Karnataka High Court
The Chief Executive Officer vs General Secretary Mysore Division ... on 8 October, 2013
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
W.P.12389/09
& Misc.W.11777/09
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8TH DAY OF OCTOBER 2013
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO. 12389 OF 2009 (L-RES)
AND
MISC. W. NO. 11777 OF 2009
BETWEEN:
THE CHIEF EXECUTIVE OFFICER
ZILLA PANCHAYAT
MYSORE
... COMMON PETITIONER
(BY SRI. B J SOMAYAJI, ADV.)
AND
1. GENERAL SECRETARY
MYSORE DIVISION WORKERS'
GENERAL ASSOCIATION
NO.1404, RENUKACHAERYA TEMPLE ST.,
K R MOHALLA
MYSORE - 570 004.
2. MR. S. KRISHNAIAH
S/O. SHAKUNAIAH,
AGED ABOUT 44 YEARS,
R/O. #19, BAZAR ROAD,
HUNSUR TOWN, HUNSUR TALUK,
MYSORE DISTRICT.
... COMMON RESPONDENTS
(BY SRI. ABUBACKER SHAFI, ADV.)
W.P.12389/09
& Misc.W.11777/09
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS PERTAINING TO THE AWARD PASSED BY THE
LABOUR COURT, MYSORE ON 5.9.2008 IN REF. NO. 58/1998
AND ON PERUSAL OF THE SAME; QUASH AND SET ASIDE THE
AWARD DT. 5.9.2008 PASSED BY THE LABOUR COURT,
MYSORE IN REF. NO. 58/1998 (ANNEX-F).
THIS MISC.W. APPLICATION IS FILED UNDER ORDER 1
RULE 10 CPC R/W ART. 226 OF THE CONSTITUTION OF INDIA
PRAYING TO DIRECT THE PETITIONER TO ADD THE PROPOSED
APPLICANT AS RESPONDENT No.2 TO THE WRIT PETITION.
THIS WRIT PETITION AND MISC.W. ARE COMING ON FOR
HEARING ON I.A THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Misc.W.11777/09 is filed by the workman concerned who though represented by the respondent - Union, nevertheless for effective disposal of the writ petition, seeks to be impleaded as a proper and necessary party. In that view of the matter, the application is allowed. The applicant is permitted to be impleaded as respondent No.2. Petitioner to amend the cause title accordingly.
2. Petitioner has assailed the legality and validity of the award dt. 5/9/2008 in Ref.No.58/98 of the W.P.12389/09 & Misc.W.11777/09 -3- Labour Court, Mysore, directing reinstatement of the 2nd respondent as a cook in the Government Boys College Hostel, Hunsur, with backwages at 50% from 2/5/1998 till the date of reinstatement.
3. Learned counsel for the petitioner submits that the Labour Court was not justified in casting a burden and shifting the onus of proving that the 2nd respondent
- workman had discharged duties continuously for a period of 240 days in 12 calendar months immediately preceding the alleged oral refusal of employment. According to the learned counsel, the perversity of approach of the Labour Court has led to unjust conclusions. In addition, it is contended that 2nd respondent having worked only for 5 months during April 1990, May 1990, December 1990, February 1994 and February 1995, is not entitled to either reinstatement or backwages.
W.P.12389/09& Misc.W.11777/09 -4-
4. Per contra, learned counsel for the 2nd respondent - workman seeks to sustain the award impugned as being well merited, fully justified and not calling for interference.
5. The State Government by order dt. 17/3/1998 invoking Sec.10(1)(c) of the Industrial Disputes Act, 1947, for short the 'Act', referred for adjudication to the Labour Court at Mysore, the industrial dispute in the form of points of reference, one of which ie., point No.4 cast a burden on the petitioner to justify its action of refusal to employ the 2nd respondent from May 1996 onwards. It is a matter of fact that the 2nd respondent in his claim statement dt. 17/8/1998 asserted to be appointed as a cook in the Boys College Hostel, Hunsur, during the year 1990 on daily wages, though paid wages once in a month. It was the allegation of the 2nd respondent that in the month of May 1996, he was retrenched from service without reasons or notice, W.P.12389/09 & Misc.W.11777/09 -5- though had put in more than 240 days of continuous service in the 12 months immediately preceding the retrenchment and therefore non-compliance of the provisions of Sec.25-F of the Act vitiates the retrenchment. Petitioner arraigned as the 2nd party in the said proceeding, did not chose to file counter statement, however after 25 adjournments on 29/6/2001, the order sheet reveals that the request to file counter was forfeited. The 2nd respondent was examined as WW-1 on 4/1/2002 and marked Ex.W1 to W3 and was cross-examined and thereafterwards the award dt. 28/2/2003 was passed directing reinstatement of the 2nd respondent with 50% backwages from 2/5/1998 upto reinstatement. That award when called in question in W.P.13747/07, a learned Single Judge by order dt. 22/1/2008, Annex.D, having noticed that notice was not served on the petitioner, although a District Government Pleader filed a memo of appearance, but did not appear in the W.P.12389/09 & Misc.W.11777/09 -6- proceedings, opined that it was a fit case to set aside the award and remit the proceeding for a fresh consideration on payment of cost of Rs.2,500/-. On remand, a counter statement was filed by the petitioner denying the assertions and allegations made in the claim statement. It was contended that the 2nd respondent was not a workman appointed by the petitioner or any government authority under the regular recruitment rules or an appointment made against any sanctioned post by the competent authority. Additionally it was contended that if the 2nd respondent was appointed in the Boys College Hostel by a person having no authority to do so, the question of having worked for 240 days continuously would not apply and the petitioner would not be liable for any legal consequences and lastly it was contended that the burden of proving the points of reference was on the 2nd respondent-workman.
W.P.12389/09& Misc.W.11777/09 -7-
6. Parties entered trial, whence the petitioner examined one witness by name H.Chowdegowda, Taluk Social Welfare Officer as MW-1, while the 2nd respondent filed an affidavit by way of evidence as WW- 1 and produced documents marked as Ex.W4 to W16 and in cross-examination, documents Ex.W17 to W23 were marked. The Labour Court on appreciating the material on record observed that Ex.W1, the order appointing the 2nd respondent as a daily wager and the representation Ex.W2 to continue the services of the respondent in the petitioner-establishment, coupled with the salary receipts Ex.W19(a) to 19(h), answered point Nos. 1 and 2 of the Reference in the affirmative holding that the 2nd respondent was a workman in the petitioner-industry, falling within the meaning of the said term under the Act. The Labour Court answered point No.3 in the negative recording a finding that the Karnataka Administrative Tribunal Act has no application nor is the workman entitled to maintain a W.P.12389/09 & Misc.W.11777/09 -8- writ petition under Art.226 of the Constitution of India in view of the efficacious remedy of an industrial adjudication of the dispute. As regards point No.4, the Labour Court at the threshold noticed the observations of the Apex Court in R.M.YALLATTI VS. THE ASST. EXECUTIVE ENGINEER1 that daily wage earners are not regular employees, not given letters of appointment nor letters of termination nor given written documents in proof of receipt of wages and that muster rolls are maintained in loose sheets and in the case of government departments, the officers/clerks making entries do not affix their signatures. Regard being had to the aforesaid observations, the Labour Court proceeded to examine the veracity of the testimony of the witnesses as also the documentary evidence. In the first place noticed that MW-1 did not have personal knowledge of what had happened in the petitioner- organization during the period 1990 to 1996 nor 1 2005 (9) SCALE Page 139 W.P.12389/09 & Misc.W.11777/09 -9- acquainted himself with the allegations in the claim petition. In fact in the cross-examination, it is said MW-1 admitted to the fact that he had no knowledge of any information in respect of appointment of cooks in the petitioner-establishment during the period April 1990 to May 1996, while categorically admitting that he had been working in the office of the Taluk Social Welfare Officer since 3/6/2005. MW-1 stated that the District Social Welfare Officer appoints persons to work as cooks and that presently there were 5 persons working in the College Hostel, out of whom 4 persons were daily wagers and are paid wages in terms of the government orders. In the cross-examination it was elicited that the particulars of appointments during the year 1996-1997 would be available with the District Social Welfare Officer. The Labour Court having noticed that there was no challenge to Ex.W1, the order of appointment of the 2nd respondent as a cook on daily wages and since the Boys College Hostel falls within the W.P.12389/09 & Misc.W.11777/09
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jurisdiction of the Social Welfare Officer, though under the control of the petitioner - Zilla Panchayat, there was no evidence forthcoming in relation to records for the period 1990 to 1996, while Ex.C1, letter dt. 4/11/2003 of the District Social Welfare Officer addressed to the Chief Executive Officer, Zilla Panchayat, Mysore, stated that documents concerning the 2nd respondent were not available for the period from 18/7/1998 and regard being had to the letter Ex.W4 recording job satisfaction for the period from 1/6/1980 to 30/5/1991, coupled with Ex.W5, the receipt of the petitioner for having paid wages for 3 months from 2/2/1998 to 30/4/1998 and Ex.W6, an extract of the salary register for the year 1990, while Ex.W7, the extract of the salary paid for the month February 1994 and Ex.W8, the recommendation dt. 24/9/1996 of the Taluk Social Welfare Officer, Mysore and Ex.W10, the letter dt. 18/7/1998 of the Taluk Social Welfare Officer addressed to the District Social Welfare Officer stating that the 2nd respondent W.P.12389/09 & Misc.W.11777/09
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who was working on wages of Rs.500/- for the period from 1/4/1990 to 1995, be reappointed, the Labour Court accepted the evidence as credible evidence. Labour Court noticed Ex.M18, the letter dt. 23/9/1996 of the Principal Government P.U. College, Hunsur, addressed to the Taluk Social Welfare Officer recommending that the 2nd respondent be appointed as a cook and regard being had to Ex.W19(a) to 19(h) being the receipts for payment of wages on different dates, concluded that there was some evidence to establish that the 2nd respondent worked in the petitioner- establishment continuously for a period of 240 days in a period of 12 months immediately preceding the refusal of employment. Labour Court, by the award impugned, directed reinstatement along with 50% backwages from 2/5/1998.
7. The question of fact as to whether the 2nd respondent worked continuously for 240 days in a W.P.12389/09 & Misc.W.11777/09
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period of 12 months immediately preceding the refusal of employment, is answered by the Labour Court, a fact finding court, based upon the evidence, both oral and documentary, which is not shown to suffer from any legal infirmities. Hence no exception can be taken to the reasons, findings and conclusions arrived at by the Labour Court in the award impugned, insofar as it relates to the aforesaid fact. This court while exercising supervisory jurisdiction under Art.227 of the Constitution of India, does not sit as a court of appeal to re-appreciate and revaluate the evidence marshaled before the Labour Court. In that view of the matter, it cannot but be said that there was some evidence let in by the 2nd respondent-workman to sustain his claim that he was engaged as a daily wager during the period from 1990 to 1996 and discharged duties as a cook in the Boys Hostel under the control of the petitioner - Zilla Panchayat.
W.P.12389/09& Misc.W.11777/09
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8. It is nodoubt true that a daily wager is not entitled to reinstatement, but his name could be put on the muster rolls or the daily wagers list so as to continue in the employment and hence the question of reinstatement does not arise. Sequentially it is also well settled law that there is no question of payment of backwages for a daily wager since backwages would arise only if the daily wager had discharged duties as and when assigned to him and on the date so assigned and not otherwise. In that view of the matter, the direction to reinstate the 2nd respondent and pay backwages at 50% from 2/5/1998 till reinstatement, calls for interference.
9. In MADHYAMIK SIKSHA PARISHAD, U.P VS. ANIL KUMAR MISHRA AND OTHERS2, a three Judges Bench observed thus:
"4. We are unable to uphold the order of the High Court. There were no sanctioned posts 2 AIR 1994 SC 1638 W.P.12389/09 & Misc.W.11777/09
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in existence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It is difficult to envisage for them, the status of workmen on the analogy of the provisions of Industrial Disputes Act, 1947, importing the incidents of completion of 240 days' work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947 are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days' work does not, under that law import the right to regularization. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged form here."
10. In HARYANA STATE ELECTRONICS DEVELOPMENT CORPORATION VS. MAMNI3 the Apex Court having noticed that the workman was initially appointed for 89 days and thereafter extended from time to time, was 3 (2006)9 SCC 434 W.P.12389/09 & Misc.W.11777/09
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terminated on 7.8.1992, observed that said appointment was an irregular, not in terms of the recruitment rules, having regard to the Constitution Bench decision in SECRETARY, STATE OF KARNATAKA VS. UMADEVI (3) AND OTHERS4, directed compensation of Rs.25,000/- instead of reinstatement and back wages.
11. In INDIAN DRUGS & PHARMACEUTICALS LIMITED VS. WORKMEN, INDIAN DRUGS & PHARMACEUTICALS LIMITED5 at paragraphs 20, 23, 24, 26, 27, 31, 34 and 53, the Apex Court brought about a distinction between a temporary employee and permanent employee. In that the term 'permanent employee' has a right to the post, while a 'temporary employee' has no right to the post and further that the permanent employee has a right to continue in service until the age of superannuation but as regards temporary employee there is no age of superannuation because he has no 4 (2006)4 SCC 1 5 (2007) 1 SCC 408 W.P.12389/09 & Misc.W.11777/09
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right to the post at all and therefore, no directions can be issued in case of any temporary employee that he should be continued till the age of superannuation, while similarly no direction could be given that the daily wage employee should be paid salary of a regular employee. Further that if an employee is not appointed against a sanctioned post he is not entitled to any scale of pay.
The Apex Court held that Courts cannot direct continuance of service in case of non-regular appointee even if an ad hoc or casual appointment is made in some contingency the same should not be continued for long, since a casual or temporary employee is not employed to the post, in the real sense of the term.
Their lordships further observed thus:
"The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the W.P.12389/09 & Misc.W.11777/09
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jettisoning of the procedure established by law for public employment."
It was further observed that unless appointments are made by following the rules, such appointees have no right of absorption in the establishment.
In addition their lordships held thus:
"Orders for creation of posts, appointment on these posts, regularization, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case. The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional but it is also fraught with grave peril for the judiciary."W.P.12389/09 & Misc.W.11777/09
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At paragraph 16 their lordships observed thus:
"The Labour Court and the High Court have passed their orders on the basis of emotions and sympathies, but cases in Court have to be decided on legal principles and not on the basis of emotions and sympathies."
12. In JAIPUR DEVELOPMENT AUTHORITY VS. RAM SAHAI6 the Apex Court observed thus:
"28. We would, therefore, proceed on the basis that there had been a violation of Sections 25-G and 25-H of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an Award of re- instatement with entire back wages. This Court time and again has held that the jurisdiction under Section 11-A must be exercised judiciously. The workman must be employed by a State within the meaning of Article 12 of the Constitution of India, having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of 6 2007(1) LLJ 429 W.P.12389/09 & Misc.W.11777/09
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the rules for recruitment framed by it. Respondent had not regularly served Appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be sub-served if instead and in place of re- instatement of his services, a sum of Rs.75,000/- is awarded to Respondent by way of compensation as has been done by this Court in a number of its judgments. (See State of Rahasthan and Another -v- Ghyam Chand 2007-I-LLJ-228 (Civil Appeal No.3214/2006, disposed of on July 28, 2006)"
13. In STATE OF MADHYA PRADESH VS. LALIT KUMAR VERMA7 the Apex Court held thus:
"20. The decision to implement the judgment was evidently subject to the decision of this 7 (2007)1 SCC 575 W.P.12389/09 & Misc.W.11777/09
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Court. But, the Special Leave Petition is barred by limitation. The question, inter alia, which arises for consideration before us is as to whether we should condone the delay or allow the respondent to continue to occupy the permanent post.
21. The legal position somehow was uncertain before the decision rendered by the Constitution Bench of this Court in Uma Devi (supra). It has categorically been stated before us that there was no vacant post in the department in which the respondent could be reinstated. The State had also adopted a policy decision regarding regularisation. The said policy decision has also no application in the case of the respondent. Even otherwise, it would be unconstitutional being hit by Article 16 of the Constitution of India.
22. Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the interest of justice would be sub-served if we direct that any benefit which has already been given to the respondent shall not be recovered. He is also directed to be paid a sum W.P.12389/09 & Misc.W.11777/09
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of Rs.1,50,000/- (One lakh fifty thousand) towards compensation and costs for condoning the massive delay in filing the Special Leave Petition."
Regard being had to the facts obtaining therein, the workman was appointed on daily wages and not in terms of statutory rules, while no offer of appointment was also issued, however, on an application made by him before the Labour Court, an award was made, it was observed that working continuously for a period of more than six months did not secure to the workman a right of permanent clerk but his services may not have been terminated without complying the provisions of Section 25-F of the ID Act, regard being had to Umadevi's case (supra), hence the Apex Court directed Rs.1,50,000/- as compensation in lieu of reinstatement and back wages.
W.P.12389/09& Misc.W.11777/09
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14. In JAGBIR SINGH VS. HARYANA STATE AGRICULTURE MARKETING BOARD AND ANOTHER8, the Apex Court following a line of decisions observed that the Court had clearly laid down that an order of retrenchment passed in violation of Section 25F although may be set aside, but an award of reinstatement should not, however, be automatically passed and that it was not proper to award reinstatement with full back wages in case workman has completed 240 days in a year preceding the date of termination, particularly daily wagers. In addition, it was observed that a distinction between a daily wager is he does not hold a post which a permanent employee holds and accordingly, directed payment of compensation of Rs.50,000/- to the workman who was intermittently engaged from 1.9.1995 to 18.7.1996. 8 AIR 2009 SC 3004 W.P.12389/09 & Misc.W.11777/09
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15. In UTTAR PRADESH STATE ELECTRICITY BOARD VS. LAXMI KANT GUPTA9 the Apex Court held that there has been a shift in the legal position which has been modified by the Courts and therefore, there is no hard and fast principle that on the termination of service being found to be illegal, the common rule is reinstatement with back wages. Compensation can be awarded instead, at the discretion of the Labour Court, depending upon the facts and circumstances of the case. In the facts obtaining therein, the workman received more than Rs.7,00,000/- although he had worked only for two years between 1984 and 1986 as a purely temporary employee and had raised the Industrial Dispute 10 years after the termination of service and therefore, opined that the workman was sufficiently compensated.
16. In SENIOR SUPERINTENDENT TELEGRAPH (TRAFFIC), BHOPAL VS. SANTHOSH KUMAR SEAL AND 9 (2009)16 SCC 562 W.P.12389/09 & Misc.W.11777/09
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OTHERS10, the Apex Court having noticed the fact that workmen were engaged as daily wagers about 25 years ago, for hardly 2 or 3 years, denied the relief of reinstatement and directed compensation at the rate of Rs.40,000/- for each workman, in lieu of reinstatement.
17. The question as to whether an order of reinstatement automatically follows the case where engagement of a daily wager is brought to an end in violation of Section 25F of ID Act, came up for consideration before the Apex Court in INCHARGE OFFICER AND ANOTHER VS. SHANKAR SHETTY11 whence, following the opinion in a catena of decisions of the Apex Court including the decision in Jagbir's case, observed had rendered an answer uniform on the said question and regard being had to the facts of that case where the workman was engaged continuously for about 7 years, intermittently up to 6.9.1985 i.e., about 25 10 (2010) 6 SCC 773 11 (2010) 9 SCC 126 W.P.12389/09 & Misc.W.11777/09
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years ago, directed payment of compensation of Rs.1,00,000/- in lieu of reinstatement.
18. In RAJKUMAR VS. JALAGAON MUNICIPAL CORPORATION12 the Apex Court having noticed that the workmen were employed on daily wages or on temporary basis sometime during the year 1989 and terminated during the year 1991 approached the Labour Commissioner during 2001, directed compensation of Rs.1 lakh/- each for such of those workmen who approached the Conciliation Officer within two to three years from the date of termination in lieu of reinstatement and back wages.
19. Regard being had to the observations of the Apex Court noticed supra and there being no dispute that the 2nd respondent was a daily wager, the Labour Court was not justified in directing reinstatement with 50% backwages, however ends of justice would be met 12 (2013) 2 SCC 751 W.P.12389/09 & Misc.W.11777/09
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by directing the petitioner to pay Rs.1,00,000/- (Rupees One Lakh only) as compensation in lieu of reinstatement and backwages.
20. Petition is allowed in part. The award of the Labour Court is modified directing the petitioner to pay Rs.1,00,000/- to the 2nd respondent as compensation in lieu of reinstatement and backwages. Failure to comply with the award within 2 months, compensation will carry interest at 9% p.a. until payment.
Sd/-
JUDGE Rd/-