Karnataka High Court
Shri. Gadigayya S/O Prabu ... vs K.L.E Soceity on 19 April, 2018
Equivalent citations: AIRONLINE 2018 KAR 360
Bench: Ravi Malimath, S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 19TH DAY OF APRIL 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE S.G.PANDIT
WRIT APPEAL NO.100636 OF 2017
C/W. WRIT APPEAL NO.100640 OF 2017(L-RES)
IN WA NO.100636 OF 2017
BETWEEN:
SHRI GADIGAYYA
S/O PRABHU MAVINKATTIMATH,
AGE:68 YEARS, OCC:RETD.,
R/O FLAT NO.F-2, AMRUTA
LOTUS APARTMENT, PLOT NO.36,
SHIVASHASTRI MARG,
CHIDAMBAR NAGAR, ANAGOL,
BELAGAVI-590008.
...APPELLANT
(BY SRI. VISHWANATH BADIGER &
SRI. M.V. LATTI, ADVOCATES)
AND:
1. K.L.E. SOCIETY,
COLLEGE ROAD,
BELAGAVI-590001,
BY ITS CHAIRMAN.
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2. KLE SOCEITY'S
J.M. MEDICAL COLLEGE,
NEHRU NAGAR,
BELAGAVI-590010,
BY ITS PRINCIPAL.
...RESPONDENTS
WA NO.100636 OF 2017 IS FILED UNDER SECTION 4
OF THE KARNATAKA HIGH COURT ACT, 1961 PRAYING
THIS HON'BLE COURT TO SET-ASIDE THE ORDER DATED
2.6.2017 PASSED BY THE LEARNED SINGLE JUDGE IN WP
NO.64799 OF 2011 AND CONSEQUENTLY DISMISS THE
SAME WITH HEAVY COMPENSATORY COSTS TO THE
APPELLANT IN THE INTEREST OF JUSTICE AND EQUITY.
IN WA NO.100640 OF 2017
BETWEEN:
SHRI NARAYAN S/O KONERI ANANDACHE
AGE:68 YEARS, OCC:RETD.,
R/O HOUSE NO.40, 1ST CROSS,
MAHADWAR ROAD,
BELAGAVI,
TQ & DIST:BELAGAVI.
...APPELLANT
(BY SRI. VISHWANATH BADIGER &
SRI. M.V. LATTI, ADVOCATES)
AND:
1. K.L.E. SOCIETY,
COLLEGE ROAD,
BELAGAVI-590001,
BY ITS CHAIRMAN.
2. KLE SOCEITY'S
J.M. MEDICAL COLLEGE,
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NEHRU NAGAR,
BELAGAVI-590010,
BY ITS PRINCIPAL.
...RESPONDENTS
WA NO.100640 OF 2017 IS FILED UNDER SECTION 4
OF THE KARNATAKA HIGH COURT ACT, 1961 PRAYING
THIS HON'BLE COURT TO SET-ASIDE THE ORDER DATED
2.6.2017 PASSED BY THE LEARNED SINGLE JUDGE IN WP
NO.64924 OF 2011 AND CONSEQUENTLY DISMISS THE
SAME WITH HEAVY COMPENSATORY COSTS TO THE
APPELLANT IN THE INTEREST OF JUSTICE AND EQUITY.
*****
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 05/04/2018 AND COMING
ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
S.G. PANDIT J., DELIVERED THE FOLLOWING:-
JUDGMENT
The appellants/respondents in the writ petitions are before this Court in the above appeals assailing the order dated 2.6.2017 passed in WP Nos.64799 of 2011 and 64924 of 2011 by the learned Single Judge of this Court, by which the writ petitions filed by the petitioners were allowed by setting aside the order dated 7.6.2011 passed by the learned Labour Court and dismissing the applications filed by the appellants/respondents under -4- Section 33C(2) of the Industrial Disputes Act, 1947 (for short 'the Act') before the Labour Court.
2. The brief facts of the case are that, the appellants/respondents are the retired employees of the respondent/petitioner-KLE Society, who filed Application Nos.11 and 10 of 2005 respectively under Section 33C(2) of the Act, before the Addl. Labour Court, Hubballi, praying for payment of difference of Dearness Allowance, Encashment of Earned Leave etc. It is the case of the appellants that they joined the services of the respondent-KLE Society as Laboratory Assistant and Clerk on 16.06.1964 and 16.06.1969 and retired on 31.08.2000 and 30.04.2002 respectively. Further, it is stated that they were paid salary and other allowances on par with the State Government employees and as per recommendation of the Pay Commissions. Subsequent to 1994, the respondents did not pay the Dearness allowance as enhanced by the government. As per the appellants, they were entitled to a sum of Rs.1,49,572/- and Rs.1,08,740/- -5- respectively towards arrears of DA and salary revision. It is also the claim of the appellants before the Labour Court that they were not paid encashment of earned leave at the time of their retirement.
3. The respondent-KLE Society contested the applications before the Labour Court inter-alia contending that the applications filed under Section 33C(2) are not maintainable inasmuch as they denied the entitlement of the appellants to the DA and leave encashment on par with the government employees. It is further stated that the appellants are not workmen and that there is no jural relationship of employer and employee, which has come to an end on retirement of the appellants. Therefore, the applications under Section 33C(2) of the Act are not maintainable.
4. It is seen from the order dated 7.6.2011 of the Labour Court that on the basis of the pleadings of the parties, 6 points were formulated for consideration and out -6- of the same, 2 points as below were taken up as preliminary points on the application of the respondents herein:
i) Whether the applicant proves that there is pre-existing right with respect to his claims?
ii) Whether this Court has jurisdiction to entertain this application and to grant relief under the I.D. Act, 1947?
5. The Labour Court after hearing the parties on the above preliminary points, decided the same in favour of the appellants/employees of the respondent-KLE Society. The said order dated 7.6.2011 was challenged in WP Nos.64799 of 2011 and 64924 of 2011 respectively before this Court by the respondent-KLE Society herein on various grounds. The main grounds of challenge were that the application under Section 33C(2) of the Act is not maintainable, since it would be in the nature of an execution application; there is no determined amount; they are not workmen and there is no jural relationship of -7- employer and employee between the appellants and respondent-KLE Society.
6. The learned Single Judge by the order dated 2.6.2017, allowed the writ petitions and dismissed the applications filed by the appellants/respondents under Section 33C(2) of the Act before the Labour Court. Aggrieved by the said order, the appellants are in intra- court appeal.
7. Learned counsel appearing for the appellants/employees submitted that the learned Single Judge failed to consider their detailed objections and the case laws, while passing the order impugned herein. Further, he contends that the learned Single Judge failed to appreciate the pre-existing right of the appellants for claiming DA arrears and encashment of earned leave.
8. Heard learned counsels and examined the records. -8-
9. The order of the learned Single Judge is a well reasoned order. The learned Single Judge in his order has answered the issue involved i.e., whether the applications filed by the appellants under Section 33C(2) of the Act was maintainable; whether the Labour Court had jurisdiction to entertain such application, when there is no determined amount and whether there was a jural relationship between the appellant and respondent relying on the decisions of the Hon'ble Apex Court.
10. The appellants had retired from the service long before filing the application under Section 33C(2) of the Act before the Labour Court. The learned Single Judge has come to a categorical conclusion that the Labour Court has erred in entertaining the application of the appellants under Section 33C(2) of the Act and the manner in which the Labour Court has proceeded to pass the orders on the preliminary issues, since they are not workmen and there is no jural relationship of employer and employee. -9- Further, Section 33C(2) of the Act would not contemplate the determination and adjudication of the rights of the parties.
11. In the instant case, the appellants claimed difference of Dearness Allowance, Encashment of Earned Leave, etc. from the respondent-KLE Society, whereas the respondent-KLE Society has specifically denied and it further stated that it had no liability to pay that difference on par with the government employees. When such being the case, the application under Section 33C(2) of the Act is not maintainable. The application under Section 33C(2) of the Act is maintainable, only when there is a determined amount and when such amount is denied by the employer. Further, the appellants are not workmen within the definition of "workman" under Section 2(s) of the Act. The appellants had retired from the service of the respondent- KLE Society on attaining the age of superannuation on 31.08.2000 and 30.04.2002 respectively. Subsequently,
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in the year 2005, the applications under Section 33C(2) of the Act were filed before the Labour Court. The definition of "Workman" under Section 2(s) of the Act would not include a retired employee/workman. Therefore, on this ground also, the application filed by the appellants herein was not maintainable before the Labour Court.
12. With regard to the contention that the appellants are entitled for pay and allowances on par with the government employees is also untenable. The learned Single Judge relying upon the decision of this Court in the case of Sri. Siddartha Education Society Vs. Tumkur District Technical Institutions Non-Teaching Employees Union, ILR 2003 (Kar.HC) 163, has answered the said issue i.e. private educational institution employees are not entitled for monetary benefits such as DA, HRA and other allowances on par with the government educational institutions.
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13. The order of the learned Single Judge is a well considered reasoned order and is based on the decisions of the Hon'ble Apex Court. We do not find any error committed by the learned Single Judge which calls for interference. Hence, both the appeals fail and are accordingly dismissed.
Pending IAs stand rejected.
Sd/- Sd/-
JUDGE JUDGE
JTR