merit".
The sum and substance of submission of the petitioner- company is that respondent Nos. 2 to 7 are Badli workers and, they are not kept under suspension and due to their misconduct prior to the strike date, i.e., 03.11.2010, a show cause memo was issued to them. During the pendency of the enquiry, they were not issued any suspension order. Respondent Nos. 2 to 7 who relied on the suspension order was issued by the petitioner-company and the production of said suspension order has been denied by the petitioner- company despite the Assistant Labour Commissioner taking note of the suspension order and treated as if the respondent Nos. 2 to 7 were kept under suspension. As the petitioner- 8 company has not kept the respondent Nos. 2 to 7 under suspension and not issued the suspension order as it was produced, it is illegal on the part of the Assistant Labour Commissioner to treat that they were kept under suspension and directing to pay subsistence allowance is arbitrary and accordingly, same has to be set aside by allowing these petitions.
4. Per contra, Sri. Subba Rao, learned Senior Counsel submitted to dismiss these petitions. It is his submission that petitioner-company was mainly depending upon the permanent workers and not the badili workers, this submission itself is an arbitrary and illegal one. He referred to the Standing Orders of the petitioner-company and in which badli worker means " a workman who is appointed in place of permanent workman or probationer who is temporarily absent or to fill-up leave vacancies." Therefore they are treated as permanent workers, their work has to be explained 9 to that extent. Firstly, learned Senior counsel submitted that if respondent Nos. 2 to 7 were not in permanent capacity, then the question of issuing charge sheet does not warrant. Issuance of charge sheet applies only to the permanent employees and not to the temporary employees including the badli workers. Secondly, before the Labour Commissioner, one HRD official by name Gangadhariah was examined. In his deposition, he has stated that he has examined the authority who is said to have signed the letter has informed that he has not written any such letter and no such letter has been written/sent by the management. If it is his case that authorities have not issued any suspension orders to respondent Nos. 2 to 7, then MW1 Gangadharaiah of HRD could have examined the authority to whom he has consulted and non-examination of the authority who is alleged to have issued suspension order, that itself demonstrates that the petitioner-company had issued the suspension orders to respondent Nos. 2 to 7.
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Further, it is submitted that when an enquiry is pending against these respondents, they were constrained to report for duty pursuant to public notices is arbitrary and that itself shows that these persons were issued charge sheet and enquiry was pending against them and during the enquiry period, they were kept under suspension and for which learned Senior Counsel relied on the letter addressed by the petitioner-company and also to the proceedings held before the Assistant Labour Commissioner.
5. Heard Sri.Somashekar, learned counsel for the petitioner - company and Sri. K.N.Subbarao, learned Senior counsel appearing for respondent Nos. 2 to 7.
6. In the judgment referred by the learned counsel for the petitioner-company reported in 2003-I-LLJ at paragraph No.6, it is made clear that Badli workers are to be treated as probationers. They will not get any statutory nature they will not be treated for any other purpose 11 including the suspension and other statutory benefits. They could be provided job during exigencies and on other occasions they are not supposed to do any other job. For providing any job, at most, they should be treated as probationers and they could be denied of work without assigning any reasons.
7. Other judgment of the Hon'ble Apex Court reported in (2005) 3 SCC 409 in the case of "Karnataka State Road Transport Corporation and Another Vs. S.G.Kotturappa and Another" at paragraph Nos. 20 and 25, wherein it is held that:-
"20. The terms and conditions of employment of a Badli worker may have a statutory flavour but the same would not mean that it is not otherwise contractual. So long as a worker remains a Badli worker, he does not enjoy a status. His services are not protected by reason of any provisions of the statute. He does not hold a civil post. A dispute as regard supported wrongful termination of services 12 can be raised only if such termination takes wrongful termination of services can be raised only if such termination takes place in violation of the mandatory provisions of the statute governing the services. Services of a temporary employee or a Badli worker can be terminated upon compliance with the contractual or statutory requirements.
25. We have noticed hereinbefore the relevant provisions of the Regulations. The status of a Badli cannot be better than a probationer. If the services of the probationer can be terminated for not being able to complete the period of probation satisfactorily, there is no reason as to why the same standard cannot be held to be applicable in the case of Badli worker."
8. By referring to the judgments of both the Hon'ble courts cited supra, it is clear that the status of badli worker cannot be better than a probationer. He/They can be at any point of time, denied from entering the work place. But the same cannot be applicable to respondent Nos. 2 to 7 herein 13 when compared them to the probationers for the following reasons:-
Firstly, the public notices were issued to the badli workers who were on strike. The public notices which insist these workers to attend duty on or before 11.10.2011. If these workmen they want work, they have to wait outside the premises of the petitioner-company etc., whether they may be provided job or not. Therefore, the question of issuing public notices does not arise. Assuming that public notices call for all the badli workmen, it is an intimation to all the badli workers to report for duty and denying the same to these respondent Nos. 2 to 7 on the ground of pendency of enquiry, this itself shows that respondent Nos. 2 to 7 though they claim as badli workers they are treated as employees of the petitioner-company. The said reference is made in view of the fact that the petitioner had issued charge memo which relates back to the suspension period. The charge memo could only be issued to the person who joined the job of statutory nature 14 or who possess status of a permanent employee. The respondent Nos. 2 to 7 they are working as badli workers against whom the charge memo has been issued and enquiry was initiated. When enquiry could be initiated and preventing these persons from entering into the work place, it is nothing but depriving a person of his employment and right of livelihood. Unless a person is paid subsistence allowance, it is in violation of Article 21 of the Constitution of India.
9. Under these circumstances, not allowing respondent Nos. 2 to 7 from entering into the work place, in view of the suspension order without paying any subsistence allowance is unconstitutional and arbitrary. Therefore, as held by the Labour Commissioner that respondent Nos. 2 to 7 were kept under suspension and they shall be paid subsistence allowance is just and proper. To say so, the Labour Commissioner has relied on a letter addressed to them by the concerned authority by a communication dated 15 10.02.2011. This letter was addressed to the Deputy Labour Commissioner, Division-2, Karmika Bhavana, Bannerghatta Road, bearing No. FTL/HR/JP/MOM/2011. This must have been issued by an authority. This has been disowned by the petitioner-company on the ground that this was not issued by them. Before the Labour Commissioner, the HRD official, Gangadharaiah also submitted that the "authority who is said to have signed the letter, is neither written by the Management nor the said Badli's have been kept under suspension. The bonafide of the said copy of letter is doubtful". Nothing prevented him to examine the authority to which he has consulted and gathered information that this letter was not issued. Hence the said communication has not been denied by examining the authority who has issued the said letter. It has to be presumed that this letter was genuinely issued on behalf of the establishment/petitioner-company. This establishes the fact that respondent Nos. 2 to 7 were kept under suspension. During pendency of enquiry, charge sheet 16 is also filed. On the basis of the charges issued and produced by the petitioner-company at Annexures B1 and B2 shows that charge sheet was issued. On the basis of the same, this court also holds that respondent Nos. 2 to 7 were kept under suspension and they are entitled for subsistence allowance. Hence, I pass the following:-
ORDER The respondent Nos. 2 to 7, against whom the enquiry was pending and during the enquiry period, subsistence allowance was not paid is an arbitrary, unfair labour practice and it is in violation of Article 21 of the Constitution of India and accordingly, petitions stand rejected.
The amount in deposit shall be released in favour of respondent Nos. 2 to 7 as per the order at Annexure-Y. Sd/-
JUDGE Bsv