Karnataka High Court
The Hyderabad Karnataka Education ... vs Subhashchandra Benakanhalli S/O ... on 1 August, 2012
Author: H.N.Nagamohan Das
Bench: H.N.Nagamohan Das
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 1ST DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR.JUSTICE H.N.NAGAMOHAN DAS
W.P.No.81344/2010(L-RES)
BETWEEN:
1. THE HYDERABAD KARNATAKA
EDUCATION SOCIETY
P.D.A. ENGINEERING COLLEGE
ROAD, GULBARGA
THROUGH IT'S PRESIDENT
SHASHIL G. NAMOSHI
AGE ABOUT 57 YEARS
2. MAHADEVAPPA RAMPURE
MEDICAL COLLEGE
BY IT'S INCHARGE PRINCIPAL
SHIVAPUTRAPPA S/O REVAPPA HARWAL
AGE ABOUT 59 YEARS
.... PETITIONERS
(BY SRI VEERESH B. PATIL, ADVOCATE)
AND:
SUBHASHCHANDRA BENAKANHALLI
S/O LAXMANRAO BENAKANHALLI
AGE: 62 YEARS, OCC: RETD., EMPLOYEE
R/O CHOWDESHWARI COLONY, GULBARGA
... RESPONDENT
(BY SRI P.VILASKUMAR, ADVOCATE)
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THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER
DATED 03.02.2010 PASSED BY THE LABOUR COURT,
GULBARGA IN APPLICATION NO.16/2007 AS AT ANNEXURE-C
TO THE WRIT PETITION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
In this writ petition, petitioners have prayed for writ in the nature of certiorari to quash the order dated 03.02.2010 in application No.16/2007 passed by the Labour Court at Gulbarga.
2. Petitioner is an Educational Institution registered under the Karnataka Societies Registration Act. Respondent was an employee of the petitioner - Medical college. On 19.09.2003 respondent retired from service on attaining the age of superannuation. At the time of retirement, respondent was working as 3 Superintendent in the petitioners- college. After retirement of respondent, petitioners have settled the retiral benefits.
3. Respondent being aggrieved by the denial of certain amounts under the heads like Leave encashment and surrender leave amounting to a sum of `1,79,870/- with interest, filed petition under Section 33(C)(2) of Industrial Disputes Act before the Labour Court.
4. Petitioners entered appearance before the Labour Court and filed objections inter alia admitting that respondent was their employee and contended that they have settled all the retiral benefits on retirement of the respondent. Petitioners disputed the claim of respondent under the heads, leave encashment and surrender leave and also the quantum of amount claimed.
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5. On the basis of the pleadings, the Labour Court framed the following two points for its consideration:
i. Whether the workmen proves that he is entitled for leave encashment of 240 days and surrender leave encashment for 30 days from the respondents?
ii. What order?
6. Before the Labour Court, the respondent examined himself as WW.1 and got marked Ex.W1. The petitioner examined himself as MW.1 and got marked Ex.M1.
7. Labour Court on appreciation of the pleadings, oral and documentary evidence passed the impugned order partly allowing the application filed by the respondent and directed the petitioners to pay a sum of `1,04,576/- towards Leave Encashment with 6% interest and a sum of `13,072/- with interest at 6% p.a. 5 towards Surrender Leave. Aggrieved by this impugned order, the petitioners are before this Court.
8. Sri. Veeresh B. Patil, learned counsel for the petitioners contend that when there is a dispute with regard to the entitlement of the respondent, the Labour Court ought to have rejected the petition filed under Section 33-C(2) of I. D. Act. The impugned order passed by the Labour Court is without jurisdiction. Admittedly, the respondent was a Superintendent on the date of retirement and therefore, he is not a workman.
Reliance is placed on the following decisions:
1. (1995) 1 SUPREME COURT CASES 235 IN THE CASE OF MUNICIPAL CORPORATION OF DELHI VERSUS. GANESH RAZAK AND ANOTHER.
2. 2005 SUPREME COURT CASES (L & S) 1081 IN THE CASE OF BIMLA LEKHA VERSUS. STATE OF RAJASTHAN AND ANOTHER.
9. Per contra, Sri. P. Vilas Kumar, learned counsel for the respondent contends that merely 6 because the employer denies entitlement of workmen, the jurisdiction of the Labour Court is not excluded under Section 33-C(2) of I. D. Act. When the workmen is entitled for certain monitory benefits then the Labour Court is competent to entertain the petition under Section 33-C(2) of I. D. Act. Though the respondent retired as Superintendent, he was not an executive in the petitioners' establishment. Therefore, the learned counsel for the respondent supports the impugned order passed by the Labour Court. Reliance is placed on the following judgments.
1. HIGH COURT OF KARNATAKA IN W.A.NO.1326/2006 PASSED BY THE DIVISION BENCH THIS COURT VIDE ORDER DATED 01.10.2007.
2. SUPREME COURT IN THE CASE OF CENTRAL BANK OF INDIA, LTD., VS. RAJAGOPALAN (P.S.).
10. Heard the arguments on both the side and perused the entire writ papers.7
11. On the basis of the pleadings and the arguments advanced, the following two points will arise for my consideration:
1. Whether the petition under Section 33-
C(2) of I. D. Act is maintainable when the petitioners have denied the entitlement of the respondent?
2. Whether the respondent is not a workman as contended by the petitioners?
On Point No.1
12. It is not in dispute that the respondent was an employee of the petitioners' establishment and he retired on 19.09.2003 on attaining the age of superannuation. Thus the relationship between the petitioners and respondent as employer and employee is admitted. It is not in dispute that the service conditions of all the employees in the petitioners' establishment is governed by the Karnataka Civil Service Rules since, the 8 petitioners have adopted the same. Therefore, the respondent is entitled for all the benefits that are provided to the Government Civil Servants under the Karnataka Civil Service Rules. Hence, on the basis of these admitted facts, there is no dispute with regard to the entitlement of the respondent. Merely because, the petitioners in their statement of objections denied that the respondent is not entitled for any monitory benefits will not bar the jurisdiction of the Labour Court under Section 33-C(2) of I. D. Act.
13. The two decisions relied on by the learned counsel for the petitioners i.e., MUNICIPAL CORPORATION OF DELHI VERSUS. GANESH RAZAK AND ANOTHER reported in (1995) 1 SUPREME COURT CASES 235 and STATE OF U.P. AND ANOTHER VERSUS. BRIJPAL SINGH will not help to advance the case of the petitioners. The facts in these two decisions are entirely different from the facts in the case on hand. 9 In Municipal Corporation of Delhi case, there was no determination or admission insofar as equal pay for equal work to the employees. Under those circumstances, the Apex Court held that the Labour Court is not competent to determine the benefit of equal pay for equal work under Section 33-C(2) of I. D. Act. So also in Brijpal Singh's case it was contended that pursuant to the interim order granted by the Court, the employees are entitled for monitory benefits. On the other hand, the employer contended that pursuant to the interim order passed by the Court, the employees have not reported for duty. Whether the employees worked pursuant to the interim order or not was the question to be decided. In those circumstances, the Apex Court held that the Labour Court is not competent to decide those controversies under Section 33-C(2) of I. D. Act. Therefore, the law declared by the Apex Court in these decisions has no application to the facts on hand. 10
14. On the other hand, the Supreme Court in the case of Central Bank of India Ltd., V/s. Rajagopalan (P.S.) held as under:
" It seems that the opening clause in Section 33-C(2) 'where any workman is entitled to receive from the employer any benefit' does not mean 'where such workman is admittedly, or admitted to be, entitled to receive such benefit'. It must accordingly be held that Section 33-C(2) takes within its purview cases of workmen who claim that the benefit to which they are entitled would be computed in terms of money, even though the right tot he benefit on which their claim is based is disputed by their employers."
15. Further, the Division Bench of this Court in the case of G. Venkataramanappa Vs. C. Kotappa reported in 1989 LAB I. C. 958 by following law laid down by the Apex Court in the case of Central Bank of India Ltd., case held as under:
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"The fact that the employer in a private sector may question the applicability of the Act to his establishment will not preclude the jurisdiction of the Labour Court from entertaining an application of an employee for the enforcement of his claim for the minimum bonus under S. 33C(2). As incidental to the exercise of the main power, the Labour Court may go into this question also."
16. Therefore, having regard to the law declared by the Apex Court and this Court and on the basis of admitted facts, I am of the considered opinion that the petition under Section 33-C(2) filed by the respondent before the Labour Court is maintainable. Accordingly, I answer point No.1 in affirmative.
On Point No.2
17. A reading of Section 33-C(2) manifestly makes it clear that only the workmen is competent to file a petition, claiming monitory benefits before the 12 Labour Court. According to the respondent he was workman in the petitioners' establishment. On the other hand, the learned counsel for the petitioners contend that the respondent retired as superintendent in the petitioners' establishment and therefore, he is not a workman. Mere status of workmen nor his pay-scale is not the criteria to determine whether the employee is a workman or an executive. Neither in the statement of objections nor in the evidence, the petitioners have pleaded that in what way the respondent was an executive in their establishment. Not a single word is whispered with regard to the supervisory powers of the respondent, leave sanctioning, power to take disciplinary action, transfer and who are the employees working under him and also what are the independent decisions that the respondent can take in his capacity as Superintendent. In the absence of any such pleading and evidence, I decline to accept the contention of the petitioners that the respondent was an executive not a 13 workman. Accordingly, I answer point No.2 in the negative.
For the reasons stated above, the writ petition is hereby dismissed.
Sd/-
JUDGE NB*/Srt